Social Protection seeks hearing of appeal against High Court care ruling

Department assessor of autism case said evidence did not show disability so severe as to require substantial extra care

 Mr Justice Max Barrett: quashed the refusal of a domiciliary care allowance to the boy’s mother and directed the department to reconsider her application in accordance with his findings. Photograph: Collins/Courts

Mr Justice Max Barrett: quashed the refusal of a domiciliary care allowance to the boy’s mother and directed the department to reconsider her application in accordance with his findings. Photograph: Collins/Courts

Fri, Jun 20, 2014, 01:05

The Department of Social Protection wants an urgent hearing of its appeal against the High Court’s quashing of the 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 concerns the principles governing the allocation of some 5,000 domiciliary care allowances, plus other allowances involving medical assessment, and the department was anxious for a priority hearing, Mark Dunne told the Chief Justice, Ms Justice Susan Denham.

Derek Shorthall, for the mother, noted the High Court ruling has positive implications for claimants.

The Chief Justice said the appeal documents had to be put in order and the appeal could not be heard before the end of this court term on July 31st as the Supreme Court list was full. A date will be fixed later.

Last April, Mr Justice Max Barrett quashed the refusal of a domiciliary care allowance to the boy’s mother and directed the department to reconsider her application in accordance with his findings.

The judge noted a HSE mutlidisciplinary team which assessed the boy in February 2013, a month before the allowance application was made, had said he required care, supervision and attention considerably more than that usually provided to children of his age and recommended that 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 that 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.

It was “remarkable” that the department asserted there was no conflict of medical “evidence” but only “opinion”when a specialist HSE team, comprising a clinical psychologist, occupational therapist, public health nurse and physiotherapist, who had all met the boy, offered properly reasoned professional opinions about him.

The department apparently adopted “a disdainful mindset” to that evidence and instead preferred the “desk-top reviews” of its own medical assessors who had no personal knowledge of the child

The mother’s solicitor, Gareth Noble, had, after a Freedom of Information request, noted all 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 those, 2,224 were positive and 1,582 were negative and the deciding officer upheld all.