Man not entitled to be paid disability allowance after return to Romania

A seriously ill Romanian man has lost his Supreme Court appeal over the Department of Social Protection's refusal to pay him disability allowance after he returned to his native country.

The five judge court rejected the man’s claim that the classification of the allowance as a special non-contributory cash allowance included in a 2004 EC regulation, rather than a sickness benefit, is invalid under European law.

The 2004 regulation deals with the circumstances in which certain types of social security payments may be exportable.

Having found the allowance was correctly classified as a non-contributory cash allowance, the Supreme Court agreed with the State the allowance is not governable by the rules relating to exportability of benefits and the Department is entitled to impose a habitual residence condition on payment of it.

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

The man worked here legally from May 2008 until July 2011 after which he enrolled in a college course from which he was withdrawn in October 2011.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 a month later for medical treatment and was diagnosed with multiple sclerosis there.

He came back to Ireland but, because he could not access medical treatment here, returned to Romania in April 2012. He now requires 24 hour care which is provided by his mother.

Earlier judgments by the High Court and Court of Appeal on his case had found he was not entitled to judicial review of the Department's refusal because he had not fully used the appeal procedures under the Social Welfare Consolidation Act 2005.

In light of that finding, neither court addressed the issue of the categorisation of disability allowance.

Last May, the Supreme Court ruled the man was entitled to pursue judicial review.

It said the lack of jurisdiction within the social welfare appeals process to grant any form of remedy in respect of the categorisation of disability allowance gave rise to an exception to the general obligation to exhaust statutory remedies before seeking judicial review.

The court deferred a final decision on the appeal pending a consideration of submissions on the allowance categorisation.

In its final judgment on Wednesday, delivered by Ms Justice Iseult O’Malley, the court dismissed the appeal.

The judge noted disability allowance is a non-contributory means tested payment that covers persons whose capacity for work is restricted to the extent described in the Social Welfare Act 2005, as amended, but who do not have sufficient contributions to qualify for invalidity benefit.

The question in this case was whether the allowance is appropriately classified as a special non-contributory cash payment within the meaning of Article 70(2) of the 2004 Regulation.

Answering that question involved starting with the purpose of the disability payment, which was to improve the quality of life only in the sense it is intended to protect against poverty. The purpose was not of improving health, save insofar as health may be endangered by poverty.

The payment involved no element of assistance with recovery from the disability or with any particular need created by the disability.

She accepted the State’s case that medical examinations provided for in connection with the payment are designed primarily as a “control mechanism” to ensure initial and ongoing eligibility and do not confer a right to medical care or treatment.

For those and other reasons, and having considered the case law of the Court of Justice of the EU, she was satisfied disability allowance has been correctly classified as a special non-contributory cash allowance.

That allowance is not governable by the rules relating to exportability of benefits and the Department is entitled to impose a habitual residence condition on it, she ruled.

She also declined to refer any question to the CJEU as to the validity of the allowance’s inclusion in an annex of the 2004 regulation.