McDonagh v The Chief Appeals Officer

• Jurisdiction: Ireland
• Judge: Mr. Justice Coffey
• Judgment Date: 08 June 2018
• Neutral Citation: [2018] IEHC 407
• Docket Number: [2017 No. 760 J.R.]
• Court: High Court
• Date: 08 June 2018

BETWEEN

BRIGID WILTON MCDONAGH

APPLICANT

AND

THE CHIEF APPEALS OFFICER

AND

THE MINISTER FOR SOCIAL PROTECTION

RESPONDENTS

[2018] IEHC 407

[2017 No. 760 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Domiciliary Care Allowance – Social Welfare Consolidation Act 2005 – Deciding officer – Applicant seeking an order of certiorari quashing the decision of the first respondent – Whether a decision by a deciding officer pursuant to s. 301(1)(a) of the 2005 Act refusing to revise a decision of a deciding officer made pursuant to s. 300(2)(b) of the Act is capable of being appealed either as "a revised decision" by virtue of s. 301 of the Act or as "the decision" pursuant to s. 311(1) of the Act

Facts: The applicant, Ms McDonagh, on 10 November 2011, made an application for Domiciliary Care Allowance. On 21 September 2011, a deciding officer made a decision pursuant to s. 300(2)(b) of the Social Welfare Consolidation Act 2005 refusing the application. After an interval of four and a half years, she applied on three separate occasions, pursuant to s. 301(1) of the Act, for a revision by a deciding officer of the original decision. The applications were made on 31 March 2016, 9 August 2016 and 20 December 2016. Each application was refused by a deciding officer, culminating in a refusal of the third application on 23 May 2017. On 12 July 2017, the applicant's solicitors wrote to the first respondent, the Chief Appeals Officer, "to seek an appeal" in respect of "the decisions" made in her case. By letter dated 17 July 2017, the first respondent wrote to the applicant to inform her that she was out of time to appeal the original decision of 21 September 2011 and to further state that where a decision is not revised by the second respondent, the Minister for Social Protection, in accordance with the provisions of s. 301 of the Act "there is no avenue of appeal to this office". The letter further informed the applicant of her entitlement to submit a "new" application for the Allowance in order to have the matter determined "afresh" and advised her that in the event that she was dissatisfied with the decision of her "new" application it would be open to her to appeal against that decision in the ordinary way. On 9 October 2017, the applicant obtained leave from the High Court (Noonan J) to challenge that decision of the first respondent. The applicant sought the following reliefs: (1) an order of certiorari quashing the decision of the first respondent of 17 July 2017; (2) a declaration that the first respondent erred in law, thereby rendering the decision unlawful for the purpose of judicial review in determining by the decision of 17 July 2017 that an unrevised decision of the second respondent cannot be subject to an appeal, in the premises that inter alia s. 311 of the Act provides that any person who is dissatisfied with the decision given by a deciding officer, the question shall, on notice of appeal being given to the Chief Appeals Officer within the prescribed time, be referred to an appeals officer; (3) a declaration that the first respondent's interpretation is contrary to the general scheme of the Act, in particular, Chapters 1, 2, 3 and 4 of Part 10 which are intended to ensure as far as practicable, on an open ended basis, that a person who is entitled to a benefit receives that benefit; (4) an order of mandamus compelling the first respondent to determine the applicant's appeal.

Held by Coffey J that "the decision" within the meaning of s. 311(1) of the Act was the original decision of a deciding officer made pursuant to s. 300 of the Act; it followed from this that the decision of the deciding officer made on 23 May 2017 not to revise the original decision made by a deciding officer on 21 September 2011 was not subject to appeal as "the decision" within the meaning of s. 311(1) of the Act. Coffey J held that a mere refusal to revise a decision does not give rise to a revision of that decision and is, therefore, not subject to appeal by virtue of s. 301 of the Act as "a revised decision" pursuant to s. 311(1) of the Act; it followed from this that as the refusal of 23 May 2017 did not in any way adjust and thereby revise the original decision of 21 September 2011, it was not "a revised decision" within the meaning of s. 301 of the Act and was therefore not subject to appeal pursuant to s. 311(1) of the Act. Coffey J was satisfied that s. 301(2A) of the Act was irrelevant to the determination of the Court.

Coffey J held that he would refuse the reliefs sought.

Reliefs refused.

JUDGMENT of Mr. Justice Coffey delivered on the 8th day of June, 2018

1 At issue in this case is whether a decision by a deciding officer pursuant to s. 301(1)(a) of the Social Welfare Consolidation Act 2005, as amended, ('the Act') refusing to revise a decision of a deciding officer made pursuant to s. 300(2)(b) of the Act is capable of being appealed either as 'a revised decision' by virtue of s. 301 of the Act or as 'the decision' pursuant to s. 311(1) of the Act.

Factual Summary

2 The applicant is the primary carer for her daughter who has a diagnosis of Asperger's Syndrome, Attention Deficit Hyperactivity Disorder (ADHD) and borderline Oppositional Defiant Disorder. On 10 November 2011, when her daughter was four years old, the applicant made an application for Domiciliary Care Allowance ('the Allowance'). The Allowance is payable where, inter alia, a 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 (see s. 186C(1) of the Act). On 21 September 2011, a deciding officer made a decision pursuant to s. 300(2)(b) of the Act refusing the application.

3 The applicant did not appeal this decision, although she would have been entitled to do so pursuant to s. 311(1) of the Act. After an interval of four and a half years, she applied on three separate occasions, pursuant to s. 301(1) of the Act, for a revision by a deciding officer of the original decision refusing to grant her the Allowance. The applications were made on 31 March 2016, 9 August 2016 and 20 December 2016. Each application was refused by a deciding officer, culminating in a refusal of the third application on 23 May 2017.

4 On 12 July 2017, the applicant's solicitors wrote to the first named respondent 'to seek an appeal' in respect of 'the decisions' made in her case.

5 By letter dated 17 July 2017, the first named respondent wrote to the applicant to inform her that she was out of time to appeal the original decision of 21 September 2011 and to further state that where a decision is not revised by the second named respondent in accordance with the provisions of s. 301 of the Act 'there is no avenue of appeal to this office'. The letter further informed the applicant of her entitlement to submit a 'new' application for the Allowance in order to have the matter determined 'afresh' and advised her that in the event that she was dissatisfied with the decision of her 'new' application it would be open to her to appeal against that decision in the ordinary way.

6 On 9 October 2017, the applicant obtained leave from the High Court (Noonan J.) to challenge the decision of the first named respondent made on 17 July 2017 insofar as it purports to determine that an unrevised decision of the second named respondent cannot be subject to an appeal.

7 The applicant seeks the following reliefs: -

(1) an order of certiorari quashing the decision of the first named respondent of 17 July 2017;

(2) a declaration that the first named respondent erred in law, thereby rendering the decision unlawful for the purpose of judicial review in determining by the decision of 17 July 2017 that an unrevised decision of the second named respondent cannot be subject to an appeal, in the premises that inter alia s. 311 of the Social Welfare Act 2005, as amended, provides that any person who is dissatisfied with the decision given by a deciding officer, the question shall, on notice of appeal being given to the Chief Appeals Officer within the prescribed time, be referred to an appeals officer;

(3) a declaration that the first named respondent's interpretation is contrary to the general scheme of the Social Welfare Consolidation Act 2005, in particular, Chapters 1, 2, 3 and 4 of Part 10 which are intended to ensure as far as practicable, on an open ended basis, that a person who is entitled to a benefit receives that benefit;

(4) an order of mandamus compelling the first named respondent to determine the applicant's appeal.

Relevant Statutory Provisions

8 Part 10 of the Act deals with 'Decisions, Appeals and Social Welfare Tribunal'. Chapter 1 of Part 10 deals with ' Deciding Officers and Decisions by Deciding Officers' including revisions of those decisions. Chapter 2 of Part 10 deals with ' Appeals Officers, Chief Appeals Officers and Decisions by Appeals Officers' including revisions of appeal decisions. Chapter 2 deals with Supplementary Welfare Allowance, Chapter 4 with further General Provisions and Chapter 5 with the Social Welfare Tribunal.

9 Section 300 of the Act deals with ' Decisions by deciding officers'. Section 300(1) of the Act provides that: -

'(1) [E]very question to which the section applies shall, save where the context otherwise requires, be decided by a deciding officer'.

10 Section 300(2) of the Act provides that the decision-making power conferred on a deciding officer applies to 'every question' arising under listed Parts of the Act. The listed Parts include almost every Part of the Act, however, it does not include Part 10 itself. It is common case that the question of entitlement to the Allowance arises under s. 300(2)(b) of the Act.

11 A person who is dissatisfied with a decision made by a deciding officer pursuant to s. 300(1) has three options arising under the Act:

(1) he or she may...