The Court of Appeal has overturned a decision of the High Court that directed the Department of Social Protection (DSP) to reconsider an application for domiciliary care allowance.
The Court of Appeal found the High Court had erred in finding the DSP had effectively applied a ‘fixed policy’ whereby a medical assessor’s opinion was unthinkingly and unquestioningly followed by the deciding officer.
By way of background, the applicant, a mother of a young boy diagnosed with high functioning autism, appealed a refusal of domiciliary care allowance. The DSP’s medical assessor found that while the young boy had additional care needs, the statutory criteria had not been met. The evidence did not indicate that the extra care and attention required was substantially in excess of that required for a child of the same age who does not suffer from the same condition.
The appellant contended that the DSP operated a ‘fixed policy’ of invariably following the opinion of the medical assessor. In support of this contention, the appellant illustrated through use of the Freedom of Information Act 1997 (as amended) that the relevant deciding officer had followed the opinion of medical assessors in over 3,000 cases she was called on to adjudicate. Drawing on the evidence and previous case law, the High Court found the practices and policies of the DSP led to the conclusion that the deciding officer had unlawfully deferred in an uncritical fashion to the views of the medical assessors and in doing so fettered her statutory obligation to reach an independent decision.
The Court of Appeal agreed with the High Court as to the necessity for the deciding officer to make an independent judgement on the issue and not act under the direction of a third party. However, the Court of Appeal found that notwithstanding the statistical evidence that the deciding officer had followed the medical assessor’s opinion, it did not find it had been done in a way which fettered the officer’s statutory function. Section 186C (3) of the Social Welfare (Consolidation) Act 2005 requires that the deciding officer “shall have regard” to the opinion of the medical assessor in making a determination. The Court found this placed an obligation on a deciding officer to give reasonable consideration as to whether this should inform or guide their decision making. Evidence that a deciding officer had routinely followed the opinion of a medical assessor did not in and of itself mean that a fixed policy had been adopted. The DSP’s appeal was allowed.
The decision will have ramifications for those who had been considering an appeal of a refusal of the allowance following the decision of the High Court in 2014.
Click here to read a previous PILA bulletin article on the High Court decision.
Click here to read commentary on the Court of Appeal decision on the Irish Times website.