Malone -v- Minister for Social Protection


[2014] IECA 4


Finlay Geoghegan J., Birmingham J., Irvine J.

Appeal Number: 120/2014 Record Number: 2012/1037 JR [Article 64 Transfer Case]
Avril Malone
The Minister for Social Protection

120/2014 & 2012/1037JR - Finlay Geoghegan Birmingham Irvine - Court of Appeal - 10/12/2014 - 2014 IECA 4

Minister for Social Protection - Application to strike out the appeal - On grounds that it is moot - Child with autism - Chapter 8 A of the Social Welfare Consolidation Act 2005 - Domiciliary Care Allowance - Statutory payment - Criteria for entitlement - Judicial review - Medical examination of G-Decision-making process - Procedural unfairness - Incorrect statutory interpretation



Ms Justice Mary Irvine
Judgment of the Court delivered on the 10th day of December 2014 by Ms Justice Mary Irvine

This judgment relates to an application brought by the respondent, The Minister for Social Protection, seeking an order that this Court strike out the appeal of the appellant (‘Ms. Malone’), against the decision and judgment of the High Court (Hanna J.) delivered on 25th October 2013, on the grounds that the said appeal is moot.


Background Facts


1. Ms. Malone, who is a nurse by profession, is the mother and primary carer of a young boy (‘G’), who was diagnosed with autism in November 2011.


2. On the 28th March 2012 Ms. Malone applied to the respondent pursuant to Chapter 8 A of the Social Welfare Consolidation Act 2005 ("The 2005 Act") (as inserted by section 15 of the Social Welfare and Pensions Act 2008 and amended by section 26 of the Social Welfare (Miscellaneous Provisions) Act 2010), for a domiciliary care allowance (‘DCA’) in respect of G. That allowance is a statutory payment made in respect of children who meet the following qualifying criteria, namely:-

(a) 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,

(b) the level of disability caused by the severe disability is such that the child is likely to require full time care and attention for at least twelve consecutive months.


3. On 10th May 2012 Ms. Malone”s application for the DCA was refused on the grounds that the first deciding officer was not satisfied that G met the requisite statutory criteria. She then sought a review of that decision pursuant to the provisions of s. 301 of the 2005 Act for which purpose she submitted additional evidence. On 26th October 2012, a second deciding officer confirmed the original grounds of refusal and refused to revise the earlier decision.


4. On 17th December 2012 Ms. Malone sought and obtained leave from the High Court (Peart J.) to apply, by way of Judicial Review, to quash the decisions made by the respondent through his deciding officers in refusing to grant the DCA on grounds which were particularised at paragraph D of the Statement of Grounds required to support the application for Judicial Review.


5. The relief claimed by Ms. Malone at the full hearing in the High Court may be summarised as follows;

1) A declaration that the respondent was obliged by statute and/or fair procedures and/or natural and constitutional justice, to carry out a medical examination on G given the alleged existence of a conflict in the medical evidence.

2) A declaration that the respondent, in failing to disclose how the conflict in the medical evidence had been resolved, had erred in law and/or was in breach of statutory duty and/or of fair procedures and/or natural and constitutional justice.

3) A declaration that the said decisions were unlawful and/or invalid and in breach of fair procedures and/or natural and constitutional justice, in so far as reasons were not furnished in support of the said decisions.

4) An order of certiorari quashing the decisions of the respondent”s refusing Ms. Malone”s application for the DCA.


6. In his judgment of 25th October 2013, Hanna J. reached the following conclusions in relation to the aforementioned issues namely:-

(a) That while the statutory scheme provided for the power to carry out a medical examination, having regard to the fact that there was no dispute on the medical evidence, there was no duty on the respondent, on the facts of this case, to conduct such an examination on G.

(b) That the reason underlying the decisions of the respective deciding officers was clear and unambiguous. They had rejected Ms. Malone”s application on the basis that on the evidence submitted she did not qualify for the DCA as G did not meet the statutory criteria. In this regard he referred to the statement made by the first deciding officer on 10th May 2012 which stated:

‘…while the diagnosis of your child”s disability is not in question, the medical evidence provided does not indicate that the extra care and attention required is substantially in excess of that required for a child of the same age who does not suffer from your child”s condition."

(c) That the applicant”s true remedy, having regard to the comprehensive appeals mechanism provided for in the legislation, lay not in Judicial Review proceedings but in her entitlement to appeal the decisions of the deciding officers pursuant to s.311 of the 2005 Act.


7. For the aforementioned reasons the learned trial judge dismissed the proceedings and with the agreement of the respondent made no order as to costs.


8. Following the decision of the Court, Ms. Malone pursued with success her statutory right of appeal against the respondent”s refusal of the DCA under section 311. By decision dated 17th January 2014 her application was allowed with retrospective effect from 1st April 2012, that being the date upon which she had first sought the said allowance.


9. Notwithstanding her success on appeal, on 18th March 2014 Ms. Malone lodged a Notice of Appeal against the decision and judgment of Hanna J. It is that action which has led to the present application on the part of the respondent to strike out the appeal on the grounds that the issues are entirely moot.




10. Counsel on behalf of the respondent submitted that on any formulation of the concept of ‘mootness’ the issues raised on the appeal of Ms. Malone must be considered moot. At the time she lodged her appeal there was no live concrete dispute remaining between the parties and the relief sought, even if granted, could have no impact on the parties. Neither would it resolve any controversy affecting or potentially affecting the rights of the parties.


11. Insofar as Ms. Malone apprehended that at some future review of her entitlement to claim the DCA the issues on the present appeal would be material, Counsel for the respondent submitted that whatever that controversy might be it could not be the same controversy as arose for consideration in these proceedings. The controversy, stemming from s. 300 of the 2005 Act was ‘spent’ having regard to her successful appeal under section 311. Any dispute that might arise in the future would be a different controversy and would involve a consideration of new facts and would be carried out under a different provision. Indeed in light of the affidavit evidence, such a review was entirely hypothetical.


12. In support of his submissions Counsel for the respondent relied on a number of recent decisions concerning the issue of mootness including Goold v. Collins and others [2004] IESC 38, Cunningham v. The President of the Circuit Court [2012] 3 I.R. 222, O”Brien v. PIAB [2007] 1 I.R. 328 and Borowski v. Canada [1989] 1 S.C.R. 342.


13. Counsel for the appellant submitted that regardless of the fact that she was now in receipt of the DCA, there nonetheless remained a live and concrete dispute between the parties in which both parties had an interest. Her right to that allowance was subject to ongoing review which was likely to occur every two years. At that stage she would face an identical situation to that which she had faced when she first applied for the DCA and at the time of review she would have to prove her entitlement to retain this allowance. While the review is provided for under s. 301, the decision is taken under s. 300 using the same process that applies to applications under section 300. Ms. Malone feared that she would be subjected to the same procedural unfairness on such a review. Hence the importance of a determination as to whether the deciding officer is required to give reasons beyond those actually given and whether, in the event of a dispute on the medical evidence, that conflict must be resolved by reference to a medical examination. He submitted that the Court was entitled to look to these anticipated future circumstances and was not confined to an examination of the past when determining the issue of mootness.


14. Counsel for the appellant maintained that the proceedings were never about Ms. Malone”s entitlement to receive the DCA. They were about the manner in which the respondent had exercised his statutory powers under s. 300 of the 2005 Act and the fact that she was now in receipt of the allowance did not mean that the outstanding issues did not warrant a final determination. He submitted that the issues before the Court concerned the construction of a statutory provision material to the manner in...

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