B v The Chief Appeals Officer

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Hyland
• Judgment Date: 10 July 2025
• Neutral Citation: [2025] IECA 138
• Docket Number: Court of Appeal Record Number: 2025/10

Between/

B.

Applicant/Appellant

and

The Chief Appeals Officer

Respondent/Respondent

[2025] IECA 138

Faherty J.

Butler J.

Hyland J.

Court of Appeal Record Number: 2025/10

High Court Record Number: 2024/982

THE COURT OF APPEAL

Statutory appeal – Alternative remedy – Extension of time – Appellant appealing against the decision refusing the appellant leave to seek judicial review – Whether the appellant satisfied the test for an extension of time

Facts: The appellant challenged a refusal to grant a social welfare benefit known as a domiciliary care allowance, the principal complaint being that the medical assessor’s opinion provided at first instance ought not to have been considered by the appeals officer. The appellant appealed to the Court of Appeal against the decision of the High Court (Simons J) of 18 December 2024 ([2024] IEHC 711) refusing the appellant leave to seek judicial review. The notice of appeal argued inter alia that the Social Welfare Consolidation Act 2005 is a remedial social statute and the trial judge failed to adequately take that into account. It was further pleaded that the trial judge placed insufficient weight on the totality of the circumstances. It was argued that judges hearing leave applications ought to leave over the question of delay for the substantive hearing, having regard, inter alia, to judicial practice in this area. It was contended that the trial judge failed to properly consider the question of delay in all the circumstances. In relation to the alternative remedy, it was pleaded that an appeals officer does not have jurisdiction pursuant to s. 317 of the 2005 Act to revise for errors of law, nor to address fundamental breaches of fair procedures, and that the specific complaints made by the appellant were not capable of being addressed by way of revision pursuant to s. 317. It was pleaded that leave was granted by other High Court judges on upwards of twenty occasions in cases involving a challenge to decisions where an appeals officer considered the medical assessor’s opinion, and that judicial comity required that Simons J ought to follow those other judges following the decision in I.G. v Refugee Applications Commissioner [2018] IESC 25. The third ground of appeal related to the circumstances in which an appellant is obliged to bring a statutory appeal as opposed to judicial review proceedings.

Held by Hyland J that she agreed with the trial judge’s conclusion that leave should be refused as the application was out of time and the appellant did not satisfy the test for an extension of time. Given that the fundamental premise of the appellant’s argument in the leave application was that a reading of the statutory framework showed that the appeals officer was wrong to consider the medical assessor’s opinion, Hyland J found it difficult to see how a s. 317 review was an appropriate avenue for the appellant. In those circumstances, Hyland J concluded that the trial judge erred in law concluding that s. 317 was an appropriate alternative remedy for the appellant. Hyland J was satisfied that it was probable that any application for a review under s. 318 of the 2005 Act on the basis of a mistake of law would be futile, as precisely the same answer was likely to be given. Accordingly, Hyland J was satisfied that s. 318 was not an adequate alternative remedy. She noted that no finding was made by the trial judge that the appellant ought to have availed of a statutory appeal. Accordingly, Hyland J held that the appellant could not maintain her third ground of appeal.

Hyland J dismissed the appeal.

Appeal dismissed.

UNAPPROVED REDACTED

JUDGMENT delivered on the 10th day of July 2025 by Ms. Justice Hyland

Introduction

1 This is an appeal against the decision of the trial judge of 18 December 2024 (Simons J. [2024] IEHC 711) refusing the appellant leave to seek judicial review. As this is an appeal from an application for leave that was made ex parte in the normal way, there is no respondent to the appeal.

2 The proceedings challenge a refusal to grant a social welfare benefit known as a domiciliary care allowance (“ DCA”), the principal complaint being that the medical assessor's opinion provided at first instance ought not to have been considered by the appeals officer. For the reasons explained below, I agree with the trial judge's conclusion that leave should be refused as the application was out of time and the appellant did not satisfy the test for an extension of time. I also address, on an obiter basis, the question of an alternative remedy under s. 317 or 318 of the Social Welfare Consolidation Act 2005 (the “2005 Act”), and the appropriateness of a statutory appeal under s.327 of the 2005 Act.

Statutory Scheme

3 The DCA 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 2005 Act. The principal criteria are prescribed as follows under s.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 twelve consecutive months.”

4 The trial judge describes the scheme succinctly as follows:

“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).

The striking feature of the legislation is that provision is made for “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 course to the High Court.”

5 Donnelly J. commented on the expansive nature of the scheme in F.D. v Chief Appeals Officer [2023] IECA 123:

“The breadth of the revision provisions is, possibly, unique in the field of the administration of public law. The Act provides extensive rights to seek to revise the decisions of both the deciding officers and the appeals officers …. The extent of the powers of revision and the remedial intent behind those powers distinguish these social welfare appeals from those concerning immigration, criminal procedures, and other areas of law. What is envisaged in the 2005 Act is as broad a scheme of review as possible of assessments and the entitlement to allowances/benefits …”

6 That broad statutory scheme of review may be summarised as follows:

• Section 300 provides that an application will be decided by a deciding officer in respect of identified questions.

• A person may seek a revision of that decision by a deciding officer under s. 301 on new facts or new evidence, or by reason of mistake having been made in relation to the law or the facts. There is no obligation to seek a revision by a deciding officer (although when an appeal is lodged, the deciding officer may, as happened in this case, unilaterally review the decision).

• Section 311 provides that where a person is dissatisfied with the decision given by a deciding officer the question shall be referred to an appeals officer. An appeals officer is not confined to the grounds on which the deciding officer decided the question but may decide the question as if it was being decided for the first time (s.311(3)), subject to the qualification identified in Little v. Chief Appeals Officer [2023] IESC 25 to the effect that eligibility must be assessed as of the date of making the application for DCA.

• If a claimant is dissatisfied with a decision of the appeals officer and considers the decision was erroneous in the light of new evidence or new facts, in order to be considered to have exhausted their remedies they should normally seek revision by an appeals officer of the decision of the appeals officer under s.317 (see F.D v. Chief Appeals Officer [2023] IECA 123 and Petecel v Minister for Social Protection [2020] IESC 25), again subject to the limitation identified in Little.

• If the claimant considers there was a mistake of fact in the decision of an appeals officer, including a revised decision under s. 317, they should generally seek revision under s.318. No statutory appeal lies in relation to appeals based on factual errors since s.327 only permits appeals on a point of law.

• If the claimant considers there was a mistake of law in the decision including a revised decision under s.317, they may seek revision under s. 318 or bring a statutory appeal under s.327. There is no obligation to have recourse to s.318 before bringing a statutory appeal since there is an entitlement to appeal to the High Court under s. 327 on any question of law (see L.A. v Chief Appeals Officer [2025] IECA 54).

• In general, following the decision in F.D, recourse should only be had to judicial review where there is a good reason for asserting that the matter cannot be dealt with either by s.317, s.318 or a statutory appeal under s.327.

7 There is a trap for the unwary deriving from the interpretation of s.318 by the Supreme Court. If a person seeks a review on a mistake of law under s.318, this precludes them from bringing a statutory appeal under s.327 if the Chief Appeals Officer does not revise the decision (following...