Malone -v- Minister for Social Protection

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms Justice Mary Irvine
• Judgment Date: 10 December 2014
• Neutral Citation: [2014] IECA 4
• Date: 10 December 2014

Avril Malone

Plaintiff/Appellant

The Minister for Social Protection

Defendant/Respondent

[2014] IECA 4

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

Appeal Number: 120/2014 Record Number: 2012/1037 JR [Article 64 Transfer Case]

THE COURT OF APPEAL

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

Facts Ms Malone, a nurse by profession, is a mother and the primary carer of her son, G. G was diagnosed with autism in November 2011. In March 2012 Ms Malone applied to the Minister for Social Protection pursuant to Chapter 8 A of the Social Welfare Consolidation Act 2005 for a Domiciliary Care Allowance. Her application was refused on the grounds that G did not meet the requisite statutory criteria. She sought a review of the decision under s.301 of the 2005 Act and submitted additional evidence. In October 2012, a second deciding officer confirmed the original grounds of refusal and refused to revise the earlier decision. Subsequently, she obtained leave to apply by way of judicial review to quash the decisions. Following the decision of the Court, Ms Malone pursued with success her statutory right of appeal against the respondent’s refusal of the Domiciliary Care Allowance under section 311. Her application was allowed with retrospective effect. Notwithstanding success on appeal, she lodged a Notice of Appeal against the decision of Hanna J, which in turn led the respondent to make an application to strike out the appeal on grounds of mootness. The respondent argued that when Ms Malone lodged her appeal there was no live dispute remaining between the parties and that the relief sought, even if granted, could have no impact upon the parties. The respondent said the controversy, stemming from s. 300 of the 2005 Act was ‘spent’ having regard to her successful appeal under section 311. Counsel for the appellant submitted that regardless of the fact that she was now in receipt of the Domiciliary Care Allowance, there remained a live and concrete dispute between the parties. Counsel for the appellant argued the proceedings were never about Ms Malone’s entitlement to receive the Allowance. They were about the manner in which the respondent had exercised his statutory powers under s. 300 of the 2005 Act.

Held The judge ruled the issues raised in Ms Malone’s appeal were indeed moot. The Court acknowledged that when the proceedings were first commenced there was a real dispute between the parties. That controversy concerned the refusal of the respondent to accede to Ms Malone’s application for the Domiciliary Care Allowance on the basis of her son’s medical condition. As a result she challenged the validity of the decisions of the relevant deciding officers. The appellant maintained the proceedings were never about her entitlement to the Allowance but instead concerned the decision making process. The judge refuted this argument, highlighting but for the respondent’s refusal of the allowance the proceedings would never have been commenced.

-Appeal dismissed

1 and

Ms Justice Mary Irvine

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

2 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.

3 Background Facts

4 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.

5 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.

6 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.

7 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.

8 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.

9 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.

10 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.

11 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.

12 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.

13 Submissions

14 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.

15 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...