M. D. [Identity Protected] v Minister for Social Protection

• Jurisdiction: Ireland
• Judge: Ms. Siobhán Phelan
• Judgment Date: 24 February 2023
• Neutral Citation: [2023] IEHC 88
• Court: High Court
• Docket Number: [Record No.: 2021/204 SP]

Between

M. D. [Identity Protected]

Applicant

and

Minister for Social Protection, Chief Appeals Officer

and

Social Welfare Appeals Office

Respondents

[2023] IEHC 88

[Record No.: 2021/204 SP]

THE HIGH COURT

Domiciliary care allowance – Statutory test – Social Welfare Consolidation Act 2005 s. 186C(1) – Applicant appealing on a question of law from a decision of the second respondent disallowing the applicant’s appeal of a refusal of domiciliary care allowance in respect of her care of her daughter – Whether the second respondent applied the incorrect statutory test in making his decision

Facts: The applicant appealed to the High Court on a question of law pursuant to s. 327 of the Social Welfare Consolidation Act 2005 (as amended) from a decision of the second respondent, the Chief Appeal’s Officer, made on 8th of November 2021. The decision was to disallow the applicant’s appeal of a refusal of Domiciliary Care Allowance in respect of her care of her teenage daughter (the Child). The application for the Allowance was refused on the basis that the governing conditions of s. 186C(1) of the 2005 Act were not met because the Child did not require a level of care and attention substantially in excess of the care and attention normally required by a child of the same age. The applicant complained that the decision to refuse the Allowance was not properly reasoned and/or that the respondents, the Minister for Social Protection, the Appeals Officer and the Social Welfare Appeals Office, erred in law by unreasonably refusing the Allowance having regard to the evidence and/or construing s. 186C(1) of the 2005 Act as requiring a higher level of need than had been prescribed by the Oireachtas.

Held by Phelan J that the fact that a child places significant demands on the parenting resources of parents, which demands were acknowledged as arising by the Appeals Officer in the case, does not mean that the conditions of s. 186(C) are met. Phelan J held that a significant demand on parenting resources does not necessarily mean that a child requires continual or continuous care and attention substantially in excess of the care and attention normally required by a child of the same age; it is a relative question. Phelan J held that the reason the application in the case failed was because it had been concluded that the statutory threshold was not met on the evidence presented. Phelan J held that there was no ambiguity in that regard. Phelan J held that, in assessing the evidence, the Appeals Officer was applying knowledge and common sense as decision maker under the 2005 Act. Phelan J was satisfied from the terms of the decision that the Appeals Officer had regard to all of the evidence and that the conclusion that the Child was mostly independent in important areas of daily activity was amply supported by the evidence. Phelan J held that it had not been established that the decision was unreasonable in law. The applicant failed to satisfy Phelan J that there was an error of law in the Appeals Officer’s decision.

Phelan J dismissed the appeal.

Appeal dismissed.

JUDGMENT of Ms. Siobhán Phelan, delivered on the 24 ^th day of February, 2023

INTRODUCTION

1 . This matter comes before me by way of a statutory appeal on a question of law pursuant to s.327 of the Social Welfare Consolidation Act, 2005 (as amended) [hereinafter “the 2005 Act”] from a decision of the Appeal's Officer made on 8 ^th of November 2021. The decision was to disallow the Applicant's appeal of a refusal of Domiciliary Care Allowance [hereinafter “the Allowance”] in respect of her care of her teenage daughter [hereinafter “the Child”].

2 . The application for the Allowance was refused on the basis that the governing conditions of s. 186C(1) of the 2005 were not met because the Child does not require a level of care and attention substantially in excess of the care and attention normally required by a child of the same age.

3 . The Applicant complains that the decision to refuse the Allowance was not properly reasoned and/or that the Respondents erred in law by unreasonably refusing the Allowance having regard to the evidence and/or construing s. 186C(1) of the 2005 Act as requiring a higher level of need than has been prescribed by the Oireachtas.

BACKGROUND AND CHRONOLOGY

4 . The Child was born in April, 2006. She reached early developmental milestones at appropriate times (feeding, sitting, walking and talking) but was referred to Speech and Language Therapy following her commencement in primary school due to the possibility that she was presenting with selective mutism. Although she also presented as clumsy and awkward with social difficulties interacting with others, some sensory challenges (e.g. intolerance of noise and certain fabrics) and some other difficulties, she attended mainstream school and her difficulties were managed, the expectation being that she would grow out of them.

5 . When her problems failed to improve and there was a concern that she was getting worse, she was referred for assessment. She was diagnosed with Development Co-Ordination Difficulties/Dyspraxia (hereinafter “DCD”) following assessment by an occupational therapist in 2018, as subsequently confirmed in a report dated the 15 ^th of February, 2019 (when the Child was nearly thirteen years old). An ASD Multidisciplinary Assessment conducted in January, 2020 further diagnosed the Child with Autism Spectrum Disorder (hereinafter “ASD”). Various recommendations were made as to how the Child and her parents might be supported. It was suggested in the ASD Multidisciplinary Assessment Report that as the Child had a diagnosis of ASD, her parents might be entitled to apply for the Allowance, payable until age 16, on her behalf. It was further suggested that the Child may be entitled to Disability Allowance when she turns 16.

6 . The Applicant submitted an application for the Allowance in March, 2020 in respect of the care needs of the Child who was 13 years and 10 months at the time of the application. The application was supported by a medical report from the Child's GP together with: (a) Occupational Therapy Assessment Report dated the 15 ^th of February, 2019; and (b) the ASD Multidisciplinary Diagnostic Assessment Report dated the 28 ^th of January, 2020 confirming diagnoses of DCD and ASD.

7 . On the application form completed by the Applicant, it was confirmed that the Child had normal mobility. The only difficulty identified with personal care was a problem with buttons and zips and a need to be reminded to get ready or dressed. It was indicated that she required encouragement to eat and was selective about the foods she ate. It was confirmed that she attends mainstream school, that she did not have access to an SNA nor had one been recommended but that she had been recommended for assistive technology and learning support. Interrupted and problem sleeping were identified as a frequent issue (between 1 and 3 times a week). It was confirmed that she could speak normally but did not understand what was said to her or facial expressions/body language. It was elaborated that she sometimes needs to have words explained to her and uses the wrong expressions for emotions. Her social skills were identified as impacted in terms of appropriate problem-solving skills, a need for organisational support and help with her school work and an intolerance of changes in her routine. In terms of behaviour, it was confirmed that she did not display high risk behaviours requiring intervention to prevent injury to self or others but was irritable and prone to outbursts, anxious and could be aggressive to others. It was confirmed that she demonstrated unusual behaviours but that there was no necessity to lock household items away. The only safety issue identified on the form related to road safety. Sensory issues relating to noise or crowds as well as the feel of certain materials and fabrics were identified as a problem resulting, by way of example given, in a refusal to wear certain clothes and a refusal to go shopping.

8 . The reports which accompanied and supported the application provided, inter alia, details of the history provided by the Child's parents, the Child's presentation and the results of diagnostic assessment. The GP's report was in the standard form required by the First Respondent and addressed the degree to which the child's condition affected her ability in a specified range of areas including mental health, behaviour, learning, communication, social skills, vision, hearing, sensory issues, feeding/diet, sleeping, washing, dressing, continence, sleeping mobility, balance and motor skills. It was confirmed that the Child was scoring normally in many areas including continence and mobility but was either moderately or severely impacted in other areas including mental health, behaviour, communication, social skills, sleeping, balance and motor skills.

9 . The Occupational Therapist's Report recorded that the Child was in first year in secondary school where teaching staff reported her to be a hardworking, diligent and motivated girl with excellent behaviour. Concerns were reported by her school, however, in relation to school performance, particularly in the area of motor and processing skills. It was reported that she avoids activities that challenge balance and appears clumsy, stumbles and slouches in a chair at times. An oversensitivity to noise was reported as well as some issues of interpretation and a lack of fluency in her speech. Motor skills assessment using diagnostic tests gave an overall score which place her at the 0.5 percentile for her age indicating significant motor coordination difficulties in relation to fine and gross motor abilities. She had low average scores in relation to visual motor integration, visual perception and motor co-ordination. Her handwriting speed was assessed as significantly...