The High Court has directed that Adrian Slabu and the State each bear their own legal costs as his constitutional challenge concerning a disability allowance dispute is struck out.
Mr Justice Garrett Simons ruled on May 12 that Slabu could not be regarded as successful in the judicial review proceedings, which challenged sections 327 and 327A of the Social Welfare Consolidation Act 2005. However, the judge found it would be unfair to order him to pay the State's costs because unclear legislative drafting and the position previously taken by State respondents had made the jurisdictional dispute unavoidable.
The case arose after the Department of Social Protection discontinued Slabu's disability allowance for a period of months on the basis that he had ceased to be habitually resident in Ireland. Slabu maintains that his absence was temporary and solely to obtain medical treatment not readily available in the State.
His constitutional challenge proceeded on the assumption that he could not appeal to the High Court after the Chief Appeals Officer affirmed an earlier decision rather than changing it. Both Slabu and the State respondents had understood the legislation that way.
That position was overtaken by the Supreme Court's March 25 judgment in Amariei v Chief Appeals Officer, which held that the statutory right of appeal applies whether or not the Chief Appeals Officer changes the original outcome.
Mr Justice Simons said this meant Slabu's constitutional equality challenge was bound to fail because the supposed difference between his appeal rights and those of the Minister for Social Protection did not exist. The proceedings were therefore not technically "moot"; instead, the legal answer had become clear.
The ruling settles only the constitutional challenge and its costs. The validity of the Chief Appeals Officer's underlying decision remains open and will now be determined in Slabu's separate statutory appeal to the High Court. Each side must bear its own costs, including the May 5 costs hearing.