Case Report G0146: M.D. v Minister for Social Protection [2024] IECA 28, Burns J, 6 February 2024

Title of Payment: Domiciliary Care Allowance

Date of Final Decision: 6 February 2024

Keywords: Domiciliary Care Allowance; statutory appeal to the High Court on a question of law; duty to give reasons; irrational/unreasonable; global care of the child.

Casebase no: G0146

Case Summary: M.D. v Minister for Social Protection [2024] IECA 28, Burns J, 6 February 2024

The case concerned an appeal against a decision of the High Court in relation to an appeal on a point of law under section 327 of the Social Welfare Consolidation Act 2005, as amended (the “2005 Act”), regarding a decision to refuse the applicant’s application for Domiciliary Care Allowance (“DCA”) in respect of her teenage daughter.

The decision was based on the fact that the statutory conditions governing the grant of DCA had not been met, namely that the child required “care and attention substantially in excess of another child of the same age without that disability.”

The child was born in April 2006 and in 2019 received the following diagnosis’ in light of developmental concerns: Development Co-Ordination Difficulties/Dyspraxia (“DCD”) and Autism Spectrum Disorder (“ASD”). 

In February 2020, the application first applied for DCA, and enclosed a medical report from the child’s GP; the occupational therapist report diagnosing DCD; and the ASD Multidisciplinary Assessment report confirming the diagnosis of ASD. A Medical Assessor’s Report was subsequent commissioned by the Department of Social Protection (the “Department”), in which the Medical Assessor opined that the child did not require substantially more care and attention than another child of her age. This application was refused on the basis that the qualifying conditions were not met.

The appellant appealed the decision in May 2020 pursuant to s. 311 of the 2005 Act, as with the additional evidence of a family impact statement setting out the child’s difficulties and a further letter from the child’s GP. On 24 July 2020, the appellant was notified that the refusal of DCA had been upheld by a different Deciding Officer who also determined that the qualifying conditions had not been met.

The matter was thereafter forwarded to the Appeals Officer, who again disallowed the appeal on the basis that he was not satisfied that the child required the “care and attention substantially in excess of another child of the same age without that disability.”

The applicant’s legal representatives subsequently wrote to the SWAO, and requested an oral hearing, which was granted by the SWAO. The Appeals Officer dismissed the appeal, and  concluded that no significant new information was presented at the oral hearing and that the care and attention that the child required was not substantially in excess of that required by another child of the same age.

This was further escalated to the Chief Appeals Officer under s 318 of the 2005 Act. Further evidence of the child’s habits and behaviours were submitted. This appeal was unsuccessful on the basis that no specific error of law or fact had been identified, and that all the evidence submitted by the appellant had been evaluated against the statutory test for DCA.  Although the child required additional support in some areas, the Chief Appeals Officer found that she was independent in many aspects of daily life such as washing, dressing, feeding and toileting. Therefore, it was not established that the child required “continual or continuous care and attention substantially in excess of the care and attention normally required by a child of the same age.”

The applicant sought a further review under section 317 of the 2005 Act on the basis that information put before the Chief Appeals Officer was not before the Appeals Officer in reaching its initial decision.

This appeal was disallowed. It is this decision that the applicant appealed to the High Court on a question of law pursuant to s. 327 of the 2005 Act.

Relevant Legislation

• The Social Welfare Consolidation Act 2005

The decision of the High Court

The High Court initially addressed the question as to what the High Court’s jurisdiction was in a statutory appeal on a question of law.

It held that an appeal to the High Court on a question of law covered

1. errors of law as generally understood;
2. errors such as would give rise to judicial review including illegality; irrationality, defective or absence of reasoning, and procedural errors of some significance;
3. errors which may arise in the exercise of discretion which are plainly wrong; and
4. certain errors of fact

It further indicated that this jurisdiction was wider than that of judicial review.

Having established that it had jurisdiction, the High Court determined that it had to consider the following three questions of law:

1. Did the Appeals Officer fail to provide reasons for his decision which were adequate as a matter of law?
2. Is the decision of the Appeals unreasonable / irrational as a matter of law?
3. Did the Appeals Officer apply the incorrect statutory test in making his decision?

The High Court ultimately determined that adequate reasons were given for the decision at issue; that the decision was not unreasonable or irrational as a matter of law; and that the correct statutory test was applied by the Appeals Officer in making his decision.

The applicant appealed each of these findings to the Court of Appeal ,and further asserted that the High Court had erred in finding that evidence of consideration were discernible from the decision making process as a whole.  The applicant further asserted that the High Court misdirected itself in relation to the operation of the appeals procedure in that it had regard to the Medical Assessor’s Report which was not before the Appeals Office.

The decision of the Court of Appeal

The Court of Appeal upheld the reasoning of the High Court in relation to jurisdiction. It further dismissed the appeal and upheld the decision of the High Court.  

Failure to give reasons

The Court of Appeal agreed with the High Court’s determination that “…the rationale for the impugned decision was pattern from the terms of the decision”. The Court of Appeal found that the appropriate standard for the duty to give reasons was set out in Connelly v An Bord Pleanála [2021] 2 IR 752, which provided as follows in relation to adequacy of reasons:

“First, any person affected by a decision is at least entitled to know in general terms why the decision was made.  This requirement derives from the obligation to be fair to individuals affected by binding decisions and also contributes to transparency.  Second, a person is entitled to have enough information to consider whether they can or should seek to avail of any appeal or to bring judicial review of a decision.”

The Court of Appeal found that this standard had been met by the Appeals Officer. It held that “…the exercise conducted by the Appeals Officer could in no way be described as “box ticking“” and that “….it was not necessary for the Appeals Officer to give reasons as to why he placed more emphasis on the appellant’s earlier submissions than later submissions, nor was it necessary for him to state what weight he attributed to the various submissions. He was entitled to look at the evidence in the round and reach a decision on the basis thereof”.

Unreasonable/irrational

The Court of Appeal found that it in this particular case, the Appeals Officer had had regard to all of the information put before him, and it was up to him to consider all of the submissions made.  It held that the Appeal Officer’s decision was not “…not based on determinations of fact which are unreasonable nor has an incorrect interpretation been placed on documentation resulting in unreasonable inferences or conclusions being drawn.” As such, the applicant had failed to establish that the decision was irrational or unreasonable.

Statutory test

The applicant sough to argue that the High Court had erred in finding that the correct statutory test had been applied.

The statutory test for DCA as set out in Section 186C of the 2005 Act, provides:

The Court of Appeal noted that further guidelines provide that “Eligible children from birth to the age of 16 who are living at home and who have a severe disability requiring continual or continuous care and attention which is substantially in excess of that normally required by a child of the same age may qualify for [the allowance]”

The Court of Appeal found that there are two components for this:

1. the child requires continual or continuous care; and
2. the care required is substantially in excess of that normally required by a child of the same age

It found that the test is met if “…the global care of the child is continual or continuous and the level of care required is substantially in excess of a child of the same age.” IT held that this standard had been correctly applied by the High Court.

Medical Assessor

Finally, the Court of Appeal found that the criticism of the High Court with respect to her understanding of the Medical Assessor’s Report “…is not warranted” and dismissed this ground of appeal.

Date of final Decision: 6 February 2024

Observations:

This decision highlights that the jurisdiction of the High Court in relation to an appeal on a point of law is broader than that of judicial review. It further clarifies the duty to give reasons, and emphasises that the global care of the child must be continual and in excess of that of a child of the same age, in order to qualify for DCA.

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