The High Court has refused to compel three medical assessors and a social welfare deciding officer to attend an oral appeal hearing over a mother’s refused application for domiciliary care allowance for her young son.
The judicial review concerned whether the witnesses had to be available for questioning at the appeal. The mother said fair procedures required their attendance, particularly if medical evidence she intended to present conflicted with evidence considered when her claim was first refused.
The deciding officer refused the allowance on 24 June 2013. A review upheld that decision, communicated to the mother on 14 October 2013. She then appealed and was granted an oral hearing. The original decision had relied on reports from three medical assessors, none of whom had examined the child. They concluded that the evidence did not show care needs substantially greater than those of a child of the same age without the condition.
After the judicial review proceedings began, the Minister decided the assessors’ reports would be removed from the appeal file. The Chief Appeals Officer confirmed they would not be included in the file sent to the appeals officer. Justice Baker said the reports would not form any part of the appeal decision-making process. She did not decide who had authority to prepare a revised appeal file, as that issue was not challenged.
The judge held that there was no right to question the assessors about reports that had been excluded and would not be relied on. The mother could challenge evidence actually presented at the appeal, but could not require the other side to introduce particular evidence or call particular experts. The court also noted that the respondent to the appeal would take the risk of not producing contrary medical evidence.
On the deciding officer, the court said the regulations allowed the officer to appear or be represented, but did not require attendance or provide for the officer to be compelled to give evidence about the reasons for the original decision. The appeal had not yet begun, and the appeals officer had discretion over its procedures, including statutory powers to require witnesses or documents.
The High Court refused to direct either the assessors or the deciding officer to attend, and refused the reliefs sought in the judicial review. The underlying appeal remained to be heard; the court did not decide whether the allowance should be granted.