Two recent High Court judicial review proceedings dealt with a rejected application for Domiciliary Care Allowance (DCA). DCA is a statutory payment made in respect of children suffering from an illness or disability who need continual care in excess of the care and attention normally required by an unaffected child of the same age.
AM v Minister for Social Protection
This decision clarifies the scope of the Department of Social Protection’s duty to give reasons for administrative decisions. The case was brought by the parents of an autistic child. Their application for DCA was refused on the basis that the care requirements of the child were not sufficient to qualify for a DCA payment.
The parents wanted to provide further information to the Department, including a GP’s letter, so that it could review the case. However, the Chief Medical Assessor who reviewed the case concluded that medical examination was not necessary. The Assistant Principal Officer confirmed this, stating that the Department had given reasons for refusing DCA and the decision was neither irrational nor unreasonable.
The parents challenged the refusal in the High Court, arguing that the Department was obliged to carry out a medical examination of their son, and that the Department obligated to provide proper and adequate reasons for their decision to refuse DCA.
Justice Hanna dismissed the proceedings. He ruled that the reasons provided by the Department were “sufficiently detailed and adequate” and did not prejudice the applicant in appealing the decision:
“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. Decision makers should not have to provide reasons that are extremely detailed explaining every step of the decision as this would render the process unworkable.”
Justice Hanna also ruled that the Department had a discretionary rather than mandatory statutory power to conduct a medical examination to determine eligibility for DCA. Justice Hanna said that statutory appeal to the Social Welfare Appeals Office was the more appropriate avenue for redress in case like this.
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CP v Chief Appeals Officer, Social Welfare Appeals Officer & the Minister for Social Protection
In a landmark High Court decision, Justice Hogan has ruled that there is no basis in law for a Department of Social Protection practice of refusing reviews of decisions they consider “closed”.
The case was brought by the mother of a child with Asperger’s Syndrome who applied for DCA and was refused. She appealed unsuccessfully. She was not satisfied that the decision adequately took into account the particular needs of her daughter and she submitted more detailed evidence to the Department of Social Protection, as permitted by s317 of the Social Welfare Consolidation Act 2005. S317 allows the “furnishing of new evidence or of new facts “at any time” following a decision on appeal so that a statutory revision of [the] decision can be considered”.
The Department responded informing her that because she had already appealed, her case was now closed. They informed her that she could instead submit a new application.
Justice Hogan acknowledged the anxiety of the Department to avoid reopening appeals which might leave the State liable for substantial backdated payments but concluded that the criteria applied in refusing to consider the revision of the application for DCA under s 317 have no proper basis in law.
He held, “It must nevertheless be observed that the distinction sought to be drawn by the Department between cases which are in payment and those which are not has simply no basis in law. Section 317 does not make distinctions of this nature and nor does it distinguish between cases which are “live” and those which are not. Nor does it contain any implied temporal limitation of the kind which the respondents have urged, since this would be entirely at odds with the express language of the section itself.”
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Click here to read a more detailed case analysis by social welfare law expert Mel Cousins about these two cases.