C.O'B v Chief Appeals Officer
| Jurisdiction | Ireland |
| Judge | Ms. Justice Baker |
| Judgment Date | 21 October 2014 |
| Neutral Citation | [2014] IEHC 485 |
| Court | High Court |
| Date | 21 October 2014 |
[2014] IEHC 485
THE HIGH COURT
BETWEEN
AND
SOCIAL WELFARE (CONSOLIDATION) ACT 2005 S311
SOCIAL WELFARE (APPEALS) REGS 1998 SI 108/1998 REG 14
SOCIAL WELFARE (APPEALS) REGS 1998 SI 108/1998 REG 15
SOCIAL WELFARE (APPEALS) REGS 1998 SI 108/1998 REG 18(1)
SOCIAL WELFARE (CONSOLIDATION) ACT 2005 S305
SOCIAL WELFARE (APPEALS) REGS 1998 SI 108/1998 REG 7
SOCIAL WELFARE (CONSOLIDATION) ACT 2005 S311(3)
KIELY v MIN FOR SOCIAL WELFARE 1977 IR 267
SOCIAL WELFARE ACT 1952 S44
B v MIN FOR SOCIAL PROTECTION 2014 2 ILRM 290 2014 IEHC 186
SOCIAL WELFARE (APPEALS) (AMDT) REGS 2011 SI 505/2011 REG 10
SOCIAL WELFARE (APPEALS) REGS 1998 SI 108/1998 REG 15(3)
SOCIAL WELFARE (CONSOLIDATION) ACT 2005 S311(3)
Judicial Review – Child – Medical Needs – Autism - Order of Certiorari – Fair Procedures – Human Rights
Facts: The applicant was the mother of a young boy who suffered from an autistic condition and whom she claimed had significant care needs. Her application for domiciliary care allowance was refused in June 3013. She sought a review of the decision under the statutory scheme and the decision at first instance was upheld by a decision of the second respondent on the 14th October, 2013. The applicant appealed and her request for an oral hearing of the appeal was accepted. In that context the applicant also formally requested that the deciding officer and the three medical assessors whose desktop reports were available to the deciding body at first instance be available at the oral hearing. It was the refusal of the respondent to agree to that request which gave rise to the judicial review. Moriarty J. made an order on 24th February, 2014, giving the applicant leave to apply for judicial review in the form of an order of certiorari quashing the decision of the Chief Appeals Officer, made on 12th February, 2014, refusing the request that the deciding officer and the three medical assessors be available for cross examination, for a declaration that the respondent was obligated to require the presence of the deciding officer and the medical assessors at the oral hearing, and for an order of mandamus compelling the first named respondent to ensure that those persons were present at the oral hearing and available to be cross examined. The scheduled oral hearing was adjourned on consent following the grant of leave. The grounds on which leave was granted in summary were that fair procedures required that the applicant be permitted to cross examine the deciding officer and/or the medical assessors, if the medical evidence intended to be called at appeal by the applicant controverted the medical evidence available to the decision maker at first instance. It was argued that the absence of the deciding officer and medical assessors would amount to a denial to the applicant of a hearing in compliance with the legislation, the Regulations, the European Convention on Human Rights Act 2003, fair procedures and natural and constitutional justice. The respondents stated that the application was either moot or premature because it had been formally confirmed to the applicant by letter of 28th March, 2014, that the appeals officer did not propose to have regard to the reports of the three medical assessors which were before the deciding officer at first instance, and that the appeal file would not have these reports. With regard to the request to procure the attendance of the deciding officer it was argued that as the appeal was not a review of the decision at first instance, there was no basis at law for requiring the original decision maker to be present to defend his or her decision or for permitting or requiring cross examination of him or her. Finally, it was argued that it was a matter for the appeals officer to determine in his or her discretion how an appeal should proceed, and he or she was entitled to a presumption that he or she will act fairly in accordance with the requirements of natural and/or constitutional justice.
Held by Justice Baker in light of the applicable legislative provisions and case-law that the decision as to what was to be contained within the appeal file was within the competence of the Minister under the statutory scheme. Accordingly, Justice Baker made no decision as to whether the Chief Appeals Officer did have a jurisdiction to prepare a revised brief or file for an appeals officer ultimately appointed to the case or where the power to prepare a brief or revised file was one which must be exercised by the Minister. In respects of the attendance of the medical assessors, Justice Baker rejected the suggestion that the proper conduct of the oral appeal required the attendance of the medical assessors. The Court reasoned that it was a matter for the respondent to the appeal to determine what evidence he or she would adduce to counter the evidence of the medical experts which the applicant would call to the hearing. Justice Baker reasoned that it was quite clear that it was not intended to rely on the evidence of the medical assessors and he further accepted the argument of the respondent that at this stage before the process had started the appeal body was entitled to the presumption that it would conduct its business in accordance with law. He refused to direct the attendance of the medical assessors at the appeal. He further refused to direct the attendance of the deciding officer at the appeal. Consequently the reliefs sought in the judicial review were refused.
JUDGMENT of Ms. Justice Baker delivered on the 21st day of October, 2014
1. The applicant is the mother of a young boy who suffers from an autistic condition and whom she claims has significant care needs. In that context the applicant applied for a domiciliary care allowance to assist in her care of her son. Her application for the allowance was refused by a decision of the deciding officer on 24 th June, 2013, and the applicant availed of the two statutory remedies: she sought a review of the decision under the statutory scheme and the decision at first instance upheld by decision of the second respondent communicated to the applicant by letter of 14 th October, 2013.
2. The applicant also appealed and her request for an oral hearing of the appeal was accepted. In that context the applicant also formally requested that the deciding officer and the three medical assessors whose desktop reports were available to the deciding body at first instance be available at the oral hearing. It is the refusal of the respondent to agree to this request that gives rise to this judicial review.
3. Moriarty J. made an order on 24 th February, 2014, giving the applicant leave to apply for judicial review in the form of an order of certiorari quashing the decision of the Chief Appeals Officer, made on 12 th February, 2014, refusing the request that the deciding officer and the three medical assessors be available for cross examination, for a declaration that the respondent was obligated to require the presence of the deciding officer and the medical assessors at the oral hearing, and for an order of mandamus compelling the first named respondent to ensure that those persons were present at the oral hearing and available to be cross examined. The scheduled oral hearing was adjourned on consent following the grant of leave
4. The grounds on which leave was granted in summary are that fair procedures require that the applicant be permitted to cross examine the deciding officer and/or the medical assessors, if the medical evidence intended to be called at appeal by the applicant controverts the medical evidence available to the decision maker at first instance. It is argued that the absence of the deciding officer and medical assessors would amount to a denial to the applicant of a hearing in compliance with the legislation, the Regulations, the European Convention on Human Rights Act 2003, fair procedures and natural and constitutional justice.
5. The respondents say that application is either moot or premature because it has been formally confirmed to the applicant by letter of 28 th March, 2014, that the appeals officer did not propose to have regard to the reports of the three medical assessors which were before the deciding officer at first instance, and that the appeal file would not have these reports. With regard to the request to procure the attendance of the deciding officer it is argued that as the appeal is not a review of the decision at first instance, there is no basis at law for requiring the original decision maker to be present to defend his or her decision or for permitting or requiring cross examination of him or her. Finally, it is argued that it is a matter for the appeals officer to determine in his or her discretion how an appeal should proceed, and he or she is entitled to a presumption that he or she will act fairly in accordance with the requirements of natural and/or constitutional justice.
6. The decision making scheme in the Social Welfare Consolidation Act 2005, (the Act of 2005) provides for an initial decision by a deciding officer, which decision may be the subject of an appeal or a review. A review is carried out under s. 301 of the Act, as amended, and is carried out by a different deciding officer. An appeal on the other hand is carried out under s. 311 of the Act and is carried out by an appeals officer, an independent authority headed by the first named respondent. The decision impugned in this judicial review is a decision of an appeal officer made under the jurisdiction created by s. 311 of the Act.
7. Section 311 of the Act of 2005...
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M.D. v Minister for Social Protection
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