Case Report G0148 – FD v Chief Appeals Officer, Social Welfare Appeals Officer, Minister for Social Protection [2023] IECA 123 

Title of Payment: Carer’s Allowance 

Date of Final Decision: 24 May 2023 

Keywords: Carer’s Allowance; overpayment, summary appeals process; oral hearing; section 317; section 318; alternative remedy; judicial review 

Organisation who represented the Claimant: N/A 

Casebase No. G0148 

Case Summary:  

The Court of Appeal in this case was tasked with considering an appeal of the decision of Hyland J in the High Court not to quash a decision of the Chief Appeals Officer (the “CAO”) to determine the Appellant’s social welfare appeal on a summary basis.   

Background:  

The Appellant appealed a decision of a Deciding Officer which required her to repay €54,184.10 in Carer’s Allowance, on the basis that the Appellant was only entitled to a lower rate of Carer’s Allowance from 2014-2018 and had not been entitled to any Carer’s Allowance from 2018-2019.  This decision was made due to the changed financial circumstances of the Appellant from the start date of payment of the Carer’s Allowance of which she had been in receipt.  The Deciding Officer stated that its decision was based on sections 179, 181 and 302(b) of the Social Welfare (Consolidation) Act 2005 (the “2005 Act”).  The Deciding Officer informed the Appellant she had a right to request a review of this decision by a Deciding Officer or to appeal to the CAO.  The Appellant subsequently appealed to the CAO. 

Regulation 13 of the SI 108/1998, Social Welfare (Appeals) Regulations 1998 (the “1998 Regulations”) allows the CAO to determine an appeal summarily if they are of the opinion that the case is of such a nature that it can be properly determined without an oral hearing.  

The CAO considered the Appellant’s appeal on a summary basis and upheld the decision of the Deciding Officer.  

The Applicant issued judicial review proceedings, arguing that in making a decision on a summary basis, the CAO had acted without due regard to fair procedures, natural and constitutional justice and contrary to the provisions of the 2005 Act and the Social Welfare (Appeals) Regulations, 1998 (as amended) (the “1998 Regulations”).  

Decision of the High Court 

The High Court determined that the fundamental question was whether an oral hearing was necessary to fairly dispose of the appeal. The High Court ultimately rejected the submission that an oral hearing was necessary in the circumstances. 

Furthermore, the High Court determined that the Applicant could not succeed in the judicial review in circumstances where there was an alternative remedy available in the form of seeking a revision under section 317 of the 2005 Act.  

Substantive issues to be determined 

The Court of Appeal noted that the two substantive matters to be determined were as follows:  

1. Did the High Court err in relation to its finding that there existed an alternative appeal remedy, namely s. 317 of the 2005 Act?; and, 

2. If necessary, did the High Court err in holding that an oral hearing was not required? 

Key Conclusions:  

The Court of Appeal determined that the remedy of revision of an appeal decision of the CAO under s. 317 of the 2005 Act was a “…remedy [that] was suited to [the Appellant’s] concerns; it could have addressed her entitlement to an oral hearing, and it could have provided her with such an oral hearing if deemed necessary.”.  

Section 317(1)(a) of the 2005 Act provides that: “An appeals officer may at any time revise any decision of an appeals officer where (a) it appears to him or her that the decision was erroneous in the light of new evidence or new facts which have been brought to his or her notice since the date on which it was given.” 

The Court of Appeal concluded that the CAO was obliged to assess each case brought before it for revision on its own merits and therefore, to decide the Applicant’s application for a revision (if such was made) on the strength of such case, under s. 317 of the 2005 Act. 

The Court of Appeal did not consider whether the High Court had erred in holding that an oral hearing was not required, as this was rendered moot by its finding that there was an alternative remedy available to the Applicant.  

Relevant Legislation:  

• Social Welfare (Consolidation) Act 2005 

• SI 108/1998, Social Welfare (Appeals) Regulations, 1998 

• SI 505/2011, Social Welfare (Appeals) (Amendment) Regulations 2011. 

Key Arguments:  

The Applicant argued:  

1. That there was a distinction between a revision under s. 317 of the 2005 Act and an appeal,  relying upon the decision of the High Court in LD v Chief Appeals Officer [2014] IEHC 641; 

2. That the revision procedure cannot cure the failure of the Chief Appeals Officer not to hold an oral hearing of the Appellant’s appeal; 

3. That an absence of fair procedures at an initial stage may mean that an appeal cannot suffice as an alternative remedy because it does not restore an applicant to the same position that they would have been in had the matter been decided fairly in the first place. The Applicant sought to relying upon Koczan v Financial Services Ombudsman [2010] IEHC 407 and EMI Records (Ireland) Ltd v The Data Protection Commissioner [2014] 1 ILRM 225; and 

4. That an application for revision would not put her in the same position she would have been in had the matter been decided correctly in the first instance, because she had lost her original right to a fair appeal of the decision of the Deciding Officer.   

The Respondents argued: 

1. That the Applicant ought not to have proceeded by way of judicial review where she had an alternative appeal mechanism open to her under s.317 of the 2005 Act;  

2. That following the appeal decision, the Appellant could and should have sought a revision during which she could have and should have brought new evidence, relying on the decision of the High Court in LD v Chief Appeals Officer and the decision of the Supreme Court in Petecel v Minister for Social Protection [2020] IESC 25;  

3. That a revision could amount, in an appropriate case, to a full rehearing per LD v Chief Appeals Officer; and, 

4. That the Applicant had failed to exhaust the alternative remedy of seeking a revision under the scheme of appeals/revision set out in the 2005 Act. 

Decision of the Court of Appeal:  

The Court of Appeal upheld the decision of the High Court. 

It found that the Applicant had the ability to request a “revision” of the decision of the CAO, enabling her to have an oral hearing; which constituted an alternative remedy to which she ought to have had recourse; and which alternative remedy she “failed to exhaust” such that she was disentitled to the relief she sought by way of judicial review.  

The Court of Appeal also rejected the argument that there would be unfairness in the “revision” (i.e., bad faith), concluding there was no evidence that the Applicant would have been prejudiced in her revision application due to the CAO having previously decided her appeal against her.   

The Court of Appeal ruled that it must consider “the underlying grounds upon which the substantive claim for relief is made” (i.e., the decision of the Appeals Officer to decide the Applicant’s claim summarily), which would enable it to decide if there was a fundamental denial of fair procedures or a lack of jurisdiction, such that the availability of an alternative remedy would be irrelevant.  If that were the case, then the discretion to refuse jurisdiction (i.e., to refuse an application for judicial review) may not be exercised by the court hearing the application.   

The Court of Appeal further pointed to s. 318 of 2005 Act which empowers the CAO to revise an appeal decision not only on new evidence which has been brought to its attention, but also on a point of law.  In this regard, the Court of Appeal further confirmed that the power of revision includes the power to hold an oral hearing and the right to review a decision not to grant an oral hearing. 

On the basis of the foregoing, the Court of Appeal determined that there was a suitable alternative remedy available to the Applicant which she had failed to exhaust and her judicial review application was denied.  

Date of final Decision: 24 May 2023 

Observations: This case highlights the importance of considering whether there are alternative remedies available within the social welfare appeals framework which can be exhausted before considering an application for judicial review to the High Court. There is no “one size fits all” approach to all exercises of discretion as to relief by way of judicial review, so each case should be assessed on its own merits. Whether an adequate alternative remedy is available will depend on the nature of the applicants complaint regarding the underlying decision. Furthermore, the case also highlights the broad and wide-ranging power of revision. For example, the revision process can, where appropriate, permit a decision not to provide for an oral hearing to be reversed and it can accommodate an oral hearing itself. 

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