Irish Supreme Court grants leave to appeal ruling that statutory remedies should have been exhausted prior to seeking judicial review

The Irish Supreme Court has granted leave to appeal a ruling that statutory remedies should have been exhausted prior to seeking judicial review in a case concerning an application for disability allowance.

Mr. Petecel, a Romanian national, lived and worked in Ireland from 2008 to 2011. He was diagnosed with multiple sclerosis in Romania in 2011, and while he returned to Ireland for a short period in 2012, he has remained in Romania for his medical care. An application was made for disability allowance in 2016, which was refused on the basis that the man was not resident in the State.

Mr Petecel sought a review by another Deciding Officer asserting that, while he was absent from the State in order to access medical care, he was still habitually resident in Ireland. It was further argued that under EU Law disability was a ‘sickness benefit’ and therefore ‘exportable’, allowing Mr. Petecel to be paid outside the State. Both of these arguments were rejected by the Deciding Officer, who categorised the payment as a ‘special non-contributory cash benefit’ which is not exportable for the purposes of EU Law.

Mr. Petecel sought judicial review of the decision in the High Court, and reference to the Court of Justice of the European Union for clarification of EU Law. The High Court refused to consider the substantive issues raised in the case as the applicant had failed to exhaust all alternative remedies i.e. appeal to an Appeals Officer and to the Chief Appeals Officer. The High Court acknowledged that the application was honestly brought in the belief that the remedy sought could not be obtained through the statutory appeals process. The Court of Appeal also found the High Court had not erred in the exercise of its discretion.

In seeking leave to appeal to the Supreme Court, Mr. Petecel accepted that he did not have a right of residence in the State, therefore the question before the court was the exportability of disability allowance. Ms Justice Iseult O’Malley agreed that the case raised points of law of general public important but did not accept that the obligation to exhaust remedies should not extent to cases involving complex issues of law.

Judge O’Malley granted leave limited to two questions. Firstly, whether the lack of jurisdiction within the statutory social welfare appeals process to grant any form of remedy in respect of the allegedly invalid categorisation of disability allowance gives rise to an exception to the general obligation to exhaust statutory remedies before seeking judicial review. If the answer to this is yes, then Judge O’Malley was of the view that the Supreme Court should refer a question to the Court of Justice on the substantive issue of validity rather than remitting the matter to the High Court.

Click here for the decision in Petecel v Minister for Social Protection.



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