Wilton McDonagh v The Chief Appeals Officer

JurisdictionIreland
JudgeMs. Justice Isobel Kennedy
Judgment Date22 January 2020
Neutral Citation[2020] IECA 5,[2021] IESC 33
CourtCourt of Appeal (Ireland)
Docket Number[321/2018]
Date22 January 2020
BETWEEN
BRIGID WILTON MCDONAGH
APPELLANT
AND
THE CHIEF APPEALS OFFICER AND THE MINSTER FOR SOCIAL PROTECTION
RESPONDENT

[2020] IECA 5

Birmingham P.

McCarthy J.

Kennedy J.

[321/2018]

THE COURT OF APPEAL

Revised decision – Appeal – Social Welfare Consolidation Act 2005 – Appellant seeking to appeal against a judgment of the High Court – Whether treating an unrevised decision as unappealable is contrary to the Social Welfare Consolidation Act 2005

Facts: The appellant, Ms Wilton McDonagh, appealed to the Court of Appeal against a judgment of the High Court (Coffey J) delivered on 8th June, 2018. The issue in the case was whether a decision by a deciding officer pursuant to s.301(1)(a) of the Social Welfare Consolidation Act 2005, as amended, refusing to revise a decision of a deciding officer made pursuant to s.300(2)(b) of the Act was capable of being appealed as “a revised decision” by virtue of s. 301 of the Act or as “the decision” pursuant to s.311(1) of the Act. The appellant argued that the reading of a right to appeal into the Act is necessary to avoid absurdity. This was rejected by the Court, which found that there was no absurdity in providing for a system of appeal whereby the right of appeal is limited to the original decision and to all revisions of that decision which affect the legal consequences that flow from the original decision, and therefore refused the reliefs sought. The issues to be determined by the Court of Appeal as taken directly from the appellant’s submissions were as follows: “(i) In circumstances where a first instance decision is not appealed and where a revision is sought and the earlier decision is, by virtue of the fresh decision, deemed unrevised, is the fresh (unrevised) decision a decision for the purpose of s.311 of the Social Welfare Consolidation Act, 2005 and therefore appealable or; (ii) Is treating an unrevised decision as unappealable contrary to the Social Welfare Consolidation Act, 2005 (as amended)?”

Held by Kennedy J that the fundamental question as to whether the decisions of the deciding officer not to revise the original decision amount to appealable decisions under the Act, must be answered in the negative. Kennedy J held that the High Court judge did not err in finding that there is no absurdity in providing for a system of appeal whereby the right of appeal is limited to the original decision and to all revisions of that decision which affect the legal consequences that flow from the original decision. From the above reasoning, Kennedy J did not accept the appellant’s submission that where new evidence is submitted and considered and there is a refusal to revise, that this constitutes a ‘decision’ and is thereby appealable; the decision remains unrevised and therefore unappealable. Kennedy J was satisfied that the proper construction of the Act means that the original decision and a revised decision may be the subject of an appeal. Furthermore, Kennedy J held that the argument that where a deciding officer does not revise the decision under s.301, that s.301 is not then engaged, thereby that decision not to revise becomes a decision for the purpose of s.300 and thereby subject to appeal pursuant to s.311 is circular and unsustainable and would not in her view give effect to the purpose of the statute. Kennedy J held that s.301 is neither obscure nor ambiguous; the provision does not limit the right to appeal, on the contrary the provision makes it quite clear that an appeal lies in respect of a revised decision in the same manner as an appeal lies to the original decision of a deciding officer. Kennedy J held that this was not a situation, as contended by the appellant, of the ouster of an appellate jurisdiction; the appellate jurisdiction is present, in that a dissatisfied applicant may appeal the original decision or may appeal a revised decision. Regarding the argument that the interpretation of s.301 as urged on behalf of the respondents, the Chief Appeals Officer and the Minister for Social Protection, raises the presumption against doubtful penalisation, as Kennedy J had concluded that the section is unambiguous, she held that the presumption did not arise.

Kennedy J held that, on reviewing the decision of the High Court judge, she was satisfied that no error arose, and she dismissed the appeal.

Appeal dismissed.

JUDGMENT of Ms. Justice Isobel Kennedy delivered on the 22nd day of January 2020.
1

This is an appeal against a judgment of the High Court (Coffey J.) delivered on June 8th, 2018. The issue in the case was whether a decision by a deciding officer pursuant to s.301(1)(a) of the Social Welfare Consolidation Act, 2005, as amended, (hereinafter “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 as “a revised decision” by virtue of s.301 of the Act or as “the decision” pursuant to s.311(1) of the Act. The appellant argued that the reading of a right to appeal into the Act is necessary to avoid absurdity. This was rejected by the Court, which found that there is no absurdity in providing for a system of appeal whereby the right of appeal is limited to the original decision and to all revisions of that decision which affect the legal consequences that flow from the original decision, and therefore refused the reliefs sought.

2

The background to the case is as follows (taken from the High Court judgment [2018] IEHC 407):-

“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.

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.

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.

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.

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.”

3

The appellant seeks to appeal the judgment of the High Court delivered on June 8th, 2018 and Order of July 2nd, 2018. The appellant sought a priority appeal hearing as “the judgment involves the interpretation of statutory provisions which affect the rights of vulnerable claimants and their families.”

4

There is no dispute as to the facts in this appeal. The issues to be determined by this Court as taken directly from the appellant's submissions are as follows:-

i) “In circumstances where a first instance decision is not appealed and where a revision is sought and the earlier decision is, by virtue of the fresh decision, deemed unrevised, is the fresh (unrevised) decision a decision for the purpose of s.311 of the Social Welfare Consolidation Act, 2005 and therefore appealable or;

ii) Is treating an unrevised decision as unappealable contrary to the Social Welfare Consolidation Act, 2005 (as amended)?”

Submissions

5

The appellant refers to the relevant law which was considered by Peart J. in LD v. Chief Appeals Officer [2014] IEHC 641 at para. 38:-

“The Act should in my view be interpreted as widely as the words reasonably permit in order to reflect the permissive nature of the legislation, and the very detailed procedures laid down for decision-making, and the procedures provided for revision at any time of decisions. It seems to be the clear intention that applicants for DCA and other benefits are provided with different opportunities to reasonably put their case, and to do so in a fair manner and comprehensively.

And at para. 40:-

“I consider that the provisions and procedures under scrutiny in this case should be given a purposive interpretation, yet one that is fully consistent with the clear words used by the Oireachtas. This is not a penal statute. It is one which provides for certain benefits which can be claimed by qualifying applicants and provides for procedures and criteria in order to decide who qualifies for benefit and who does not. There are clear safeguards built into the scheme for decision-making such as the appeals...

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