A Romanian man who lived in Ireland for 3½ years before being diagnosed with multiple sclerosis has lost his appeal over being refused disability allowance here.
The man is now seriously ill with MS, needs 24-hour care, is physically unresponsive and has been cared for by his mother in Romania for six years now.
He came here in April 2008 and worked here from May 2008 until July 2011, after which he enrolled in a college course from which he was withdrawn in October 2011. He travelled to Romania the following month for medical treatment and was diagnosed with MS while there.
He came back to Ireland but, because he was unable to access medical treatment here, again returned to Romania in April 2012.
His condition deteriorated and he remains seriously ill there.
His mother was appointed his legal guardian in October 2015 and an application for disability allowance was made to the Irish authorities in September 2016 but was refused on grounds the man was not habitually resident here.
The man sought a review by the Minister for Social Protection, but the review upheld the refusal.
During that review, he argued he had not transferred his habitual residence to Romania and his absences from the State were for medical treatment which, he argued, was permitted under the relevant regulations.
Incorrectly categorised
He also argued that disability allowance is incorrectly categorised here under a 2004 regulation as a special non-contributory cash benefit rather than a sickness benefit.
The significance of that distinction is that, if classified as a sickness benefit, it would be exportable and payable to the man in Romania.
Through his mother, the man then sought judicial review of the Minister’s refusal.
He lost in the High Court which found he had not exhausted alternative remedies as provided for under the appeals mechanism set out in the Social Welfare Consolidation Act 2005.
Mr Justice Max Barrett said, in the context of that appeals process, the man had an adequate alternative remedy that could properly consider all of the issues raised by him, including a facility for referral of issues to the High Court.
On Wednesday, the man’s appeal over that decision was rejected by a three-judge Court of Appeal.
Statutory appeals mechanism
Giving that court’s judgment, Ms Justice Caroline Costello dismissed arguments that judicial review is the appropriate remedy in cases involving complex issues of European law and that they constitute exceptions to a litigant’s obligation to exhaust a statutory appeals mechanism before seeking judicial review.
She also rejected arguments the case raised such complex matters of European law that it was appropriate to seek judicial review before exhausting the social welfare appeals procedure.
She did not accept the superior courts here have “generally accepted” that complex matters pertaining to interaction of European and national law are more appropriately dealt with by the court than by the social welfare appeals office.
The latter scheme is capable of dealing with the legal issues the man sought to raise, if necessary by references to the High Court or, thereafter, by a reference to the Court of Justice of the EU, she said.
There was no error in how the High Court exercised its discretion in this case, she concluded.
