Supreme Court: Man granted leave to appeal ruling that he should have exhausted statutory remedies prior to seeking judicial review

A man with multiple sclerosis whose application for disability allowance was refused on the basis that he was not resident in the State has been granted leave to appeal to the Supreme Court.

The High Court refused to consider the substantive issues raised by the man in his application for judicial review on the basis that he had not exhausted the statutory appeals process, and the Court of Appeal agreed.

In granting leave to appeal, Ms Justice Iseult O’Malley identified a point of general public importance in that the lack of jurisdiction within the statutory appeals process to grant the relief sought may give rise to an exception to the obligation to exhaust statutory remedies.


Catalin Petecel, a Romanian national, lawfully resided and worked in the State between 2008 and 2011.

In 2011, Mr Petecel travelled to Romania where he was diagnosed with multiple sclerosis. He returned to Ireland in February 2012, but being unable to access the medical treatment he required, Mr Petecel returned to Romania in April 2012. Mr Petecel’s condition deteriorated very severely, to the point that he is physically unresponsive and requires 24-hour care.

In 2016, Mr Petecel made an application for disability allowance under the Social Welfare Consolidation Act 2005, which was refused on the basis that Mr Petecel was not resident in the State. Mr Petecel’s advisors took the position that Mr Petecel was habitually resident in the State (in that his absences from the State were for medical treatment), and contended that disability allowance was, under the relevant European Union Regulation, a “sickness benefit” and as such should be considered “exportable” – i.e. payable to the applicant outside the State.

Pursuant to section 301 of the Social Welfare Consolidation Act 2005, Mr Petecel sought a review of the decision by another deciding officer. This review resulted in a decision that Mr Petecel was not habitually resident in the State, and also that disability allowance was not exportable because it was categorised as a “special non-contributory cash benefit” under Regulation (EC) No 883/2004 on the coordination of social security systems.

Regulation 883/2004 deals with the circumstances in which certain types of social security payments may be exportable. Annex X of the Regulation lists a number of special non-contributory cash benefits, specific to individual Member States and in respect of which a State may impose a habitual residence condition.

Disability allowance is listed in Annex X, and s.210(9) of the Social Welfare Consolidation Act 2005 imposes a habitual residence condition. A person cannot be considered to be habitually resident if he or she does not have a legal right to reside.

Application for judicial review

In the High Court in May 2018, Mr Petecel sought declaratory relief and a reference to the Court of Justice of the European Union under Article 267 TFEU regarding questions of EU law.

Mr Justice Max Barrett declined to consider any of the issues Mr Petecel raised in his application on the basis that he failed to exhausted alternative remedies – namely the appeal mechanisms under the Social Welfare Consolidation Act 2005.

Mr Justice Barrett acknowledged that the application was both honestly motivated and honestly brought, but said that if Mr Petecel were allowed to side-step the appeals process, this would place Mr Petecel unfairly ahead of those going through the statutory appeals process and not rushed to court, and would encourage those who are less honest than Mr Petecel and his legal team to contrive at points of law that would see their cases sidestep the established appeals process and frustrate the objectives of the Oireachtas in establishing the same.

In the Court of Appeal in February 2019, Mr Petecel argued that he could not be required to exhaust the statutory appeal processes when the remedy he sought was not available under that process.

Ms Justice Caroline Costello did not accept that it was “a statement of principle that judicial review is the appropriate remedy in cases involving complex issues of European law and that they constitute exceptions to the obligation on a litigant to exhaust a statutory appeals mechanism before seeking judicial review”. Finding no error in the manner in which Mr Justice Barrett exercised his discretion, Ms Justice Costello refused the appeal.

Application for leave to the Supreme Court

In seeking leave to appeal to the Supreme Court, counsel for Mr Petecel accepted that Mr Petecel did not have a right of residence in the State. As such, the case came down to the issue of exportability of the payment, which in turn depended on the validity of its categorisation in Regulation 883/2004. It was argued that since the appeals officers are bound to accept the validity of the categorisation, they do not have jurisdiction to grant any form of relief – therefore it was submitted that an exception of the type discussed in EMI Records (Ireland) Ltd. & Ors v The Data Protection Commissioner [2013] 2 IR 669 arose.

It was also maintained that regardless of the jurisdictional issue, it was appropriate to seek judicial review in social welfare cases involving complex questions of EU law.

Ms Justice O’Malley did not accept that the obligation to exhaust remedies should not extend to cases involving complex issues of law, but she was satisfied that Mr Petecel raised a point of law of general public importance and granted leave limited to two questions.

  1. 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. 
  2. Whether if the answer to the first question is Yes, 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.
  • by Seosamh Gráinséir for Irish Legal News
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