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Case Studies » Sickness » Disability Allowance - Case from 2018 Annual Report (ref: 2018/22)

Background: The appellant, a third country national in his 20s, came to Ireland with his mother, and lives with her and his step-father. In connection with a claim for Disability Allowance, he completed Form HRC1. Details provided on the form indicated that he came to Ireland to live with his mother and step-father (a copy of their marriage certificate was enclosed); he was being supported by his step-father, who was in employment since early 2016; he had a social pension deposit account in the country where he had been living, and hoped to make his permanent home with his family in Ireland and to obtain employment suitable for a person with a disability.

The claim was disallowed on grounds that the appellant did not meet the medical qualifying criteria. He was deemed not be habitually resident in the State as he was held not to have demonstrated a right to reside in line with the European Communities (Free Movement of Persons) Regulations, 2015 (S.I. No. 548 of 2015). With reference to the five criteria provided for under Section 246 (4), it was held that the evidence in his case did not substantiate habitual residence.

In his appeal, the appellant submitted that he came to Ireland to join his family; he is disabled from childhood and he cannot live without his mother who is his carer; as a disabled person, he has a right under the Convention for the Rights of Persons with Disabilities (CRPD) to live with his mother who cares for him; he is in receipt of €110 per month from a disability pension, and his centre of interest is in Ireland as he needs to live with his family.

The appellant was granted temporary residency status while his step-father’s application for residency on his behalf (and that of his mother) was being processed with reference to the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015); ultimately, he was granted EUFAM Stamp 4 status. His claim was re-examined in light of a notification from the Irish Naturalisation and Immigration Service (INIS) in relation to the latter status. However, the Department concluded that this did not automatically mean entitlement to social welfare payments, and it was contended that the provisions of S.I. No. 548 of 2015 applied, in terms of the requirement to have sufficient resources not to become an unreasonable burden on the State.

Consideration: The Appeals Officer identified the governing legislation as Section 210 of the Social Welfare Consolidation Act 2005 which provides that Disability Allowance may be payable to a person who meets the qualifying criteria as to age, specified disability, and in the State. Section 246 of the 2005 Act sets out the provisions as to habitual residence, and the relevant provisions of EU law are outlined in the European Communities (Free Movement of Persons) Regulations, 2015 (S.I. No. 548 of 2015).

In relation to habitual residence, the Appeals Officer noted that Section 246 (4) provides that when determining whether a person is habitually resident in the State for purposes of the Act, all the circumstances of the case must be taken into account including, in particular, the following: the length and continuity of residence in the State or in any other particular country; the length and purpose of any absence from the State; the nature and pattern of the person’s employment; the person’s main centre of interest, and the future intentions of the person concerned as they appear from all the circumstances. Section 246 (5) provides that a person who does not have a right to reside in the State may not be regarded as being habitually resident in the State.

The Appeals Officer referred to the two stage process which involves establishing, in the first instance, whether a person may be held to have a right to reside in accordance with EU law and, secondly, determining whether that person may be deemed to be habitually resident with reference to the provisions of Section 246 (4). She noted that INIS advised the appellant that the Minister for Justice and Equality had decided to approve his application for a residence card under Regulation 7 of the Regulations (S.I. No. 548 of 2015) on the basis that he is a qualifying family member of a Union citizen who is residing in the State in exercise of their rights under the Directive (220/38/EC). Accordingly, she concluded that he may be held to have a right to reside in accordance with EU law. Moreover, she considered that the evidence served to establish that his main centre of interest is in the State and that he may be deemed to meet the habitual residence requirement for purposes of his claim.

In terms of the medical qualifying criteria, the Appeals Officer noted that the appellant has a diagnosis of Intellectual Disability and Congenital Adrenal Hyperplasia. Having assessed the evidence, including the medical history which referred to severe birth trauma and global developmental delay, details of prescribed medication, clinical findings, his expectation that the condition would continue indefinitely, she concluded that he may be deemed to meet the qualifying condition which applies in terms of a specified disability. Accordingly, she held that the qualifying criteria for receipt of Disability Allowance were met.

Outcome: Appeal allowed.