The Supreme Court held that a Romanian national could pursue judicial review of the refusal of his disability allowance application, despite not first using the statutory appeals process. The Court found that the process could not provide the remedy he sought on the central issue: whether the allowance had been wrongly classified under EU law as a non-exportable special non-contributory benefit.
The judgment, delivered by Ms Justice Iseult O’Malley on 14 May 2020, concerned an application refused in November 2016 because the appellant was not resident in Ireland. He had lived and worked in Ireland from 2008 to 2011, then returned to Romania after being diagnosed with multiple sclerosis. His mother acted as his legal guardian. The appellant had initially also challenged the Department’s finding that he did not satisfy the habitual residence condition, but withdrew that argument when seeking leave to appeal to the Supreme Court.
The appellant argued that disability allowance should instead be treated as a sickness or invalidity benefit under Regulation 883/2004 and so be payable to him while resident in Romania. The Minister and Attorney General submitted that it was correctly listed in Annex X as a special non-contributory cash benefit intended to provide minimum subsistence income. The High Court and Court of Appeal had dismissed the judicial review claim without deciding the substantive classification issue, finding that the appellant should first use the statutory process.
The Supreme Court concluded that Departmental decision-makers could not declare an EU measure invalid or refer a question to the Court of Justice of the European Union. It also found that a High Court appeal on a point of law would not provide a suitable route to contest the classification: the Departmental decision addressed habitual residence, not the validity of the EU classification. The Court held that this case fell within an exception to the usual requirement to exhaust statutory remedies and that the appellant was entitled to bring judicial review proceedings.
The Court did not decide whether the classification was valid, whether disability allowance is exportable, or whether the appellant is entitled to payment. It identified two features that might bear on the classification: the former restriction allowing an earnings disregard only for rehabilitative work, and disqualification rules linked to a claimant’s health and recovery. Since the parties had not debated those points, the Court proposed inviting further submissions on them. The judgment records that proposal; it does not make a final classification ruling or order the allowance to be paid.