M.D. v Minister for Social Protection

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 09 February 2016
• Neutral Citation: [2016] IEHC 70
• Docket Number: [2015 No. 200 J.R.]
• Court: High Court
• Date: 09 February 2016

BETWEEN

M.D.

APPLICANT

AND

MINISTER FOR SOCIAL PROTECTION

RESPONDENT

[2016] IEHC 70

Baker J.

[2015 No. 200 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Social Welfare – Social Welfare Consolidation Act, 2005 – Appeal against the decision of Social Welfare Appeals Office – Certiorari – Breach of fair procedures – Availability of alternative remedy

Facts: The applicant sought an order of certiorari against the decisions of the respondent refusing to review the said decisions that the applicant's son would not be granted domiciliary care allowance under the scheme created by virtue of chapter 8A of the Social Welfare Consolidation Act, 2005. The applicant also sought declarations that the respondent was obliged by statute to carry out the physical examination of the son of the applicant as there was a conflict of evidence and that the decisions were made as a result of an error of law and/or as a breach of statutory duty and/or of the natural and constitutional justice required to be afforded to the applicant. The respondent contended that the present application filed by the applicant was premature as the applicant should first avail the remedy by way of a further statutory appeal under the said Act of 2005.

Ms. Justice Baker refused to grant an order of certiorari to the applicant; however, the Court granted a declaration that the respondent in its impugned decisions had erred in law and breached fair procedures by failing to assess the entire evidence presented by the applicant. The Court in conformity with the decision of Hannah J. in A.M. v. Minister for Social Protection [2013] IEHC 524 held that a Court should be reluctant to grant an order of certiorari where the alternative remedies were not exhausted by the applicant such as the statutory appeals mechanism. The Court observed that such appeals procedures provided an efficacious and appropriate forum to raise the concerns. The Court held that the obligation of the respondent to carry out an independent medical assessment of a child arose only in cases where the child was in receipt of allowance and not before as envisaged under s. 186G of the Act of 2005, and thus, the respondent could not be compelled to conduct such medical examination. The Court, however, criticised the manner in which the medical evidence in relation to the disability of the child was considered by the respondent. The Court observed that the decision-makers had failed to identify the factors that informed their decision and no factual analysis was conducted and thus, the impugned decision was flawed and contravened the principles of natural and constitutional justice.

JUDGMENT of Ms. Justice Baker delivered on the 9th day of February, 2016

1 The applicant applied for domiciliary care allowance under the Scheme created pursuant to Chapter 8A of the Social Welfare Consolidation Act, 2005 (‘the Act of 2005’), as amended, in June 2014 in respect of her son who suffers from a developmental disability, and of whom the applicant is the primary carer.

2 By a decision made on 8th September, 2014 the application was refused the allowance on the grounds that her son was not considered to be a ‘qualified child’ within the meaning of the legislative provisions.

3 The applicant sought a review of the decision under the statutory scheme and submitted further documentation for that purpose. The deciding officer, in a letter of the 16th December, 2014 determined to make no revision of the original decision.

4 The applicant lodged an appeal of the decision to the Social Welfare Appeals Office, and for the purposes of that appeal separately sought that the respondent should carry out an independent physical assessment of the young boy.

5 On 13th March, 2015 the respondent refused the request for the carrying out of a physical examination. By that letter the respondent notified the applicant as follows:

‘In relation to the undertaking of a physical examination, it is not considered either necessary or beneficial to have a physical examination carried out as there is no dispute as to the diagnosis of [X] or to the fact that he needs extra care and attention. What is disputed is whether his condition is such as to require continuous or continual care and attention substantially in excess of that required by a child of his age without the condition.’

6 The applicant, after taking legal advice, and because she says she was unhappy at the pace of the process, by a letter of 17th April, 2015, withdrew her appeal.

7 Noonan J. on 25th April, 2015 gave the applicant leave to apply by way of judicial review for the following reliefs:

a. an order of certiorari quashing the decisions of the respondent made on 8th September 2014, the 16th December 2014 and 13th March 2015;

b. a declaration that the respondent is obliged by statute and/or by reasons of fair procedure, and natural and constitutional justice, to carry out a medical examination of the son of the applicant when there is a conflict of medical evidence;

c. a declaration that the decisions were made as a result of an error of law and/or as a breach of statutory duty and/or of the natural and constitutional justice required to be afforded to the applicant;

d. a declaration that the decisions were unlawful, invalid and vitiated for want of proper reasons, and/or that they were irrational, unreasonable and disproportionate;

e. a declaration that the respondent erred in law in making the said decisions in failing to properly consider all of the evidence.

8 The facts are not significantly in dispute. The applicant lodged a large body of supportive medical reports in support of the application, including reports from a physiotherapist, speech therapist, an occupational therapist, and a psychologist. She asserts that this documentation offers such a degree and level of support for her application that the respondent's refusal of the allowance is irrational.

9 At the time of the statutory review the applicant had furnished further reports, including the report of a report from Professor Michael Fitzgerald, a consultant child and adult psychiatrist, from an occupational therapist, a psychotherapist, a speech and language therapist and a psychologist as well as a general report of an assessment carried out by the HSE on 9th October, 2014 which had used a wide range of assessment tools by experts in five discreet areas and which came to the determination that the young boy did have a disability ‘as defined by the Disability Act, 2005’. This is a lengthy report which inter alia recommended that the young boy's parents ‘should attend a structured parenting programme to support him in acquiring age-appropriate self-help skills, social skills and encouraging appropriate behaviour’. There was also a suggestion that the family might be ‘offered further support… if deemed appropriate’, and that his parents would be ‘given advice on how to support his development of social skills in context’. In the case of the seven interventions or services which were recommended, six of them were recommended to be put in place ‘as soon as possible’. Each of the reports supported an assessment that the young boy was below average in a number of fundamental social skills.

10 At the time of the review there were two separate reports available from the family GP who described the young boy's inability as ‘severe’ in 12 identified skill areas.

11 Mrs. D's also supplied extracts from personal diaries from February 2013 to September 2014, showing more than 50 hospital and related appointments with her son.

12 The medical assessor first employed by the respondent stated in an opinion of the 7th July, 2014 that the medical evidence did not indicate that the young boy needed substantially more care and attention than that required by a child of his age without the disability. The applicant submitted further reports for the purpose of the renewal, including all of which it is argued are supportive of the application and indicate that the young boy does need extra support and assistance in his activities.

13 Without prejudice to those preliminary objections, the respondent argues that s. 186G of the Act of 2005, as amended, does not create a power to conduct a physical medical assessment in respect of a child who is not a qualified child within the meaning of chapter 8A of that Act, and that while a medical certification process is available and frequently engaged in connection with applications for other forms of benefits under the social welfare code, no power exists under the relevant legislation relating to applications for domiciliary care allowance for the carrying out of a physical medical assessment.

14 It is also denied that there was any conflict in the evidence before the deciding body, as that body accepted that the young boy did suffer from a condition which required additional care, albeit not at a level required to satisfy the statutory criteria.

15 It is denied further that there was a failure to give reasons, and/or that the decision was irrational or vitiated for want of proper intelligible and adequate reasons. It is asserted in that context that, while the respondent does have a general duty to give reasons for its decision, it does not have a duty to explain the details of each such decision. It is also asserted that the decisions by the deciding officers, who were persons with relevant experience and expertise, were neither unreasonable nor ambiguous.

The decisions of the 8th September 2014 and 16th December 2014

16 The first decision in respect of which relief is claimed issued on 8th September 2014. The refusal letter enclosed the assessment report of the Department's medical assessor and it is clear it was prepared on a standard form and was a desktop assessment. The assessor considered that the applicant was ineligible for the reason...