The Supreme Court has granted Catalin Petecel and Maria Petecel leave to appeal over the refusal of disability allowance to Catalin Petecel. The Court limited the appeal to two questions concerning the statutory appeals process and the EU categorisation of the payment. It did not decide whether the allowance is exportable or whether its categorisation is valid.
The application arose after a deciding officer refused the allowance in September 2016 because Catalin Petecel was not resident in the State. A review by another deciding officer found that he was not habitually resident and that disability allowance was a special non-contributory cash benefit under Regulation (EC) No 883/2004. The judgment says the Regulation lists disability allowance in Annex X, and section 210(9) of the Social Welfare Consolidation Act 2005 imposes a habitual residence condition.
The High Court dismissed the judicial review claim without deciding its substantive issues. It held that the applicants had not exhausted the statutory remedies, which included an appeal to an appeals officer and a review by the Chief Appeals Officer. The Court of Appeal upheld that decision, concluding that points of law could reach the High Court through the statutory process and that the High Court could refer a question to the Court of Justice of the European Union.
At the Supreme Court leave hearing, the case had narrowed to whether disability allowance was wrongly categorised in Annex X and could therefore be treated as exportable. Counsel accepted that Catalin Petecel had no right of residence in the State. The respondents said he could have appealed the original refusal within 21 days, while noting that acceptance of a late appeal had not been considered. They also said the Chief Appeals Officer could refer a question of law to the High Court.
The Supreme Court held that the applicants had raised a point of law of general public importance. It rejected as not viable the broader proposition that complex legal issues alone excuse a person from exhausting statutory remedies.
The first permitted question is whether the appeals process’s alleged lack of power to grant any remedy for an allegedly invalid categorisation creates an exception to the usual requirement to exhaust statutory remedies before seeking judicial review. If the answer is yes, the second question is whether the Supreme Court should refer the substantive validity issue to the Court of Justice rather than send it back to the High Court. The Court said that question would require argument on the merits of the categorisation and whether a referral is appropriate when the High Court has not considered the substantive issue.
The ruling grants leave only. It makes no finding on the validity of the categorisation or the applicants’ underlying entitlement.