Domiciliary Care Allowance Archives

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:

Social Welfare Consolidation Act 2005, particularly sections 186C, 301, 317, and 318
Disability Act 2005
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:

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.
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.
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:

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.
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.
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.

DISCLAIMER: In developing the content of the report, every effort has been made to ensure that the information provided is accurate and up-to-date. Community Law & Mediation (“CLM”) gives no guarantees or warranties concerning the accuracy, completeness or up-to-date nature of the information provided in the course notes and does not accept any liability arising from any errors or omissions. Errors or omissions brought to the notice of CLM will be investigated and amendments or corrections will be made as soon as practicable.

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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

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

Did the Appeals Officer fail to provide reasons for his decision which were adequate as a matter of law?
Is the decision of the Appeals unreasonable / irrational as a matter of law?
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:

the child requires continual or continuous care; and
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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Social Welfare Appeal G0127: Domiciliary Care Allowance

Title of Payment: Domiciliary Care Allowance

Date of Final Decision: 4 July 2022

Keywords: Domiciliary Care Allowance; Social Welfare Payment; Discrimination; Irish Constitution; European Convention on Human Rights.

Organisation who represented the Claimant: N/A

Casebase no: G0127

Case Summary:

The case is that of Donnelly & Anor v Minister for Social Protection & Ors [2022] IESC 31.

This case concerned a challenge to legislation that excluded the first named appellant (“Mr. Donnelly”) from eligibility for a social welfare payment in respect of his severely disabled son, Henry, the second named appellant during a prolonged period when Henry was in hospital. The challenge was brought, under Article 40.1 of the Constitution and Article 14 of the European Convention on Human Rights, to a decision of the Minister of Social Protection and to certain provisions of the Social Welfare Consolidation Act 2005. The appellants argued that they have been unlawfully discriminated against as compared to families who are in a similar position but caring for a severely disabled child at home. The payment in question is the Domiciliary Care Allowance (“DCA”).

Henry was born with Down syndrome in June 2015 and has suffered with multiple other serious medical conditions. As a result, he was hospitalised for all the time from his birth until November 2017. During the time he was in hospital, Mr. Donnelly gave up his employment. It is apparent from the evidence that the level of care provided to Henry by his parents during this time, while undoubtedly onerous, was to an extent expected by the hospital. Mr. Donnelly applied for the DCA in July 2016 and his application was refused. He sought an internal departmental review of the decision which came to the same conclusion. Henry was discharged home in late 2017 and Mr. Donnelly has been in receipt of the payment since.

Relief was refused in the High Court ([2018] IEHC 421). The Court of Appeal ([2021] IECA 155) affirmed the decision of the High Court. The appellants were granted leave to appeal to the Supreme Court by determination of the 29th July 2021 ([2021] IESCDET 89).

Key Conclusions: The Supreme Court concluded that the appellants had failed to discharge the burden of proving that the measure in question was either invalid having regard to the Constitution or incompatible with the Convention.

Relevant Legislation:

Social Welfare Consolidation Act 2005:

Sections:

186B.— In this Chapter—

‘institution’, means a hospital, convalescent home or home for children suffering from physical or mental disability or ancillary accommodation and any other similar establishment providing residence, maintenance or care where the cost of the child’s maintenance in that institution is being met in whole or in part by or on behalf of the Executive or the Department of Education and Science;

‘international organisation’ means an international intergovernmental organisation, including, in particular and without limiting the generality of the foregoing—

(a) the United Nations Organization and its specialist agencies,

(b) the institutions and agencies of the European Communities,

(d) the Organisation for Economic Co-operation and Development;

‘qualified child’ has the meaning given by section 186C;

‘qualified person’ has the meaning given by section 186D.

186C.— A person who is under the age of 16 years (in this section referred to as ‘the child’) is a qualified child for the purposes of payment of domiciliary care allowance if—

(a) a medical practitioner has certified, in such manner as is prescribed, that—

(i) the 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, and

(ii) the disability is such that the child is likely to require full-time care and attention for at least 12 consecutive months,

(b) the child—

(i) is ordinarily resident in the State, or

(ii) satisfies the requirements of section 219(2),

and

186E.— (1) Subject to subsections (2) and (3), domiciliary care allowance is not payable for any period during which a child is resident in an institution.

186D.— (1) A person is a qualified person for the purpose of receiving domiciliary care allowance in respect of a qualified child if—

(a) the child normally resides with that person,

(b) that person provides for the care of the child, and

(i) that person is habitually resident in the State, or

(ii) the requirements of section 219(2) are satisfied in relation to that person.

(2) For the purposes of subsection (1)(a) the Minister may by regulation make rules for determining with whom a qualified child is to be regarded as normally residing.

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Social Welfare Appeal G0125: Domiciliary Care Allowance

Title of Payment: Domiciliary care allowance

Date of Final Decision: 10 March 2021

Keywords: Domiciliary care allowance; appeal; judicial review; evidence; eligibility; change of circumstances

Organisation who represented the Claimant: N/A

Casebase no: G0125

Case Summary:

This case concerned the question of whether it was fundamental to a claim for benefit or assistance under the Social Welfare (Consolidation) Act 2005 (the “Act”) that the person claiming that benefit or assistance should be entitled to it at the time the claim is made. A person may become entitled to a benefit which was previously claimed at a time when they were not eligible. This case concerned the question of whether, when this occurs following the rejection of a claim, is it necessary to make a fresh claim, or can the rejected claim be revived in accordance with the Act.

The facts here concern determinations made by appeals officers to refuse to revise earlier decisions of appeals officers which declined claims for domiciliary claim allowance. The claimants argue that the latter appeals officers erred in stating that any new fact or evidence provided in an application to review a decision must bear on establishing the right of the claimant at the time of the claim for benefit, and not at a later time. Owens J notes that the Chief Appeals Officer disagrees with the applicants’ position that the appeals officers erred and that the Chief Appeals Officer is correct in this view:

“The statutory framework governing decisions and appeals relating to a claim does not permit a claimant to demonstrate that changes in circumstances subsequent to the time of that claim give rise to a right to benefit so as to enable this issue to be revisited in a revival of a claim which has been rejected following an appeal.”

Accordingly, Owens J rejected the judicial review claim that the appeals officers acted contrary to law in determining that a claimant under the 2005 Act must establish entitlement at the time of submission of the claim.

The background to each of LL and DZ’s claims are detailed in the judgment. With respect to LL (and LL’s child H), the initial claim was submitted in April 2015 and was subsequently rejected. In 2019, the applicant’s solicitor provided a letter for the purpose of supporting LL’s application for domiciliary care allowance which detailed a medical prescription from 2017 and contained further information on H’s health. This letter was submitted as “further evidence which was not available at the time of the oral hearing”. It was determined that the letter did not provide any additional information relating to the care required by H at the time of the application in 2015. Owens J supports the position of Chief Appeals Officer that “while an applicant is entitled to rely on evidence that post-dates the original application or any earlier decision, the substance of that evidence must relate to the eligibility of an applicant at the time of the original application for the purpose of deciding whether a decision to refuse that payment was erroneous”.

Owens J was also critical of the delay in bringing judicial review proceedings a “very long time” after the date of the decision which it challenged, and did not find the attributing of the delay to Covid-19 restrictions to be convincing. Owens J found that the excusing circumstances offered were not sufficient to extend the time limit for judicial review under O.84 r.21(3) of the Rules of the Superior Courts.

DZ’s claim (relating to her son K) was made in March 2018, rejected and subsequently appealed. A HSE report was made available in October 2019 relating to K and submitted with a request for review of the original decision. The appeals officer wrote on 31 January 2020 to state that an appeal may only be reviewed if new information of acts come to light which would render the initial appeal decision erroneous at the time it was made, and stated specifically that:

“We appreciate that K’s conditions will present challenges but regret that it has not been established that the original appeal decision in this case was erroneous based on the evidence available at the time…”

Owens J determined that this is not the correct test to apply. New facts and evidence may be presented under the Act (albeit relating to the time of the application). On the basis of this error which may have affected the outcome of the process, Owens J ordered that the decision of 31 January 2020 be set aside and the application be remitted back to the appeals officer.

In the case of DZ, Owens saw fit to extend the time allotted for judicial review on the basis that the initial delay related to circumstances outside the control of DZ and her solicitors, in particular correspondence between solicitors and the Social Welfare Appeals Office.

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Social Welfare Appeal G0117

Title of Payment: Domiciliary Care Allowance

Date of Final Decision: 21^st May 2021

Keywords: Domiciliary Care Allowance; Refusal to revise a decision, Revised decision, Right to appeal to the Chief of Appeals Officer.

Organisation who represented the Claimant: KOD Lyons

Casebase no: G0117

Case Summary:

This case is that of Brigid Wilton McDonagh v. The Chief Appeals Officer and Minister for Social Protection [2021] IESC 33. The case concerned whether the refusal of a deciding officer to revise an earlier decision of a deciding officer constituted a new “decision” or “revised decision” so that the refusal would give rise to the right of the applicant to appeal to the Chief of Appeals Officer.

Ms McDonagh (The Applicant) is the primary carer of her child who has a diagnosis of learning/developmental difficulties. On the 10 June 2011, the applicant applied, pursuant to s.186(D) of the Social Welfare Consolidation Act 2005 as amended (2005 Act), to become a recipient of Domiciliary Care Allowance. On the 21^st September 2011, a deciding officer refused the applicant’s application pursuant to s.300(2)(b) of the 2005 Act.

The applicant was informed of her right to seek a review/revision of the decision under s.301(1) of the 2005 Act and her right to seek an appeal of the decision pursuant to s.311(1) of the 2005 Act. The applicant did not seek an appeal of the decision but after an interval of four and half years sought a revision of the decision by the deciding officer under s.301(1) of the 2005 Act on three separate occasions. On each occasion the application for a review was refused, the last of these refusals being issued on the 23^rd May 2017.

On the 12^th July 2017, the applicant’s solicitor wrote to The Chief Appeals Officer (the first-named respondent) seeking an appeal of the decision to refuse a revision of the decision. The first named respondent wrote to the applicant informing her there was no possibility to appeal to The Chief Appeals Officer as the 21-day appeal time limit for the decision made on the 21^st September 2011 had expired and there was no avenue to appeal to the Chief Appeals Officer where a deciding officer reviewed a decision but refused to revise the decision.

The applicant was subsequently granted leave to seek judicial review of the decision of the first named respondent and sought an order of certiorari quashing the decision of the first-named respondent and an order of mandamus compelling the first-named respondent to determine the appellant’s appeal. In doing so, she argued that a decision of a deciding officer refusing to revise an original decision constituted either a fresh “decision” or a “revised decision” under the legislation so that it gave rise to the right to appeal to the Chief of Appeals Officer.

The applicant’s arguments were rejected in the High Court and the reliefs sought were refused. The Court of Appeal affirmed the decision of the High Court, again rejecting the applicant’s arguments. The Supreme Court subsequently allowed the applicant’s appeal holding a decision of a deciding officer not to revise an original decision is a decision, just as a decision to revise is a decision and that as a result the applicant was entitled to appeal the decision not to revise her application for Domiciliary Care Allowance.

Key Conclusions: The refusal of a deciding officer to revise an earlier decision of a deciding officer is a decision that may be subject to appeal.

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Thematic Note G0115: Domiciliary Care Allowance

Theme: Domiciliary Care Allowance

Period of Analysis: SWAO Annual Reports 2009-2020

Keywords: Domiciliary Care Allowance; Qualified Child; Section 318 Review

Casebase No. G0115

Summary of the relevant law:

Domiciliary Care Allowance (DCA) is a monthly payment for a child under the age of 16 with a severe disability, who requires ongoing care and attention, substantially over and above the care and attention usually required by a child of the same age.

The provision of Domiciliary Care Allowance is governed by Sections 15-17 of the Social Welfare and Pensions Act 2008.

A person who is under the age of 16 years is a qualified child for the purposes of payment of domiciliary care allowance if:

(a) a medical practitioner has certified, in such manner as is prescribed, that –
a. the 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, and
b. the disability is such that the child is likely to require full-time care and attention for at least 12 consecutive months,
(b) the child
a. is ordinarily resident in the State, or
b. satisfied the requirements of section 219(2), and
(c) the child is not detained in a children detention school.

A person is a qualified person for the purpose of receiving domiciliary care allowance in respect of a qualified child if –

(a) the child normally resides with that person,
(b) that person provides for the care of the child, and
(c) at the date of the making of the application for domiciliary care allowance
1. that person is habitually resident in the State, or
2. the requirements of section 219(2) are satisfied in relation to that person.

Key grounds of appeals by appellants:

The majority of the appeals are made on the basis that the deciding officer / appeals officer erred in finding that the criteria for a qualified child had not been met.

Observations on appeal outcomes:

As the majority of the appeals are made on the basis that the deciding officer / appeals officer erred in finding that the criteria for a qualitied child had not been met, the appeals reported below focus principally on the criteria for a ‘qualified child’. In particular the requirement for ‘continual or continuous care and attention’ and the requirement that the care and attention required must be ‘substantially in excess of the care and attention normally required by a child of the same age’.

The reports below suggest that appellants are usually unsuccessful where they cannot establish that the care required is continual or continuous. For example, a number of the reports below note that favourable decisions for appellants were reached where the appellants demonstrated that the condition of the child in question meant that they required constant supervision and could not be left unattended for any length of time, in particular where supervision at night was required. In contrast, where the level of care and attention could be said to be more intermittent, or there was periods of time where supervision was not required it was often found that the ‘continual or continuous’ requirement has not been satisfied.

Similarly, in many of the reports below, the appeals officer considered carefully whether the care and attention required could be said to be ‘substantially in excess’ of the care and attention normally required by a child of the same age, noting that ‘substantially’ is a relatively high bar.

Finally, a number of the reports below indicate that where continual or continuous care and attention is required in order to ensure that there is no risk of physical harm either to the child in respect of whom the application for Domiciliary Care Allowance is made or another individual in the household, that child will often be considered a qualified child.

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