F.D v Chief Appeals Officer
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 24 May 2023 |
| Neutral Citation | [2023] IECA 123 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No. 2022 216 |
[2023] IECA 123
Donnelly J.
Ní Raifeartaigh J.
Binchy J.
Record No. 2022 216
THE COURT OF APPEAL
Social welfare – Alternative remedy – Oral hearing – Appellant seeking to quash the decision of the first respondent to determine the appellant’s social welfare appeal on a summary basis – Whether the High Court erred in relation to its finding that there existed an alternative appeal remedy
Facts: The High Court (Hyland J), in a judgment delivered on 18 July 2022, refused to quash the decision of the first respondent, the chief appeals officer, to determine the appellant’s social welfare appeal on a summary basis. The appellant maintained that she was entitled to have the appeal of the decision concerning her entitlement to carer’s allowance, in particular the decision to order repayment of her allowance, determined by way of oral hearing. Pursuant to the Social Welfare (Consolidation) Act 2005, the deciding officer held that the appellant was required to repay the sum of €54,184.10 in circumstances where the appellant had an entitlement to a lower rate of carer’s allowance from 2014 to 2018, and no entitlement to carer’s allowance from 2018 to 2019. The appeals officer, after a summary consideration of the appeal, upheld that decision. The judicial review proceedings claimed that the appeals officer acted without due regard to fair procedures, natural and constitutional justice and contrary to the provisions of the 2005 Act and the Social Welfare (Appeals) Regulations 1998. The respondents’ opposition included a claim that the appellant had failed to exhaust the alternative remedy of seeking a revision under the scheme of appeals/revision set out in the 2005 Act. The parties viewed the substantive issues of the appeal to the Court of Appeal slightly differently. The appellant focused on whether the determination of the social welfare appeal on a summary basis was lawful. Donnelly J was satisfied that the two substantive issues identified by the respondents were those that arose in the appeal: (1) Did the High Court err in relation to its finding that there existed an alternative appeal remedy namely s. 317 of the 2005 Act? (2) If necessary, did the High Court err in holding that an oral hearing was not required?
Held by Donnelly J that the High Court judge did not err in finding that the appellant had available to her a remedy under s. 317 in which she could have deployed the material she brought to court to argue that she had been entitled to an oral hearing. Donnelly J held that this remedy was suited to her concerns; it could have addressed her entitlement to an oral hearing, and it could have provided her with such an oral hearing if deemed necessary. Donnelly J held that it was not necessary to engage with the second issue on the appeal as to whether the trial judge erred in holding that the appeals officer was entitled to proceed to deal with the matter summarily.
Donnelly J held that the trial judge did not err in deciding that there was an alternative remedy available to the appellant which she failed to exhaust. Donnelly J held that, in the circumstances of the case, this failure disentitled the appellant to the relief she sought by way of judicial review.
Appeal dismissed.
JUDGMENT of Ms. Justice Donnelly delivered this 24th day of May, 2023
. The High Court (Hyland J.), in a judgment delivered on 18 July 2022, refused to quash the decision of the chief appeals officer (hereinafter “the respondent”) to determine the appellant's social welfare appeal on a summary basis. The appellant maintains that she was entitled to have the appeal of the decision concerning her entitlement to carer's allowance, in particular the decision to order repayment of her allowance, determined by way of oral hearing.
. Pursuant to the Social Welfare (Consolidation) Act 2005 (the “2005 Act”), the deciding officer held that the appellant was required to repay the sum of €54,184.10 in circumstances where the appellant had an entitlement to a lower rate of carer's allowance from 2014 to 2018, and no entitlement to carer's allowance from 2018 to 2019. The appeals officer, after a summary consideration of the appeal, upheld that decision.
. The judicial review proceedings claimed that the appeals officer acted without due regard to fair procedures, natural and constitutional justice and contrary to the provisions of the 2005 Act and the Social Welfare (Appeals) Regulations, 1998 (as amended by Article 5 Social Welfare (Appeals) (Amendment) Regulations, 2011. The respondents' opposition included a claim that the appellant had failed to exhaust the alternative remedy of seeking a revision under the scheme of appeals/revision set out in the 2005 Act.
. The background to the case is set out in the decision of the High Court as follows:
“4. The applicant was receiving a carer's allowance in respect of her daughter, who has special needs. By way of a decision of 9 January 2020, the deciding officer directed the applicant to repay the sum of €54,184.10, on the basis that the applicant had an entitlement to a lower rate of carer's allowance from 2014 to 2018 and no entitlement to carer's allowance from 2018 to 2019. The decision was stated to be made under sections 179, 181 and 302(b) of the 2005 Act. The applicant was informed that she had either a right to request a review of the decision by a deciding officer or a right to appeal the decision to the Chief Appeals Officer.
5. On 30 January 2020 the applicant wrote to the Chief Appeals Officer indicating that she wished to appeal the decision and that she would write shortly to “comprehensively outline [her] case”.
6. On 5 March 2021 (sic) she wrote identifying her grounds of appeal in respect of the correspondence of 9 January 2020 as follows:
“Carers Allowance Payment is made in respect of the care of a special needs child
The Department has incorrectly calculated the means of my family
The means of my husband should not be counted
The Department never reviewed my entitlement/payment
The decision is contrary to EU law
The decision is contrary to the ECHR Act 2003
The provision of the Act governing means is unconstitutional
The Deciding officer accepts that any alleged overpayment arose out of a mistake and not by deliberate acts or omissions, thus the Appeals Officer has a discretion as to the date from which an alleged overpayment is sought.
I am seeking an oral hearing.
Further grounds and submissions to follow (either before or during an oral hearing)”
No further submissions or material were provided by the applicant.
7. On 14 October 2020, she received a letter from the second respondent in the following terms: “The Appeals Officer dealing with this case has asked that I write to you. He refers to your appeal, and in particular to a number of contentions you raised in your notification of appeal, dated 5 March 2020. In this notification letter you stated that further grounds and submissions would follow. It is now seven months since this correspondence, which is deemed sufficient time in order to have gathered such grounds. Please forward any evidence or information which you wish to be taken into account to this office. Your appeal file, along with any new evidence provided, will be reviewed again on 2 November.”
8. The last paragraph of the letter addressed the question of an oral hearing and was in the following terms; “It is noted that you requested an oral hearing. Regulation 13 of Statutory Instrument 108/1998 ( Social Welfare (Appeals) Regulations 1998) provides that where an Appeals Officer is of the opinion that the case is of such a nature that it can be properly determined without a hearing, he or she may determine the appeal summarily. The Appeals Officer feels this to be the position here.”
9. (…)
10. The applicant could at that point have submitted material that might have raised the necessity for an oral hearing. Instead, she replied on 22 October 2021 as follows:
“Further to your letter dated 14/10/2020 I wish to rely upon my letter dated 05/03/2020 and look forward to the opportunity to present my case and answer any questions an appeals officer may have at an oral hearing.”
11. The above recitation of the correspondence constitutes the totality of the interactions between the applicant and the appeals officer.”
. The appeals officer gave his decision on 26 November 2020. He described the background to the appeal saying that the appellant was interviewed in June 2019 by a Social Welfare Inspector during which it became apparent that the family means had changed from the start date of the payment. The appellant had been written to on 19 August 2019 and was given an opportunity to challenge or comment on the findings. The appellant did not do so, and the overpayment was assessed. The appeals officer referred to various evidence on file supporting the view that the appellant had been advised of the importance to notify changes in circumstances to the department, and said he was satisfied that she was aware of the need to notify changes, and that for whatever reasons she failed to do so.
. With respect to the question of an oral hearing, the appeals officer stated:
“I note the appellant's grounds for appeal, and the fact that she stated she would provide further evidence to counter the Department's position. Seven months have passed since she stated she would provide this evidence. In order to give the appellant further opportunity to provide this evidence the Appeals Officer contacted her by letter, dated 13/10/20, requesting any further evidence she wished to proffer. The appellant replied in a letter dated 22/10/20 stating she wished to rely upon her letter of 05/03/20 and looked forward to the opportunity to present her case...
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