Wilton McDonagh v The Chief Appeals Officer
| Jurisdiction | Ireland |
| Judge | Ms. Justice Dunne |
| Judgment Date | 21 May 2021 |
| Neutral Citation | [2021] IESC 33 |
| Docket Number | S:AP:IE:2020:000095 |
| Year | 2021 |
| Court | Supreme Court |
and
[2021] IESC 33
Clarke C.J.
MacMenamin J.
Dunne J.
Charleton J.
Baker J.
S:AP:IE:2020:000095
THE SUPREME COURT
Social welfare – Social welfare payment – Appeal against Chief Appeals Officer’s decision – Social Welfare Consolidation Act 2005, ss 301, 311
Facts: The appellant was the primary carer for a child who had a diagnosis of learning difficulties. The appellant had applied for Domiciliary Care Allowance under the Social Welfare Consolidation Act 2005. This application was refused by a deciding officer. The appellant did not seek to appeal the decision, but subsequently sought a revision of that decision. This was refused, and after a period the appellant sought judicial review of a subsequent refusal to grant an appeal. The High Court had refused to grant relief, which was upheld by the Court of Appeal. The matter now came on appeal to the Supreme Court.
Held by the Court, that the appeal would be allowed. The Court considered the provisions of ss 301 and 311 and held that the legislative intention was to be generous and flexible in the consideration of relevant appeals. The intent was not to confine appeals to the “original decision,” and therefore the appellant was entitled to appeal the decision to not revise her application.
Appeal allowed.
Judgment of Ms. Justice Dunne delivered on the 21 st May 2021
. In a judgment delivered on the 22nd January, 2020, ( [2020] IECA 5), the Court of Appeal, (Birmingham P., McCarthy, Kennedy, JJ.), upheld a decision of Coffey J. in the High Court ( [2018] IEHC 407), to refuse the appellant's application to quash the decision of the Chief Appeals Officer (the first-named Respondent) refusing to grant an appeal to the appellant pursuant to s. 311(1) of the Social Welfare Consolidation Act 2005, as amended (“the 2005 Act”).
. These proceedings arise in relation to the procedures available to an applicant claiming a social welfare payment pursuant to the 2005 Act and who is dissatisfied with the outcome of a decision by a deciding officer. There are two distinct processes that applicants can seek:
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(1) A revision of a decision by a deciding officer where there has been a material change in the circumstances of the applicant or where there has been an error of law or fact (s. 301 of the 2005 Act). This is a process that can be accessed without limitation.
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(2) Alternatively, dissatisfied applicants can, within 21 days of the issuing of the decision made pursuant to s. 300(2), bring an appeal of the decision to the Chief Appeals Officer (s. 311(1) of the 2005 Act).
. The controversy in this case arises out of the availability of the right to appeal under s. 311(1) of the 2005 Act, and the central question for the purpose of these proceedings is this: in circumstances where a decision is not appealed, and where a deciding officer, pursuant to s. 301 of the 2005 Act, subsequently refuses to revise a decision of a deciding officer, does this refusal to revise constitute a new “decision” or a “revised decision”, thus giving rise to the right of the applicant to appeal to the Chief Appeals Officer under s. 311(1)? The appellant contends that the refusal of a deciding officer to revise a decision constitutes either a new “decision” or “a revised decision”, and therefore is appealable under s. 311(1) of the 2005 Act. On this point, the appellant further argues that to deny the appellant the right to appeal a refusal to revise would be to undermine and frustrate the purpose of the 2005 Act. The appellant argues that the 2005 Act should be interpreted purposively, rather than in an overly literal way that reduces the flexibility of the application of the Act.
. The respondents say that the judgments of the lower courts involve the application of well-established principles of statutory interpretation to the legislation in question. They submit that the provisions of Part 10 of the 2005 Act only provide for an appeal pursuant to s. 311(1) where the outcome of a s. 301 review has resulted in a revision of the decision, and not where there has been a refusal to revise the decision. The revision may be a complete reversal of the decision, or an amendment to the original decision, but the essence of the respondents' argument is that the original decision must be altered as to the outcome in order for the decision to be appealable under s. 311(1).
. There is no dispute in relation to the facts of this case. The appellant is the primary carer of her child who has a diagnosis of learning/developmental difficulties. On or around the 10 June 2011, when the Appellant's child was four years old, the appellant applied, pursuant to s. 186C of the 2005 Act, to become a recipient of Domiciliary Care Allowance (DCA). The allowance is a benefit payable, according to s. 186C(1) of the 2005 Act, in circumstances where “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.”
. On 21st September 2011, a deciding officer refused the appellant's application pursuant to s. 300(2)(b) of the 2005 Act. The appellant was informed of her right to seek a review/revision of this decision pursuant to s. 301(1) of the 2005 Act and her right to seek an appeal of the decision pursuant to s.311(1) of the 2005 Act.
. The appellant did not seek an appeal of the decision. However, after an interval of four and half years, the appellant sought a revision of the decision by the deciding officer refusing to grant her the allowance, pursuant to s. 301(1) of the 2005 Act, on three separate occasions. Correspondence was sent on 31st March 2016, 9th August 2016, and 20th December 2016 seeking a revision of the decision, along with further medical evidence to support her position. On each of these occasions, the application for a review was refused, the last of these refusals being issued on 23rd May 2017.
. On 12th July 2017, the appellant's solicitor wrote to the first-named respondent seeking an appeal of the decisions to refuse a revision of the decision. On 17th July 2017, the first-named respondent wrote to the appellant and informed her that there was no avenue to appeal to the first-named respondent where a deciding officer reviewed a decision but refused to revise that decision.
. On the 9th October 2017, the appellant applied for and was granted leave to seek judicial review of the decision of the first-named respondent, seeking a number of declaratory reliefs, including an order of certiorari quashing the decision of the first-named respondent and an order of mandamus compelling the first-named respondent to determine the appellant's appeal. The appellant does not challenge the substance of the refusal to revise the original decision, but rather the refusal of an appeal pursuant to s. 311 itself.
. For ease of reference, the relevant statutory provisions which were important to the conclusion reached by both the High Court and the Court of Appeal will be set out.
. Chapter 1 of Part 10 of the Act is titled “Deciding Officers and Decisions by Deciding Officers.”
. Section 300(1) provides:-
“Subject to this Act, every question to which this section applies shall, save where the context otherwise requires, be decided by a deciding officer.”
Section 300(2) details the various decisions that a deciding officer is authorised to make under the Act, and it provides that deciding officers can decide questions arising under Part 3 (social assistance), which includes the allocation of Domiciliary Care Allowance under s. 300(2)(b).
. Section 301 sets out the circumstances in which a decision by a deciding officer can be revised. The section sets out that a deciding officer may revise a decision of another deciding officer or of an appeals officer where there has been a change in the circumstances of the applicant: –
“ 301.—(1) A deciding officer may at any time –
(a) revise any decision of a deciding officer –
(i) where it appears to him or her that the decision was erroneous –
(I) in the light of new evidence or new facts which have been brought to his or her notice since the date on which the decision was given, or
(II) by reason of some mistake having been made in relation to the law or the facts,
or
(ii) where –
(I) the effect of the decision was to entitle a person to any benefit within the meaning of section 240, and
(II) it appears to the deciding officer that there has been any relevant change of circumstances which has come to notice since that decision was given,
or
(b) revise any decision of an appeals officer where –
(i) the effect of the decision of the appeals officer was to entitle a person to any benefit within the meaning of section 240, and
(ii) it appears to the deciding officer that there has been any relevant change of circumstances which has come to notice since the decision of the appeals officer was given,
and the provisions of this Part as to appeals apply to a revised decision under this subsection in the same manner as they apply to an original decision of a deciding officer.
…
(3) Subsection (1)(a) shall not apply to a decision relating to a matter which is on appeal or reference under section 303 or 311 unless the revised decision would be in favour of a claimant.
(4) Subsection (2) shall not apply to a determination relating to a matter which is on appeal under section 312 or 323, as the case may require, unless the revised decision would be in favour of the claimant.
(2A) A deciding officer may at any time revise any determination of a designated person —
(a) where it appears to him or her that the determination was...
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