Appeal dismissed; leave to seek judicial review refused as application was out of time and no extension granted.

THE COURT OF APPEAL

APPROVED REDACTED

Neutral Citation Number: [2025] IECA 138

Court of Appeal Record Number: 2025/10

High Court Record Number: 2024/982

Faherty J. Butler J. Hyland J.

BETWEEN/

B.

APPLICANT/ APPELLANT

- AND –

THE CHIEF APPEALS OFFICER

RESPONDENT/ RESPONDENT

JUDGMENT delivered on the 10th day of July 2025 by Ms. Justice Hyland

Introduction

1. This is an appeal against the decision of the trial judge of 18 December 2024 (Simons

J. [2024] IEHC 711) refusing the appellant leave to seek judicial review. As this is an appeal from an application for leave that was made ex parte in the normal way, there is no respondent to the appeal.

2. The proceedings challenge a refusal to grant a social welfare benefit known as a domiciliary care allowance (“DCA”), the principal complaint being that the medical assessor’s opinion provided at first instance ought not to have been considered by the appeals officer. For the reasons explained below, I agree with the trial judge’s

conclusion that leave should be refused as the application was out of time and the appellant did not satisfy the test for an extension of time. I also address, on an obiter basis, the question of an alternative remedy under s.317 or 318 of the Social Welfare Consolidation Act 2005 (the “2005 Act”), and the appropriateness of a statutory appeal under s.327 of the 2005 Act.

Statutory Scheme

3. The DCA takes the form of a monthly payment to the carer of a child with a severe disability. The eligibility criteria are prescribed under Chapter 8A of the 2005 Act. The principal criteria are prescribed as follows under s.186C of the Act: “… (a) 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, and

(b) the level of disability caused by that severe disability is such that the child is likely to require full time care and attention for at least twelve consecutive months.”

4. The trial judge describes the scheme succinctly as follows: “The legislation provides for two tiers of decision making. The first-instance

decision is made by a deciding officer. Thereafter, there is a right of appeal. Appeals are generally determined by appeals officers, but there is also a formal right to refer any particular appeal decision to the Chief Appeals Officer (Section 318). The legislation also provides a right of appeal on a question of law to the High Court (section 327). The striking feature of the legislation is that provision is made for “revision” of both the first-instance decision and the decision of the appeals officer. In effect, a claimant who is dissatisfied with the decision can request same to be revisited. This has the practical consequence that a decision by an appeals officer is not necessarily an end of the matter. As discussed below, the Court of Appeal has held that a claimant may be required to exhaust their right to seek a revision before having course to the High Court.”

5. Donnelly J. commented on the expansive nature of the scheme in F.D. v Chief Appeals Officer [2023] IECA 123: “The breadth of the revision provisions is, possibly, unique in the field of the administration of public law. The Act provides extensive rights to seek to revise the decisions of both the deciding officers and the appeals officers …. The extent of the powers of revision and the remedial intent behind those powers distinguish these social welfare appeals from those concerning immigration, criminal procedures, and other areas of law. What is envisaged in the 2005 Act is as broad a scheme of review as possible of assessments and the entitlement to allowances/benefits …”

6. That broad statutory scheme of review may be summarised as follows:

• Section 300 provides that an application will be decided by a deciding officer in respect of identified questions.

• A person may seek a revision of that decision by a deciding officer under s.

301 on new facts or new evidence, or by reason of mistake having been made in relation to the law or the facts. There is no obligation to seek a revision by a deciding officer (although when an appeal is lodged, the deciding officer may, as happened in this case, unilaterally review the decision).

• Section 311 provides that where a person is dissatisfied with the decision given by a deciding officer the question shall be referred to an appeals officer. An appeals officer is not confined to the grounds on which the deciding officer decided the question but may decide the question as if it was being decided for the first time (s.311(3)), subject to the qualification identified in Little v. Chief Appeals Officer [2023] IESC 25 to the effect that eligibility must be assessed as of the date of making the application for DCA.

• If a claimant is dissatisfied with a decision of the appeals officer and considers the decision was erroneous in the light of new evidence or new facts, in order to be considered to have exhausted their remedies they should normally seek revision by an appeals officer of the decision of the appeals officer under s.317 (see F.D v. Chief Appeals Officer [2023] IECA 123 and Petecel v Minister for Social Protection [2020] IESC 25), again subject to the limitation identified in Little.

• If the claimant considers there was a mistake of fact in the decision of an appeals officer, including a revised decision under s. 317, they should generally seek revision under s.318. No statutory appeal lies in relation to appeals based on factual errors since s.327 only permits appeals on a point of law.

• If the claimant considers there was a mistake of law in the decision including a revised decision under s.317, they may seek revision under s. 318 or bring a statutory appeal under s.327. There is no obligation to have recourse to s.318 before bringing a statutory appeal since there is an entitlement to appeal to the High Court under s. 327 on any question of law (see L.A. v Chief Appeals Officer [2025] IECA 54).

• In general, following the decision in F.D, recourse should only be had to judicial review where there is a good reason for asserting that the matter cannot be dealt with either by s.317, s.318 or a statutory appeal under s.327.

7. There is a trap for the unwary deriving from the interpretation of s.318 by the Supreme Court. If a person seeks a review on a mistake of law under s.318, this precludes them from bringing a statutory appeal under s.327 if the Chief Appeals Officer does not revise the decision (following the decisions of the Supreme Court in Castleisland Cattle Breeding Society Limited v Minister for Social Welfare [2004

4 IR 150 and McDonagh v Chief Appeals Officer [2021] IESC 33). This is because s.327 identifies that any person dissatisfied with the revised decision (emphasis added) of the Chief Appeals Officer may appeal that decision to the High Court on any question of law. A revised decision has been interpreted as referring exclusively to a decision revised by the Chief Appeals Officer, i.e. excluding decisions that refuse to revise the original decision. That interpretation of s.318 acts as a disincentive to avail of the s.318 mechanism, as a person runs the risk of being barred from utilising the statutory appeal procedure provided by the Act. Nonetheless, that is the current state of the law.

8. In brief, this means that the usual course for a person who receives a negative

decision under the 2005 Act is to appeal that decision under s.311, and, if they remain dissatisfied, either to look for a review under s.317 or 318 depending on their complaint, unless there is some reason to consider that these avenues do not provide an adequate alternative remedy. If a person considers a legal error has been made, the appropriate course is to bring a statutory appeal under s.327, unless, following EMI Records v. DPC [2013] IR 669, the justice of the case will not be met by confining a person to the statutory appeal and excluding judicial review.

Opinion of Medical Assessor

9. The 2005 Act provides for the preparation of a written opinion by a medical assessor appointed by the Department of Social Protection. Section 300A(1) states: “In determining a person’s entitlement … the opinion of a medical assessor may be sought in respect of, but not limited to, any of the following questions… “(1) whether a child is a qualified child for the purposes of [the domiciliary care allowance].

(2) Where the opinion of a medical assessor is sought in accordance with subsection (1), the medical assessor shall assess all of the relevant information available to him or her and shall provide an opinion on the question put to him or her.

(3) where a medical assessor provides an opinion in accordance with subsection (2), a deciding officer shall have regard to that opinion in deciding the question in respect of which the opinion was sought.”

10. The 2005 Act does not address whether an appeals officer can, or should, have regard to the opinion of the medical assessor. That is a core issue raised in these proceedings as the appellant argues that the appeals officer was precluded from considering the opinion of the medical assessor, and that, if it was considered, she was entitled to cross-examine the assessor at an oral hearing.

Facts

11. The appellant submitted a claim for DCA on 21 March 2023 in relation to her son who was, at the time, aged 6 and had been diagnosed with autism spectrum disorder (“ASD”). Having taken into account the opinion of the Department’s medical assessor of 18 April 2023, the deciding officer refused the application on 27 April 2023 on the grounds that it had neither been established that the child required a level of care and attention substantially in excess of that normally required for a child of the same age, nor that he was likely to require full time care and attention for at least

12 consecutive months. The appellant appealed that decision. On 12 July 2023, a review by the deciding officer was carried out without the appellant having requested same (as appears to be the practice where a notice of appeal has been lodged), where the original decision was reaffirmed. The appellant received a copy of the opinion of the medical assessor at that stage. Unfortunately, that opinion has not been exhibited and is not part of the evidence before the court.

12. By decision of 15 January 2024, the appeals officer rejected the appeal, concluding the child did not meet the statutory test. In so doing, she had regard, inter alia, to the medical assessor’s opinion.

Judgment of the High Court

13. Judicial review proceedings were issued on 30 July 2024 seeking to quash the

decision of 15 January 2024 and seeking various declarations. The principal grounds for the application are summarised at paras. 16 and 17 of the trial judge’s decision. At para. 16 he observes that the first ground: “… concerns the status of the medical assessor’s opinion in the context of an appeal. It is contended that only a deciding officer may rely on a medical assessor’s opinion and that an appeals officer is precluded from doing so. It is contended, in the alternative, that if an appeals officer is permitted to have regard to the medical assessor’s opinion, then fair procedures require that the appellant be given notice of same, an opportunity to cross-examine the medical assessor, and an opportunity to arrange for the attendance of their own medical practitioner. It is then asserted that the Applicant had furnished medical evidence from her own clinician which effectively controverted the medical assessor’s opinion. The Applicant has, however, failed to exhibit the medical assessor’s opinion in support of this assertion.”

14. At para. 17 he notes that the second ground concerns the duty to give reasons, that where there is conflicting evidence the decision maker must state reasons for preferring certain evidence. The trial judge observed that the omission of the appellant to exhibit the medical assessor’s opinion makes it difficult to gauge whether the statement of reasons in the decision letter is adequate or not.

15. In respect of the applicable time limits within which an application for judicial review should be brought, the trial judge observed that this issue should normally be decided at the leave stage, and that, if it is obvious that the application is out of time, the judge may properly refuse leave, notwithstanding that the grant of leave does not necessarily preclude this issue from being revisited at the full hearing. When the leave application came on for hearing on 11 November 2024 the application was adjourned, inter alia, to permit the appellant to file a supplemental affidavit in respect of delay given that the application was more than three months out of time. Having considered the arguments for the delay, the trial judge concluded that the explanation did not reach the threshold of a good and sufficient reason, and that no extension of time should be granted.

16. In respect of the availability of an adequate alternative remedy, the trial judge noted that it would defeat the filtering function of the leave stage to allow judicial review proceedings to be pursued where this is not an appropriate remedy, unless the position is not clear cut, in which case the leave judge may prefer to reserve this question to the trial judge. He concluded the appellant’s complaints were ones capable of being fully addressed by way of revision pursuant to s.317.

Notice of Appeal

17. The notice of appeal argues inter alia that the 2005 Act is a remedial social statute and the trial judge failed to adequately take that into account. It is further pleaded that the trial judge placed insufficient weight on the totality of the circumstances. It is argued that judges hearing leave applications ought to leave over the question of delay for the substantive hearing, having regard, inter alia, to judicial practice in this area. It is contended that the trial judge failed to properly consider the question of delay in all the circumstances.

18. In relation to the alternative remedy, it is pleaded that an appeals officer does not have jurisdiction pursuant to s.317 to revise for errors of law, nor to address fundamental breaches of fair procedures, and that the specific complaints made by the appellant are not capable of being addressed by way of revision pursuant to s.317. At para. 3(h), it is pleaded that leave was granted by other High Court judges on upwards of twenty occasions in cases involving a challenge to decisions where an appeals officer considered the medical assessor’s opinion, and that judicial comity requires that Simons J. ought to follow those other judges following the decision in I.G. v. Refugee Applications Commissioner [2018] IESC 25.

19. The third ground of appeal may loosely be described as relating to the circumstances in which an appellant is obliged to bring a statutory appeal as opposed to judicial review proceedings.

Extension of time

20. There are essentially two questions to be resolved in respect of the trial judge’s

decision on the extension of time: first, whether the trial judge was entitled to decide upon the issue of time at leave stage as opposed to leaving it over for the trial judge, and second, whether he erred in refusing to extend time.

21. The first argument is advanced on the basis that, as identified in the notice of appeal, “other judges leave over the issue of delay for the substantive hearing”. This argument flies in the face of the well accepted principles applicable to a grant of leave (as enunciated in G. v Director of Public Prosecutions [1994] 1 IR 374 and repeated in many decisions of the Superior Courts since then) to the effect that one of the matters that the court must consider when granting leave is whether the application has been brought within time. Order 84, rule 20(1) of the RSC provides that no application for judicial review shall be made unless the leave of the court has been obtained in accordance with this rule. Order 84, rule 21(1) identifies that an application for leave to apply for judicial review shall be made within three months from the date where grounds for the application first arose. Order 84, rule 21(3) provides for the criteria in respect of an extension of time: “The Court may, on an application for that purpose, extend the period within which an application for leave to apply for judicial review may be made, but the Court shall only extend which period if it is satisfied that:

a) there is good and sufficient reason for doing so, and

(b) the circumstances that resulted in the failure to make the

application for leave within the period mentioned in sub-rule (1) either:

(i) were outside the control of, or

(ii) could not reasonably have been anticipated by

the applicant for such extension.”

22. In the light of those rules, and the way they have been interpreted by the courts, I am of the view that the trial judge was entirely correct in concluding that the question of time is one that, prima facie, should be considered by the court granting leave. It is entirely understandable that a judge hearing a leave application may decide to reserve the question of an extension of time to the trial judge where the applicant is out of time. There may be many factors that suggest that course of action, including where the period by which the applicant is out of time is a relatively short one, where the facts in relation to the basis for the extension of time are complex or where it may be helpful to hear from the respondent. The extension of time test requires the court to consider, not only whether there is good and sufficient reason for extending time, but also whether the circumstances that resulted in the failure to make the application for leave within time were outside the control of, or could not reasonably have been anticipated by, the applicant. That requires a factual analysis that may not always be appropriate for the leave stage.

23. Having said that, where there is a clear cut case of an applicant being outside time, and where the affidavit evidence justifying the extension of time does not, in the view of the leave judge, provide a basis for concluding that the applicant has met the statutory test under Order 84, rule 21(3), then it is manifestly appropriate for the trial judge to deal with the question of time at the leave stage. As observed by the trial judge, if the leave stage is to have a purpose, it must permit the filtering out of cases that are out of time, where appropriate.

24. The appellant also argued that other judges leave this question over to the substantive hearing. That may be because of the factors I have described above. But that does not mean that an appellant should assume that the question of an extension of time will inevitably be left over. A judge granting leave is required to satisfy herself or himself that an applicant seeking leave meets the requirement of Order 84, rule 21(1). The regime established by Order 84, rule 21 is unlike that established by the Statute of Limitations 1957 as amended, where a court is only required to consider whether the proceedings have been brought within time if the defendant raises that issue. By contrast, Order 84, rule 21(1) imposes a duty on a judge to consider the question of whether an applicant is within time when considering whether to grant leave, even if that consideration ultimately resolves into a decision to defer the question to the substantive stage.

25. The case of I.G. is not of assistance to the appellant in this regard. There, the applicant was refused leave to judicially review a refusal of refugee status on the basis that it did not raise “substantial grounds” as required by the legislative scheme. The issue in that case related to the interpretation of statutory provisions governing an investigation by the Refugee Applications Commissioner. On appeal, Dunne J. found that the trial judge had erred in not following the decisions of his colleague to grant leave on the same issue in a significant number of cases, where there was no apparent basis for him to come to a different view, observing as follows: “The point having been raised in a number of cases in which leave has been granted seems to me to merit the grant of leave in all cases where the same issue of law arises unless there is a cogent reason for not doing so. Here, the issue is a very net point of law”. However, she also observed as follows: “In many situations where an ex parte application for leave to apply for judicial review is considered, the fact that in similar circumstances leave has been granted may not, indeed, require that the next application will also merit the grant of leave to apply for judicial review for the very good reason that there may be factual differences or other elements in relation to the matter which would mean that it would be inappropriate for judicial review to be granted.”

26. An application for an extension of time will raise different factual considerations in every case. Given the passage above in I.G., it is hard to see how the appellant can rely on it in support of its argument that the trial judge ought to have been influenced by the fact that the question of time has been left over in other unspecified cases. In my view, there is nothing in I.G. to suggest that judges should refrain from considering an extension of time when granting leave. In conclusion, the trial judge was wholly entitled to decide whether time should be extended at the leave stage and this ground of appeal cannot succeed.

Refusal to extend time

27. The appellant appeals the decision of the trial judge to refuse to extend time, essentially on the basis that he was wrong in not accepting the explanations given by the appellant for the delay in bringing proceedings. A decision whether to extend time has a significant evaluative component i.e. the trial judge is evaluating the evidence against an established legal test and coming to a view on same in the exercise of his or her discretion. As such, there is a significant degree of deference to the trial judge’s assessment, and it should only be disturbed if a real injustice will be done unless the High Court order is set aside. It is not enough that there was a better or more suitable order that might have been made (see Butler J. in Hayes v. Environmental Protection Agency [2024] IECA 162 (at para. 138), Irvine J. in Lawless v Aer Lingus [2016] IECA 235 and Finlay Geoghegan J. in McCoy v Shillelagh Quarries Limited [2017] IECA 185).

28. Here, the appellant (who had been given an opportunity to put in a supplemental affidavit in respect of delay by the trial judge) averred that, after she received the appeal decision on 15 January 2024, she contacted a local charity entitled Shine that provides support to people with a diagnosis of ASD and their families. She exhibited an email of 22 January 2024 from that charity that advised her to leave a subsequent application for twelve months, when it could be decided has there been any reduction in care compared to a child of an equivalent age. The appellant appears to have let matters rest until she sought legal advice on 4 July 2024, furnished her solicitor with paperwork on 15 July and met her solicitors on 25 July 2024. The proceedings were filed very promptly on 30 July 2024.

29. At para. 6 of her supplemental affidavit of 28 November 2024, the appellant said that she had booked a phone consultation with Shine after she got the email of 22 January 2024, was provided a time slot on 1 February, contacted Shine but received no response and waited for them to contact her to reschedule the missed consultation but did not hear back from them. She also avers that she is the primary and fulltime carer of two little boys with special needs, and that her caring obligations to them occasioned further delay on her part and meant that seeking and obtaining legal advice took longer than it would for most people.

30. I can see no reason to interfere with the trial judge’s decision that the explanation proffered by the appellant did not reach the threshold of a good and sufficient reason. The appellant has not addressed at all the second part of the test in Order 84 rule 21(3)(b) i.e. that the circumstances resulting in the failure to make the application within time were outside her control or could not reasonably have been anticipated. Even leaving that aside, there is no explanation as to why the appellant did not look elsewhere for advice between 22 January and 4 July in circumstances where the advice received from Shine was clear and unambiguous.

31. The fact that on her account, she sought to contact them again and had difficulty doing so does not justify her taking no further steps for an extended period, especially because it is not clear what benefit she would have received from contacting them again.

32. In relation to the appellant’s averment that being a parent of two children with special needs meant that obtaining legal advice took her additional time, I have no doubt that this put a great deal of pressure upon the appellant and made administrative tasks such as contacting a solicitor significantly more difficult. Nonetheless, her status as a parent with children with additional needs cannot, without more, be treated as a good and sufficient reason not to bring proceedings of this nature within time. Many parents seeking to challenge a refusal of a DCA will be in a similar situation, but nonetheless manage to bring proceedings within time.

33. In the circumstances, I can see no basis for setting aside the trial judge’s evaluation of her extension of time application, and I uphold his decision in that respect.

Appropriateness of s.317 as alternative remedy

34. I turn now to consider the next ground of appeal i.e. that the trial judge erred in refusing to grant leave because the appellant had an alternative remedy under s.317. In the light of the above finding that the application for judicial review is of time, the below findings on s. 317, s. 318 and s.327 are obiter, but since these points were argued in some detail, I have decided to address them.

35. Before addressing the substantive question of whether there was a suitable alternative remedy, counsel for the appellant argued that the trial judge ought not to have considered the question of an alternative remedy at all at leave stage, again invoking what he described as the “usual practice” of the court in granting leave and arguing that judicial comity required that leave be granted.

36. For the reasons identified by the trial judge, I consider that it is entirely appropriate for a trial judge hearing a leave application to consider the question of an alternative remedy. G v. DPP makes it clear that this is a matter that should be adjudicated at the leave stage. Indeed, as observed by the trial judge, there is a distinct logic to adjudicating upon this point at the earliest stage possible to avoid the unnecessary use of judicial resources and the incurring of legal costs if there is a more appropriate alternative remedy.

37. It is unnecessary to consider whether that approach should have been departed from in this case for judicial comity reasons since, for the following reasons, I agree that s.317 was not an adequate alternative remedy here. The appellant argues that the trial judge erred in identifying s.317 as an alternative remedy, given that it was not suitable for the reliefs sought by the appellant. In my view, this argument raises a question of principle i.e. was the trial judge correct in his conclusion that s.317 was a suitable alternative remedy. As such, there is no discretionary element to this

decision and this court is in as good a position as the trial judge to decide this issue.

38. Section 317(1) provides: “An appeals officer may, at any time revise any decision of an appeals officer, where either the decision was erroneous in the light of new evidence or of new facts which have been brought to his or her notice since the date on which it was given.”

39. The trial judge considered that an appeal under s.317 was an appropriate avenue, on the basis that the appellant could maintain her objection that the appeals officer was precluded from relying on the medical assessor’s opinion. He noted that the appellant had a copy of the medical assessor’s medical opinion and could request that the appeals officer’s decision not to convene an oral hearing be revised and could articulate why an oral hearing with cross-examination was necessary, as well as adducing evidence from the child’s GP. But the core of the appellant’s case is that the appeals officer was wrong in considering the medical assessor’s opinion at all, and/or that she was entitled to cross examine on same. These are arguments of principle and no identification of new evidence or facts by the appellant would resolve those issues. Moreover, the appellant has not identified any new evidence or facts that she wishes to put before an appeals officer in this respect. Given that the fundamental premise of the appellant’s argument in the leave application was that a reading of the statutory framework showed that the appeals officer was wrong to consider the medical assessor’s opinion, it is difficult to see how a s.317 review was an appropriate avenue for the appellant.

40. In those circumstances I conclude that the trial judge erred in law concluding that s.

317 was an appropriate alternative remedy for the appellant.

Appropriateness of s.318 as alternative remedy

41. However, that does not end the consideration of an adequate alternative remedy. The appellant contends that a mistake of law was made, and therefore, at first glance, s.318 appears to be a more suitable alternative remedy than judicial review. Section

318 is in the following terms: “The Chief Appeals Officer may, at any time, revise any decision of an appeals officer, where it appears to the Chief Appeals Officer that the

decision was erroneous by reason of some mistake having been made in relation to the law or the facts”.

42. The appellant’s legal submissions to this court address the applicability of s.318 of the 2005 Act “for completeness”. It is argued that the Chief Appeals Officer does not have jurisdiction to quash the decision of the Appeals Officer, thereby offering no effective remedy given the continuity of the decision-making process and that an applicant might be out of time to challenge the original appeal decision if the s.318 route was taken. It is difficult to understand those arguments given that s.318 envisages that a new decision will be taken by the Chief Appeals Officer, replacing that of the original decision, thus obviating any concern about time limits or the continuing validity of the decision of the appeals officer.

43. A different and more substantive argument was raised at the appeal hearing to the effect that an application under s. 318 for revision on a legal issue was not a suitable alternative remedy because its invocation would be futile in respect of the question at issue i.e. the use of the medical assessor’s report by the appeals officer. It was argued that the decision of Simons J. in McE v Chief Appeals Officer [2025] IEHC

114 demonstrated that the Chief Appeals Officer had already taken a view on the question of whether an appeals officer was entitled to consider the medical assessor’s report in the context of DCA appeals, and that he/she was unlikely to change it.

44. In McE, Simons J. granted leave in proceedings challenging a refusal of an application for DCA. As in the instant case, those proceedings contended that only the deciding officer could rely on a medical assessor’s opinion and that an appeals officer was precluded from doing so by reason of the wording of s.300A(3) of the 2005 Act. Equally, an argument was made that, if an appeals officer is permitted to have regard to the opinion, there must be an oral hearing with cross-examination. Simons J. noted that the Chief Appeals Officer had delivered a comprehensive

decision running to some 10 pages, and he referred to the findings of the Chief Appeals Officer to the effect that it is in accordance with the Social Welfare (Appeals) Regulations 1998 (S.I. No. 108 of 1998) (as amended) and Article 10 (as substituted by the Social Welfare (Appeals) (Amendment) Regulations 2011 (S.I. No. 505 of 2011)) for the Department of Social Protection to include in the appeal file any evidence before the deciding officer, including the medical assessor’s opinion. Simons J. notes that the Chief Appeals Officer concluded that the appeals officer will have regard to all relevant evidence, including supporting material which may include the reports of medical assessors, citing s.311(3) in support of this finding, and characterising the appeal as a de novo hearing.

45. When a court is considering the adequacy of an alternative remedy, all relevant circumstances should be considered. If an applicant can persuade the judge hearing leave that an otherwise appropriate alternative remedy would be futile for wellfounded reasons, that goes to the question of the adequacy of the alternative remedy. In those circumstances, given the summary in McE, I agree with the appellant’s submission that the Chief Appeals Officer appears to have taken a view as to the permissibility of the appeals officer considering the medical assessor’s report. In many situations, it would not be appropriate to assume that, merely because an appeals officer has taken a particular view, a similar view will be taken by a different appeals officer, thus rendering a s.318 review futile. But here, the decision of the Chief Appeals Officer identified in McE is a considered and detailed one concerning a legal interpretation, and as such not susceptible to factual variation from case to case. That decision is to the effect that it is permissible for an appeal officer in deciding an appeal against a refusal of DCA to consider the medical assessor’s report. That is precisely the question at issue in the instant case.

46. In those circumstances, I am satisfied that it is probable that any application for a review under s.318 on the basis of a mistake of law would be futile, as precisely the same answer is likely to be given. Accordingly, in these somewhat unusual circumstances, I am satisfied that s.318 is not an adequate alternative remedy.

Statutory Appeal under s.327

47. The third substantive ground of appeal is that the trial judge erred at paragraph 49 of the judgment in concluding that, although it was unnecessary to consider the separate issue of whether leave should be refused by reference to the right of appeal to the High Court (under s.327), there was “a respectable argument that the circumstances in which it will be appropriate to invoke the High Court’s general supervisory jurisdiction by way of judicial review, in preference to the appeal to the High Court on a question of law, would be limited if not ousted entirely”.

48. Extensive oral submissions were made on this issue by counsel for the appellant at the appeal hearing, whereby he conceded that the legal arguments in this case were suitable for disposal under the statutory appeal provided for by s.327 given their nature. However, he argued that the judge was wrong in principle in his approach to the availability of judicial review as opposed to a statutory appeal, and that on the facts of this case, a statutory appeal did not represent an adequate alternative remedy given that (a) as per the notice of appeal, leave had been granted by other High Court judges in cases involving a challenge to decisions where an appeals officer considered the medical assessor’s opinion, and that the trial judge ought to follow those decisions (the “judicial comity” ground); and (b) the appellant would be out of time were she required to bring a statutory appeal.

49. In my view, the observations at paragraph 49 are obiter: no finding was made by the trial judge that the appellant ought to have availed of a statutory appeal. Accordingly, the appellant cannot maintain her third ground of appeal. Even if this were not the case, there is no substance to the appellant’s complaint. The comment of the trial judge was entirely unexceptional in my view. He was simply observing that the circumstances in which it would be appropriate to invoke the High Court’s general supervisory jurisdiction by way of judicial review would be limited given the existence of the statutory appeal. That represents the existing state of the law (see in this regard, F.D., Petecel, Chubb v European Group SE v Health Insurance Authority [2020] IECA 91, EMI Records). The decisions in Petecel and F.D. make it clear that where a challenge is brought to a decision of an appeals officers under the 2005 Act, recourse should be had to the statutory appeal process rather than judicial review if the complaint is one on a point of law, unless there is some particular reason why the statutory appeal does not represent an adequate remedy. The trial judge was entirely correct in his summation of the state of the law.

Conclusion

50. I uphold the conclusion of the trial judge that leave to seek judicial review should be refused as the appellant is out of time to bring judicial review proceedings. Accordingly, the appeal is dismissed.

51. Because this is an ex parte hearing, the question of costs does not arise.

52. Since this judgment is delivered electronically, I am authorised by Faherty and Butler JJ. to state that they agree with it and the orders proposed above.