Department seeks to overturn decision on care allowance

Mary Carolan

The Department of Social Protection has asked the Court of Appeal to overturn a judge's decision quashing its refusal of a domiciliary care allowance to the mother of an autistic boy due to an apparent policy within the Department of invariably accepting its own medical assessors opinions on such applications.

The appeal against Mr Justice Max Barrett's High Court decision of 2014 concerns the principles governing the allocation of 5,000 domiciliary care allowances, plus other allowances involving medical assessment.

Having heard evidence a particular deciding officer in the Department had never dissented from the views of a departmental medical assessor in 3,000 applications, Mr Justice Barrett found there was a “policy” of deferring to assessors opinions in breach of the statutory functions of a deciding officer.

In those circumstances, the judge quashed the refusal of a domiciliary care allowance to the mother of an autistic boy and directed the application be reconsidered in light of his findings.

The Minister has appealed his judgment to the three judge Court of Appeal.

After the appeal concluded on Monday, Ms Justice Mary Irvine, presiding, and sitting with Mr Justice Gerard Hogan and Mr Justice Paul McDermott, said it would give judgment at a later date.

In his decision, Mr Justcie Barrett noted a HSE mutlidisciplinary team who assessed the boy in February 2013, a month before the allowance application was made, had said he requires care, supervision and attention considerably more than that usually provided to children of his age and recommended his parents apply for a domiciliary care allowance for him.

The mother had also set out her difficulties caring for her son, the family doctor stated the boy had been diagnosed with autism and the diagnosis was permanent and a GP had stated the child’s social interaction anxieties were severe.

The medical assessor expressed the view the medical evidence did not indicate a disability so severe as to require substantial extra care.

The judge stressed the case was not a review of the actual decision but rather the process by which it was reached.The relevant 2005 law required a medical assessor with the Department to assess all information on the child before providing an opinion and required a deciding officer to “have regard” to the assessor’s opinion when deciding the application.

The policy under which deciding officers generally defer to the views of the medical assessors amounted to an abdication of statutory duty by the deciding officer vitiating the entire decision-making process and the matter must be reconsidered.

It was “remarkable” the Department asserted there was no conflict of medidal “evidence” when a specialist HSE team comprising a senior clinical psychologist, ocupational therapist, public health nurse and physiotherapist, who had all met the boy, offered properly reasoned professional opinions about him, the judge added.

The mother’s solicitor, Gareth Noble, after a Freedom of Information request, noted 3,806 decisions made by a deciding officer within the Department on such applications conformed to the opinion of the Department’s medical assessors. Of the 3,806 opinions of the assessor, 2,224 were positive and 1,582 were negative.

In her arguments for the Department in the appeal, Nuala Butler SC submitted there was no departmental “policy” as referred to but rather a legislative scheme requiring deciding officers have regard to the opinion of medical assessors when considering DCA applications.

In arguments for the mother, Derek Shorthall BL said he was relying only on the decision made by the particular deciding officer. The High Court had said a policy can be adopted towards such applications but it could not be a policy that effectively removed any decision making capacity from the deciding officer.

Counsel agreed with Ms Justice Irvine the judgment impugns more than 3,800 decisions by the same deciding officer.Â

His case was the function of the deciding officer was  to examine the statutory criteria and determine whether or not the child has a severe disability requiring attention substantially beyond what a child the same age would require, counsel said.

Ms Butler said she took issue with the other side’s efforts to “tone down” the High Court decision.