The Court of Appeal has dismissed two appeals by applicants who sought costs after their judicial review proceedings over delayed Domiciliary Care Allowance (DCA) appeals became moot. It upheld the High Court’s decision to make no order as to costs for those proceedings.
The appeals were brought by Ciara Butler Duignan and Caroline Hughes against the Chief Appeals Officer, Social Welfare Appeals Office and Minister for Social Protection. Their judicial review cases sought orders requiring the appeals to be determined and declarations concerning the duty to decide them promptly.
Ms Duignan’s DCA application, received in October 2017, was refused in January 2018. A review did not change that decision. After the Supreme Court’s 2021 decision in McDonagh, she sought to appeal in May 2021. The appeal was registered but remained unresolved. Ms Hughes had applied for DCA in 2012 and later won an appeal, but statutory limits on backdated payment left a shortfall covering more than three and a half years from January 2012.
Both women obtained leave to bring judicial review proceedings on 11 July 2022. Their appeals were assigned to an appeals officer on 3 May 2022, a fact they did not know when they started proceedings. The officer arranged oral hearings in August, and the Social Welfare Appeals Office allowed both appeals on 16 August 2022. The respondents had not filed statements of opposition before the proceedings became moot.
At the High Court costs hearing, the respondents’ evidence said DCA appeals took an average of eight months to process; these had taken 14 months and 13 months. The Deputy Chief Appeals Officer cited the complexity and documentation involved, as well as varying workloads. The appeals officer said she had intended to hold hearings around the dates they took place, and that the judicial review proceedings did not prompt or expedite her decisions.
The High Court refused the applicants’ costs applications in November 2023. On appeal, their counsel accepted there was no causal link between issuing proceedings and the decisions allowing the DCA appeals. The applicants instead argued that the earlier delay was unexplained and that the decisions could reasonably have been made sooner.
The Court of Appeal said costs in moot proceedings were not determined simply by asking whether it had been reasonable to issue the proceedings. It held that the High Court had acted within its discretion and that the applicants’ challenge did not justify overturning the costs decision. The appeal was dismissed.
The court’s preliminary view was that the respondents should receive their costs of the appeals. The applicants were given 14 days from delivery of the judgment to ask for a brief hearing to argue for a different costs order. The judgment does not state a final costs order for the appeals.