L.A. v The Chief Appeals Officer

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Alexander Owens
• Judgment Date: 28 March 2024
• Neutral Citation: [2024] IEHC 187
• Docket Number: [2023 No. 216 JR]

Between:

L.A.

Applicant

and

The Chief Appeals Officer

The Social Welfare Appeals Office

The Minister for Social Protection

Respondents

[2024] IEHC 187

[2023 No. 216 JR]

AN ARD-CHÚIRT

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of The Hon. Mr. Justice Alexander Owens delivered on the 28th day of March 2024.

1 Sections 300(1) and (2) of the Social Welfare Consolidation Act 2005 (the 2005 Act) empower deciding officers to decide “every question arising under…” provisions in that Act which govern eligibility of claimants to receive benefits and allowances.

2 Part 10 of the 2005 Act contains provisions which permit revision of decisions by deciding officers and appeals officers and give claimants rights of appeal from adverse decisions by these decision-makers.

3 Section 317(1)(a) of the 2005 Act provides that: “An appeals officer may at any time revise any decision of an appeals officer — (a) 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”.

4 Section 327 of the 2005 Act provides that: “Any person who is dissatisfied with – (a) the decision of an appeals officer, or (b) the revised decision of the Chief Appeals Officer, may appeal that decision or revised decision, as the case may be, to the High Court on any question of law.”

5 Section 318 of the 2005 Act confers power on the Chief Appeals Officer to revise a decision of an appeals officer “…at any time, revise any decision of an appeals officer, where it appears to the Chief Appeals Officer that the decision was erroneous by reason of some mistake having been made in relation to the law or the facts.”

6 LA's application for judicial review challenges validity of a decision of a social welfare appeals officer on 21 December 2022 to refuse to revise an earlier decision by that appeals officer which was adverse to her. This earlier decision rejected her application for disability allowance under Chapter 10 of Part 7 of the 2005 Act.

7 A deciding officer decided that LA had not proved that she was eligible to receive this allowance. She appealed against this decision to an appeals officer. The appeals officer examined her application afresh and decided that she had not proved that she was eligible. The appeals officer decided that LA's weekly means at the time of her application were above the relevant threshold. He also decided that the evidence did not demonstrate that LA was “substantially restricted” in undertaking employment “suited to (her) age, experience and qualifications”, as required by s.210(1)(b) of the 2005 Act.

8 LA applied for a revision of this decision of the appeals officer under s.317(1)(a) of the 2005 Act. She submitted an affidavit which provided further information relating to both her means and her claim that she was unable to work as a result of health issues.

9 The question before the appeals officer was whether, in the light of this new material, his previous decision that LA did not satisfy two conditions of eligibility was factually erroneous. The appeals officer decided that this material did not demonstrate that LA's weekly means at the time of her application were below the relevant threshold. He also decided that this further material was insufficient to alter his previous conclusion that LA was not “substantially restricted” in undertaking employment “suited to (her) age, experience and qualifications,” as required by s.210(1)(b) of the 2005 Act.

10 LA did not exercise her right to appeal this decision to the High Court on a question of law under s.327 of the 2005 Act. Instead, she applied for judicial review. She claimed that the appeals officer acted unlawfully. She contended that he incorrectly disregarded information relevant to her means at the time of her application. She also claimed that he acted irrationally in deciding that the information relating to her medical condition and capacity to work did not establish that she met the criteria set out in s.210(1)(b) of the 2005.

11 My conclusions on these issues are as follows:

• (a) The appeals officer erred in law in deciding that material presented in LA's affidavit was not relevant to assessment means mandated by Rule 1(2) of Schedule 3 Part 2 of the 2005 Act.

• (b) The appeals officer did not err in law in determining that his initial decision that LA did not meet the qualifying condition specified in s.210(1)(b) of the 2005 Act was erroneous in light of the further material contained in her affidavit.

12 The respondents raised a preliminary issue. They submitted that I should refuse to entertain this application. They said that LA should ask the Chief Appeals Officer to revise the decision dated 21 December 2022 on grounds that it was “erroneous by reason of some mistake having been made in relation to the law or the facts”, as provided for by s.318 of the 2005 Act.

13 Litigants frequently invoke the jurisdiction of the High Court in judicial review to challenge decisions by appeals officers. Their grounds of challenge often raise questions of law which are capable of being decided in appeals under s.327 of the 2005 Act. The issues raised by LA in this application are capable of being decided in a statutory appeal.

14 I asked the respondents whether they were contending that this application should not be entertained because LA should have exercised her statutory right of appeal. They nailed their colours to the mast. They said that LA's first port of call for resolution of her complaint about the decision of the appeals officer was to request a revision under s.318 of the 2005 Act. Their statement of opposition confines their procedural objection to this point.

15 If the respondents are correct, every adverse decision by an appeals officer will be submitted to the Chief Appeals Officer for revision under s.318 of the 2005 Act as a precursor to judicial review proceedings. This additional workload will fall on the Chief Appeals Officer. Claimants who avail of their statutory right of appeal to the High Court on a question of law are not obliged to take this step.

16 The respondents referred to the judgment of Heslin J. in T v. Minister for Social Protection [2023] IEHC 763. They argued in that case that an application for judicial review of a decision of an appeals officer should not be entertained because T omitted to avail of revision and appeals options provided by ss. 318 and 327(a) of the 2005 Act. Heslin J. rejected these contentions.

17 The respondents referred to principles on which the High Court may depart from legal precedent: see Clarke J. in Re Worldport Ireland Ltd (in liquidation) [2005] IEHC 189 at 14; Parke J. in Irish Trust Bank v. Central Bank of Ireland [1976–7] ILRM 50 at 53–54.

18 They asserted that Heslin J. erred in law in concluding that dissatisfied claimants need not ask the Chief Appeals Officer to exercise the power to revise conferred by s.318 of the 2005 Act prior to applying for judicial review of decisions of appeals officers. They said that legal authorities which Heslin J. relied on did not support his conclusion.

19 I agree with the submission of the respondents that the judgment in LL and DZ v. Chief Appeals Officer [2021] IEHC 191 does not have a bearing on the issue of whether a claimant must request a revision under s.318 of the 2005 Act.

20 The Chief Appeals Officer has always taken the view that the 2005 Act requires that a person who applies for a benefit or allowance qualify at time of application and not at some later time. The issue in LL and DZ was whether this view of the law was correct.

21 If LL and DZ had referred decisions by appeals officers which applied this view of the law for revision by the Chief Appeals Officer, nothing could be achieved. This Court declined to treat their omission to ask for this revision as a ground for refusing to entertain their applications for judicial review.

22 This reasoning involved no determination on whether the underlying premise that claimants must ordinarily apply to the Chief Appeals Officer for a revision on grounds of error of law as a prelude to an application for judicial review was correct.

23 However, I agree with Heslin J.'s conclusion that omission by a claimant to seek a revision under s.318 of the 2005 Act is not a good reason to refuse to entertain an application for judicial review of a decision of an appeals officer.

24 The argument that LA was obliged to resort to s.318 of the 2005 Act is unsound. Any such requirement is inconsistent with the appeals structure set out in Part 10 of the 2005 Act.

25 Should the High Court permit claimants such as LA to ignore remedies provided by the Oireachtas within the statutory revision and appeals structure set out in Part 10 the 2005 Act?

26 Many legal issues relating to decisions of statutory decision-makers are capable of resolution either by a statutory appeal on a question of law or by availing of jurisdiction of the High Court to review lawfulness. Both of these processes are concerned with legality and not with factual merits. An error of law, whether it is identified in a statutory appeal or on judicial review, may invalidate a decision.

27 Any person who is aggrieved by a decision by a statutory decision-maker may have two potential avenues of redress. The first is any statutory right to seek revision of that decision or statutory right of appeal. The second is to invoke jurisdiction of the High Court to review of that decision. What is the appropriate forum? An incorrect choice of judicial review may be fatal.

28 This point arises more frequently nowadays as a result of recognition that errors of law go to “jurisdiction” of administrative tribunals. This means that if legal error by such a decision-maker is sufficiently serious, the High Court exercising jurisdiction in judicial review may set aside a...