The High Court dismissed Cătălin Petecel’s judicial review application over the refusal of disability allowance, holding that he should first use the social welfare appeals process. The court did not decide whether he was entitled to the allowance or resolve the legal issues raised in his application.
Petecel, suing through his legal guardian, Maria Petecel, applied for disability allowance on 15 September 2016. The application was refused on 7 November 2016 on the stated ground that he was not resident in Ireland. He sought a review under the Social Welfare Consolidation Act 2005, and a decision on 9 June 2017 found him ineligible.
The High Court had granted him leave to seek judicial review of that decision on 17 July 2017. His application also sought declaratory relief and a reference to the Court of Justice of the European Union on questions of EU law.
Mr Justice Max Barrett said the court would not consider the issues at that stage because Petecel had not exhausted the alternative remedies available under the 2005 Act. The statutory process allows an appeal to an appeals officer, who conducts a full rehearing. The Chief Appeals Officer can revise an appeals officer’s decision for an error of law or fact, and a further appeal to the High Court is available on a question of law. The Act also allows the Chief Appeals Officer to refer certain questions to the High Court.
Petecel’s counsel argued that the legal issues were weighty and that the case would ultimately reach the High Court. The judge said that was not a reason to bypass the process Parliament had established. He also noted counsel’s submission that the Chief Appeals Officer could not make preliminary references to the EU court. The judgment records that this question was being addressed in a separate, recently commenced judicial review case; it did not decide the point. The judge considered that the appeals process could still bring the High Court into the matter, where a reference might be made if appropriate.
The judge described the application as honestly motivated and brought, but said no good reason had been given for bypassing the appeal framework. He dismissed the judicial review application as the appropriate course, without ruling on the underlying eligibility decision or the substantive EU law questions.