State wrong to refuse Romanian woman’s disability allowance - EU court

The Irish authorities were wrong to refuse an application for Disability Allowance by a Romanian woman who moved to Ireland in 2017 to join her daughter on the grounds she would place an unreasonable burden on the State’s social welfare system, according to a preliminary finding by an EU court.

An opinion by an advocate general of the Court of Justice of the EU stated the mother of an EU mobile worker can claim a social benefit under EU legislation without it calling into question her right of residence in a member state.

“The principle of equal treatment does not allow such a relative to be considered an unreasonable burden on the social assistance system of the State of residence,” said advocate general, Tamara Capeta.

The case had been referred to the CJEU by the Court of Appeal in Dublin as it raised issues of EU law.

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It had sought clarity on whether EU legislation prevented a member state from limiting access to a social welfare payment to dependents of an EU worker where access to the benefit meant they would no longer be a dependent or would make them an unreasonable burden on Ireland’s social welfare system.

The woman had applied for Disability Allowance in September 2017 as she suffered degenerative changes in her arthritis.

The claimant, known only as GV, said she was lawfully resident in Ireland as the dependent parent of an EU citizen worker.

The woman, who is separated, claims she has been financially dependent on her daughter, who is a naturalised Irish citizen, for over 15 years and moved between Ireland, Romania and Spain between 2011 and 2016 before returning to Ireland in 2017 where she had stayed ever since.

Her initial application was refused in February 2018, while an appeal was also rejected 12 months later by the Social Welfare Appeal Office on the basis she did not have a right of residence in Ireland.

However, the Chief Appeals Officer subsequently ruled she had a right to residence in Ireland for as long as she did not become an unreasonable burden on the State’s social assistance system.

Lawyers for the Minister for Employment Affairs and Social Protection claimed GV’s dependency on her daughter would no longer exist if she was awarded Disability Allowance and therefore she could no longer enjoy a derived right of residence.

They claim the EU Citizenship Directive does not prevent EU member states from limiting access to social welfare payments.

However, Ms Capeta said the CJEU should embrace a broad concept of dependency which meant GV might still fulfil the requirement of dependency on which her right of residency in Ireland was based even if she no longer needed the financial support of her daughter.

“For that reason, the member state award of financial support does not terminate the dependency of the support person,” the advocate general stated.

Ms Capeta said EU member states cannot refuse access to special non-contributory social welfare benefits to dependent relatives of EU mobile workers on the grounds they represent an unreasonable burden on its social assistance system.

Although the advocate general’s opinion is not legally binding on the ruling of the CJEU, it is followed in a large majority of cases.