The High Court has ruled that a 1998 ministerial certificate relating to one parent family payment could not justify referring a later disability allowance claim to the Criminal Assets Bureau (CAB). It held that the assessment of the claim by CAB was ultra vires because the evidence did not establish that any statutory criterion for CAB’s involvement had been met.
The judgment, delivered by Mr Justice Garrett Simons on 29 October 2024, arose from judicial review proceedings brought by Tracey Gilligan. The Department of Social Protection received her disability allowance claim on 20 February 2023. She was told on 28 February that CAB would assess it, and CAB confirmed the referral by letter on 3 March.
CAB refused the claim in June 2023. Its covering letter incorrectly told Gilligan she could seek an appeal before the Chief Appeals Officer. The court noted that, since a 2019 legislative change, an appeal against a decision by a bureau officer must be brought in the Circuit Court. The letter also incorrectly suggested a 21-day limit for seeking revision of the decision.
Gilligan’s solicitors requested a revision, arguing that the statutory grounds for CAB to assess the claim had not been met. A decision dated 10 November 2023 left the refusal in place. The judicial review proceedings began on 31 January 2024.
The respondents argued that the case was out of time because it challenged the referral first notified in March 2023, or alternatively the refusal issued in June. The judge rejected that objection. He held that it was appropriate for Gilligan to use the statutory revision procedure first, and that the judicial review proceedings were brought within three months of the decision on revision. He added that, even if the claim had been late, he would have extended time, citing the lack of notice that the State intended to rely on the old certificate and the misinformation about appeal rights.
On the merits, the State relied on a certificate issued on 27 April 1998 concerning Gilligan’s earlier claim for one parent family payment. The court held that the law required a certificate tied to a particular investigation of a particular benefit claim; the 1998 certificate could not serve as a blanket authority for a later claim. The State also referred to the statutory ground concerning a claimant engaged in criminal conduct, but had provided no evidence that a bureau officer formed the required opinion in relation to this claim.
The judge did not decide Gilligan’s separate constitutional challenge to the different appeal route for claims assessed by CAB. He said the proceedings could be resolved on narrower grounds and that a constitutional challenge could be raised in fresh proceedings if the reconsidered claim produced an unfavourable outcome.
The court ruled that Gilligan was entitled to an order setting aside the refusal of her disability allowance claim. The precise form of order, including whether to remit the claim for reconsideration, was to be discussed with counsel. The judgment said it did not rule out a lawful referral to CAB if statutory criteria were satisfied. The case was listed to return to court on 31 October 2024.