C.S.B. v Minister for Social Protection
| Jurisdiction | Ireland |
| Judge | Mr. Justice Gerard Hogan |
| Judgment Date | 20 April 2016 |
| Neutral Citation | [2016] IECA 116 |
| Docket Number | [C.A. No. 1245 of 2014],Record No. 2014 1245 [Article 64 transfer] |
| Court | Court of Appeal (Ireland) |
| Date | 20 April 2016 |
[2016] IECA 116
THE COURT OF APPEAL
Hogan J.
Record No. 2014 1245
[Article 64 transfer]
Irvine J.
Hogan J.
McDermott J.
Domiciliary care allowance ? Fixed policy positions ? Medical assessments ? Respondent seeking domiciliary care allowance for her son ? Whether additional care and attention was substantially in excess of that required by a child of his age
Facts: The respondent is the mother and primary carer of a seven year old boy. He was diagnosed with high functioning autism on 14th February, 2013 on foot of a Health Service Executive Multi?Disciplinary Team assessment. The assessment further suggested that he met the criteria for a domiciliary care allowance. The respondent?s application for the allowance was refused by decision dated 16th May, 2013 on the basis that the statutory criteria were not met and that the medical evidence provided did not indicate that the extra care and attention required by him was substantially in excess of that required for a child of the same age who does not suffer from the same condition. The respondent then sought a statutory review which was treated as an appeal. A later review which had been requested by the respondent?s legal advisers was also unsuccessful. By letter dated 22nd May, 2013, the respondent sought a statutory revision of the 16th May, 2003 decision pursuant to s. 301 of the Social Welfare (Consolidation) Act 2005. By decision dated 1st July, 2013, a deciding officer of the appellant, the Minister for Social Protection, undertook a revision of the decision and, following receipt of another medical assessor's opinion, affirmed the decision of 16th May, 2013. On 1st April, 2014, the High Court quashed the two separate decisions of the relevant deciding officer delivered on 21st May, 2013 and 1st July, 2013 which refused to grant a domiciliary care allowance. The appellant appealed to the Court of Appeal against that decision. The respondent contended that the Department of Social Protection in effect operates a policy whereby the opinions of its medical assessors are dutifully followed by departmental deciding officers, irrespective of the medical evidence actually submitted by claimants such as the respondent. An affidavit of 5th February, 2014, sworn by Mr Baldrick, an assistant principal, of the Department of Social Protection set out the appellant?s position, namely that while the medical assessor provides his/her opinion to the deciding officer it is the deciding officer who must and does make the final decision.
Held by Hogan J that, having applied McLoughlin v Minister for Social Welfare?[1958] IR 1, Glencar Explorations plc v Mayo County Council (No. 2)?[2002] 1 IR 84 and McEvoy v Meath County Council?[2003] 1 IR 208, the High Court was in error in concluding that the Department had effectively applied a fixed policy position whereby the medical assessor?s opinion was unthinkingly and unquestioningly endorsed by the deciding officer. Hogan J held that there was no evidence that the deciding officer in question adopted that attitude and that statistics alone do not prove the existence of a fixed policy position. Hogan J held that while it was true that the deciding officer appeared to have routinely followed the opinion of the medical assessor (an opinion to which she was statutorily required to have regard) in every (or, at least, almost every case), this did not?in itself?mean that she was adopting a fixed policy position.
Hogan J held that he would allow the appeal and reverse the decision of the High Court.
Appeal allowed.
This is an appeal brought by the Minister for Social Protection against the decision of Barrett J. in the High Court delivered on 1st April 2014 which quashed two separate decisions of the relevant deciding officer delivered on 21st May 2013 and 1st July 2013 which refused to grant a domiciliary care allowance to the applicant: see B. v. Minister for Social Protection [2014] IEHC 186.
The applicant, Ms. B., is the mother and primary carer of R., who is now a seven year old boy. He was diagnosed with high functioning autism on 14th February 2013 on foot of a Health Service Executive Multi Disciplinary Team assessment. Although the team acknowledged in this assessment that R. was ?a very capable boy?, the assessment further suggested that R. met the criteria for an allowance known as the domiciliary care allowance. This is an allowance payable in respect of children with disabilities whose care and attention is substantially in excess of that required of a child of the same age.
While the diagnosis is one which, perhaps, speaks for itself, it should perhaps also be stated that while the diagnostic team expressed the view that R. met the criteria for the allowance, no precise reason for their conclusions that he required care and attention substantially in excess of that required by a child of the same age was, as such, given. It might also be observed that the clinicians also recognised that R. was a ?healthy young boy who appears to be bright? and that he has ?good self care skills.?
In the course of her application Ms. B. set out the difficulties which she encountered in respect of the care of her son. These included the fact that he was a messy eater and rubbed food into himself; that he had difficulties with zips and buttons; that he needed to be supervised with toilet facilities; that he sometimes got up at night and stayed awake for hours at a time; that completion of work sheets required a parent to sit with him; that he frequently experienced tantrums and rages and that his play outside needed to be supervised.
The applicant's application for the allowance was, however, refused by decision dated 16th May 2013 on the basis that the statutory criteria were not met. The applicant then sought a statutory review which was treated as an appeal. A later review - which had been requested by the applicant's legal advisers - was also unsuccessful.
The reason given by the deciding officer, Ms. Mahon, for the decision of 16th May 2003 was that the medical evidence provided did not indicate that the extra care and attention required by him was substantially in excess of that required for a child of the same age who does not suffer from the same condition. The medical assessor, by opinion dated 3rd May, 2013, acknowledged that R. had high functioning autism, but added:
?While [R.] has additional care needs, especially delayed social and communication skills, the medical evidence submitted to date does not indicate a disability so severe requiring substantially extra care.?
By letter dated 22nd May, 2013, Ms. B. sought a statutory revision of this decision pursuant to s. 301 of the 2005 Act. By decision dated 1st July, 2013, another deciding officer of the Minister for Social Protection (namely, Mr. Baldrick himself) undertook a revision of the decision and, following receipt of another medical assessor's opinion, nonetheless affirmed the decision of 16th May, 2013. The second medical assessor had stated that:
?I appreciate that [R.] requires extra attention secondary to high functioning autism. However, the overall need for continuous care and attention, based on medical reports submitted, is not substantially in excess of that [required by] a four year old child.?
It is clear that both sides agreed that R. had a disability (high functioning autism) and that he required extra care and attention. In effect, therefore, the difference between the parties centred on whether this additional care and attention was ?substantially? in excess of that required by a child of his age.
The essential issue before the High Court and, again, on appeal to this Court, is Ms. B.'s contention that the Department of Social Protection in effect operates a policy whereby the opinions of its medical assessors are dutifully followed by departmental deciding officers, irrespective of the medical evidence actually submitted by claimants such as Ms. B. In support of this contention, the solicitors for Ms. B. have utilised the Freedom of Information Act 1997 (as amended) to obtain further information regarding the decision-making process that obtains within the Department for Social Protection. The solicitor for Ms.B., Mr. Gareth Noble, averred in an affidavit dated 21st November 2013 that the Freedom of Information request showed that:
??it was stated that Officer A, who I believe to be [the initial deciding officer in Ms. B.'s application]?made 2,224 positive decisions and 1,582 negative decisions. A total of 3,806 in total. I say that ?[the said deciding officer] did not depart from the Medical Assessor's opinion in any of the decisions nor did any of the other deciding officers referred to in that Freedom of Information request.?
A further letter dated 23rd December, 2013, from the Department to Mr. Noble stated:
?Notwithstanding that accurate statistics on this issue are not readily available the Department considers that it would be highly unusual for a deciding officer to decide against a medical assessor's opinion on the question of medical eligibility.?
An affidavit of 5thFebruary, 2014, sworn by Mr. Roy Baldrick, an assistant principal, of the Department of Social Protection set out the Minister's position:
?8. While the medical assessor provides his/her opinion to the deciding officer it is the deciding officer who must and does make the final decision.
9. In the present case that is precisely what happened when the deciding officer made her decision. The deciding officer ?took into account all of the information and material provided and had regard to the opinion of the medical assessor when coming to her decision...
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