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Minister appealed against High Court

05 May 2016

Ed Madden, BL, looks at a recent Court of Appeal case in which the Minister for Social Protection appealed against a decision that the Department had effectively adopted a fixed policy position certain of unquestionably endorsing assessors’ positions

In April 2016, the Court of Appeal delivered its judgment in a case in which the Minister for Social Protection appealed against a decision of the High Court that the Department of Social Protection had effectively adopted a fixed policy position whereby the medical assessor’s position was unquestioningly endorsed by deciding officers in certain cases.

In March 2013, a mother applied to the Department of Social Protection (‘the Department’) for a domiciliary care allowance in respect of her son who was diagnosed with autism. The statutory allowance is payable in circumstances where a child has a severe disability requiring “continual or continuous care and attention substantially in excess of that normally required by a child of the same age”.

In the course of her application the mother set out the difficulties that she encountered in caring for her child. She included reports provided by a GP and a specialist HSE team that comprised: a senior clinical psychologist; a senior occupational therapist; a public health nurse; and a physiotherapist. These reports indicated that the boy met the criteria for payment of the allowance.

In May 2013, a deciding officer in the Department concluded that the boy was not ‘a qualified child’ in respect of the allowance. This was on the basis that the medical evidence provided by the mother in support of her application did not indicate that the extra care and attention required by him was substantially in excess of that required for a child of the same age without the condition.

In making her decision, the deciding officer relied on the opinion of a medical assessor appointed by the Department who found that the medical evidence submitted in support of the application did not indicate a disability “so severe as to require substantial extra care”. An appeal by the mother against the decision was considered by another deciding officer with the benefit of the opinion of a different medical assessor. Her appeal was not successful in altering the original decision.

‘Followed slavishly’

The mother brought proceedings in the High Court in which she challenged the process underlying the decision of the initial deciding officer. When the matter came on for hearing in 2014, her counsel contended that the Department in effect operated a policy whereby the opinions of its medical assessors were “followed slavishly” by departmental deciding officers, irrespective of the evidence submitted by a person making a claim.

In determining whether a child is ‘a qualified child’ under the Social Welfare Consolidation Act 2005 (‘the Act’), a deciding officer is required to assess all information provided and to “have regard” to the opinion of the medical assessor. Evidence was given that the decision-maker in the present case had, in the course of her career, made 3,806 decisions — 2,224 “positive” and 1,582 “negative”. She had not departed from the medical assessor’s opinion in any of those cases.

Pic: Getty Images

A declaration was sought that the alleged policy of deferring to the medical assessor’s opinion meant that there had been an abdication of the deciding officer’s statutory duty in the present case. It was contended that the application of such a policy unlawfully vitiated the decision-making process, in that the statutorily appointed decision-maker did not in reality make the decision.

In his judgment in the High Court, Mr Justice Barrett questioned how “a desk-top review by a department-paid medical assessor” could yield such a different conclusion regarding the needs of the child from that advanced by the medical personnel who dealt directly with the boy. He described as “remarkable” the content of a sworn affidavit by an assistant principal officer in the Department, which suggested that the personnel in question were “understandably advocating” on behalf of the mother and her son, while the medical assessor was providing the deciding officer with an independent medical opinion.

The judge said that the policy whereby deciding officers generally deferred to the opinions of departmental medical assessors had led to a situation in the present case where there had been an abdication of statutory duty on the part of the deciding officer.

The deference shown by her to the opinions of medical assessors had been so great that the medical assessor’s opinion was in fact determinative of the mother’s application.

This had resulted in a contravention of the Act, thereby tainting the decision-making process.

The Court went on to order that the decision made in relation to the application be remitted to the Department for fresh consideration. The Minister appealed to the Court of Appeal. Giving the judgment of the three judge Court of Appeal, Mr Justice Hogan said that if it were the case that a deciding officer felt bound by the medical assessor’s opinion, that would clearly amount to an unlawful fettering of the officer’s discretion. While the deciding officer was required by statute to “have regard” to the medical assessor’s opinion, she was nonetheless required to make her own independent decision.

However, short of that, the fact that the deciding officer invariably followed the views of the medical assessor “was not in point”.

The situation might be different if, for example, the statistical evidence had shown that a particular deciding officer had always (or almost always) decided in favour of the Minister. That, however, was not what was alleged in the present case.

Mr Justice Hogan found that the High Court was in error in concluding that the Department had effectively applied a fixed policy position whereby the medical assessor’s opinion was “unthinkingly and unquestioningly endorsed” by the deciding officer. While it was true that the deciding officer in the present case appeared to have followed the opinion of the medical assessor in every case, this did not in itself mean that she was adopting a fixed policy position; statistics alone did not prove the existence of such a position.

The Court went on to allow the Minister’s appeal and reversed the decision of the High Court.

Ref: [2016] IECA 116; [2014] IEHC 186.


Click here to view the full article which appeared in Irish Medical Times: Opinion