Domiciliary Care Allowance Archives

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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