B. v Chief Appeals Officer

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 18 December 2024
• Neutral Citation: [2024] IEHC 711
• Docket Number: 2024 982 JR

Between:

B.

Applicant

and

Chief Appeals Officer

Social Welfare Appeals Office

Minister for Social Protection

Respondents

[2024] IEHC 711

2024 982 JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Leave to apply – Extension of time – Applicant seeking leave to apply for judicial review – Whether an extension of time should be granted

Facts: The applicant submitted a claim for domiciliary care allowance in relation to her son. The application form was dated 21 March 2023. The first-instance decision was made on 27 April 2023 refusing the application. The applicant submitted an appeal on 12 May 2023. The appeals officer issued a decision on 15 January 2024 refusing the appeal. The applicant instituted judicial review proceedings on 30 July 2024, outside the three month time-limit prescribed under Order 84, rule 21 of the Rules of the Superior Courts. The two principal grounds of judicial review advanced were as follows: (1) only a deciding officer may rely on a medical assessor’s opinion and an appeals officer is precluded from doing so - in the alternative, if an appeals officer is permitted to have regard to the medical assessor’s opinion, then fair procedures require that the appellant be given notice of same, an opportunity to cross-examine the medical assessor, and an opportunity to arrange for the attendance of their own medical practitioner; and (2) where there is conflicting evidence, the decision-maker must state reasons for preferring certain evidence.

Held by Simons J that the applicant had not established the threshold for granting an extension of time pursuant to Order 84, rule 21. Simons J held that the complaints which the applicant sought to pursue in the judicial review proceedings were ones which were capable of being fully addressed by way of revision pursuant to s. 317 of the Social Welfare Consolidation Act 2005. Simons J was satisfied that it was appropriate to refuse leave to apply for judicial review in the proceedings notwithstanding that leave may have been granted in similar cases in the past. First, Simons J noted that the entire issue of alternative remedies was the subject of a very recent judgment of the Court of Appeal: F.D. v Chief Appeals Officer [2023] IECA 123; that judgment confirms that a party will, generally, be expected to seek a revision of an appeals officer’s decision prior to having recourse to the High Court. Simons J held that the High Court is bound by, and must give effect to, that authoritative judgment. Secondly, Simons J held that it cannot be inferred from the fact, if fact it be, that leave may have been granted in other cases that the relevant judge made a conclusive finding that the right to seek a statutory revision did not represent an adequate alternative remedy; it was more likely that the leave judge had decided, in the particular circumstances of the case, to reserve the question of the adequate alternative remedy to the trial judge.

Simons J refused the ex parte application for leave to apply for judicial review.

Leave refused.

Appearances

Derek Shortall SC for the applicant instructed by KOD Lyons LLP

JUDGMENT of Mr. Justice Garrett Simons delivered on 18 December 2024

INTRODUCTION

1 This judgment is delivered in respect of an ex parte application for leave to apply for judicial review. The principal issue addressed in the judgment is whether an extension of time should be granted pursuant to Order 84, rule 21 of the Rules of the Superior Courts.

2 The judgment also addresses the question of whether leave to apply should be refused by reason of the fact that there is an adequate alternative remedy available to the Applicant. More specifically, it is necessary to consider whether the statutory right to seek a “ revision” of the impugned appeals officer's decision, pursuant to section 317 of the Social Welfare Consolidation Act 2005, represents an adequate alternative remedy.

LEGISLATIVE FRAMEWORK

3 These judicial review proceedings concern a claim for a form of social welfare benefit known as “ domiciliary care allowance”. This benefit takes the form of a monthly payment to the carer of a child with a severe disability. The eligibility criteria are prescribed under Chapter 8A of the Social Welfare Consolidation Act 2005. The principal criteria are prescribed as follows under section 186C of the Act:

• (a) the child has a severe disability requiring continual or continuous care and attention substantially in excess of the care and attention normally required by a child of the same age, and

• (b) the level of disability caused by that severe disability is such that the child is likely to require full-time care and attention for at least 12 consecutive months.

4 The Supreme Court has held, in Little v. Chief Appeals Officer [2023] IESC 25, that eligibility must be assessed as of the date of the making of the application for domiciliary care allowance. This is so even in the case of an appeal or a revision of an appeals officer's decision. In each instance, the index date is the date of the making of the application for domiciliary care allowance (not the later date of the appeal or revision). The Supreme Court held (at paragraph 56) that a change in circumstances must now trigger a new claim for benefit rather than the revision of an earlier claim.

5 The practical consequence of this is that, in cases where the child has been diagnosed with a severe disability on the basis of an assessment carried out subsequent to the date of the application, the claimant should submit a fresh application rather than seek to pursue an appeal or revision or judicial review proceedings.

6 The Social Welfare Consolidation Act 2005 provides for the preparation of a written opinion by a medical assessor appointed by the Department of Social Protection. A medical assessor is required (a) to assess all information provided to him or her in respect of an application for domiciliary care allowance, and (b) to provide an opinion as to whether the child satisfies the principal eligibility criteria. It is expressly provided that a deciding officer shall “ have regard to” the opinion of the medical assessor.

7 The decision-making procedures are prescribed under Part 10 of the Social Welfare Consolidation Act 2005. The legislation provides for two tiers of decision-making. The first-instance decision is made by a deciding officer. Thereafter, there is a right of appeal. Appeals are generally determined by appeals officers, but there is also a formal right to refer any particular appeal decision to the Chief Appeals Officer (section 318). The legislation also provides a right of appeal on a question of law to the High Court (section 327).

8 The striking feature of the legislation is that provision is made for the “ revision” of both the first-instance decision and the decision of the appeals officer. In effect, a claimant who is dissatisfied with the decision can request same to be revisited. This has the practical consequence that a decision by an appeals officer is not necessarily an end of the matter. As discussed below, the Court of Appeal has held that a claimant may be required to exhaust their right to seek a revision before having recourse to the High Court. See paragraphs 38 and onwards.

9 It may be helpful to the reader to highlight two further aspects of the appeals process as follows. The Social Welfare (Appeals) Regulations 1998 (S.I. No. 108 of 1998) (as amended) make provision for certain information to be furnished to the appeals officer. This is provided for under article 10 (as substituted by the Social Welfare (Appeals) (Amendment) Regulations 2011 ( S.I. No. 505 of 2011)):

“In the case of an appeal against the decision of a deciding officer or the determination of a designated person under section 311, the Chief Appeals Officer shall cause notice of the appeal to be sent to the Minister who shall, as soon as may be, furnish to the Chief Appeals Officer—

• (a) a statement from the deciding officer or the designated person or on his or her behalf showing the extent to which the facts and contentions advanced by the appellant are admitted or disputed, and

• (b) any information, document or item in the power or control of the deciding officer or the designated person, as the case may be, that is relevant to the appeal.”

10 The Regulations also make provision for the possibility of an oral hearing as follows. Article 13 provides that where the appeals officer is of the opinion that the case is of such a nature that it can properly be determined without a hearing, he or she may determine the appeal summarily. (This is subject to a proviso that the Minister can direct an oral hearing).

PROCEDURAL HISTORY

11 The Applicant submitted a claim for domiciliary care allowance in relation to her son (hereinafter “ the child” to preserve privacy). The application form is dated 21 March 2023. As of that date, the child had been diagnosed with autism spectrum disorder (“ ASD”).

12 The first-instance decision was made on 27 April 2023. In brief, the decision was to refuse the application for domiciliary care allowance on the grounds that it had neither been established that the child required a level of care and attention substantially in excess of that normally required for a child of the same age nor that they were likely to require full-time care and attention for at least 12 consecutive months.

13 It is relevant to note, having regard to the submissions now made, that the deciding officer indicated that he had taken into account the opinion of the Department's medical assessor. (As explained below, a copy of the medical assessor's report has since been provided to the Applicant).

14 The Applicant submitted an appeal on 12 May 2023. The Social Welfare Appeals Office subsequently notified the social welfare services office of the appeal. This triggered a potential revision of the...