B. v Minister for Social Protection

• Jurisdiction: Ireland
• Judge: Mr. Justice Barrett
• Judgment Date: 01 April 2014
• Neutral Citation: [2014] IEHC 186
• Judgment citation (vLex): [2014] 4 JIC 0103
• Court: High Court
• Date: 01 April 2014

[2014] IEHC 186

THE HIGH COURT

[No. 509 JR/2013]

B v Min for Social Protection

BETWEEN

B.

APPLICANT

AND

THE MINISTER FOR SOCIAL PROTECTION

RESPONDENT

SOCIAL WELFARE CONSOLIDATION ACT 2005 CHAP 8A

SOCIAL WELFARE & PENSIONS ACT 2008 S15

SOCIAL WELFARE (MISCELLANEOUS PROVISIONS) ACT 2010 S26

SOCIAL WELFARE CONSOLIDATION ACT 2005 S186C(1)

SOCIAL WELFARE CONSOLIDATION ACT 2005 S186C(2)

SOCIAL WELFARE CONSOLIDATION ACT 2005 S186C(1)(A)

SOCIAL WELFARE CONSOLIDATION ACT 2005 S186C(1)(B)

SOCIAL WELFARE CONSOLIDATION ACT 2005 S186C(3)

SOCIAL WELFARE CONSOLIDATION ACT 2005 S300

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORP 1984 IR 381 1982 ILRM 590 1982/1/1

O'DONNELL v TIPPERARY (SOUTH RIDING) CO COUNCIL 2005 2 IR 483 2005 2 ILRM 168 2005/47/9846 2005 IESC 18

M (A) v MIN FOR SOCIAL PROTECTION UNREP HANNA 25.10.2013 2013 IEHC 524

MCLOUGHLIN v MIN FOR SOCIAL WELFARE & BYRNE 1958 IR 1

SOCIAL WELFARE ACT 1952

GLENCAR EXPLORATIONS PLC & ANDAMAN RESOURCES PLC v MAYO CO COUNCIL (NO 2) 2002 1 IR 84 2002 1 ILRM 481 1998/20/7466

LOCAL GOVT ACT 1991 S7(1)(E)

MCEVOY & SMITH v MEATH CO COUNCIL 2003 1 IR 208 2003 1 ILRM 431 2002/20/4983 2003 IEHC 31

PLANNING & DEVELOPMENT ACT 2000 S27(1)

MCVEIGH v MIN FOR JUSTICE UNREP MURPHY 17.12.2004 2004/35/8176 2004 IEHC 405

MISHRA v MIN FOR JUSTICE 1996 1 IR 189 1996/13/4227

J (P) & ORS v MIN FOR JUSTICE UNREP HOGAN 19.10.2011 2011/27/7305 2011 IEHC 443

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

Challenge to decision-making process - Child with autism - Domiciliary care allowance - Whether qualified child under s.186C Social Welfare Consolidation Act 2005- Deciding officer- Statutorily appointed decision-maker - Whether proper exercise of decision-making powers

Facts: The applicant, B, is a home-maker and primary carer to her autistic son. In March 2013 she applied to the Minister for Social Protection for a domiciliary care allowance, a statutory payment pursuant to chapter 8A of the Social Welfare Consolidation Act 2005. Section 186C of the Act provides that a person is deemed to be a qualified child eligible for a domiciliary care allowance where (a) the child has a severe disability requiring continual and continuous care and attention substantially in excess of the care and attention normally required by a child of the same age, and (b) where 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 twelve consecutive months. On the 16 ^th May 2013 the deciding officer for the Minister for Social Protection decided that B"s son was not a qualified child based on the evidence provided.

In the present proceedings, B wishes to challenge the Minister"s decision-making process. She claims the policy of deferring only to, and following, the departmental medical assessor"s opinion means that there has been an abdication of the deciding officer"s statutory duty. She asserts the statutorily appointed decision-maker did not in reality make the decision and did so only in name, contrary to s.300 of the 2005 Act. Upon examination of the evidence it was said to be "highly unusual" for a deciding officer to decide against a medical assessor"s opinion. The court must decide whether the deciding officer has properly exercised his decision-making powers or whether there has been an abdication of his duties as a statutorily appointed deciding officer.

Held: The judge considered the relevant authorities including the views of Kingsmill Moore J in McLoughlin v. Minister for Social Welfare [1958] I.R. 1. The judge decided the discretion of the deciding officer had been inappropriately fettered. He stated the medical evidence supplied by the applicants (of honestly held and properly reasoned views of qualified medical professionals) had not been given the weight it ought to have been given. The judge decided it was an abdication of statutory duty which vitiated the decision-making process. The medical assessor's opinion volunteered in the course of the consideration of B.'s initial application was determinative of that application in contravention of s.300 of 2005 Act, thereby tainting the decision-making process.

-Application to be remitted for fresh consideration

1 1. This case is concerned with the issue of whether a person who repeatedly exercises a discretion in the same way can be said to be properly exercising that discretion.

Facts

2 2. The applicant, B., is a home-maker and primary carer of a son who has been diagnosed with autism. In all respects and in every way the evidence before the court suggests B. and her husband to be caring and concerned parents seeking to do the best for their son.

3 3. On 4 ^th March, 2013, B. applied to the Minister for Social Protection for domiciliary care allowance, a statutory payment made pursuant to Chapter 8A of the Social Welfare Consolidation Act 2005 (as inserted by s. 15 of the Social Welfare and Pensions Act 2008 and amended by s. 26 of the Social Welfare (Miscellaneous Provisions) Act 2010). Section 186C(1) of the Act of 2005 as amended provides that a person is deemed to be a qualified child where, inter alia, (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. Section 186C(2) provides that a Department of Social Protection medical assessor shall (a) assess all information provided to him or her in respect of an application for domiciliary care allowance, and (b) provide an opinion as to whether the child satisfies paragraphs (a) and (b) of subs. (1). Section 186C(3) provides that:

"In determining whether a child satisfies paragraphs (a) and (b) of subsection (1), a deciding officer shall have regard to the opinion, referred to in subsection (2)(b), of the medical assessor." [Emphasis added].

4 4. In her application form, B. set out the difficulties which she encounters in the care of her son. In addition, her son's general practitioner stated that B. 's son has been diagnosed with autism and that the diagnosis is permanent. Attached to the form were B. 's own reports and a further form which was filled out by a general practitioner indicating that the social interaction anxieties of B. 's son are severe, as is his capacity to keep well and stay safe. Further medical reports from other medical professionals were also attached setting out inter alia the level of services that B. 's son will require and indicating that he requires continual or continuous care and attention substantially in excess of that required by a child of the same age.

5 5. Though not a factor in the decision of this Court, it is nonetheless informative to mention briefly the problems that B. 's son was considered to present by the various medical professionals who met with him, if only to provide some background context to the process that is in issue in these proceedings. The report of those professionals is too long to be quoted in its entirety. However, even a brief extract gives a flavour of the issues which affect B. 's son. Thus, per the Health Services Executive Multi-Disciplinary Team Assessment Report of 14 ^th February, 2013:

"X [B. s son] came into the room without any difficulty. He was very object-focused upon entry into the room. He was jumping repetitively and his eye contact was inconsistent. He was very aware of the lights and he switched these on and off at one point. He used four or five word sentences and sometimes came out with random statements....He seemed to have some difficulties with understanding but this was hard to gauge. He spoke with a high pitched voice and was on his own agenda for much of the assessment. He babbled when excited. He lashed out at both therapists during the assessment and also threw a large ball at his mother with no awareness of the impact on her. He was quite impulsive during the assessment and had difficulty with listening. He walked on the bean bags with no awareness and he used a few gestures. There was no referencing during the assessment with his mother, and when he entered the room he burst into it."

At a later stage, the report continues:

"It is the Team's recommendation that X...would benefit from placement within an Autism Unit within a mainstream school. It is likely that he will find school very difficult, particularly due to his difficulty in following direction, social isolation and his potentially aggressive behaviour towards others. In the absence of a place being available for X...he will then need a supported mainstream placement and it will be imperative that he has an SNA access due to his Autism and safety issues (particularly safety to self and others) ....Parents are also recommended to apply for the Domiciliary Care Allowance as X...requires care supervision attention that is in excess of that usually provided to children of his age."

6 6. Notably, B. is not in these proceedings seeking a review of the outcome of the decision that issued pursuant to her application for domiciliary care allowance; she is challenging only the process whereby that decision was formulated. Consequently, the above-quoted extracts from the H.S.E. report, while of assistance in setting the factual matrix within which the instant application is made, are not relevant to, and have not been relied upon by this Court in, the determination of these proceedings.

7 7. By decision dated 16 ^th May, 2013, a deciding officer for the Minister for Social Protection decided that B.'s son is not a qualified child on the basis that the medical evidence provided...