A SEVERELY disabled Irish man receiving medical care in Germany following a HSE decision has been refused disability allowance on the grounds that he is not resident in Ireland. He is challenging this refusal in the High Court.
Peter Flood took judicial review proceedings against the Minister for Social and Family Affairs following the refusal of the department to grant the allowance. Affidavits have been filed in court and the proceedings are likely to be heard in the coming months.
In his affidavit Mr Flood said he was born and educated in Dublin, graduating from UCD with a BCL in 1978. From then until 1983 he worked for an accountancy firm in Dublin and for the next 14 years worked for Channel 4 and as a freelance producer in London and Belfast. He then moved back to Ireland where he worked intermittently and also experienced periods of unemployment, drawing unemployment benefit in the State.
He embarked on a PhD in DCU while also working as a freelance consultant in broadcasting. In 2001 he moved to DIT where he joined the panel of guest lecturers and in 2002 was employed there as a guest lecturer. He had this position when he visited Germany to see his girlfriend, Ioana Bachmayer, now his partner, in August 2002.
While in Germany he was suddenly admitted to hospital where he was misdiagnosed as suffering from tetanus, when in fact he suffered from a rare bilateral infarct to his brain stem. The late diagnosis led to his suffering severe quadriplegia and loss of motor function. He remained as an inpatient in Germany, receiving treatment for his paralysis until May 2003 when he was discharged, and has been receiving day care treatment as an outpatient since.
In his affidavit he stated he is completely wheelchair bound and has only very limited use of his arms and hands. His partner, Ms Bachmayer, accepted redundancy in 2004 in order to become his full-time carer. They live in her small one-bedroom apartment on the first floor of an old building. She received a reduced social welfare payment, but in 2005 started receiving a social welfare allowance which takes account of her role in taking care of Mr Flood, on the strict understanding that he is pursuing his entitlement with the Irish authorities.
When he first became ill he received treatment under the E111 form, covering EU citizens who become ill in other EU states. Since March 2003 he has been receiving treatment under the E112 form, which permits Irish citizens to be sent abroad by the HSE to receive treatment not available in Ireland.
In order to receive disability allowance, which is means tested, the applicant must be habitually resident in the State or the Common Travel Area (CTA), which is made up of Ireland and the UK. In April 2005 he applied for disability allowance, and was told he did not satisfy the condition of being habitually resident in the State. He asked to have the decision reviewed, pointing out that until he became ill he had continuously resided within the State or the CTA, he never owned property outside the State or the CTA and that his only sibling and two children lived in the State.
He sought a review of the decision, which was upheld, and he then appealed. Although he qualified under the means test, in December 2005 he was informed that his appeal had been disallowed, on the grounds that he was not habitually resident in the State or the CTA at the time of making his application. He had been continuously absent for more than three years at the time he submitted it as he was receiving treatment during this time.
The matter was taken up by a solicitor, Claire Callanan of Beauchamps Solicitors, on his behalf.
In August 2006 he visited Ireland with a view to returning permanently. Following discussions with his doctors he submitted a number of questions to the HSE concerning ongoing treatment necessary to prevent him from deteriorating further. “Until the HSE provides me with confirmation that these will be available, I am unable to leave Germany as the discontinuation of these treatments and medications could have a profound impact on my condition,” he said.
“It has been [the HSE’s] failure to confirm the availability of appropriate therapy and vital medication that has repeatedly postponed my attempts to return to the Republic of Ireland.”