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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Kelly -v- The Minister for Social Protection [2013] IEHC 260 (29 May 2013) URL: http://www.bailii.org/ie/cases/IEHC/2013/H260.html Cite as: [2013] IEHC 260 |
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Judgment Title: Kelly -v- The Minister for Social Protection Neutral Citation: [2013] IEHC 260 High Court Record Number: 2012 681 JR Date of Delivery: 29/05/2013 Court: High Court Composition of Court: Judgment by: Hogan J. Status of Judgment: Approved |
Neutral Citation [2013] IEHC 260 THE HIGH COURT JUDICIAL REVIEW [2012 681 J.R.] BETWEEN LISA KELLY APPLICANT AND
THE MINISTER FOR SOCIAL PROTECTION RESPONDENT JUDGMENT of Mr. Justice Hogan delivered on the 29th May, 2013 1. The fact that the social security systems of the member states of the European Union have not been harmonised inevitably causes difficulties in the sphere of free movement of workers and non-discrimination on grounds of nationality. This is perhaps especially true so far as those who have frequently had occasion to exercise their free movement rights is concerned. Given these disparities, it is no surprise that the Union legislator has sought to devise a system of jurisdiction-allocating rules which seek to determine which Member State should entertain a particular social security claim. 2. The present set of rules – which, in truth, are a form of conflict of law rules operating in the sphere of social security law – are contained in Regulation 883/2004 EC (“the 2004 Regulation”). The 2004 Regulation itself replaces its predecessor Regulation 1408/71 EEC. As the 3rd Recital to the 2004 Regulation itself observes, the 1971 Regulation had itself been “amended and up-dated on numerous occasions” to take account of on-going development and a series of judgments of the Court of Justice. But, of course, as experience has shown, it is not always easy to devise rules of this kind which can seamlessly apply without difficulty to all forms of human endeavour. 3. This is especially true in the case of what has come to be known as “frontier workers” (i.e., employees who are resident in Member State A but who work in Member State B), as the present case will shortly illustrate. The applicant is an Irish citizen who at all times has been resident in Ireland. She has mainly worked in this jurisdiction, but her last place of employment was in Northern Ireland. The Minister maintains that as a result her claim for illness benefit falls to be determined by the United Kingdom authorities. This in itself would not be problematic, save for the fact that she does not qualify for benefit under UK law, whereas she would if her application were held to be governed by Irish law. 4. Was the Minister accordingly correct to determine that she application for illness benefit fell to be determined by the UK authorities by reason of the fact that this happened to be the last place she was employed prior to her illness? This is the net issue which falls to be determined in these judicial review proceedings. 5. As I have indicated, the applicant, Ms. Kelly, maintains that the respondent Minister has wrongly refused to pay her illness benefit under the Social Welfare Acts. The applicant became ill at the end of October, 2010 in circumstances I will shortly describe. Illness benefit was paid to her by the Minister until August, 2011. She then received a letter on 14th September, 2011, from the Minister to the effect that the illness benefit which had been paid to her since the previous October 2010 had been paid in error and her application for illness benefit was now being transferred to the Northern Irish authorities. It is only proper to point out that from 24th November 2011 Ms. Kelly was in receipt of Supplementary Welfare Allowance from the Irish authorities. This is a social assistant payment not covered by the 2004 Regulation. 6. How, then, did this situation come about? Ms. Kelly has at all times resided in Dundalk, Co. Louth. She was previously employed from March, 2006 to June, 2008 as the Commercial Manager at Dundalk Football Club. She was next employed between January, 2010 and June, 2010 in sale and marketing and public relations at a company known as Sporttracker in Dundalk. Critically, however, from 21st June, 2010, to 30th October, 2010, she was employed as Marketing Manager with Newry City Football Club in Newry, Co. Down in Northern Ireland. It was at that point that she became ill and claimed illness benefit from the respondent Minister. 7. Ms. Kelly had been previously unemployed between July, 2008 and January, 2010 and she received unemployment benefit from the Minister during this period. She then received illness benefit from the 17th November, 2010, until 11th August, 2011 until that payment was suspended during that month. 8. Following the suspension of her payment, Ms. Kelly telephoned the Department of Social Protection. It appears that the Department realised for the first time at that point that Ms. Kelly’s last place of employment was not within the State, but rather in Northern Ireland. Ms. Kelly was then informed that she was not entitled by reason of this fact to illness benefit in this State. I should add as an aside that the Minister maintains that the original series of payments from October, 2010 to August, 2011 were paid in error, as Ms. Kelly had stated in her application form in response to a specific query that she had not worked outside of the State. At one point it was suggested that these payments should be recouped from Ms. Kelly, but this issue in not now being pursued. 9. Ms. Kelly’s claim was then transferred to the Northern Ireland Department of Work and Pensions for adjudication. The difficulty which then arises is that the criteria for determining illness benefit in Northern Ireland are different to those applicable for determining illness benefit in this State. 10. As it happens, the detailed minutiae of these differences do not directly concern us. It is, perhaps, sufficient to state that in this State the relevant tax year for social security contributions is the second last complete tax year before the year in which the claim is made. Consequently, for claims made in 2010, the relevant tax year was 2008. If Ms. Kelly had continuously worked in the State, she would have been entitled to illness benefit as at the time of her claim she had made the requisite number of social security contributions under the PRSI system. 11. The situation in Northern Ireland is, however, different in that insurance contributions must be paid in the three years prior to the claim. So far as Ms. Kelly’s claim is concerned, that meant that she had to have contributions paid in 2007, 2008 and 2009. As UK Department of Work and Pensions made clear in a letter dated 8th October, 2012, to Ms. Linda O’Connor, the Assistant Principal attached to the Department of Social Protection:-
The 2004 Regulation 14. As that case (amongst many others) makes clear, the mere fact that a worker who avails of free movement rights obtains a less favourable benefit in the country of destination cannot in itself amount to a breach of European Union law. As the Court of Justice further observed in Case C-562/10 Commission v. Germany [2012] E.C.R. I-000:-
17. It is against these general principles that the 2004 Regulation falls to be evaluated. Article 3(1)(a) of the 2004 Regulation makes it clear that the Regulation applies to illness benefit claims. Article 11(1) then seeks to allocating responsibility for the persons to whom applies “to the legislation of a single Member State only”. Title II of the Regulation then seeks to prescribe the content of these jurisdiction-allocating rules. 18. Article 11(3)(a) then states that “a person pursuing an activity as an employed or self-employed person in a Member State shall be subject to the legislation of that Member State”. Article 11(1)(b) to (d) then prescribe specific rules for civil servants, unemployment benefit and the armed forces. Article 11(3)(e) then states that in the event that none of the specific rules apply, the claimant:
21. In May, 1981 Ms. Elsen, a German national, moved from Germany to France, where since then she has lived with her husband and their son, born in August, 1984. She was employed in Germany up to March, 1985 and paid social insurance there, albeit that she acquired the status of a frontier worker during this period. Her occupational activity was interrupted between July, 1984 and February, 1985 owing to maternity leave for the birth of her child. After March 1985, Ms. Elsen no longer engaged in an occupational activity subject to compulsory insurance in either Germany or France. 22. In September 1994, Ms. Elsen requested the German authorites to take into consideration, as periods of insurance for the purpose of an old-age pension, the periods spent rearing her son, but this request was refused on the ground that the child-rearing had taken place abroad. This issue was ultimately referred to the Court of Justice by the German society security court (Bundessozialgericht). The Court of Justice first stated:-
In response to that submission, the Court observes that, pursuant to Article 13(2)(a) and (b) of Regulation No 1408/71, a person employed or self-employed in the territory of one Member State is subject to the social security legislation of that Member State even if he resides in the territory of another Member State. Admittedly, in the present case, although the plaintiff had a gainful occupation in Germany until March 1985, when she resided with her family in France, she has not worked since that date. However, it must be pointed out that, as regards the taking into account, for the purposes of old-age insurance, of unbroken periods of child-rearing following the birth of her child, Mrs. Elsen worked exclusively in Germany and was subject, as a frontier worker, to the German legislation when the child was born. Thus a close link can be established between the periods of child-rearing concerned and the periods of insurance completed in Germany by virtue of her occupational activity in that State. It is precisely because she had completed the latter periods that Mrs. Elsen requested the German institution to take into account the subsequent periods devoted to rearing her child. Consequently, it must be held - and the German Government has not disputed this point - that the German legislation is applicable in the plaintiff's situation. In those circumstances, as regards the attribution of those periods of child-rearing for the purposes of old-age insurance, Mrs. Elsen cannot be regarded under Article 13(2)(f) of Regulation No 1408/71 as having ceased all occupational activity and subject for that reason to the legislation of the State in which she resided. That provision specifically provides for the legislation of the State of residence to apply only where 'the legislation of a Member State ceases to be applicable, without the legislation of another Member State becoming applicable to him in accordance with one of the rules laid down in the aforegoing subparagraphs. As regards the attribution of periods devoted to rearing a child born at a time when, as here, the parent pursued an occupation in a Member State and was therefore subject to the social security legislation of that State, that legislation remains applicable, in accordance with Article 13(2)(a) of Regulation No 1408/71.” 25. A very similar view was taken by the Court of Justice in Case C-522/10 Reichel-Albert [2012] E.C.R. I-000. In this case a German national worked in Germany until 1980 before moving to Belgium with her husband. Her children were born in Belgium and she never worked there. The Court of Justice nevertheless held that there was a sufficiently close link between her employment in Germany and the subsequent child-raising periods for these latter periods to be evaluated and taken into account for social security purposes:-
Possible options considered 28. The alternative approach is to follow the “sufficiently close links” approach adumbrated by the Court of Justice in cases such as Elsen and Reichel-Albert. It must be recalled that both of those cases involved a question of a link between periods of insurable employment on the one hand and periods of child-rearing on the other. It would not appear that the Court of Justice has given any firm guidance on how this criterion might be applied in the context of a case such as the present one. 29. Counsel for the Minister, Mr. Collins S.C., has argued that the fact that Ms. Kelly spent the last six months of her insurable employment working in that jurisdiction shows the extent of her sufficiently close links with Northern Ireland. Counsel for the applicant, Mr. Shortall, takes a different view and urges that the much longer periods of employment in this State, coupled with her residence here, shows the sufficiently close link with this jurisdiction. Conclusions “Question 1
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