Case Report G0154 – Little v the Chief Appeals Officer, Social Welfare Appeals Office and Minister for Social Protection [2023] IESC 25

Little v the Chief Appeals Officer, Social Welfare Appeals Office and Minister for Social Protection [2023] IESC 25

Title of Payment: Domiciliary Carers Allowance

Date of Final Decision: 14 November 2023

Keywords: Domiciliary Care Allowance, Social Welfare Appeals, Judicial Review, Severe Disability, Continual Care, Social Welfare Consolidation Act 2005; section 317 review; eligibility as at date of application

Organisation who represented the Claimant: N/A

Casebase No. Case G0154

Case Summary:

Background

This case relates to a decision of the Supreme Court dismissing an appeal of a decision of the High Court in relation to an appeal on a point of law under the Social Welfare Consolidation Act 2005, as amended (the “2005 Act”). The crux of the case related to the refusal of the applicant’s application for Domiciliary Care Allowance (“DCA”) in respect of her young son.

In dismissing the appeal, the Supreme Court affirmed that the legislative framework requires eligibility to be assessed and based on the conditions at the time of the application. The Supreme Court ruled that the appellant had to establish eligibility for DCA as of the date of the original application in 2018, and that new evidence from 2020 could not be used to revise the original decision.

Initial application:

The appellant initially applied for DCA in June 2018 with respect to her son, who was five years and two months old at the time.  The application was assessed by a deciding officer who concluded that her son’s care needs did not meet the qualifying conditions for DCA, which require that the child has a severe disability necessitating continual or continuous care substantially in excess of that required by children of the same age without disabilities.  This decision was communicated to the appellant on 30 August 2018.  Following this, the appellant appealed the decision. A subsequent review by another deciding officer in December 2018, in accordance with s.301 of the 2005 Act upheld the original decision.

Appeal to Social Welfare Appeals Office (“SWAO”)

The appellant’s appeal of the initial decision was then heard by an appeals officer in February 2019.  The appeals officer also disallowed the appeal on similar grounds, concluding that her son’s care needs were not substantially in excess of those required by other children of the same age.  The appellant sought a review of this decision under section 317 of the 2005 Act, which allows for a decision to be revised by an appeals officer if new evidence or facts come to light.  However, the appeals officer determined that there were no new facts or evidence to warrant a revision and upheld the original decision in June 2019.  The appellant then requested a review by the Chief Appeals Officer, who also found no error in fact or law in the appeals officer’s decision and declined to revise it in September 2019.

Additional evidence

In late 2020, an assessment by the Health Service Executive (“HSE”) concluded that the appellant’s son had a substantial restriction in capacity due to an enduring impairment, meeting the criteria for disability under the Disability Act 2005.  Based on this assessment, in April 2021 the appellant sought another review of the 2019 decision of the appeals officer pursuant to section 317 of the 2005 Act, arguing that the new assessment demonstrated that the original decision was erroneous. However, the appeals officer refused to revise the decision, stating that the new evidence pertained to her son’s condition in 2020 and did not provide new information about his condition at the time of the original application in 2018.

Key Legislation:

1. Social Welfare Consolidation Act 2005, particularly sections 186C, 301, 317, and 318
2. Disability Act 2005
3. Legal Services Regulation Act 2015, section 169

Decision of the High Court

The appellant brought judicial review proceedings in the High Court.  The High Court dismissed the challenge, on the basis that the issue to be decided was whether at the time of her son’s original application for DCA he had met the criteria.

The High Court concluded that none of the additional information provided addressed whether or not the applicant’s son met the criteria for DCA as at the time of his original application.

The High Court held that the test in section 301 of the 2005 Act means that if new material only goes to a change of circumstance since the original decision, then it cannot be considered as a basis for concluding that the original decision was erroneous in the light of new evidence or new facts which have been brought to the notice of the deciding officer since the date on which the decision was given.

Appeal to the Supreme Court

The appellant was granted leave to appeal the matter to the Supreme Court.

The key arguments on behalf of the appellant were as follows:

1. The 2005 Act should be interpreted broadly to allow for eligibility determination based on new evidence. New did not mean having only come into existence after the original appeal but instead means that the evidence or facts in question simply must not have been before the original decision maker at the time the decision was made.
2. The appeals officer should have considered new evidence from 2020 demonstrating her son’s disability. In refusing to revise the decision under s. 317(1) of the 2005 Act, the appeals officer must be satisfied that the outcome would remain unchanged if the new material had been before them previously. It does not follow that an appeals officer’s review jurisdiction is confined to a reversal of the original decision; rather, it may consist simply of an adjustment of some kind.
3. The High Court erred in focusing on the date of the original application rather than the evidence available at the time of the appeal.

The key arguments on behalf of the respondent were as follows:

1. Eligibility for DCA must be assessed based on the conditions at the time of the original application. The legislative framework does not permit retrospective eligibility based on new evidence of changed circumstances as it is clear from the ordinary, basic, and natural meaning of the words in the relevant legislative provision that the assessment to be made is whether the evidence establishes eligibility for the benefit as of the date of the application and not as of some future date as the relevant words are in the present tense.
2. The intention of the Oireachtas to allow only evidence as to the circumstances present at the date of the original application is clear by the fact that an assessment of the eligibility is made by reference to whether a child has a severe disability requiring care and attention substantially in excess of “the care and attention normally required by a child of the same age” and the care and attention needs of a child aged five years and two months differ to those of a child who is seven years and seven/eight months which is a different question to be assessed in the first instance.
3. The statutory wording must be viewed within the full context including the other sections of the 2005 Act. The structure of the 2005 Act is such that it is the question that is originally determined by the deciding officer that frames the subsequent appeal or revision jurisdiction. The question originally determined by the deciding officer is whether the eligibility criteria were met when the application was made, and this must also be the question for an appeals officer exercising their revision jurisdiction.

Decision of the Supreme Court:

The Supreme Court distilled the case to the following net issue: “…when seeking a revised decision in 2021, did the appellant in this case have to establish eligibility for DCA as of the time of the original application for DCA in 2018, or did it suffice to show entitlement as to the date of the revision application in 2021”.

The Supreme Court, in dismissing the appeal, found that an appellant has to establish eligibility as at the date of the making of the original application.  In this regard, it further held that the legislative framework does not permit retrospective eligibility based on new evidence of changed circumstances.  It held that while retrospective payments in respect of periods prior to the date of the claim are premised on the assumption that claimants have the right to benefits as at the time of the claim.

The Supreme Court further held that this requirement remains even where there is an appeal under section 311 of the 2005 Act, or an application for revision of a decision of an appeals officer under section 317 of the 2005 Act.  In this regard, the Supreme Court found the legislative history to be instructive, and placed significance on the fact that section 317 had been amended in 2013 to remove the ability of an appeals officer to revise a decision where there had been a change of circumstances. This amendment meant that any change of circumstances since the date of application must trigger a fresh claim.

Date of final Decision: 14 November 2023

Observations:

The ruling underscores the importance of assessing eligibility for social welfare benefits based on the conditions at the time of the original application, rather than allowing for retrospective eligibility based on new evidence of changed circumstances.

The Court’s findings clarify that if an applicant’s situation changes after the initial application, they cannot use this new information to argue for a revision of the original decision. Instead, the applicant needs to submit a new application reflecting the current circumstances. Applicants should be aware of this limitation and plan accordingly. For example, in the case of DCA, applicants should be mindful that any significant changes in their child’s condition or care needs will require a new application, rather than a revision of the previous one.  For completeness, it should be noted that the Court did also refer to the fact that if a claim is successful, DCA can be backdated if appropriate having regard to section 241(4A) of the 2005 Act.

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