Decisions and appeals in Irish social welfare law: recent case law

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1 Trinity College Dublin, Ireland From the SelectedWorks of Mel Cousins January 2, 2014 Decisions and appeals in Irish social welfare law: recent case law Mel Cousins Available at:

2 Decisions and appeals in Irish social welfare law: recent case law This note examines a series of recent decisions of the Irish courts in relation to decisions and appeals in the Irish social welfare system: C.P. v Chief Appeals Officer; 1 A. M. v. Minister for Social Protection; 2 B. v Minister for Social Protection; 3 and C. O'B. v. Chief Appeals Officer. 4 All the cases concerned claims for domiciliary care allowance (a payment in respect of children who require additional care) and involved a number of issues including the level of detail to be included in initial negative decisions, whether the Minister is obliged to require a medical examination of a child; whether the deciding officer had fettered his discretion by relying on the opinion of the Department s medical assessor; whether medical assessors and deciding officer should be directed to appear at appeal hearings; the power to review appeals decisions, and when judicial review is an appropriate remedy. Context Domiciliary care allowance is a social welfare payment in respect of children, who have 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. 5 Initial decisions in relation to claims for social welfare benefits (including DCA) are made by deciding officers (DOs) appointed by the Minister for Social Protection. 6 These decisions may be appealed to appeals officers also appointed by the Minister. It is long-standing law that both deciding officers and appeals officers are required to be free and unrestricted in discharging their functions. 7 The appeals officers operate as part of the Social Welfare Appeals Office (SWAO), although this body has no formal statutory status The chief appeals officer is responsible for the distribution of appeals to the appeals officer and, ultimately, for the overall operation of the Social Welfare Appeals Office. C. P. v Chief Appeals Officer C.P. involved a very net point as to when an appeals officer should review an appeal ruling. The parents of the disabled child had applied for and been refused DCA. 8 They had appealed this to an appeals officer and this had also been unsuccessful. Decisions of appeals officers 1 [2013] IEHC 512, 2 [2013] IEHC 524. The Court of Appeal, in one of its first decisions, has struck out an appeal against this ruling on the grounds that it was moot : Malone -v- Minister for Social Protection, [2014] IECA 4, 3 [2014] IEHC [2014] IEHC See ss. 186B-186H of the Social Welfare (Consolidation) Act, 2005 as inserted by the Social Welfare Miscellaneous Provisions Act, S. 300 of the Social Welfare (Consolidation) Act, 2005 [the Act]. 7 McLoughlin v. Minister for Social Welfare [1958] IR 1. 8 The Court did not enter into the factual issues involved in the claim.

3 are stated to be final and conclusive subject to review in limited circumstances. 9 The parents subsequently produced additional evidence and sought a review of the appeals officer s decision under s. 317 of the Social Welfare (Consolidation) Act, 2005 (the Act). This provides that An appeals officer may, at any time, revise any decision of an appeals officer, where it appears to the appeals officer that the decision was erroneous in the light of new evidence or of new facts brought to his or her notice since the date on which it was given, or where it appears to the appeals officer that there has been any relevant change of circumstances since the decision was given. The Social Welfare Appeals Office declined to review the case and suggested that it would be more appropriate to submit a new application for DCA. Hogan J. stated that this could not be regarded as anything other than a steadfast refusal to entertain an application for revision of the earlier decision of the Appeals Officer. 10 It emerged that the Department of Social Protection (DSP) and the Appeals Office in practice distinguish between live cases, i.e. cases still in payment, which could be reviewed under s. 317 and closed cases, i.e. cases which had been refused and were not in payment, which could not be so reviewed. However, Hogan J. pointed out, it is difficult to see why the Appeals Officer should not have such a jurisdiction [to exercise the revising power under s. 317] in view of the express language of s Hogan J. started his analysis by stating that in the absence of a provision such as s. 317 that the Appeal Officer would be functus officio once a decision had been made on appeal. In those circumstances, the decision on appeal would be administratively final and the Appeals Officer would have no jurisdiction to re-open the matter, even in the light of new evidence or a significant change of circumstances. 11 The Oireachtas clearly recognised, however, that given the special nature of social security claims and the ever-changing circumstances of claimants, it would be desirable that the Appeals Officer should have the power to re-open appeals in certain circumstances. It is accordingly for this reason that s. 317 vests the Appeals Officer with a discretionary power of revision in circumstances which suggest that the decision may have been erroneous in the light of the emergence of new evidence or new facts or where it appears that there has been a change of circumstances since the first decision was given Mainly under ss of the Act. 10 At para As s. 317 does exist, nothing turns on this point but the term final and conclusive dates back in a social welfare context to the Old Age Pensions Act, 1908 and there was considerable litigation at the time about when decisions were final and conclusive and whether they could be reviewed even in the absence of an equivalent provision to s The House of Lords ultimately ruled that decisions could be revised at least in some circumstances notwithstanding the term final and conclusive although the legal basis of the decision is rather unclear: Murphy v The King, 1911 A. C. 401; [1911] 45 I.L.T.R At para 13.

4 Hogan J. pointed out that in cases of this kind the role of the court is simply to give effect to the language used by the Oireachtas. 13 In this case, he concluded that The language is unambiguous and there is nothing absurd in giving an Appeals Officer an open-ended power to re-open cases in the light of the emergence of new facts or new evidence or changed circumstances. 14 Hogan J. also referred to dicta in Maher v. Minister for Social Welfare [2008] IESC 15 in which the Supreme Court, in considering a related provision of the Act concerning review of an appeals officer s decision by the chief appeals officer, has given the phrase at any time its natural meaning. It was arguably unnecessary to rely on these dicta for support as, as Hogan J. stated, the language of s. 317 is altogether too plain to admit of any implied limitation of the kind urged by the Minister. 15 Hogan J. ruled that the Appeals Office erred in law in declining to entertain this application for a review based on new evidence of the earlier decision of the Appeals Officer. Section 317 of the 2005 Act clearly confers such a jurisdiction to entertain revision applications of this nature in cases where new evidence has been presented. 16 Accordingly he granted an order of certiorari quashing the decision of the Appeals Office declining to entertain the application for a revision of the earlier decision and an order of mandamus directing the Chief Appeals Officer to consider this application for a review under s However, one issue not considered in the case is the meaning of the term new evidence. In Iarnród Éireann v Social Welfare Tribunal, 17 Murphy J stated (though without formally so ruling) that If new evidence is to be construed as fresh evidence then such a reference in an enactment imports the usual legal meaning of this phrase as evidence which is not merely additional to that adduced on the former occasion but could not be [sic.] reasonably have been expected to be produced then. 18 On the one hand, one would not wish to see an excessively legalistic approach to the definition of what evidence is new in a system such as social welfare appeals which aims to be as informal as possible. On the other, there would be nothing absurd in construing s. 317 as not giving rise to a review in cases where the evidence could reasonably have been adduced at an earlier stage of proceedings. It is clear from the quote above (at para 24 of his judgement) that Hogan J saw this case as involving a revision on the basis of new evidence and, in my view, he was correct in his ruling 13 At para At para At para At para [2007] IEHC At para 8.2. The case concerned the power of the Social Welfare Tribunal to review decisions but the wording of the relevant provision also refers to new evidence or new facts (see now s. 332(2)).

5 that an appeal may be revised at any time on the basis of such new evidence. Hogan J. was not considering whether an appeal decision could be revised in the light of a change of circumstances. Although some of his judgement could be interpreted as also applying to a change of circumstances, insofar as it does these are clearly dicta. 19 However, the Department of Social Protection has chosen to amend the law as regards change of circumstances in order to clarify that only a live decision can be revised in the light of a change of circumstances. 20 A. M. v. Minister for Social Protection The second case was somewhat more complicated as it depended more on the facts of the claim. The issue underlying the proceedings is that there is a confusion in how assessments for DCA are carried out which has either led to or been created by the flawed adjudication system involved. The qualification conditions for DCA require, inter alia, that 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. 21 This can be broken down into (i) having a severe disability as a result of which the child (ii) requires continual or continuous care and attention which is (iii) substantially in excess of the care and attention normally required by a child of the same age. The first condition the existence of a severe disability - can perhaps be described as a medical condition in that it will normally be certified by a medical expert. 22 The requirement of continual or continuous care and attention is not a medical issue at all though whether the need for such care and attention arises from the disability may require medical evidence. Finally, whether this care and attention is substantially in excess of that normally required is again a question of fact which could hardly be described as medical. 19 For example, at paras 17 and Arguably, this amendment simply states what has always been the law, i.e. that a revision on the grounds of change of circumstance only applies in relation to live claims. This was explicitly the law in the period from 1952 to S. 46(3) of the Social Welfare Act, 1952 provided that An appeals officer may, at any time and from time to time, revise any decision of an appeals officer, if it appears to him that the decision was erroneous in the light of new evidence or of new facts brought to his notice since the date on which it was given, or if it appears to him in a case where a claim for benefit has been allowed that there has been any relevant change of circumstances since the decision was given. The 1952 Act primarily related to social insurance benefits and separate legislation continued to exist in relation to schemes such as old age pension and unemployment assistance. The Social Welfare (Assistance Decisions and Appeals) Regulations, 1953 applied modified provisions of the 1952 Act to several such schemes, including the decision and appeals provisions. Art. 10(3) provided that An appeals officer may, at any time and from time to time, revise any decision of an appeals officer, if it appears to him that the decision was erroneous in the light of new evidence or of new facts brought to his notice since the date on which it was given, or if it appears to him that there has been any relevant change of circumstances since the decision was given. For unknown reasons, this version does not explicitly confine revision on grounds of change of circumstances to live cases (although this is arguably implicit in the scheme of decision-making). When the provisions were consolidated in the first Consolidation Act in 1981, the wording without the phrase where a claim for benefit has been allowed was used. Again it is not known why this was done. A Consolidation Act is not intended to change the law and it is arguably that the dropping of these words did not actually make such a change. 21 Section 186C as inserted by Social Welfare 2008 and as amended by With apologies to those who would argue that disability and medical issues are distinct. Of course, in some cases, a severe disability might not need any medical certification.

6 Despite the fact that, even accepting a broad role for the medical profession, only part of the criteria is in any way medical, the condition is often referred to as the medical condition and the assessment process relies very largely on medical evidence and review by medically qualified persons (both GPs and medical assessors employed by DSP). The current process works as follows. Applicants for DCA (normally the child s parents or guardians) complete a 12 page form (part of which is completed by the child s GP). Only about 2 pages directly relate to the child s need for care. The form states that In support of your application, you may wish to attach copies of any medical reports you have and also a page outlining the substantial additional care you provide your child on a daily basis. This is then considered by the DSP medical assessor who will, according to the DSP website, take the following into account before giving his/her opinion on whether the child meets the medical criteria: Review the history of the case Consider all medical reports received Have regard to the description of the care and attention required by the child given by the parent or guardian. 23 The case is then referred to a deciding officer for decision based on this evidence. 24 Thus decision are made by deciding officers (who have not seen the child) on the basis of opinions of a medical assessor (who has not met the child and who generally would have no particular expertise in assessing care needs) and a GP (who presumably has met the child but also may not have any expertise in assessing care needs) and a short form completed by the parents or guardians, possibly augmented by other documents submitted by the applicant such as reports from more specialist support services. This issue was discussed in the recent report of the DCA Review Group, established by the Minister for Social Protection, where it was clear that there was considerable public dissatisfaction with the current method of assessment. 25 The Review Group recommended various reforms of the existing system, albeit not of a fundamental nature. A review of international practice commissioned by the Group concluded that not apparent that any country has found a perfect solution to assessment and adjudication. 26 However, it suggested that If reform of the existing Irish approach was felt to be desirable, one option might be to move more towards the UK approach with the development of a more detailed 23 Section 186C(2) provides that a Department of Social Protection medical assessor shall: (a) assess all information provided to him or her in respect of an application for domiciliary care allowance, and (b) provide an opinion as to whether the child satisfies [the requirements concerning care and attention]. 24 Section 186C(3) provides that: In determining whether a child satisfies [the requirements concerning care and attention], a deciding officer shall have regard to the opinion of the medical assessor M. Cousins and S. Roberts, Supports for families with a child with a disability - Research Report (November 2012) available at

7 application form which would provide more information about the additional care needs of the child. Deciding officers, with appropriate training, could draw on these data and on information (such as that available on the DWP website) as to the details and impact of specific disabilities, with the ability to refer issues to the DSP s medical assessors where more detailed medical advice was required on a specific point. The A.M. case sought to challenge several aspects of this process but the legal challenge was, of course, limited to arguing that the process did not comply with legal principles and was unable to enter into the arguably flawed nature of the process itself. Reasons for decision The parents of the child [G.] applied for DCA but this was refused on the basis that the medical evidence provided did 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 [his] condition. 27 Further evidence was submitted including the mother s own care diary, medical and school reports from the principal of the child s national school, and a letter from his GP detailing the multiple additional supports required to facilitate, inter alia, his psychological, educational and physical development and his safety. A deciding officer considered this evidence and a further opinion from DSP s chief medical assessor but confirmed the grounds of refusal and refused a revision of the earlier decision. The first deciding officer's decision, dated 10 May 2012, stated that It is clear from your application that your child requires additional support: however, 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. It appears that the second decision was in the same terms. It does not appear that the existence or nature of her disability was disputed. Nor apparently was it disputed that she required some additional care and attention as a result. However, there was clearly a disagreement as to the level of care and attention required. When the deciding officer makes a decision, it must be given in writing and, when the decision is not in favour of the claimant, the deciding officer must set out the reasons for the decision, and a memorandum of this must be issued to the person as soon as is possible after the making of the decision. 28 The applicant argued that adequate reasons were not furnished for these decisions. Having reviewed the case law, 29 Hanna J. stated that he found the reason for the refusal to grant the DCA to be clear and unambiguous : 27 References are to the High Court judgement ([2013] IEHC 524) which is unfortunately not in numbered paragraphs. 28 Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007, Art Including FP v Minister for Justice [2002] I I.R. 164 and Rawson v The Minister for Defence (2012) IESC 26. Although it appears in the section of the judgement concerning the medical examination, Hanna J also referred

8 The threshold simply has not been reached in light of the evidence submitted. It has not been established that the extra care and attention required by the applicant's son, G., was not substantially in excess of that required by a child of the same age who does not suffer from G.'s condition. Furthermore the reasons given were sufficient to enable the applicant to request a revision of the decision, to appeal the decision and/or to seek relief by way of judicial review. He was satisfied that adequate and identifiable reasons were given. He concluded that There is not an obligation on the Department to explain its decisions in detail but rather to inform applicants of the grounds for the decision so that the appeal is not impaired. Decision makers should not have to provide reasons that are extremely detailed explaining every step of the decision as this would render the process unworkable. While the general statements of Hanna J. are unobjectionable, their application to the facts is disappointing. While there does appear to have been no dispute about the medical aspects of the claim, there was clearly a dispute about whether or not the child satisfied the qualification conditions as a whole. It is not clear from the decision whether the deciding officer felt that (i) inadequate evidence had been provided as to the level of care provided; or (ii) did not accept whatever evidence was put forward as to the level of additional care required or (iii) did so accept the evidence but did not accept that this was substantially in excess of that normally required. Contrary to the views of Hanna J., this lack of clarity would make it significantly more difficult to prepare for an appeal as one could not know what case one has to meet. Medical examination The applicant argued that the respondent was obligated by fair procedures, natural and constitutional justice to carry out a medical examination of G. However, the statutory source of any such obligation is unclear and the provisions referred to by the court (s. 186G of the Act and Article 140F of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007) apply in terms to a qualified child, i.e. a child who already satisfies the qualification conditions. 30 The applicant argued that due to conflicting medical reports and opinions the respondent was obliged to carry out a medical examination of G. in order properly to determine whether or not the criteria for receipt of the DCA were met. It was argued that even though the legislation uses the word may in the sense of a discretionary as opposed to a mandatory process, there are circumstances, as in this case, where considerable conflict in opinion required undertaking a medical assessment. to the UK case of South Bucks District Council v Porter (No 2) [2004] UKHL 33 which concerns the obligations to provide reasons for decisions. 30 Section 186G(1) provides that A qualified child in respect of whom domiciliary care allowance is in payment shall attend for or submit to such medical or other examinations as are required in accordance with regulations. Art 140F(2) as inserted by the Social Welfare (Consolidated Claims, Payments and Control) (Domiciliary Care Allowance) (Amendment) (No. 3) Regulations, 2009 provides that An officer of the Minister may, giving not less than 7 days notice in writing, require that a qualified child shall attend for or submit to such medical or other examination at such time and place as may be specified in the notice.

9 Hanna J. appeared to focus largely on the wording of the legislation (albeit that it is not clear that it actually applied to the circumstances of this case) referring to its permissive or discretionary character. He concluded that there was no requirement in law in the present case that the respondent have G. medically assessed. This aspect of the decision would appear to be correct but for the reasons set out by DSP, i.e. that there was no material conflict of fact that is required to be independently resolved by reference to further medical examination. 31 Of course, if there was such a conflict, the implication is that there would be a requirement to carry out a medical examination if this was necessary to resolve the issue. It also implicitly accepts that the issue of the level of care and attention required is not a medical one and that a further medical examination would not assist in clarifying this issue. But this again highlights the flawed nature of the assessment process as there appears to be no structured process for doing so. Judicial review Finally, albeit obiter as he had already refused the relief sought, Hanna J accepted that judicial review should be declined as the statutory appeals mechanism is the appropriate route for the applicant to take. Hanna J reviewed the case law including O'Donnell v Tipperary (South Riding) County Council 32 in which Denham J (as she then was) stated that, in deciding between judicial review and an alternative remedy, the true question is as to which is the more appropriate in the context of common sense, the ability to deal with the questions raised and the principles of fairness. 33 Hanna J accepted that the social welfare statutory appeals process provides an efficacious procedure whereby the applicant can ventilate and, perhaps, remedy her complaints and concerns. It was, therefore, the proper and appropriate route to follow. Appeal to the Court of Appeal Following the High Court ruling, Ms. M. pursued her right to appeal to an appeals officer and this appeal was successful. 34 Notwithstanding this she also appealed to the Court of Appeal against the High Court ruling. However, the Minister argued and the Court of Appeal agreed that this appeal was moot and it was struck out. Counsel for Ms. M. argued that there remained a live dispute between the parties. Her right to DCA was subject to ongoing review. Therefore it was important to have a determination as to whether the deciding officer is required to give detailed reasons and whether, in the event of a dispute on the medical evidence, that conflict must be resolved by reference to a medical examination. The Court did not accept this argument. The Court held that as the applicant had been awarded DCA 31 Assuming that there is, in principle, an obligation to carry out such an examination in some circumstances. 32 [2005] IESC 18; [2005] 2 I.R At para Malone v Minister for Social Protection, [2014] IECA 4 at para 8. The basis for the appeals officer s decision is not reported.

10 the process adopted by the respondent when rejecting her applications under s. 300 and s. 301 of the 2005 Act is of no practical significance to the parties and should therefore be deemed to be moot. 35 The Court held that there was no issue on the appeal involving the interpretation of any statutory provision which would bind the respondent in terms of the manner in which he would be obliged to deal with her on any future review conducted under section 301. Perhaps surprisingly, the Court ruled that the trial judge did not make any declaration as to the meaning of any statutory provision such as would determine the manner in which the respondent would be obliged to carry out its statutory obligations when dealing with the applicant or indeed anyone else on any future occasion. 36 Given the applicant s right to appeal any future adverse decision to an appeals officer; the possibility of further judicial review proceedings; and bearing in mind that this court must have concern as to how scarce judicial resources are allocated, the Court ruled that once it had concluded that the issues were moot there is no justifiable basis to hear the appeal. 37 B. v Minister for Social Protection The third in this series of cases also concerned a challenge to a refusal of DCA. The deciding officer, in coming to a decision, had relied on the negative opinion of the medical assessor and rejected the evidence of the applicant s medical and multidisciplinary team. 38 It emerged that in over 3,800 DCA decisions the same deciding officer had in every case relied on the medical assessor s decisions and the Department conceded that it would be highly unusual for a deciding officer to decide against a medical assessor's opinion on a question of medical (sic.) eligibility. 39 It was argued by the applicant that the Department of Social Protection operated a policy whereby the opinions of its medical assessors were followed slavishly by departmental deciding officers, irrespective of the evidence submitted by claimants such as B. 40 The applicant sought a declaration that the Minister's alleged policy of deferring only to, and following, the departmental medical assessor's opinion meant that in this case there has been an abdication of the deciding officer's statutory duty. It was contended that such a policy would unlawfully vitiate and/or void the decision-making process in that the statutorily appointed decision-maker did not, in reality, make the decision and did so only in name, contrary to s. 300 of the Act and contrary to fair procedures and natural and constitutional justice. The Department of Social Protection did not reassure the Court as to the fairness of its 35 At para At para At para Some of this evidence is set out in the judgment, although Barrett J stated that it was not a factor in his decision. 39 At para At para 8.

11 approach when, in an affidavit by an assistant principal of the Department, the applicant s medical team were referred to as advocating on behalf of the applicant in contrast to the medical assessor whose function was to provide to the Deciding Officer an independent medical opinion. 41 Barrett J found this view remarkable and concluded that the Department apparently adopts a disdainful mind-set [to the applicant s evidence] and prefers instead the desk-top reviews of its own medical assessors who have no personal knowledge of the individual case at hand. 42 The Court was unconvinced by the explanations put forward by the Department as to why deciding officers would be unlikely to disagree with medical assessors, including the medical qualifications of the latter and the possibility of consultation with them. 43 As noted above, s. 186C(3) of the Act provides that in determining whether a child is a qualified child for the purposes of that provision a deciding officer shall have regard to the opinion of the medical assessor. Barrett J. began his consideration of the meaning of this term by pointing out that in McLoughlin v. Minister for Social Welfare the Supreme Court ruled that appeals officers and equally deciding officers, are, and are required to be, free and unrestricted in discharging their functions under the Act. 44 Having regard to the case law on the meaning of the term shall have regard to (and similar provisions), 45 Barrett J concluded that the requirement that the deciding officer have regard to the opinion was not consistent with a situation where the DO appear[ed] invariably to conform with such opinions and the Court took the view that a situation may pertain within the Department of Social Protection, or at least in the case of this particular deciding officer, whereby the discretion that a deciding officer enjoys under law. was inappropriately fettered. 46 Barrett J. concluded that it was not clear that all relevant considerations are taken into account by the departmental decision-maker. The almost disdainful reference in the affidavit of the assistant principal about the medical evidence supplied by applicants suggests that such evidence is not given the weight that ought to be given by any decision-maker to the honestly held and properly reasoned views of qualified professionals. The department's mind-set as regards such evidence appears to be that the views of those professionals are necessarily coloured in favour of applicants and hence the views of its own medical experts are invariably to be preferred. 47 For these reasons, the Court ruled that 41 Para Para Paras [1958] I.R. 1 at He referred to Glencar Explorations plc v. Mayo County Council (No. 2) [2002] 1 I.R. 84; McEvoy v. Meath County Council [2003] I.R. 208; and McVeigh v. Minister for Justice, Equality and Law Reform [2004] IEHC Para Para 25.

12 the policy whereby deciding officers generally defer to the opinions of department medical assessors in the manner and circumstances described has yielded a situation in the instant case in which there has been an abdication of statutory duty by the deciding officer who decided B.'s initial application. Indeed the manner of implementation of such policy in the case of the deciding officer who decided B.'s initial application is such that the court finds it has vitiated the decision-making process employed in relation to that application; this is because the deference manifested by this particular deciding officer to the opinion of medical assessors has been proven to be so great that the court concludes that the medical assessor's opinion volunteered in the course of the consideration of B.'s initial application was in fact determinative of that application, thus resulting in a contravention of s.300 of the Social Welfare Consolidation Act, 2005, thereby tainting the decision-making process. 48 The Court therefore ordered that the decision in relation to the claim for DCA be remitted to the Department of Social Protection for fresh consideration. The Court in B. also considered the issue of the appropriate remedy. The Minister argued that the applicant ought to have pursued an appeal to the Social Welfare Appeals Office rather than bringing an application for judicial review. However, Barrett J. considered this line of argument to be misfounded for the following reason: B. is not in these proceedings seeking a review of the outcome of a decision that issued; she is challenging only the process whereby that decision was formulated and there is no provision in the social welfare code whereby she can challenge the process, as opposed to the outcome, of decision-making. 49 Hence the Court took the view that it was necessary for B. to make application for judicial review. C. O B. v Chief Appeals Officer 50 Finally, C. O B. Involved yet another challenge to procedures concerning DCA, this time at appeals level. The applicant s son had been refused DCA following medical assessment. She appealed to the appeals office seeking an oral hearing and also requested that the deciding officer and the three medical assessors whose desktop reports were available to the deciding officer at first instance be available at the oral hearing. This was refused by the chief appeals officer (although the precise terms of the refusal are not reported). The applicant sought judicial review of the failure to direct the attendance of these officers arguing that fair procedures required that she be permitted to cross examine the deciding officer and/or the medical assessors. It was argued that the absence of the deciding officer and medical assessors would amount to a denial to the applicant of a hearing in compliance with the Social Welfare (Consolidation) Act, the Social Welfare (Appeals) Regulation Para Para [2014] IEHC S.I. No. 108/1998.

13 as amended (the Appeals Regulations), the European Convention on Human Rights Act 2003, fair procedures and natural and constitutional justice. It appeared that, following the B. ruling, the practice of the appeals office in relation to the use of medical reports as evidence in DCA cases had changed. Baker J stated that the Chief Appeals Officer in the light of that decision [in B.] took the view that desktop opinions furnished by medical assessors who have not personally examined a child on whose behalf domiciliary care allowance application was made, should as a matter of good practice be excluded from the file on appeal. 52 It was argued that this view or recommendation fell within the powers contained in Regulation 7 of the Appeals Regulations which enable the Chief Appeals Officer to ensure consistency in the appeals process. 53 The applicant argued that argued that a decision by the Chief Appeals Officer that in all cases the medical assessor's reports would be removed from a file would be ultra vires the Chief Appeals Officer. However, the court did not pursue this issue, apparently on the (justifiable) basis that a decision not to rely on negative medical reports could only benefit the applicant. 54 In relation to the attendance of the medical assessors, the court accepted the assurances that the medical reports would not be before the appeals officer. Therefore, there was no basis to require their attendance. As the court pointed out There is no procedure in our law where a person in an adversarial process can crossexamine evidence which is not before a deciding body. 55 In relation to the deciding officer, the court pointed out that while the Appeals Regulations allowed the deciding officer to appear at a hearing, this did not require the DO to attend nor was there anything which required the chied appeals officer to direct the DO s attendance. 56 In addition, the purpose of the DO s attendance was to conduct, argue or process the appeal, not to give evidence on oath as to the reasons for the decision under appeal. 57 Baker J. also ruled that 52 At [19]. 53 Regulation 7 provides that The Chief Appeals Officer may convene meetings of appeals officers for the purpose of discussing matters relating to the discharge of the functions of appeals officers including in particular consistency in the application of the statutory provisions. It is not immediately obvious that this would justify a direction as to what evidence was or was not to be considered but precisely how this change came about and the rationale for it is not very clear from the judgement. 54 At [24]. 55 At [27]. 56 Article 15(3) of the Appeals Regulations provides that The deciding officer or designated person, as the case may be, may appear at the hearing in person or he or she may be represented by another officer of the Minister. 57 At [35].

14 The word appear in the Regulation is used in a technical sense as understood in the procedures of courts and means attend not give evidence. 58 The court concluded that for it to require the attendance of the deciding officer would be akin to a court on appeal requiring that the judge at first instance should make himself or herself available for cross examination on the reasoning that led to a decision. Finally Baked J pointed out that the Act gave an appeals officer the power under to administer oaths 59 and to require the presence of any person to give evidence or produce documents. 60 She concluded that for the court to interfere at this stage would be to deny the discretion and jurisdiction of the appeals officer to regulate his or her own procedures. 61 Conclusion These decisions have highlighted issues in the social welfare adjudication system, particularly as it concerns DCA, and have also thrown some light on when judicial review will be considered to be an appropriate remedy. In C.P. Hogan J. correctly clarified the law in relation to revision of decisions in the light of new facts and new evidence. However, despite the legislative response of the Department, this decision should not be assumed to have broader implications for review of decisions. In A.M. in contrast, Hanna J. upheld a very minimalist approach to the provision of reasons in relation to initial decisions. While we could all agree that such decisions should not be excessively complicated, one might expect more than a simple quoting back of the relevant legislation. Some attempt to explain why a deciding officer has come to a particular decision should be required. One might hope that future decisions will opt for a higher standard in this regard and, indeed, that the Department of Social Protection might, in any case, feel that this is appropriate. Of course, any precedential value that the case might have had has been vitiated by the Court of Appeal s ruling that Hanna J. did not make any declaration as to the meaning of any statutory provision which would bind the Department in the future. While this may have been welcome in the circumstances, one might justifiably wonder what the High Court is doing if it is not providing guidance as to the legal meaning of statutory provisions. Arguably, the learned judge was correct on the facts to rule that there was no requirement for a medical examination (albeit that whether there may be such an obligation in other cases remains unclear) and his ruling that the appeals process provides an efficacious procedure is to be welcomed. However, the A.M. case highlights the fundamental flaws in the DCA assessment process while the cases also show the difficulties in obtaining useful administrative reforms through the use of the legal system only. In B., Barrett J. was undoubtedly correct to take the view that the deciding officer had fettered his discretion by, in effect, abdicating decision-making to the medical assessor. This judgement would suggest that this was not an isolated case and that this is a general 58 Para S S. 313 and s. 314(1) respectively. 61 Para 36.

15 approach in relation to DCA. 62 Although the ruling strictly applies only to this case, the flawed decision making process should be remedied by the Department. However, the decision-making process is arguably flawed for two reasons: the first (highlighted in B.) is legal and could be remedied by, for example, requiring DOs to have equal regard to all evidence. However, as highlighted in A.M. and B. it would also appear that the decision gathering system is inadequate and can lead to a conflict between medical reports which may or may not be clearly directed to the qualifying conditions for DCA 63 and opinions of medical assessors which are based on a desk review of the evidence. Thus more fundamental reform of the initial adjudication system is required. In C. O B, the court was undoubtedly correct to rule that (on the facts of the case) there was no basis for the court to direct the attendance of medical assessors or the deciding officer. Turing to the appropriate remedy, the Irish courts have taken a rather flexible approach to this issue in recent years in social welfare cases. As Hogan J. recently said not all of the case-law on this topic since the Supreme Court's first comprehensive examination of this question [in Abenglen Properties] 64 has been perfectly consistent. Indeed, it may justly be observed that few topics have proved to be more vexed and uncertain that the question of whether the availability of a statutory appeal ought to deprive an applicant of the right - whether as a matter of jurisdiction or discretion - to seek judicial review of a decision which he contends is ultra vires. It is clear from the Supreme Court's decision in Tomlinson (and, for that matter, O'Donnell) that irrespective of what either O'Higgins C.J. or Henchy J. said or intended in Abenglen Properties on this topic, there is no such jurisdictional bar. The question is, therefore, one of discretion, to be applied on a case by case basis. 65 The circumstances in which a Court, may, in its discretion, allow judicial review even where an alternative remedy (e.g. appeal) exists were summarized by MacMenamin J in Sheehan v Minister for Social and Family Affairs: It is a well-established precept of judicial review that in general where the law provides for a code, or appeal mechanism prior to resorting to judicial review an applicant should exhaust his rights of appeal, unless want of jurisdiction or breach of fair procedures or error of law can be shown. 66 In Sheehan, the judge ruled that the applicant had not exhausted his remedies and refused the reliefs sought. In general, as in A.M., there appears to have been a tendency by the courts in social welfare matters to require social welfare applicants to exhaust their 62 A similar process indeed applies to most medical decision making. The extent to which similar deference was shown in relation to other types of benefit was not considered in this case. 63 In fairness to the deciding officer in the B case, although the Health Services Executive Multi Disciplinary Team Assessment Report cited in the judgment concludes that B required care supervision attention that is in excess of that usually provided to children of his age, it is not clear that the extracts cited necessarily support that conclusion. This is not to express any view of the correct outcome of the claim on the basis of the very partial evidence cited but simply to highlight the difficulties faced by deciding officers. 64 State (Abenglen Properties Ltd.) v. Dublin Corporation, [1984] IR Ho v Minister for Justice [2012] IEHC 231. The references are to Tomlinson v Criminal Injuries Compensation Tribunal [2005] IESC 1 and O Donnell v Tipperary South Riding [2005] IESC [2010] IEHC 4 at 19.

16 remedies. However, the exceptions outlined in Sheehan would appear to be quite broad and capable of covering many (if not most) circumstances under which judicial review might be sought. Nonetheless, when one examines more closely the cases cited by MacMenamin J, it would appear that it is not all errors of law which will attract judicial review but only where errors of law were made in excess of jurisdiction or appear on the face of the record of the decision. O Higgins CJ in Abenglen specifically stated that If the decision impugned is made without jurisdiction or in breach of natural justice then, normally, the existence of a right of appeal or of a failure to avail of such, should be immaterial. Again, if an appeal can only deal with the merits and not with the question of the jurisdiction involved, the existence of such ought not to be a ground for refusing relief. Other than these, there may be cases where the decision exhibits an error of law and a perfectly simple appeal can rectify the complaint, or where administrative legislation provides adequate appeal machinery which is particularly suitable for dealing with errors in the application of the code in question. In such cases, while retaining always the power to quash, a court should be slow to do so unless satisfied that, for some particular reason, the appeal or alternative remedy is not adequate. 67 It is submitted that in most social welfare cases, any errors of law will be within jurisdiction and the appeals system generally provides an adequate mechanism to reconsider such errors. Indeed, given that appeals effectively involve a rehearing of the case, it is arguable that even any breach of fair procedures below will normally be capable of being addressed through the appeals system. In A.M. for example an appeals officer could require the deciding officer, or any other person appearing to be concerned in the appeal, to furnish to him or her, in writing, further particulars regarding the appeal. 68 Recourse to judicial review could, if necessary, had been made at a later stage in the process. However, in a number of recent cases the High Court has allowed judicial review claims to proceed although there was no attempt to exhaust the available appeal procedures. 69 In Hrisca v Minister for Social Protection, White J held that the applicants did not, in that case, have to exhaust other remedies including a right to appeal to the Social Welfare Appeals Office and held that judicial review was the more appropriate remedy given the complex issues of European law invovled in that case. It may be that the judges in the other recent cases were adopting a similar approach. Barrett J. in B. suggests a further category of case not required to exhuast remedies, viz. where the process whereby that decision was formulated is challenged and there is no provision in the social welfare code whereby the applicants can challenge the process, as opposed to the outcome, of decision-making. 70 In theory it seems reasonable that the Courts should allow points of law to go directly to the higher courts for clarification. In pratice, however, much of the High Court jurisprudence on 67 [1984] IR at Art. 12 of the Social Welfare (Appeals) Regulations, Solovastru v. Minister for Social Protection [2011] IEHC 532 ; Hrisca v Minister for Social Protection, High Court, unreported 16 February 2012; Genov and Gusa v Minister for Social Protection, [2013] IEHC Albeit that one could argue that in A.M.it was also the process rather than the outcome which was challenged.

17 social welfare issues in recent years has been so poor that the Court is more inclined to create error than correct it. 71 Certainly the specialist social security adjudication system in the UK (now the Upper Tribunal in Great Britain, still known as the Social Security Commissioners in Northern Ireland), does a much more competent job. Perhaps it is time to look to strengthen the capacity of the Social Welfare Appeals Office to deal with legal issues rather than seeking to bypass it. 71 Mr. Justice Hogan is, of course, one obvious exception.