H v Chief Appeals Officer & Ors (Approved)

Factual and Procedural Background

The Applicant submitted a claim for domiciliary care allowance in respect of her child, whose application was received on 8 May 2023. The child had diagnoses including ADHD (Combined Subtype) and Dyslexia. The application form included medical assessments completed by the child's general medical practitioner, which assessed various ability levels. The deciding officer made a first-instance decision on 31 May 2023, refusing the allowance on the basis that the evidence did not establish the child required care substantially in excess of a child of the same age for at least 12 consecutive months, as required by section 186C of the Social Welfare Consolidation Act 2005.

The Applicant appealed this decision on 23 June 2023. The appeals officer identified inconsistencies between the Applicant's and the medical practitioner's assessments and issued a "natural justice letter" to the Applicant on 18 April 2024, to which the Applicant responded with additional evidence. The appeals officer ultimately decided the appeal on 28 May 2024, upholding the original decision and declining to convene an oral hearing.

The Applicant then made an ex parte application for leave to apply for judicial review challenging the appeals officer's decision, particularly the refusal to hold an oral hearing and the procedural fairness of the appeal process. The Applicant also challenged the validity of article 10 of the Social Welfare (Appeals) Regulations 1998.

Legal Issues Presented

1. Whether leave to apply for judicial review should be refused on the basis that an adequate alternative remedy exists, specifically the statutory right to seek a revision of the appeals officer's decision under section 317 of the Social Welfare Consolidation Act 2005.
2. Whether the failure of the appeals officer to convene an oral hearing in the presence of an identified inconsistency in evidence amounted to unfairness.
3. Whether article 10 of the Social Welfare (Appeals) Regulations 1998 is ultra vires the parent legislation or repugnant to Article 40.3 of the Constitution of Ireland, particularly concerning the non-disclosure of the Department's submission to the Applicant.

Arguments of the Parties

Applicant's Arguments

• The appeals officer should have convened an oral hearing due to a "clear inconsistency" between the medical practitioner's and Applicant's assessments of the child's abilities.
• The appeals officer's failure to provide the Applicant with the Department of Social Protection's submission as part of the appeal process was procedurally unfair.
• The Applicant contended, alternatively, that article 10 of the Social Welfare (Appeals) Regulations 1998 was invalid either because it exceeded the powers granted by the parent legislation (ultra vires) or because it was incompatible with constitutional guarantees of fair procedure under Article 40.3 of the Constitution of Ireland.
• The Applicant argued that the statutory right to seek a revision under section 317 does not constitute an adequate alternative remedy because it does not permit a challenge to the Regulations themselves.

Respondents' Arguments

• The statutory right to seek a revision of the appeals officer's decision under section 317 represents an adequate alternative remedy, which the Applicant ought to have exhausted before seeking judicial review.
• The Department's submission was procedural and did not contain new or significant material requiring disclosure to the Applicant during the appeal.
• The challenge to article 10 of the Regulations does not meet the threshold of arguability and, in any event, the Regulations are sufficiently broad to be interpreted in a manner compatible with fair procedures.
• The principle of judicial self-restraint counsels against the court entertaining a challenge to the validity of the Regulations when the dispute can be resolved administratively.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Little v. Chief Appeals Officer [2023] IESC 25	Eligibility for domiciliary care allowance is assessed as of the date of application; changes in circumstances require a fresh claim rather than revision.	The Court applied this to determine that appeals or revisions must consider the date of application as the index date.
F.D. v. Chief Appeals Officer [2023] IECA 123	The statutory power of revision under section 317 is broad and provides an adequate alternative remedy to judicial review; requirement to exhaust alternative remedies.	The Court relied on this to hold that the Applicant should exhaust the revision process before seeking judicial review.
Chubb European Group SE v. Health Insurance Authority [2020] IECA 91, [2022] 2 IR 686	An appeal to the High Court on a question of law is intended to supplant and enlarge remedies available by judicial review.	The Court noted that the existence of this appeal right further supports refusal of judicial review leave.
Petecel v. Minister for Social Protection [2020] IESC 25	Requirements for standing and sufficient interest to challenge legislation by judicial review.	The Court referred to this in rejecting the Applicant's argument that the revision process could not address challenges to the Regulations.
Zalewski v. Adjudication Officer & Workplace Relations Commission [2019] IESC 17, [2019] 2 ILRM 153	Distinction between cases where statutory process is fatally flawed and those where it is properly interpreted as intra vires and constitutional.	The Court distinguished the present case from Zalewski, noting the Applicant accepts the Regulations as valid if properly interpreted.
East Donegal Co-operative Livestock Mart Ltd v. Attorney General [1970] IR 317	Presumption of constitutionality and interpretation of legislation consistent with constitutional justice.	The Court invoked this principle in assessing the challenge to article 10 of the Regulations.
Hynes v. An Bord Pleanála [1997] IEHC 182	Standards for granting leave to apply for judicial review, particularly in challenges to legislation.	The Court cited this in explaining the leave threshold and judicial self-restraint.

Court's Reasoning and Analysis

The Court examined whether the statutory right to seek a revision under section 317 of the Social Welfare Consolidation Act 2005 constitutes an adequate alternative remedy to judicial review. Drawing on the Court of Appeal’s authoritative interpretation in F.D. v. Chief Appeals Officer, the Court emphasized the broad remedial intent of the revision provisions, which allow for reconsideration of decisions in light of new evidence and even permit oral hearings.

The Court found that the Applicant's principal complaint—the refusal to hold an oral hearing despite an identified inconsistency in evidence—could be fully addressed through the revision process. The Applicant has the right to request a revision and to articulate all grounds supporting the need for an oral hearing during that process. Furthermore, the Court noted that the Department's submission did not contain new or significant material requiring disclosure, and any concerns about undisclosed documentation could be resolved via the revision mechanism or a Freedom of Information review.

Regarding the challenge to article 10 of the Social Welfare (Appeals) Regulations 1998, the Court applied the principle of judicial self-restraint. It explained that courts should avoid invalidating legislation unless necessary to resolve the dispute. The Court held that the Applicant’s challenge to the Regulations did not meet the low threshold of arguability required for leave to apply for judicial review. The Regulations are sufficiently broad to be interpreted compatibly with fair procedures, including the possibility of requesting further particulars and additional information.

Finally, the Court noted the existence of a right of appeal to the High Court on a question of law under section 327 of the Act, which further diminishes the appropriateness of judicial review in this context.

Holding and Implications

The Court REFUSED LEAVE to apply for judicial review.

The refusal was based principally on the finding that the statutory right to seek a revision of the appeals officer's decision under section 317 of the Social Welfare Consolidation Act 2005 constitutes an adequate alternative remedy to judicial review. The Applicant is required to exhaust this remedy before resorting to the High Court.

Additionally, the Court refused leave in respect of the challenge to the validity of article 10 of the Social Welfare (Appeals) Regulations 1998, applying the principle of judicial self-restraint and finding no arguable grounds for invalidity.

The direct effect of this decision is that the Applicant must pursue the revision process administratively before any judicial intervention. No new legal precedent was established beyond the application of established principles regarding adequate alternative remedies and judicial self-restraint in challenges to secondary legislation.