Supreme Court to hear appeal by seriously ill Romanian man following refusal of disability benefit

The Supreme Court has agreed to hear an appeal by a Romanian man, who lived here legally for three years before being diagnosed with Multiple Sclerosis, over the Department of Social Protection's refusal to pay him disability benefit on his return to Romania.

He is now seriously ill, physically unresponsive and is being cared for by his mother.

The man came here in April 2008 and worked here from May 2008 until July 2011 after which he enrolled in a college course from which he was withdrawn in October 2011.

He travelled to Romania the following month for medical treatment and was diagnosed with MS while there.

He came back to Ireland but, because he was unable to access medical treatment here, again returned to Romania in April 2012. His condition deteriorated and he now requires 24-hour care.

His mother was appointed his legal guardian in October 2015 and an application for disability allowance was made here in September 2016 but was refused on grounds the man was not habitually resident here.

A review by the Minister for Social Protection upheld the refusal.

During that review, the man argued he had not transferred his habitual residence to Romania and his absences from the State were for medical treatment which, he argued, was permitted under the relevant regulations.

He also argued disability allowance here is incorrectly categorised under a 2004 EC regulation as a special non-contributory cash benefit rather than a sickness benefit.

If classified as a sickness benefit, it would be exportable and payable to the man in Romania.

Through his mother, the man had sought judicial review of the Minister’s refusal but they lost in the High Court and Court of Appeal. Both courts said the man should not have sought judicial review when he had not fully used the appeal procedures under the Social Welfare Consolidation Act 2005.

The applicants, represented by Derek Shortall BL, asked the Supreme Court to hear a further appeal.

Giving the Supreme Court decision today agreeing to hear an appeal, Ms Justice Iseult O'Malley said the 2004 regulation deals with the circumstances in which certain types of social security payments may be exportable.

Annex X of the regulation lists a number of payments described as "special non-contributory cash benefits" which are specific to individual EU member states and in respect of which a State may impose a habitual residence condition.

Disability allowance is listed in Annex X and section 210 of the 2005 Act imposes a habitual residence condition.

The case now centred on the issue of exportability of the payment which in turn depends on the validity of its categorisation in the regulation, the judge said.

This raised a point of law of general public importance entitling the man to an appeal, she said.

The appeal will consider whether the lack of jurisdiction within the 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 that question is yes, the Supreme Court will consider whether it should refer a question to the Court of Justice of the EU concerning the validity of the 2004 regulation.

A date for the appeal will be fixed later.