Wednesday 21 November 2018

Mother-of-two claims refusal to pay her welfare benefits breaches EU law

In refusing the benefits, Ireland had applied a
In refusing the benefits, Ireland had applied a "right to reside" test, the High Court heard

A Romanian mother-of-two claims the Department of Social Protection’s refusal to pay her various welfare benefits, including child benefit, breaches EU law.

In refusing the benefits, Ireland had applied a "right to reside" test, the High Court heard.

The European Commission has brought infringement proceedings against the UK over its application of that test, on which an opinion of the Advocate General of the Court of Justice of the EU due in September, Ms Justice Iseult O'Malley was told.

The Department opposes the woman's case and says it was significant she had not, in her benefit applications, a right to reside here. 

Several decisions of the Irish and European courts support the Department's application of the right to reside test, it argues.

EU member states have considerable discretion relating to payment of social assistance, it is also argued.

The woman, a member of the Roma community, says she came here in 2008 "in an effort to escape the cycle of poverty and discrimination which I lived with in Romania and to create a better life for myself and my children".

She has survived to date by selling the Big Issue, begging and on charity food vouchers, she said.

Her difficulties trying to survive in very difficult housing conditions were recognised by the HSE but, apart from some exceptional needs payments, she had received no welfare benefits.

Her family fled their home, "such as it was", in Waterford last year when "angry gangs" of up to one hundred people protested outside, smashed windows and kicked in the front door, she said.

Her children, then attending primary and pre-school, were "terrified".

She applied for Supplementary Welfare Allowance, Jobseeker's Allowance and child benefit on various dates last year but was refused.

Derek Shorthall BL, for the woman, argued Ireland was not entitled to refuse benefits to the woman, an EU national, on foot of application of a test based on whether she has a right to reside in the State under the 2006 EC (Free Movement of Persons) Regulations.

Depending on the payment at issue, EU law applies different tests, he submitted. 

The test for social assistance was whether payment of that would impose an unreasonable burden on the relevant member state, plus a proportionality test, he said. 

The correct test for child benefit was whether or not the claimant was habitually resident within the relevant member state.

When considering eligibility for benefits, both the UK and Ireland first apply the “right to reside” test before moving on to consider the “habitual residence” condition and that is contrary to EU law, counsel argued.

The right to reside test was a “blunt instrument” being applied irrespective of the purpose of a benefit payment.

Because the woman’s partner has in the last few weeks secured employment, with the effect she now has a right to reside, her claim is confined to an entitlement to retrospective payments but the core issue remains, counsel added.

In affidavits for the Department, it was stated the benefits were refused because the woman did not satisfy the habitual residence legal pre-condition for payment of such benefits.

The woman had not established she had a right to reside here under the relevant EC regulations, it said.

The case continues.

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