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Appropriate to seek judicial review of refusal of disability allowance where appeal would have achieved same result

By: Mark Tottenham BL

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Supreme Court allows appeal from Court of Appeal, and: (a) determines that judicial review was an available option where disability benefit had been refused for a Romanian national who worked in the State from 2008-11 but then developed multiple sclerosis and returned to live in Romania where he required 24-hour care, on the grounds that, if the applicant had proceeded with an appeal, the same result would have been obtained and judicial review was arguably necessary to obtain a reference on the issue to the Court of Justice of the European Union (CJEU); and (b) invites the parties to make further submissions on the relevant issues by reference to CJEU jurisprudence in order to decide whether it was necessary to make a reference to the Court or to remit the matter to the High Court.

O'Malley J (nem diss): Judicial review - refusal of disability allowance - claim by Romanian national who had contracted a grave illness - need for constant care - failure to exhaust statutory appeal process - whether Irish disability allowance incorrectly classified in relevant European Union instrument - Regulation 883/2004 - whether payment 'exportable' - whether payable to a person resident outside the State - reference to Court of Justice of EU - whether applicant satisfied habitual residence condition - Social Welfare Consolidation Act 2005 - disability allowance - criteria for eligibility - S.I. 142/2007 - classification of disability allowance - whether allowance concerned one of the risks in Article 3 of the Regulations - social welfare decisions and appeals - applicant worked in State between 2008 and 2011 - diagnosed with multiple sclerosis - returned to Romania - need for 24-hour care- refusal of disability on the grounds that he was no longer habitually resident in the State - whether Chief Appeals Officer had power to make a preliminary reference to the CJEU - whether cases involving complex issues of EU law were a separate category that constituted an exception to the obligation to exhaust the statutory appeals process - leave to appeal - whether court should refer classification issue to the CJEU - whether classification issue was acte claire.

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