The High Court has stayed a judicial review brought by Lisa Kelly over which country’s social security rules should govern her illness benefit claim, and referred two questions to the Court of Justice of the European Union for a preliminary ruling.
Mr Justice Hogan said the case raised a question not previously directly considered by the Court of Justice after changes to EU rules. He did not decide whether Irish or UK law governed Ms Kelly’s claim. The judgment says the judge would hear counsel on the form of orders proposed.
Ms Kelly, an Irish citizen resident in Dundalk, had worked in Ireland before taking a marketing manager job with Newry City Football Club in Northern Ireland from June to October 2010. She became ill at the end of October. The Minister for Social Protection paid her illness benefit from November 2010 until August 2011, when payments were suspended.
The Minister said those payments had been made in error and transferred her claim to the Northern Ireland authorities because her last employment was there. The judgment records the Minister’s position that Ms Kelly had answered “no” to a question on her application about working outside the State. A suggestion that the payments be recovered was no longer being pursued. From November 2011, she received Supplementary Welfare Allowance from Irish authorities, which the judgment says is not covered by the EU regulation at issue.
The Northern Ireland Department of Work and Pensions told an Irish department official in October 2012 that Ms Kelly did not meet the contribution conditions for UK employment and support allowance. The judgment explains that the Irish and Northern Irish schemes used different contribution periods, and says she would have qualified under the Irish rules if her claim were governed by them.
The Minister argued that the EU coordination rules pointed to the UK because Ms Kelly was employed there immediately before her illness. Her counsel argued that her longer periods of work in Ireland and her residence there established a closer link with Ireland.
Justice Hogan referred two questions: whether the claim should be governed by the law of the state where she last worked or the state where she lived, and whether it mattered that applying the law of the state where she last worked would leave her ineligible for social security payments. The referral leaves those questions, and the underlying benefit dispute, unresolved pending the Court of Justice’s ruling.