A refusal to revise a decision on Domiciliary Care Allowance can itself be appealed, Supreme Court Justice Elizabeth Dunne concluded in a judgment delivered on 21 May 2021. She said the appellant was entitled to appeal refusals to revise her application and would allow the appeal.
The case concerns a mother, Brigid Wilton McDonagh, whose child has learning and developmental difficulties. She applied for the allowance in June 2011. A deciding officer refused the application on 21 September that year and told her she could seek a revision or appeal within the statutory time limit. She did not appeal then.
Between March and December 2016, she sought revision three times, providing further medical evidence. Each request was refused; the final refusal was issued on 23 May 2017. Her solicitor then asked the Chief Appeals Officer to hear an appeal. On 17 July 2017, the officer said there was no statutory appeal route when a deciding officer reviewed but did not revise a decision.
The appellant sought judicial review, challenging the refusal of an appeal rather than the underlying decision on her allowance. The High Court rejected her claim in 2018, and the Court of Appeal upheld that result in 2020. Both courts concluded that a refusal to revise was neither a fresh decision nor a revised decision appealable under section 311 of the Social Welfare Consolidation Act 2005.
On appeal to the Supreme Court, the appellant argued that the Act should be read to provide an appeal after a refusal to revise. The respondents maintained that section 311 covered the original decision and decisions that changed its outcome, but not a refusal to change it.
Justice Dunne considered the statutory scheme, including its provision for decisions to be revised at any time in certain circumstances and for appeals within a prescribed period. She said treating a refusal to revise as unappealable was difficult to reconcile with the scheme. She also pointed to a difference between the wording for ordinary decisions and supplementary welfare allowance decisions, which she said could create unequal treatment between claimants if the respondents’ interpretation were accepted.
She rejected the respondents’ interpretation and concluded that a decision not to revise was a decision that could be appealed. The judgment states that she would allow the appeal. It does not, in the supplied text, set out a final order by the full court or say what happened to the judicial review remedies sought below.