Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> A.M -v- Minister for Social Protection [2013] IEHC 524 (25 October 2013)
URL: http://www.bailii.org/ie/cases/IEHC/2013/H524.html
Cite as: [2013] IEHC 524
[New search] [Help]
Judgment Title: A.M -v- Minister for Social Protection Neutral Citation: [2013] IEHC 524 High Court Record Number: 2012 1037 JR Date of Delivery: 25/10/2013 Court: High Court Composition of Court: Judgment by: Hanna J. Status of Judgment: Approved |
Neutral Citation: [2013] IEHC 524 THE HIGH COURT [2012 No. 1037 JR] BETWEEN: A.M. APPLICANT AND
MINISTER FOR SOCIAL PROTECTION RESPONDENT JUDGMENT of Hanna J. delivered on the 25th day of October, 2013 These proceedings arise out of a decision of the respondent to refuse the applicant's application for a Domiciliary Care Allowance ("the DCA"). The applicant in these proceedings is challenging the lawfulness of the respondent's refusal and seeks declaratory reliefs together with an order of certiorari in respect of certain decisions of the respondent and, if necessary, an order that the matter be remitted to the respondent for reconsideration. By notice of motion the following relief are claimed:
2. A declaration that the respondent was obligated by statute and/or fair procedures, natural and constitutional justice, to carry out a medical examination of the applicant's son, in the premises that there is a conflict of medical evidence and the Social Welfare Consolidation Act, 2005 provides for the said medical assessment by the respondent's medical assessors. 3. A declaration that the respondent, in the decisions 10th May, 2012, 22nd October, 2012 and 26th October, 2012 erred in law and/or breached a statutory duty and/or natural and constitutional justice and caused prejudice to the applicant by refusing to furnish the applicant with proper and adequate reasons, in particular, but not restricted to, failure to disclose how the conflict of medical evidence was resolved, in the premises that the respondent is obligated by inter alia the Social Welfare Consolidation Act, 2005 and fair procedures and natural and constitutional justice to furnish such reasons. 4. A declaration that the respondent's decisions 10th May, 2012, 22nd October, 2012 and 26th October, 2012 are unlawful, invalid and/or vitiated for want of proper, intelligible and adequate reasons, in the premises that the respondent is obligated by inter alia the Social Welfare Consolidation Act, 2005 and fair procedures and natural and constitutional justice to furnish such reasons (the original decision is the decision properly subject of judicial review) 5. If necessary, an order pursuant to Order 84, Rule 26(4) of the Rules of the Superior Courts, remitting the matter to the respondent with a direction to reconsider it and reach a decision in accordance with the findings of this Honourable Court. 6. Further or other orders 7. Liberty to Apply 8. Costs The applicant, A.M., who is a home-maker and nurse, along with her husband is the primary carer of her eight year old son, G., who was officially diagnosed with autism on 28th November, 2011. On 28th March, 2012 the applicant applied to the respondent for the DCA which is a statutory payment payment made in respect of children who need continual care in excess of the care and attention normally required of a child of the same age. On the Dom Care 1 application form under Part 4 the applicant, Mrs. M., set out the additional care needs of G. under the following headings: Communication; Manual Dexterity; Learning; and Toileting. She also detailed other aspects of G.'s care requirements and personality such as his need for assistance with certain activities, repetition in explaining, constant reassurance and that G. is too trusting and does not recognise danger. G.'s GP, Dr. J., stated on the Dom Care 1 Form that G.'s mental health and behaviour were severely affected by his condition which is permanent. In a letter dated 20th March, 2012 Dr. J. stated that G. required full-time care and support. On 10th May, 2012 the application for the DCA was refused by the Deciding Officer, Ms. Clarke, on the basis that medical evidence provided did not indicate that the extra care and attention required is substantially in excess of that required for a child of the same age who does not suffer from G.'s condition. The applicant then sought a statutory revision of that decision pursuant to s. 301 of the 2005 Act by letter dated 29th May, 2012. The applicant furnished additional evidence in the form of her own care diary, medical and school reports from the Principal of G.'s National School, and in particular a letter from G.'s GP, Dr. J., dated 29th May, 2012. In that letter Dr. J. details the difficulties encountered by G. and the multiple additional supports required to facilitate, inter alia, his psychological, educational and physical development and his safety. He wrote that "I can certify that in my professional opinion G.M. is suffering from a disability so severe that he requires continuous care and attention/supervision substantially in excess of another child of the same age". An opinion was given by the Chief Medical Advisor, Dr. Leech, on 19th October, 2012 that, following his review of the matter, a medical examination was not necessary and by letter dated the 22nd October, 2012 Mr. Baldrick Assistant Principal Officer, confirmed the opinion of the Medical Advisor and stated that the Department had provided reasons for its decision which was neither irrational nor unreasonable. On the 26th October, 2012 the Deciding Officer, Mr. Martin, confirmed the grounds of refusal and refused a revision of the earlier decision. He added that there is an appeal registered against the decision and that G.'s file is being forwarded to the Social Welfare Appeals Office. In each case the decision or opinion in question was in the same terms, namely that the applicant had failed to satisfy the statutory criteria for DCA; she had failed to show that her son required extra care and attention which is substantially in excess of that required by a child of the same age who does not suffer from his condition. The applicant submits that adequate reasons were not furnished for those decisions (of the 10th of May and the 22nd and 26th of October) or for the Medical Assessor's opinion of 19th October, 2012 despite repeated requests in particular due to the conflict of medical evidence. The applicant further submits that due to conflicting medical reports and opinions the respondent was obliged to carry out a medical examination of G. in order properly to determine whether or not the criteria for receipt of the DCA were met. Decision
(b) the level of disability caused by that severe disability is such that the child is likely to require full-time care and attention for at least 12 consecutive months."
(b) provide an opinion as to whether the child satisfies paragraphs (a) and (b) of subsection (1)."
In essence this case comes down to three issues:
2. The issue of statutory interpretation: as to whether or not there is an obligation to undertake a medical examination in certain circumstances. 3. The issue of alternative remedy. Counsel for the applicant, Mr. Shortall, submits that the respondent is obliged by s. 300 of the 2005 Act and art. 191(2) of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 ("the 2007 Regulations"), to furnish written reasons for the decision given in relation to the applicant's son. Mr. Shortall argues in particular that the respondent has not addressed at all, or adequately, the serious conflict of medical evidence. Counsel acknowledges that it is open to the applicant to seek a further statutory revision of the decision and/or to engage with the Social Welfare Appeals Office in an appeal, however, the applicant is seriously prejudiced in this regard by the respondent's failure to provide an adequately reasoned decision. Mr. Shortall stated in Court that 52.5% of negative decisions are overturned by the social welfare appeals office and in his opinion this showed a flawed system. However, this suggests to me, assuming that this figure is accurate, that there is an independent and integrated system of appeal. The waiting time for the appeals office is 55 weeks according to Mr. Shorthall. The first Deciding Officer's decision, dated 10th May, 2012, states that:
The reason of the first Deciding Officer on the 10th May, 2012 (and that of the second Deciding Officer) as set out above reflects the language of the governing statutory criteria for qualification, as set out above in s. 186C(1) of the 2005 Act as amended and it complies with the requirements of s. 186C(2)(b) and of art.l91(2) of the 2007 Regulations. In this regard the reasoning appears to me to be sufficiently detailed and adequate to disclose how the applicant's son did not qualify under s. 186C(1) of the 2005 Act. It does not in any way prejudice the applicant from pursuing an appeal. It enables the applicant to request a revision under s. 301 of the 2005 Act, to appeal in accordance with the provisions of s. 311 et seq of the 2005 Act and to seek relief by way of judicial review. The applicant also claims that there was a failure to respect fair procedures by reason of the failure of the respondent to give reasons as to how the conflict of medical evidence was resolved. In the present case the respondents submit that there was no material or relevant conflict of medical evidence as between the GP of the applicant's son and the respondent's medical assessors. As there was no conflict of medical evidence to be resolved, no detailed explanation of the respondent's decision was required. I find favour with this analysis. There are recent and most helpful authorities dealing with the giving of reasons by administrative decision makers. In the Supreme Court in FP v Minister for Justice [2002] I I.R. 164 (a deportation case) Hardiman J. referring to a decision of Evans L.J. in MJT Securities Ltd. v Secretary of State for the Environment [1998] J.P.L. 138, says as follows:
"The Inspector's statutory obligation was to give reasons for his decision and the courts can do no more than say that the reasons must be 'proper intelligible and adequate', as had been held. What degree of particularity is required must depend on the circumstances of each case..." In the case of administrative decisions, it has never been held that the decision maker is bound to provide a "... discursive judgment as a result of its deliberations"; see O'Donoghue v. An Bord Pleanála [1991] I.L.R.M. 750 at p. 757. Moreover, it seems clear that the question of the degree to which a decision must be supported by reasons stated in detail will vary with the nature of the decision itself." Hardiman J. continues at p. 175: "Where an administrative decision must address only a single issue, its formulation will often be succinct. Where a large number of persons apply, on individual facts, for the same relief, the nature of the authorities' consideration and the form of grant or refusal may be similar or identical. An adequate statement of reasons in one case may thus be equally adequate in others. This does not diminish the statements essential validity or convert it into a mere administrative formula."
Was the Minister obliged to have G. medically examined in certain circumstances? The statutory scheme in respect of the DCA provides for a power, not a duty, to require medical or other examinations. Section 135(1) of the 2007 Regulations, as amended, is permissive as opposed to mandatory in its terms. The section provides as follows:
There was no conflict or contest to the degree of care in fact required by G. but there was a difference of opinion in relation as to whether or not he would require care that was substantially in excess of the care and attention normally required by a child of the same age. This latter issue is a qualitative judgement which is the decision maker's role to fulfil. Medical exams are only required in rare situations where there is a difference of medical opinion. In Kenny t/a Denture Express v The Dental Council & Ors [2009] 4 IR 321 Gilligan J. discusses the statutory powers and duties of the Dental Council and whether there was an obligation under the Dentists Acts to bring in a scheme in respect of denturists. Gilligan J. in dismissing the claim states at para. 36 that:
"The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the lawgiver."
36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision." Ms Clarke, the deciding officer in the first instance, in her affidavit, filed 13th March, 2013, avers that there was no substantial deviation as between the respective assessors and doctors on the character and extent of G.'s particular care needs. She states at para. 7 of her affidavit that she obtained the opinion of Medical Assessor Tom Quinlan and at para. 11 she adds that ''there was no disagreement about G.'s diagnosis or prognosis" and so there was no need to have him medically examined. Ms. Clarke also states that such an examination is only undertaken where there is a difference of clinical opinion. This view is echoed in the affidavit of the deciding officer in the second instance, Mr Martin, filed 13th March, 2013. The eligibility for the DCA is not based on a medical or psychological condition. It is concerned with the resulting lack of function and with this in mind it is important to note the following. In the report of Dr. R., a Clinical Psychologist in a Therapy Centre, Dr R. at p. 9 observes that the profile of G. given by the parents is consistent with the autism spectrum "namely High Functioning Autism." Part 7 of the application form as filled out by the GP, Dr. J., shows a "high degree of normality". All of the boxes are ticked normal bar mental health behaviour (severe), learning/intelligence (moderate) and balance/co-ordination (mild). It is not disputed that G. had autism it is not disputed that he requires care above that normally needed for a child of the same age. It follows that there was no requirement in law in the present case that the respondent have G. medically assessed. Medical examinations are only ordered in rare situations where there is a material conflict. Alternative Remedy Just because an issue of fair procedures and constitutional justice is raised does not mean that judicial review is the preferred route. The respondent submits that the applicant is not entitled to any relief by reason of the existence of a more appropriate available remedy, being the statutory appeal under s. 311 of the 2005 Act and that the within proceedings constitute an impermissible attempt to circumvent the statutory appeals process. The applicant is not appealing the decision of the 26th October but rather the first instance decision of 10th May, 2012. As Counsel for the respondent correctly points out, in the present case there exists a parallel appeal mechanism, and the consideration that the consequence of any finding of invalidity of the decision will be the remittal of the matter back to the Department for a decision with the preservation of the right of appeal intact. Thus the respondent submits that the appeal mechanism available to the applicant is sufficient and effective. Counsel for the respondent states that s.311 of the 2005 Act is the proper and appropriate route of challenge and this still remains open to the applicant. Counsel for the respondent, Mr. Dillon Malone, assured the Court that Social Welfare deciding officers, despite the 21 day deadline, routinely consider appeals that are out of time and that there is no question of Mrs. M. being caught out and is still entitled to appeal. Mr; Baldrick in his affidavit at paras. 3 and 4 says that Mrs. M. has incorrectly characterised the appeals system, that she believes that the appeal route lacks any independence and will not give adequate reasons as to why she was refused. He avers at para. 4 that 1) the appeals process involves a de novo consideration of the entire material, it will involve a different medical assessor and the appeals officer approaches the matter in a wholly independent manner, 2) the applicant knows the reason for the refusal and is fully equipped to contest this in the appeal, 3) the appeals officer has an independent power to require a medical examination, 4) the appeals process is the complete remedy for a dissatisfied applicant at first instance and has established itself to be a most effective remedy with full procedural safeguards and autonomy and 5) that this challenge by the applicant is a more limited avenue than the appeals process. Mr. Baldrick avers at para. 5 that the applicant reveals a fundamental misconception of the statutory appeals system that has been put in place to allow persons in the position of the applicant to pursue a complete remedy by way of appeal and that it is the logical and preferred route. Hedigan J. at pp. 7 - 8 in O'Connor v The Private Residential Tenancies Board [2008] IEHC 205 states:
21. Applying the common law as to the position when there is an alternative remedy, I have come to the following conclusions. The issue of fair procedures will be dealt with later in this judgment. As to the consequences to the applicant, there is no doubt they are serious. In assessing the relative merits of the appeal to the Employment Appeals Tribunal as against judicial review, the true question is as to which is the more appropriate in the context of common sense, the ability to deal with the questions raised and the principles of fairness. I am satisfied on each of these grounds that the appropriate remedy is that of the appeal to the Employment Appeals Tribunal. It has the ability to deal with the questions raised and the principles of fairness. 22. Consequently, on this ground I would dismiss the appeal and affirm the view of the High Court that the matter should continue before the Employment Appeals Tribunal." Under the governing legislative scheme the decision of a deciding officer can be reviewed or appealed as follows:
ii) The applicant may request a revision of the decision of the Deciding Officer and the decision is revised in light of new evidence or facts or by reason of some mistake having been made in law or fact or if there has been a relevant change in circumstances since the decision was made. (s.301(1)(a) of the 2005 Act) iii) The Chief Appeals Officer may at any time revise any decision of an Appeals Officer where it appears to the Chief Appeals Officer that the decision was erroneous by reason of some mistake having being made in relation to law or fact. (s.318 of the 2005 Act) iv) The Chief Appeals Officer may at any time revise any decision of an Appeals Officer if it appears that there has been a relevant change in circumstances since the decision was made. (s.301(1)(b) of the 2005 Act) |