The Minister for Social Protection has won her appeal against High Court orders quashing her Department’s refusal of a domiciliary care allowance (DCA) for the mother of an autistic boy.
The Court of Appeal disagreed with the High Court, because statistics showed the departmental deciding officer who refused the allowance “invariably” followed opinions of the department’s own medical assessors in 3,806 applications, which meant there was a “fixed policy” regarding such applications.
Data obtained under the Freedom of Information Act showed, of 3,806 opinions of the department’s assessors, 2,224 were positive, 1,582 were negative and the deciding officer upheld all of them.
In his High Court judgment, Mr Justice Max Barrett noted the mother had set out her difficulties caring for her son and a GP had stated the child’s social interaction anxieties were severe.
Requires care
A HSE mutlidisciplinary team who assessed the child shortly before the allowance was sought in early 2013 also said he requires care, supervision and attention at considerably higher levels than usually provided to children his age.
It was “remarkable” that the department asserted there was no conflict of medical “evidence” but only “opinion” when this specialist HSE team, who all met the boy, were offering properly reasoned professional opinions about him, he said.
The department apparently adopted “a disdainful mind-set” on that evidence and instead preferred “desk-top reviews” of its medical assessors.
The judge upheld the challenge to the refusal of the allowance and directed the department to reconsider the application.
The Minister’s appeal was unanimously allowed on Wednesday by the Court of Appeal comprising Ms Justice Mary Irvine, Mr Justice Gerard Hogan and Mr Justice Paul McDermott.
Giving the court’s judgment, Mr Justice Hogan said the boy has “high-functioning” autism.
The HSE multi-disciplinary team which assessed him had suggested he met the criteria for a DCA but gave no precise reasons for concluding he required “substantially” more care and attention than a child of the same age, he said.
Allowance refused
Two departmental medical assessors concluded the medical evidence did not indicate his disability was so severe he required “substantial” extra care, and the allowance was refused by the deciding officer on foot of those assessments.
Mr Justice Hogan said the essential issue in the case was whether the deciding officers operated a fixed policy of “dutifully” following the opinions of the department’s medical assessors.
While it would have been better for this deciding officer to have made a sworn statement on whether she regarded herself bound by the assessors’ opinions, the sworn assertion by an assistant principal officer of the department that there was no such fixed policy must be given evidential weight, the judge said.
It was also of “critical importance” the Social Welfare Consolidation Act 2005 states a deciding officer “shall” have regard to the opinion of the medical assessor.
Unlawfully fettered
Decision-makers must “have regard” to that opinion and reasonably consider whether they should inform their decision, he said. It was only if decision-makers regarded themselves as “bound” by that opinion that their discretion would be unlawfully fettered.
There was a remedy if a deciding officer endorsed medical views unsustainable on the evidence, but there was no challenge in this case to the reasonableness of the deciding officer’s decision, he added.
He ruled the High Court erred in finding the department effectively applied a “fixed policy” position whereby the assessors’ opinions were unquestioningly endorsed by the deciding officer.
In this case, statistics alone did not prove existence of a fixed policy position, he found.
While this deciding officer appeared to have routinely followed the assessors’ opinion “in every, or almost every, case”, that did not in itself mean she was adopting a fixed policy position.
