The Supreme Court has reversed earlier decisions of the High Court and Court of Appeal, in relation to the nature of the decisions which may be appealed to the Social Welfare Appeals Office. In her judgment of 21 May 2021 in McDonagh v Chief Appeals Officer & The Minister for Social Protection  IESC 33, Ms Justice Dunne held that the refusal of a Deciding Officer to revise an earlier decision is, in itself, a decision that may be subject to an appeal.
In reaching her decision, Dunne J held that a “purposive approach” should be taken to the interpretation of the Social Welfare Consolidation Act 2005 (“the 2005 Act”) in light of its status as a “social remedial statute”. The Appellant’s solicitors, KOD Lyons, have also published a recent blog in relation to the decision.
Legal and Factual Background
There are two mechanisms available to an applicant for a social welfare payment who is dissatisfied with the decision of a Deciding Officer. First, they may seek a revision of the decision by a Deciding Officer. This mechanism stems from the power of Deciding Officers under section 301(a) of the 2005 Act to “revise any decision of a Deciding Officer” in certain circumstances, including “by reason of some mistake having been made in relation to the law or the facts”.
Second, the applicant may bring an appeal to the Social Welfare Appeals Office pursuant to section 311(1) of the 2005 Act. While there is no time limit for seeking a revised decision, the Social Welfare (Appeals) Regulations 1998 (as amended) set a general 21 day time limit for lodging an appeal from the date of notification of the decision of a Deciding Officer.
The Appellant in McDonagh v Chief Appeals Officer applied for Domiciliary Care Allowance in 2011. That application was refused and this decision was not appealed. However, in 2016, the Appellant sought to have the decision revised in light of further medical evidence in support of her application. Each of her requests for a revised decision were refused, with the last refusal being issued in May 2017. In July 2017, the appellant sought to appeal these refusals to revise the original decision to the Social Welfare Appeals Office. However, the Chief Appeals Officer refused to accept her appeal on the basis that the refusal to revise an earlier decision does not constitute a new decision or a revised decision and therefore cannot be appealed.
The Appellant sought Judicial Review of the refusal of the Chief Appeals Officer to accept her appeal. However, the High Court, and subsequently the Court of Appeal, found against her and accepted the Chief Appeals Officer’s more restrictive approach to interpreting the 2005 Act. The effect of those decisions was to significantly curtail the right of applicants to pursue both an appeal and review of a negative decision on their entitlement to a social welfare payment. In practice, the Department would advise unsuccessful applicants that they could seek a revised decision and also appeal a negative decision, but also advised that seeking a revised decision may lead to a quicker resolution of the matter. However, applicants may not have received a response to their requests for a revised decision until after the 21 day time limit for appealing the original decision had elapsed. In such situations, where the request for a revised decision was refused and an appeal had not been lodged within the time limit, the applicant had lost their right to appeal, as the subsequent refusal did not constitute an appealable decision (per the interpretation of the 2005 Act endorsed by the High Court and Court of Appeal in McDonagh).
On foot of the failure of her appeal to the Court of Appeal, the Appellant in McDonagh was granted leave to appeal to the Supreme Court.
Decision of the Supreme Court
As Dunne J summarised at paragraph 3 of her decision:
“The controversy in this case arises out of the availability of the right to appeal under s. 311(1) of the 2005 Act, and the central question for the purpose of these proceedings is this: in circumstances where a decision is not appealed, and where a deciding officer, pursuant to s. 301 of the 2005 Act, subsequently refuses to revise a decision of a deciding officer, does this refusal to revise constitute a new “decision” or a “revised decision”, thus giving rise to the right of the applicant to appeal to the Chief Appeals Officer under s. 311(1)?”
Dunne J accepted the Appellant’s submission that a “purposive approach” should be taken to the interpretation of the 2005 Act. At paragraph 62 of her judgment she held that “the approach to the interpretation of the legislation at issue in these proceedings should be informed by the fact that the statutory provisions at issue are remedial, and accordingly the principles identified by Peart J. in [LD v Chief Appeals Officer  IEHC 641], and of Clarke C.J. in [J.G.H. v Residential Institutions Review Committee  IESC 69], should provide the backdrop against which the 2005 Act should be interpreted”.
Dunne J notes, at paragraph 65 of her judgment, that “the legislative provisions at issue in these proceedings were drafted in such a way as to ensure that a claimant for an allowance has every possible opportunity to make their case to be entitled to the particular allowance”. She therefore asks, at paragraph 66, “if there is a lack of logic or absurdity in having a system which on the one hand is flexible and generous in allowing for a process of revision and/or appeal and on the other hand, a system which denies a claimant an appeal from a decision not to revise a decision?”.
At paragraph 75 of her judgment, she has regard to the legislative intent behind the 2005 Act:
“Bearing in mind that the criteria for the revision of a decision in most circumstances (save for those circumstances where it is alleged that there has been a mistake of law or facts) will involve the submission of new facts or evidence or details of a change in circumstances, it is very difficult to understand why such a decision, not being the original decision, cannot be the subject of an appeal. Granted that a decision which amounts to a refusal notwithstanding new facts or evidence or a change in circumstances is not a “revised” decision in the sense of a decision which has been changed, can it really be the case that the Oireachtas intended that in that situation there would be no appeal? Even if one was dealing with an application based on a mistake as facts/law [sic], which did not involve new facts or evidence or a change in circumstances, why should such an applicant be deprived of an appeal following a failed application for a revision?”
In light of the above, Dunne J found in favour of the Appellant, and reversed the earlier decisions of the High Court and Court of Appeal:
“In my view, a decision not to revise is a decision, just as a decision to revise is a decision. The legislature did not confine appeals to the “original” decision. Therefore, in my view, the appellant herein was entitled to appeal the decisions not to revise her application for DCA. Accordingly, I would allow her appeal.”
The decision of Dunne J in McDonagh has significant practical consequences. Most importantly, it reaffirms the right of applicants to pursue both an appeal and review of a negative decision on their entitlement to a social welfare payment. This right was significantly curtailed by the interpretation of the 2005 Act accepted in both the High Court and Court of Appeal. By contrast, Dunne J held that:
“The regime for challenging a decision under the 2005 Act is generous and flexible… The view that the decision not to revise a decision is one that cannot be appealed is very much at odds with the scheme as a whole provided for under the 2005 Act which provides for both appeal and revision.”
The protection of these rights to challenge negative decisions is particularly important in light of long-standing issues with the quality of first-instance social welfare decision-making. In 2015, the United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) expressed concern at “the large number of social welfare appeals owing to the lack of clear understanding and consistent application of the eligibility criteria”. The Social Welfare Appeals Office decides on around 20,000 appeals each year. In each of the last five years, almost 60% of appeals have been decided in favour of the appellant. The consistently high rate of successful appeals indicates an issue with social welfare decision-making at first instance.
The previous restrictive approach as to which decisions could be appealed, allowed the Department itself to regulate access to the appeal mechanism in certain circumstances, notwithstanding the fact that the applicant may have been in a strong position to argue that the decision was wrong. The McDonagh decision ensures that the important safeguard of the appeal process is not lost on the basis that a Deciding Officer is unwilling to issue a “fresh” decision or on the basis of an unnecessarily restrictive interpretation of the social welfare code.