Title of Payment: Carer’s Allowance 

Date of Final Decision: 21 December 2023 

Keywords: Carer’s Allowance; medical evidence; full time care and attention for twelve months; medical evidence; eligibility as at time of application; duty to give reasons for the decision; alternative remedies 

Organisation who represented the Claimant: N/A. Applicant represented by senior counsel. 

Casebase no: G0153 

Case Summary:  

The case related to an application for judicial review to the High Court of a decision (the “Decision”) ofthe Department of Social Protection and the Social Welfare Appeals Office (the “SWAO”) to refuse to award carer’s allowance to the applicant (the “Applicant”).  

The Applicant applied for carer’s allowance in 2018 in relation to the care he provides to his partner. The Applicant’s partner had a number of health conditions including back pain, pernicious anaemia, depression, anxiety, uterine prolapse and severe stress incontinence.  

This application was refused by way of letter dated 23 January 2013, with the Deciding Officer noting that they had assessed means of “€0.00 per week from 19/01/2019”, and that the requirements of Section 179 (4) of the Social Welfare Act 2005 (the “2005 Act”) (which defines a carer and provides the circumstances under which carer’s allowance may be awarded) were not met. The decision letter informed the client that he may apply for the decision to be reviewed, and that it may be helpful toprovide “any further evidence relevant to the reason for refusal of your claim” 

The Applicant submitted an unsuccessful review and thereafter submitted an appeal to the SWAO. The SWAO issued its decision on 27 September 2019 and found that the Applicant had not met the eligibility criteria, in so far as the medical evidence submitted by the Applicant did not establish the necessity for full time care and attention for twelve months.  

The Applicant submitted a number of  requests for review under section 317 of the 2005 Act, all of which were unsuccessful, with the latest one dates 4 February 2022. The Applicant sought to challenge this decision by way of judicial review. 

Key conclusions 

The High Court found that the Decision contained an error of law and that inadequate reasons were given.  In particular, the Court found that the current needs of the relevant person had formed the basis for the Decision, as opposed to the needs of the relevant person as at the time of the decision. Furthermore, correspondence from the SWAO was found to contradict the Decision itself, in contravention of the principle laid out in City of Waterford VEC (see below). 

The High Court re-emphasised the duty to give reasons, and held that in the circumstances, it was not satisfied that the reader could “…know if the decision maker has directed its mind adequately to the issues which it has considered or is obliged to consider” (see Kelly J. (as he then was) in Mulholland v An Bord Pleanála (No. 2) [2006] 1 I.R. 453) 

Relevant Legislation: 

• Social Welfare (Consolidation) Act 2005 

• S.I. No. 108/1998, Social Welfare (Appeals) Regulations 1998 

Key Arguments:  

The Applicant argued that the Decision should be quashed as it is erroneous for a number of reasons, including: 

• The Decision flies in the face of fundamental reason and lacks fundamental reason and common sense, and has resulted in a manifest error of law and fact, and should be quashed for lack of proportionality; 

• The decision making process was flawed as a matter of law in that the Respondent took an erroneous view of the applicable test; 

• The Respondent failed to take into account and/or give adequate weight to the medical evidence and facts outlined in the Applicant’s application; 

• The Respondent failed to explain why the evidence submitted supporting his application was not accepted, in particular, when a report from a medical consultant in pain management, dated 21 September 2021, asserted that the applicant met the statutory requirements for carer’s allowance; and 

• The Decision fails to disclose any adequate reasons so that it is not possible to fully determine if the said decision is vitiated by an error. 

The Respondent argued: 

• The actions by the Appeals Officer for refusing the appeals to the Decision were correct, and the correct test had been applied;  

• The foregoing grounds are ‘thin’ on detail (and a similar suggestion was made in relation to the grounding affidavit sworn by the Applicant); and 

• The Applicant failed to exhaust alternative remedies via Section 318 or Section 327 of the 2005 Act. 

Decision of the High Court  

The High Court granted an order quashing the Decision. 

Reviewing the appeals to the Decision 

The High Court found that the Decision was based on an error of law and that the inadequate reasons were given.  

In particular, the Court found as follows:  

• A decision maker is required to make decisions with respect to the relevant person’s care needs at the time the application was made. 

• In the correspondence refusing appeals to the Decision, the Appeals Officer did not address the relevant person’s care needs as of 2018, but instead referred to their current needs as of the dates of the various letters in 2019-2022; 

• In relation to the duty to give reasons, it relied on an earlier judgment of City of Waterford VEC v. Department of Education and Science [2011] IEHC 278, which found that “When giving reasons for a decision, the reasons are to be stated there and then, and not added later upon challenge. Where reasons stated within a written decision are shown to be manifestly flawed, these cannot be supplemented by better reasons, or correct reasons, at any stage after the decision is made.”. The Court found that in this case, the statements made by the SWAO after the Decision went beyond confirmation of the reasons and were closer to an alteration of the Decision.  

• The Court further relied on a principle established by Phelan J in MD v Minister for Social Protection [2023] IEHC 88, 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”. The High Court found that this principle had been breached in the decision-making process.  

• On the basis of the above, the High Court found that the Applicant had made out its claim that inadequate reasons were given for the Decision. 

Alternative Remedies 

The High Court found that judicial review had been appropriately sought by the Applicant and relief should not be denied on the basis of any failure to exhaust alternative remedies. 

In this regard, the High Court noted that:  

• When the refusal of the appeal to the Decision was communicated to the Applicant by letter dated 15 February 2022, the Applicant was not informed that there was any further right of appeal, be that pursuant to Section 318, or otherwise.  

• The exercise of the Chief Appeals Officer’s Section 318 power does not depend on a dissatisfied person seeking to have that power invoked.  

• In relation to Section 327, had the Applicant invoked Section 327 as opposed to seeking judicial review, the ‘net’ position for all parties would appear to be the same, namely: (i) both routes involve the seeking of a public law remedy; (ii) both routes are to the High Court; and (iii) the evidence discloses no prejudice whatsoever by reason of judicial review being pursued.  

Date of final Decision: 21 December 2023 

Observations 

This decision reinforces a number of fundamental points, including:  

• The decision maker is required to make decisions with respect to the relevant person’s care needs at the time the application was made;  

• The decision maker shouldn’t supplement or replace reasons in a decision, with better and/or correct reasons after the decision is made; and 

• There is no absolute obligation to exhaust all potential avenues in all circumstances, including an appeal under Section 318 and/or Section 327, before seeking relief by way of judicial review.  Each case should be assessed on its own merits.  

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