Deirdre Little v The Chief Appeals Officer, Social Welfare Appeals Office and Minister for Social Protection
| Jurisdiction | Ireland |
| Judge | Mr. Justice Woulfe |
| Judgment Date | 14 November 2023 |
| Neutral Citation | [2023] IESC 25 |
| Court | Supreme Court |
| Docket Number | Record No.: 2022/142 |
[2023] IESC 25
Charleton J.
Woulfe J.
Hogan J.
Murray J.
Collins J.
Record No.: 2022/142
AN CHÚIRT UACHTARACH
THE SUPREME COURT
JUDGMENT of Mr. Justice Woulfe delivered on the 14 th day of November, 2023
. The appellant appeals an order of the High Court dated the 8 th December, 2022, following an ex tempore judgment of Owens J. delivered on the same date, in which the Court dismissed a challenge by way of judicial review to a decision of a social welfare appeals officer made pursuant to s. 317(1)(a) of the Social Welfare Consolidation Act 2005, as amended (the “2005 Act”). By that decision, the appeals officer refused to revise an earlier decision disallowing an appeal against a decision of a deciding officer in 2018 to refuse an application for domiciliary care allowance (“DCA”) in respect of the child of the appellant. Under s. 186C of the 2005 Act, DCA is paid to carers of children where, inter alia, 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”.
. The appellant applied for DCA to the Department of Social Protection in 2018 in respect of her son, J., and detailed his care needs. J. was five years and two months of age when the application was deemed to have been made when received on the 6 th June, 2018. The application was determined by a deciding officer, who concluded that the qualifying conditions for the payment were not satisfied at that time and, in particular, that the evidence provided did not indicate that the level of additional support required was substantially in excess of that required by children of the same age who did not have the disability, as provided for in the qualifying conditions of the scheme. Her decision was notified to the appellant on the 30 th August, 2018.
. In the light of the appellant having taken an appeal against the decision of the deciding officer, a review of that decision was undertaken by another deciding officer in accordance with s. 301 of the 2005 Act. He decided that a revision of the original decision was not warranted, and his decision was notified to the appellant by letter dated the 18 th December, 2018.
. The appeal against the decision of the initial deciding officer was heard by an appeals officer. In a decision made on the 26 th February, 2019, he disallowed the appeal on the basis that the amount of extra care required by the appellant's son was not substantially in excess of that normally required by a five year old child, and the appellant was notified of his decision on the 11 th March, 2019.
. The appellant subsequently sought a review of that decision of the appeals officer, pursuant to s. 317 of the 2005 Act. Section 317(1)(a) provides that an appeals officer “may at any time revise any decision of an appeals officer…where it appears to him or her that the decision was erroneous in the light of new evidence or new facts which have been brought to his or her notice since the date on which it was given”. That review was carried out by the same appeals officer, who determined that there were no new facts or evidence which warranted a revision of his decision, and the appellant was notified of the outcome of the review by letter dated the 5 th June, 2019.
. The appellant then sought a review of the decision of the appeals officer by the Chief Appeals Officer, pursuant to s. 318 of the 2005 Act. The Chief Appeals Officer ultimately concluded that there was no error of fact or law on the part of the appeals officer and declined to revise the decision, and the appellant was notified of the outcome of that review by letter dated the 17 th September, 2019.
. In late 2020 an assessment of the appellant's son was undertaken by the HSE, to ascertain whether he met the criteria for “disability” as defined in the Disability Act, 2005. An assessment report concluded that J. had a disability, i.e. a substantial restriction in capacity by reason of an enduring impairment.
. Subsequently, in April 2021, the appellant sought another review of the 2019 decision of the appeals officer pursuant to s. 317 of the 2005 Act. The application for revision was based on the above new evidence as to disability which, the appellant said, demonstrated that the decision of the appeal officer was erroneous. However, the appeals officer refused to revise the original appeal decision, on the basis that the new evidence was current evidence that had come into being almost three years after the original application for DCA, and was based on an assessment between November and December, 2020. He stated that the appeals officer could only deal with J.'s disabilities and care needs at the date of the application per governing legislation, and that this new evidence did not add anything new to his medical diagnoses at the time of the original application. He concluded that it had not been established that the appellant had furnished any new evidence pertaining to J.'s need requirements in January, 2018 to change the original decision, and consequently this review was disallowed. He added, however, that it was open to the appellant to submit a new application for DCA for her son, so that his current entitlement could be decided upon.
. The appellant brought judicial review proceedings challenging the 2021 decision of the revising appeals officer, contending that s. 317 (and related provisions) of the 2005 Act should be interpreted broadly given that the Act had a remedial purpose, reliance being placed in this regard on the decision of this Court in McDonagh v. Chief Appeals Officer [2021] 1 ILRM 385 (“ McDonagh”). On the appellant's case, nothing in the 2005 Act prevented the appeals officer from making a decision on eligibility in favour of a claimant by reference to a date after the date of claim, with the claim then being allowed from the date of eligibility, thus rendering a new claim unnecessary.
. The High Court (Owens J.) “rather reluctantly” refused the application for judicial review in a detailed ex tempore judgment. He referred to the additional information furnished to the appeals officer for the 2021 review, and stated that none of the documents provided directly addressed the issue to be decided, which was whether at the time of J.'s application for DCA in 2018 he had a 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, as set out in s. 186C(1) of the 2005 Act.
. Owens J. felt that the main issue canvassed before him in this judicial review was in fact an issue which he had previously dealt with in L.L. v. Chief Appeals Officer [2021] IEHC 101 (“ L.L”). In L.L. he held that the 2005 Act requires that a claimant be entitled to the benefit sought at the time when the claim was submitted. It was now suggested that certain observations of the Supreme Court in McDonagh demonstrated that his approach to the interpretation of the relevant sections of the 2005 Act was incorrect, but Owens J. did not agree with that, although he had no difficulty accepting the proposition that statutory provisions should be given a purposive interpretation.
. An important matter for Owens J. was that the Oireachtas had amended s. 301 of the 2005 Act in 2013, so that revisions of decisions of deciding officers could not have regard to change of circumstances since the giving of the original decision. If new material only goes to a change of circumstance since the original decision, then it cannot be considered as a basis for concluding that the original decision was erroneous in the light of new evidence or new facts which have been brought to the notice of the deciding officer since the date on which the decision was given (as per the test in s. 301). A decision not to award a benefit is not erroneous if a person is established not to be eligible for a benefit on the basis of the evidence initially presented, and it is shown by evidence tendered later on a review that a person claiming benefit has since become entitled to that benefit by fulfilling qualification criteria. Owens J. repeated that the decision does not become erroneous because circumstances change, and these changes may result in a person who has been found not be eligible at the time of the initial application now satisfying eligibility criteria.
. Part 10 of the 2005 Act contains the procedural framework in which decisions relating to eligibility are taken by deciding officers, appeals officers and the Chief Appeals Officer. Part 10 refers to a “question” arising under various parts of the 2005 Act, and Owens J. held that the “question” to be decided in relation to a claim for DCA is to be decided by reference to whether the application meets the criteria at the time of the application. The issue at the time of this application and when it first came before the appeals officer was whether this disability was of a nature which required continual or continuous care and attention substantially in excess of the care and attention required by a child of the same age. That obviously involved a very detailed appraisal back in 2018 and the issue was whether the additional information changed this view. The revising appeals officer concluded that it was not established that the appellant had furnished any new evidence pertaining to J.'s need requirements in 2018, and Owens J. did not think that it had been demonstrated that this involved any legal error or irrationality. He held that the appeals officer was entitled to take the view that the new information did not add anything to the information...
To continue reading
Request your trial