The High Court has refused a judicial review challenge over whether a refusal to revise a social welfare decision could be appealed under the Social Welfare Consolidation Act 2005.
The case concerned an application for Domiciliary Care Allowance made by Brigid Wilton McDonagh, the primary carer for her daughter, who the judgment says had diagnoses including Asperger’s Syndrome and ADHD. A deciding officer refused the allowance application on 21 September 2011. McDonagh did not appeal that decision within the prescribed time.
She later applied three times for the original decision to be revised, in March, August and December 2016. Each application was refused, with the third refusal issued on 23 May 2017. Her solicitors then sought an appeal. The Chief Appeals Officer’s office replied that the original decision was out of time for appeal and that there was no appeal route where a revision was refused. It advised that a fresh allowance application could be made and appealed in the ordinary way if refused.
McDonagh obtained leave to seek judicial review of the Chief Appeals Officer’s letter. She argued that the May 2017 refusal could be appealed either as a decision under section 311 or as a revised decision under section 301. The respondents argued that the appeal provisions covered the original decision and decisions that changed its outcome, not a refusal that left it unchanged.
Mr Justice Coffey held that “the decision” appealable under section 311 meant the original deciding officer’s decision. A refusal to revise did not qualify as a “revised decision” under section 301 because it made no adjustment to the original outcome. The court relied in part on the Act’s separate provision for appeals against certain Chief Appeals Officer decisions not to revise appeals officer decisions, and on the Supreme Court’s interpretation of materially similar legislation.
The judge noted that a refusal to revise may still be challenged by judicial review in an appropriate case, for example where there has been a wrongful failure to give reasons or a decision is irrational. That possibility did not create a statutory appeal in this case. The court refused all the reliefs sought; it did not determine the underlying entitlement to the allowance.