Supreme Court dismisses appeal holding appeals officers cannot grant retroactive benefits based on new facts under s. 317(1)(a).

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Record No.: 2022/142

[2023] IESC 25

Charleton J. Woulfe J. Hogan J. Murray J. Collins J.

Between/

DEIRDRE LITTLE

Applicant/Appellant

-and-

THE CHIEF APPEALS OFFICER, SOCIAL WELFARE APPEALS OFFICE AND

MINISTER FOR SOCIAL PROTECTION

Respondents

JUDGMENT of Mr. Justice Woulfe delivered on the 14th day of November, 2023

Introduction

1. The appellant appeals an order of the High Court dated the 8th December, 2022, following an ex tempore judgment of Owens J. delivered on the same date, in which the Court dismissed a challenge by way of judicial review to a decision of a social welfare appeals officer made pursuant to s. 317(1)(a) of the Social Welfare Consolidation Act 2005, as amended (the “2005 Act”). By that decision, the appeals officer refused to revise an earlier decision disallowing an appeal against a decision of a deciding officer in 2018 to refuse an application for domiciliary care allowance (“DCA”) in respect of the child of the appellant. Under s. 186C of the 2005 Act, DCA is paid to carers of children where, inter alia, the child has “a severe disability requiring continual or continuous care and attention substantially in excess of the care and attention normally required by a child of the same age”.

2. The appellant applied for DCA to the Department of Social Protection in 2018 in respect of her son, J., and detailed his care needs. J. was five years and two months of age when the application was deemed to have been made when received on the 6th June, 2018. The application was determined by a deciding officer, who concluded that the qualifying conditions for the payment were not satisfied at that time and, in particular, that the evidence provided did not indicate that the level of additional support required was substantially in excess of that required by children of the same age who did not have the disability, as provided for in the qualifying conditions of the scheme. Her

decision was notified to the appellant on the 30th August, 2018.

3. In the light of the appellant having taken an appeal against the decision of the deciding officer, a review of that decision was undertaken by another deciding officer in accordance with s. 301 of the 2005 Act. He decided that a revision of the original

decision was not warranted, and his decision was notified to the appellant by letter dated the 18th December, 2018.

4. The appeal against the decision of the initial deciding officer was heard by an appeals officer. In a decision made on the 26th February, 2019, he disallowed the appeal on the basis that the amount of extra care required by the appellant’s son was not substantially in excess of that normally required by a five year old child, and the appellant was notified of his decision on the 11th March, 2019.

5. The appellant subsequently sought a review of that decision of the appeals officer, pursuant to s. 317 of the 2005 Act. Section 317(1)(a) provides that an appeals officer “may at any time revise any decision of an appeals officer…where it appears to him or her that the decision was erroneous in the light of new evidence or new facts which have been brought to his or her notice since the date on which it was given”. That review was carried out by the same appeals officer, who determined that there were no new facts or evidence which warranted a revision of his decision, and the appellant was notified of the outcome of the review by letter dated the 5th June, 2019.

6. The appellant then sought a review of the decision of the appeals officer by the Chief Appeals Officer, pursuant to s. 318 of the 2005 Act. The Chief Appeals Officer ultimately concluded that there was no error of fact or law on the part of the appeals officer and declined to revise the decision, and the appellant was notified of the outcome of that review by letter dated the 17th September, 2019.

7. In late 2020 an assessment of the appellant’s son was undertaken by the HSE, to ascertain whether he met the criteria for “disability” as defined in the Disability Act, 2005. An assessment report concluded that J. had a disability, i.e. a substantial restriction in capacity by reason of an enduring impairment.

8. Subsequently, in April 2021, the appellant sought another review of the 2019 decision of the appeals officer pursuant to s. 317 of the 2005 Act. The application for revision was based on the above new evidence as to disability which, the appellant said, demonstrated that the decision of the appeal officer was erroneous. However, the appeals officer refused to revise the original appeal decision, on the basis that the new evidence was current evidence that had come into being almost three years after the original application for DCA, and was based on an assessment between November and December, 2020. He stated that the appeals officer could only deal with J.’s disabilities and care needs at the date of the application per governing legislation, and that this new evidence did not add anything new to his medical diagnoses at the time of the original application. He concluded that it had not been established that the appellant had furnished any new evidence pertaining to J.’s need requirements in January, 2018 to change the original decision, and consequently this review was disallowed. He added, however, that it was open to the appellant to submit a new application for DCA for her son, so that his current entitlement could be decided upon.

The High Court

9. The appellant brought judicial review proceedings challenging the 2021 decision of the revising appeals officer, contending that s. 317 (and related provisions) of the 2005 Act should be interpreted broadly given that the Act had a remedial purpose, reliance being placed in this regard on the decision of this Court in McDonagh v. Chief Appeals Officer [2021] 1 ILRM 385 (“McDonagh”). On the appellant’s case, nothing in the 2005 Act prevented the appeals officer from making a decision on eligibility in favour of a claimant by reference to a date after the date of claim, with the claim then being allowed from the date of eligibility, thus rendering a new claim unnecessary.

10. The High Court (Owens J.) “rather reluctantly” refused the application for judicial review in a detailed ex tempore judgment. He referred to the additional information furnished to the appeals officer for the 2021 review, and stated that none of the documents provided directly addressed the issue to be decided, which was whether at the time of J.’s application for DCA in 2018 he had a disability requiring continual or continuous care and attention substantially in excess of the care and attention normally required by a child of the same age, as set out in s. 186C(1) of the 2005 Act.

11. Owens J. felt that the main issue canvassed before him in this judicial review was in fact an issue which he had previously dealt with in L.L. v. Chief Appeals Officer [2021] IEHC 101 (“L.L”). In L.L. he held that the 2005 Act requires that a claimant be entitled to the benefit sought at the time when the claim was submitted. It was now suggested that certain observations of the Supreme Court in McDonagh demonstrated that his approach to the interpretation of the relevant sections of the 2005 Act was incorrect, but Owens J. did not agree with that, although he had no difficulty accepting the proposition that statutory provisions should be given a purposive interpretation.

12. An important matter for Owens J. was that the Oireachtas had amended s. 301 of the 2005 Act in 2013, so that revisions of decisions of deciding officers could not have regard to change of circumstances since the giving of the original decision. If new material only goes to a change of circumstance since the original decision, then it cannot be considered as a basis for concluding that the original decision was erroneous in the light of new evidence or new facts which have been brought to the notice of the deciding officer since the date on which the decision was given (as per the test in s. 301). A

decision not to award a benefit is not erroneous if a person is established not to be eligible for a benefit on the basis of the evidence initially presented, and it is shown by evidence tendered later on a review that a person claiming benefit has since become entitled to that benefit by fulfilling qualification criteria. Owens J. repeated that the

decision does not become erroneous because circumstances change, and these changes may result in a person who has been found not be eligible at the time of the initial application now satisfying eligibility criteria.

13. Part 10 of the 2005 Act contains the procedural framework in which decisions relating to eligibility are taken by deciding officers, appeals officers and the Chief Appeals Officer. Part 10 refers to a “question” arising under various parts of the 2005 Act, and Owens J. held that the “question” to be decided in relation to a claim for DCA is to be decided by reference to whether the application meets the criteria at the time of the application. The issue at the time of this application and when it first came before the appeals officer was whether this disability was of a nature which required continual or continuous care and attention substantially in excess of the care and attention required by a child of the same age. That obviously involved a very detailed appraisal back in 2018 and the issue was whether the additional information changed this view. The revising appeals officer concluded that it was not established that the appellant had furnished any new evidence pertaining to J.’s need requirements in 2018, and Owens J. did not think that it had been demonstrated that this involved any legal error or irrationality. He held that the appeals officer was entitled to take the view that the new information did not add anything to the information already available in relation to J.’s need requirements as of 2018.

14. Having refused the reliefs sought, the High Court awarded the costs of the proceedings against the appellant, though limited to the costs of a one day hearing (the hearing had in fact taken two days). The Court appeared to reject the appellant’s argument that the Court was entitled, in exercising its discretion to depart from the rule that costs follow the event under s. 169 of the Legal Services Regulation Act 2015 (“the 2015 Act”), to have regard to her financial circumstances as set out in the evidence, and to the effect that an adverse costs order would have on her given those circumstances. The Court appeared to accept the respondents’ submission that hardship type circumstances did not come within the circumstances to which the Court could have regard. Owens J. did say that he was agreeing to award costs against the appellant “very reluctantly”, and if he could have avoided it he would have made no order for costs.

Determination

15. This Court granted the appellant leave to appeal by a determination dated the 20th February, 2023: see [2023] IESCDET 26. The Court was satisfied that the appellant’s intended appeal raised a matter of general public importance, namely the proper scope of the revision power conferred on appeals officers by s. 317 of the 2005 Act. The Court was of the view that this issue is one of very significant practical importance, both for those seeking a benefit under the Act and for those administering the Act. The Court accepted that the issue has the potential to affect many applications under the 2005 Act, and it was important in the public interest that there should be clarity on this issue.

16. The Court was of the view that, had this been an application for leave to appeal from the Court of Appeal, it would clearly have been appropriate to grant such leave in respect of the s. 317 issue. The Court was also of the view that there were “exceptional circumstances” such as to warrant a direct appeal here, including the circumstances whereby it was undesirable that there should be any ongoing uncertainty as to the scope of the s. 317 revision power.

17. As regards the second issue in respect of which leave was sought, that concerning s.

169 of the 2015 Act, if that were the only issue presented, the Court would not have been minded to grant leave for a direct appeal. However, given that leave was granted in relation to the substantive issue raised in the appellant’s judicial review proceedings, and given that this costs issue is ancillary to that substantive issue, the Court considered that leave ought to be granted on the costs issue also. Otherwise, the appellant would have been compelled to pursue a separate appeal on the issue of costs to the Court of Appeal, and that would not have been in the interest of the parties or in the interests of justice.

Submissions in this Appeal

18. At the outset of the oral hearing the Court indicated to the parties that it would not hear submissions on the costs issue until after the Court first determined the s. 317 issue.

Submissions of the Appellant

19. The appellant refers to the text of s. 317(1) of the 2005 Act, and acknowledges that the revision jurisdiction under s.317(1)(a) is now confined to situations where “new evidence or new facts” indicate that the impugned decision was erroneous, and no longer includes “change of circumstances”. She submits that there follows from that definition three questions that the Court needs to answer in order to come to a

conclusion on the scope of s. 317(1)(a): a. The meaning of “new evidence or new facts”;

b. The question to be determined on review; and

c. The temporal limitation (if any) of the review procedure.

20. As regards the first question, the appellant submits that the 2005 Act’s revision jurisdiction draws a distinction between new evidence which speaks to old facts and new facts of themselves, and relies upon L.D. v Chief Appeals Officer [2014] IEHC 641 (“L.D.”), at para. 38. She argues that the preface of “new” in s. 317(1) is somewhat of a misnomer as the evidence or facts do not have to be “new” in the sense of having been produced or come into existence after the decision was made. Instead, the evidence or facts in question simply must not have been before the original decision maker at the time the decision was made.

21. It is submitted that the material a revising officer can consider is not confined to “fresh evidence” i.e. evidence which is not merely additional to that adduced on the former occasion, but which also could not reasonably have been expected to be produced then. That is not to say that “fresh evidence” can never be adduced, as nothing in the section precludes the consideration of facts which post-date the impugned decision.

22. As regards what distinguishes “new evidence or new facts” from a “change of circumstances”, the appellant submits that the latter deals with circumstances which have changed altogether, and the former deals with matters which are supportive of the original position put forward i.e. that the appellant is eligible for the benefit claimed. The former may add to evidence already available which supports the claim for benefit, or subtract from some evidence considered at the appeal which was relied on in the

decision to disallow the claim. This, it is said, may arise where the needs of a child are unchanged but better information is provided in relation to those needs: see M.D. v Chief Appeals Officer [2023] IEHC 88, at para. 67.

23. As regards the second question, the appellant contends that an appeals officer exercising the review jurisdiction must determine whether they can stand over the impugned

decision on eligibility, having considered the new material before them. In refusing to revise an impugned decision under s. 317(1) of the 2005 Act, an appeals officer must be satisfied that the outcome would remain unchanged if the new material had been before them previously. It does not follow that an appeals officer’s review jurisdiction is confined to a reversal of the impugned decision; rather, it may consist simply of an adjustment of some kind: see L.D., at para. 38.

24. As regards the third question, the appellant submits that the difficulty arising is identifying the point in time at which eligibility, as a material fact, becomes determinable. She notes that Owens J. concluded that an appellant at all stages of the process must show entitlement to a benefit at “the time of the initial application”. Yet additional documentation can be provided by applicants and/or sought by deciding officers at any time prior to a decision being made, and the claim only truly closes or crystalises when a deciding officer issues the determination. Accordingly, eligibility may be established pursuant to the 2005 Act at any point prior to the deciding officer making his or her decision.

25. The appellant refers to certain authorities which establish that any prior decision of an appeals officer may be revised “at any time”, and that a review entails an “unlimited right” to re-open the material factual issue arising in a given claim. The relevant issue in these proceedings is whether J. constitutes a qualified child for the purpose of obtaining DCA. By submitting a request for a review, the appellant has re-opened her claim which features that central question, and she is entitled to submit new evidence or new facts which were not originally before the appeals officer in support of her position. Ultimately, it is for the appeals officer to determine if the impugned decision remains correct having considered that material, or whether they would have come to another conclusion as to eligibility in the light of same.

26. The appellant submits that this is what distinguishes a review from an appeal, which could involve everything up to and including a complete rehearing on a de novo basis. The role of new evidence or old facts is to test the premise of conclusions reached in the light of old evidence. It is submitted that Owens J. fell into error in focusing on the date of the application rather than the evidence in respect of the claim before the appeals officer at the time the impugned decision was made.

27. It is submitted that an approach which focuses entirely on the date of an application undermines the ‘unlimited power’ that applicants have hereto enjoyed to re-open the material facts of a claim, rather than resorting to making a fresh application which could otherwise be resolved in a more efficient and cost-effective manner.

Submissions of the Respondents

28. The respondents submit that the core issue in this appeal is whether the appeals officer erred in law in concluding that new evidence addressing the care needs of the child at the time of two assessments in late 2020/early 2021 did not provide a basis for allowing the appeal, as they did not address his care needs at the time of the application for DCA in 2018. They state that the core legal issue is one of statutory interpretation, and concerns the point in time at which eligibility for DCA is to be assessed.

29. The respondents refer to the criteria for payment of DCA set out in s. 186C(1)(a) of the 2005 Act. They submit that it is clear from the ordinary, basic, and natural meaning of the words in that provision that the assessment to be made is whether the evidence establishes eligibility for the benefit as of the date of the application and not as of some future date.

30. This conclusion is said to be underscored by the words “has” and “requiring” in s. 186C(1)(a) which are framed in the present tense. The respondents say that it is clear from these words that the focus of an assessment is whether the child has a severe disability requiring the level of care and attention specified, and not whether the child will have a severe disability that will require the level of care and attention specified at some point in the future. Similarly, they submit that the criteria stipulated in subparas.

(c) and (d) of s. 186C(1) – and specifically the requirement that the child “is” ordinarily resident in the State, “satisfies” the requirements of s. 219(2) of the Act and “is not” detained in a children detention school – bring into focus the requirement to establish eligibility at the time of the application and not at some future date. The appellant contends that this analysis is further reinforced when s. 186C(1)(a) is read in conjunction with s. 186C(1)(b), as in the latter provision the Oireachtas expressly made provision for criteria which are directed to what is likely to occur in the future.

31. The respondents submit that the above analysis is also reinforced by the second intrinsic feature of the scheme found in s. 186C(1)(a), that an assessment of eligibility is made by reference to whether the child has a severe disability requiring continual or continuous care and attention substantially in excess of “the care and attention normally required by a child of the same age”. The care and attention needs of a child aged five years and two months are plainly different to those of a child who is seven years and seven/eight months. If eligibility was to be assessed by reference to the factual position in respect of eligibility at the time of an appeal or a review application, as distinct from the time of the initial application, the question being determined in the appeal or review would be different from the question that was determined at first instance.

32. The respondents contend that the appellant’s contentions to the contrary are rooted in the proposition that s. 186C(1) can and should be interpreted in a manner which permits an assessment of the care and attention needs of the child as of any date following the making of the application for DCA. They argue that there is no basis upon which that provision can be so interpreted, and that doing so would not involve the interpretation of the provision but an impermissible purported amendment thereof. They say that the appellant, in effect, is urging the Court to ignore the clear and unambiguous language of s. 186C(1) and certain other provisions and, under the guise of interpreting the section, to re-write the text in order to achieve a result which is at variance with what the Oireachtas enacted.

33. The respondents note that in our judgment in Heather Hill Management Company CLG v. An Bord Pleanála [2022] 2 ILRM 313 (“Heather Hill”) this Court observed that the words of the statutory provision must be viewed in context, and that what this means will depend on the statute and the circumstances, but may include inter alia other sections within the relevant Part of the Act and the Act as a whole. The respondents highlight the terms of s. 186D(1) which are framed in the present tense, and the fact that this provision includes at para. (c)(ii) an express reference to “the date of the making of the application for domiciliary care allowance”.

34. The respondents refer to Part 9 of the 2005 Act, which contains general provisions including provisions as to claims and payments, and state that s. 241(4A) in general limits the entitlement to payment of DCA to a prospective entitlement, save insofar as is permitted by the 2005 Act. They note that the High Court observed, in the context of the interpretative issue in L.L., that it is clear from these provisions that the 2005 Act requires that a claimant be entitled to the benefit sought at the time when the claim is submitted.

35. The respondents then consider Part 10 of the 2005 Act, which provides a comprehensive procedural framework in which decisions relating to eligibility are taken by deciding officers, appeals officers and the Chief Appeals Officer. A decision on an application for DCA is made under s. 300(1) of the 2005 Act, which confers on a deciding officer the power to decide every “question” to which the section applies. That includes, by virtue of s. 300(2)(b), every “question” arising under Part 3 of the 2005 Act, in which Part s. 186C(1) is located. The “question” which was required to be determined in this instance was whether the appellant and her child met the eligibility criteria for DCA, including in connection with her child the criteria in s. 186C(1).

36. The question determined by the deciding officer is also central to the manner in which the appeal/review process is framed. While an appeal is a de novo appeal in the sense that an appeals officer is not confined to the grounds on which the decision of the deciding officer was based and can decide the question as if it were being decided for the first time, the appeal is expressly limited to the “question referred” under s. 311(1), and thus the question as to whether the appellant satisfied the eligibility criteria for DCA at the time of the making of the application which was decided by the deciding officer.

37. The power to revise under s. 317(1)(a) is framed by reference to a power to revise the

decision of the appeals officer, where it appears that the decision was erroneous in the light of new evidence and new facts. Section 317(1)(a) thus provides for the revision of a decision which, as noted above, concerns the question referred to the appeals officer as part of the appeal. It follows, therefore, that the decision in the context of a review is concerned with the question of whether the eligibility criteria were met at the time of the making of the original application for the payment and, more particularly, whether the decision of an appeals officer in that regard was erroneous in the light of new evidence or new facts which have been brought to his or her notice since the date on which it was given.

38. As regards legislative purpose, the respondents submit that the purpose of the 2005 Act reinforces their analysis of the statutory provision. They say that the purpose of the Act is to provide benefits to certain categories of persons, and to establish the procedures and criteria by reference to which it is determined who qualifies for a payment and who does not. Where a person is not eligible for a payment, the intention of the Oireachtas was that such a claim would be refused. It the Oireachtas had intended that persons who were not eligible for a payment would be entitled to make an application and subsequently to have eligibility re-assessed by reference to new facts which are not concerned with eligibility at the time of the making of the application but with eligibility from a subsequent date, one would expect that to have been provided for in clear terms by the Oireachtas. One would also expect in that event that the various provisions noted above would not have been framed in the terms in which they were framed.

39. Examining the words used in s. 317 in the broader context of Part 10 of the 2005 Act, the respondents suggest that it is clear that the jurisdiction of an appeals officer under s. 317 is directly linked to both the appeal jurisdiction found in s. 311 and the original jurisdiction of the deciding officer in s. 300. The structure of the 2005 Act is such that it is the question which is originally determined by the deciding officer that frames the subsequent appeal or revision jurisdiction. The question originally determined by the deciding officer is whether the eligibility criteria were met when the application was made.

40. As regards the new evidence on which the appellant relied in support of the application for revision, the respondents submit that it did not address J.’s care needs in 2018 when the application for DCA was made. Instead, it was a new diagnosis (which was not in dispute), and information in respect of his care needs as of November/December, 2020. Insofar as the appellant considered that this meant that the statutory threshold was now met, the appropriate course was for a new application for DCA to be made.

Decision

41. It seems to me that this appeal raises a relatively net question of statutory interpretation as regards s. 317(1)(a) of the 2005 Act, i.e. whether an appeals officer may only revise an earlier decision of an appeals officer as to eligibility where it appears to him or her that the earlier decision “was erroneous” as of the date on which it was given? Alternatively may he or she do so where it appears that the claimant has subsequently become eligible for the benefit claimed, in the light of new evidence or new facts, as of some later date such as the date of the application for revision? In other words, when seeking a revised decision in 2021, did the appellant in this case have to establish eligibility for DCA as of the time of the original application for DCA in 2018, or did it suffice to show entitlement as to the date of the revision application in 2021?

42. In A.B. & C. (A Minor) v. The Minister for Foreign Affairs and Trade [2023] 1 ILRM 335, this Court, per Murray J., stated as follows (at para. 73): “…the cases…have put beyond doubt that language, context and purpose are potentially in play in every exercise in statutory interpretation, none ever operating to the complete exclusion of the other. The starting point in the construction of a statute is the language used in the provision under consideration, but the words used in that section must still be construed having regard to the relationship of the provision in question to the statute as whole, the location of the statute in the legal context in which it was enacted, and the connection between those words, the whole Act, that context, and the discernible objective of the statute. The court must thus ascertain the meaning of the section by reference to its language, place, function and context, the plain and ordinary meaning of the language being the predominant factor in identifying the effect of the provision, but the others always being potentially relevant to elucidating, expanding, contracting or contextualising the apparent meaning of those words.”

43. As noted by Owens J. in L.L. (at para. 17), the 2005 Act does not expressly identify the point in time at which eligibility must be established by a claimant for benefit. However, in my opinion it does so by necessary inference when one construes s. 317(1)(a) having regard to the relationship of the provision to the statute as a whole, and having regard to the connection between the words used in that provision and the language used in other provisions of the same Act.

44. I accept the respondents’ submission that there is an important connection between the “question” referred to in earlier provisions of Part 10 of the 2005 Act, and the “decision” the subject of a revision application pursuant to s. 317(1)(a) of the Act. Section 300(1) confers on a deciding officer the power to decide every “question” to which the section applies. That includes, by virtue of s. 300(2)(b), every question arising under Part 3 of the 2005 Act, and Chapter 8A of Part 3 provides for entitlement to DCA.

45. In the present case the question arising to be decided by the deciding officer, after the application for DCA was deemed to have been made on the 6th June, 2018, was whether the appellant and her son J. met the eligibility criteria as set out in s. 186C of the 2005 Act. Those criteria included, inter alia, that the child “has” a severe disability involving additional care needs, and “is” likely to require full-time care and attention for at least twelve consecutive months.

46. It seems to me that the appellant had to establish eligibility as of the date of the making of the application, for the following reasons. Firstly, one can note that the words “has” and “requiring” in s. 186C(1) are framed in the present tense, and appear to suggest an assessment of eligibility as of the date of the application, and not as of some past or future date. Secondly, in order for the appellant to establish that she was a qualified person, she had to demonstrate (pursuant to s. 186D(1)(c)(ii)) that “at the date of the making of the application” for DCA, she “is” a person to whom certain other provisions of the Act applied.

47. Thirdly, it seems to me that the legislative provisions governing the payment of DCA cast light on the temporal issue. It appears from s. 241 of the 2005 Act that the general rule is that a claimant must make a claim in respect of eligibility as of a certain date, and as per s. 241(4A)(a) if DCA is awarded it normally commences to accrue at the start of the next month following the day on which the claim is made.

48. As noted by Owens J. in L.L. (at para. 17), the provisions of s. 241(2) – (8) of the 2005 Act regulate the position where a person fails to make a claim for benefit within the time prescribed by regulations made under the Act, by precluding or limiting payments retrospective to the date of claim, except to the extent allowed by those provisions. The relevant provision dealing with DCA is s. 241(4A)(b) which allows a maximum of six months back payment, retrospective to the normal date that an award of DCA commences to accrue, i.e. “the first day of the month following the date on which the claim is made”.

49. I agree with the following conclusion arrived at by Owens J. in L.L. (at para. 20): “The provisions of the 2005 Act relating to making of claims for benefit and retrospectivity of payments in respect of periods prior to the date of a claim are premised on the assumption that the claimant is eligible at the time of claim. They do not contemplate that retrospection exists except by reference to the date of claim. The claimant must have a right to the benefit at that time.”

50. It is next necessary to consider whether this requirement (for eligibility as of the date of the claim for DCA) changes in the event of an appeal, or an application for revision of a decision of an appeals officer.

51. As regards an appeal, s. 311 of the 2005 Act provides that where any person is dissatisfied with the “decision” given by a deciding officer, the “question” shall be referred to an appeals officer. In my opinion the “question” referred on appeal, which gave rise to the decision which caused the dissatisfaction, is the same question, which was before the deciding officer, i.e. whether the claimant was entitled to the benefit claimed at the date the claim was made.

52. Section 311(3) provides that an appeals officer, when deciding a question referred under subs. (1), shall not be confined to the grounds on which the decision of the deciding officer was based, but may decide “the question” as if it were being decided for the first time. This provision would appear unnecessary and anomalous if a person on appeal could rely on a change of circumstances to show that they were now entitled to the benefit claimed, as opposed to entitled at the date the claim was made, as if so an appeals officer would necessarily be deciding a new question based on a change of circumstances for the first time.

53. As regards an application for revision of an appeals officer’s decision pursuant to s. 317(1)(a) of the 2005 Act, an appeals officer may revise where it appears to him or her that “the decision was erroneous” in the light of new evidence and new facts which had been brought to his or her notice since the date on which it was given. The language used in this provision suggests as follows, in my opinion.

54. Firstly, the “decision” sought to be revised is the decision of the appeals officer as to the question referred on appeal. As set out para. 52 above, this is the same question which was before the deciding officer, i.e. whether the claimant was entitled to the benefit claimed at the date the claim was made.

55. Secondly, the appeals officer may revise where it appears that the decision “was” erroneous in light of new evidence or new facts. One can note the word “was” framed in the past tense, as opposed to language such as “is” or “has become” erroneous. It seems to me that the new evidence or new facts must relate back to the original decision as to eligibility. I agree with the trial judge that the decision not to award a benefit was not erroneous if a person was established not to be eligible for a benefit on the basis of the evidence initially presented, and it is shown by evidence tendered later on a review application that a person claiming benefit has since become entitled to that benefit by subsequently fulfilling the relevant qualification criteria.

56. I accept the respondents’ submission that the legislative history is also instructive. Section 317 was amended in 2013 to remove the ability of an appeals officer to revise a decision, such as the decision in question here, where there has been a change of circumstances. As a result, a change in circumstances must now trigger a new claim for benefit rather than the revision of an earlier claim.

57. For completeness, I might mention two other matters upon which counsel for the appellant placed some reliance. Firstly, he relied upon s. 319(c) which provides that where any benefit will, by virtue of a revised decision given by an appeals officer, be allowed or increased, it shall take effect from the date considered appropriate by the appeals officer having regard to the circumstances of the case. It seems to me that the purpose of this provision was to give the appeals officer a wide flexibility, when making a revised decision, to depart from the normal rules governing the payment of DCA, as set out at paras. 48 – 49 above, “having regard to the circumstances of the case”.

58. The circumstances of cases the subject of a revision application may vary greatly, depending on the nature of the new evidence or new facts which may be brought to the notice of an appeals officer, and one can appreciate why the Oireachtas intended that the appeals officer should have a wide flexibility as to the date from which a revised

decision shall take effect. However, I agree with the conclusion of Owens J. in L.L. (at para. 33) that this provision does not support an interpretation of the 2005 Act which would allow appeals officers to make a finding that a claimant, subsequent to a claim, has, as a result of any change of circumstances, acquired a right to a benefit.

59. Secondly, the appellant also placed a good deal of reliance upon the argument that the 2005 Act is a “remedial statute”. It is submitted that to the extent that there is a tension in s. 317(1) between the reference to new facts and the use of the past tense in relation to the error alleged, the ambiguity should be resolved by preferring the “broader approach” by reference to the remedial nature of the 2005 Act, citing McDonagh at para

61. Statutes which are enacted to put right a social wrong and provide some means to achieve a particular social result ought to be interpreted, it is said, in a manner designed to promote the remedy therein where possible, citing Dodd, Statutory Interpretation, at para. 6.51.

60. In my opinion this argument cannot alter the correct interpretation of s. 317(1)(a) of the 2005 Act, as set out above. In the first instance one might note that the issue of interpretation arising is concerned with a procedural aspect of the legislation, rather than the substantive provisions conferring a benefit, and it is unclear if a particular approach to the construction of a remedial statute has any role in that context. This is particularly the case where the appellant here was (and is) free to make a fresh application for DCA at any time (and, if successful, the benefit can be backdated if appropriate having regard to s. 241(4A) of the Act as discussed above).

61. In any event, it is clear that any purposive approach to the construction of a remedial statute has certain limits. The authorities cited in McDonagh suggest that this approach only allows a remedial statute to be interpreted as widely as the words reasonably permit, in order to reflect the remedial nature of the legislation. Indeed the appellant’s own submissions (as quoted above) recognise this limitation by referring to resolving “the ambiguity” and to interpreting the statute in a manner designed to promote the remedy therein “where possible”.

62. In the present case, however, the approach to interpretation advocated by the appellant cannot be reconciled with the language, structure and context of the relevant statutory provisions. Therefore, in my opinion, the suggested approach cannot apply in this case.

Conclusion

63. In conclusion, I am satisfied that the trial judge was correct as to the scope of the revision power conferred on appeals officers by s. 317(1)(a) of the 2005 Act. I would therefore dismiss the appeal.