Court of Appeal dismisses appeal against High Court refusal to revise disability allowance decision under s. 317 Act of 2005.

AN CHÚIRT ACHOMHAIRC THE COURT OF APPEAL

APPROVED – NO REDACTION NEEDED

Court of Appeal Record Number: 2025 98 High Court Record Number: 2022 214 SP Neutral Citation Number: [2025] IECA 275

Hyland J. Collins J. Owens J.

BETWEEN/

N.L. (A PERSON OF UNSOUND MIND NOT SO FOUND SUING BY HIS MOTHER AND NEXT FRIEND, J.M.)

APPLICANT/APPELLANT

- AND -

THE MINISTER FOR SOCIAL PROTECTION, CHIEF APPEALS OFFICER AND SOCIAL WELFARE APPEALS OFFICE

RESPONDENTS

JUDGMENT of Mr. Justice Anthony M. Collins delivered on the 12th day of December 2025

I. Background to the Appeal

1. This is an appeal against the judgment, delivered on 28 May 2024, and order, made on 7 February 2025, of the High Court (Barry O’Donnell J., [2024] IEHC 388) whereby it refused the appellant’s appeal on questions of law pursuant to s. 327 of the Social Welfare Consolidation Act 2005, as amended (hereafter ‘the Act of 2005’) from a decision of an Appeals Officer of 26 October 2022, communicated by letter dated 4 November 2022 (hereafter ‘the impugned decision’), disallowing the appellant’s application for the revision of an appeal decision made on 21 February 2022, communicated by letter dated 22 February 2022 (hereafter ‘the

decision under review’), on his claim for disability allowance.

2. The facts that give rise to the appeal are set out in detail at paras.

19 to 32 of the High Court judgment. Since the parties did not contest the accuracy of what appears therein, I hereby adopt same and refer the reader thereto in respect of any details not referenced in the discussion that follows.

3. At the hearing of the appeal on 4 November 2025, Counsel for the appellant addressed three of the seven grounds in the Notice of Appeal lodged in the Office on 17 April 2025 as amplified in written submissions received on 26 August 2025. In response to a question from the Court he maintained each of the seven grounds in the Notice of Appeal.

4. Before proceeding to consider each of these grounds, it is necessary to place the impugned decision in its statutory context.

5. Chapter 10 of Part 3 of the 2005 Act, headed up “Social Assistance”, provides for disability allowance. Section 210(1) of the Act of 2005 states that:

Subject to this Act, an allowance (“disability allowance”) shall be payable to a person –

(a) who has attained the age of 16 years but has not attained pensionable age;

(b) who is by reason of a specified disability substantially restricted in undertaking employment (in this Chapter referred to as “suitable employment”) of a kind which, if the person was not suffering from that disability, would be suited to that person’s age, experience and qualifications, whether or not the person is availing of a service for the training of disabled persons under section 68 of the Health Act 1970, and

(ba) subject to subsection (10), the reason for whose substantial restriction in undertaking suitable employment is as a direct result of the person concerned being incapable of work and for no other reason,

(bb) who, were it not for the substantial restriction, would be available to work in insurable employment or insurable selfemployment, and

(c) whose weekly means, subject to subsection (2), do not exceed the amount of disability allowance (including any increases of that allowance) which would be payable to the person under this Chapter if that person had no means.

6. By s. 210(8) of the Act of 2005, “[t]he conditions under which a person shall be regarded for the purposes of this section as being substantially restricted in undertaking suitable employment by reason of a specified disability shall be specified by regulations.”

7. Article 137 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142/2007, hereafter ‘the 2007 Regulations’), made in the exercise of the power conferred by s. 210(8) of the Act of 2005, provides that:

(1) Subject to sub-article (2), for the purposes of section 210, a person shall be regarded as being substantially restricted in undertaking suitable employment by reason of a specified disability where he or she suffers from an injury, disease, congenital deformity or physical or mental illness which has continued or, in the opinion of a deciding officer or an appeals officer, may reasonably expect to continue for a period of at least

1 year.

(2) A person shall not be regarded as being substantially restricted in undertaking suitable employment where it is subsequently shown to the satisfaction of a deciding officer or an appeals officer that he or she is no longer likely to continue to be substantially restricted in the undertaking of employment for a period of at least 1 year.

8. The Minister for Social Protection appoints deciding officers under s. 299 of the Act of 2005. By s. 300(2)(b) those officers are charged with deciding every question under Part 3. A person dissatisfied with a deciding officer’s decision may appeal that decision to the Chief Appeals Officer, who refers that decision to an appeals officer. Section 311(3) of the Act of 2005 provides that an appeals officer is not confined to the grounds on which the deciding officer’s

decision was based but may decide the question as if it were being decided for the first time.

9. Section 317 of the Act of 2005 describes the procedure under which the impugned decision was taken in the terms following:

An appeals officer may, at any time revise any decision of an appeals officer, where it appears to the appeals officer that the

decision was erroneous in the light of new evidence or of new facts brought to his or her notice since the date on which it was given, or where it appears to the appeals officer that there has been any relevant change of circumstances since the decision was given.

10. In Little v. Chief Appeals Officer [2023] IESC 25, the Supreme Court, per Woulfe J. at paras. 53 to 55, adopted the following analysis of a revision under s. 317:

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.

11. Section 317 of the Act of 2005 requires appeals officers to decide whether the decision under revision was erroneous in the light of evidence or facts that were brought to his or her notice since that

decision was made. In the discharge of his or her functions under that section, an appeals officer reviews a decision by reference to information that had been unavailable to the officer who had considered the appeal at the time he or she decided it. The existence of error is thus assessed by reference to the state of affairs at the time the decision under review was taken. It follows that a decision under review is not erroneous should it transpire that the person seeking a benefit became entitled to it at some time after that decision had been taken.

12. Section 327 of the Act of 2005 provides that any person who is dissatisfied with the decision of an appeals officer or the revised

decision of the Chief Appeals Officer may appeal that decision or revised decision to the High Court on any question of law.

II. Consideration of the Grounds of Appeal

(a) Ground 1 – Inadequate Reasoning of the Impugned Decision

13. The impugned decision recited ss. 210(1)(a) and (b) and 317(1)(a) of the Act of 2005, together with Art. 137 of the 2007 Regulations, reproduced at Part I, above, before it stated that:

The appellant applied for a Disability Allowance on 19 October 2021. In its decision dated 29 November 2021 the Department refused the application on the grounds that the appellant is not substantially restricted in seeking suitable employment, by reason of a specified disability, which is expected to last for a period of at least one year.

The appellant appealed this decision. On 22 February 2022 the appellant was notified by this Office that his appeal had been disallowed on the grounds that having regard to the medical evidence provided, the appellant had not established he was substantially restricted in seeking suitable employment.

In seeking a review of the appeal decision, KOD Lyons Solicitors, in a letter dated 19 August 2022, state that the appellant’s mother is in receipt of Carer’s Allowance in respect of the appellant and that this should be a significant factor in meeting the criteria for Disability Allowance. Also provided are;

• Letter from the appellant’s school stating the appellant has a mild general learning difficulty and requires assistance with his learning. He is not able to socialise in a meaningful way and it is difficult for him to form relationships. He would find it difficult to cope without assistance with basic living skills. He has type 1 diabetes.

• Letter dated from 29.06.2022 which indicates that the appellant’s mother informed that the appellant is currently unable to care for himself independently. The appellant’s mother states that she has been his full-time carer since he was 7 years of age. The doctor feels that the appellant’s care needs are in excess of those of a child of the same age.

• National Learning Network Health Report Form dated 31.05.2022 presenting diagnosis for the appellant as per his application of 22.02.2022

I have reviewed the additional information submitted by the appellant in accordance with Section 317 of the Social Welfare Act 2005, as amended, and the original file. In accordance with Section 320 of the Social Welfare Consolidation Act 2005 the

decision of an Appeals Officer is generally final and conclusive, however, under Section 317 of the 2005 Act, a decision by an Appeals Officer may be revised where it is shown that the

decision was incorrect in the light of new evidence or facts that have come to attention since the date of the decision or in the event of a relevant change of circumstances.

The onus is on the appellant to establish their entitlement to a payment and produce relevant evidence, including medical evidence. As per the contention that appellant’s mother is in receipt of Carer’s Allowance in respect of the appellant and that this should be a significant factor in meeting the criteria for Disability Allowance. This is not the case, each application for a scheme is judged on their own qualifying criteria. As an Appeals Officer I can only judge the merits of the appeal before me, not on the history of an appellant’s relationship with the Department of Social Protection. It would appear from the Doctor’s note that the appellant’s mother was awarded Carer’s Allowance in respect of a child of 7 years, as such this does not reflect on the appellant’s current suitability for employment. Moreover, the doctor’s letter iterates that the appellant’s mother ‘states’ with regards to the appellant’s care needs, and as such this is not medical evidence. The National Learning Network Report does not present any new diagnosis or medical evidence. The appellant’s school report that they have a mild general learning difficulty and require assistance with their learning

Having carefully considered the contents of the new evidence provided, it does not establish that the appellant is substantially restricted in seeking suitable employment due to the severity of his medical condition. As such I am not satisfied that it establishes that the decision of 22 February 2022 is erroneous.

A revision of the original decision under section 317 of the Social Welfare Consolidated Act 2005 (sic) is not warranted and accordingly, the original decision stands.

The appeal remains disallowed.

14. In Connolly v. An Bord Pleanála & Ors. [2021] 2 I.R. 752, 768 Clarke C.J., with whom the other members of the Supreme Court agreed, reviewed the case-law describing the rationale for the requirement that decision makers give reasons and concluded that:

… it is possible to identify two separate but closely related requirements regarding the adequacy of any reasons given by a

decision-maker. First, any person affected by a decision is at least entitled to know in general terms why the decision was made. This requirement derives from the obligation to be fair to individuals affected by binding decisions and also contributes to transparency. Second, a person is entitled to have enough information to consider whether they can or should seek to avail of any appeal or to bring judicial review of a decision. Closely related to this latter requirement, it also appears from the case law that the reasons provided must be such as to allow a court hearing an appeal from or reviewing a decision to actually engage properly in such an appeal or review.

15. Later in that same judgment, at 779, Clarke C.J. observed that:

[82] As noted earlier, the general duty to give reasons does not involve a box-ticking exercise. It will rarely be sufficient to set out, in almost standard form, a generic description of the legal test or principles by reference to which the decision is to be made, to state that that test has been applied, and simply to go on to say that a particular decision has been made. While it has often been said that a decision-maker is not required to give a discursive determination along the lines of what might be expected in a superior court judgment, it is equally true that the reasoning cannot be so anodyne that it is impossible to determine why the

decision went one way or the other.

[83] Indeed, it is worth saying that there may have been times in the past when decision-makers felt that their decisions were more likely to be open to successful legal challenge if they gave detailed reasons because, it might have been considered, the giving of detailed reasons allowed parties to assert that the reasons were legally inappropriate. However, the modern position makes clear that it is more likely that a decision will be open to successful challenge because reasons are not given rather than because they are. Decision-makers are normally afforded a significant margin of appreciation within the parameters of the legal framework within which a particular

decision has to be taken. Courts will not second guess sustainable conclusions of fact. As noted earlier, many decisions involve the exercise of a broad judgement and here again the courts will not second guess the decision-maker on whom the law has conferred the power to make the decision in question. Giving an explanation as to why the decision-maker has concluded one way or the other does not affect that position. What may, however, lead to a successful challenge is if a court concludes that it is not possible either for interested parties or, indeed, the court itself, to know why the decision fell the way it did.

16. As is clear both from the concept itself and from the corpus of case-law on the topic, a failure to provide adequate reasons for a

decision is just that: that a person may disagree with the reasons given; that a decision may be based upon an error of law or of fact; or that it is arguably irrational and/or unreasonable, has nothing to do with the discrete issue as to whether it contains reasons sufficient to meet the test adumbrated in Connolly. Notwithstanding a reluctance on the appellant’s advisors’ part to limit their submissions to addressing that distinct concept, this judgment seeks to stay within the boundaries of the heading of Ground 1 in the Notice of Appeal, that the High Court “erred in determining that the impugned decision of the Appeals Officer was adequately reasoned”.

17. The impugned decision accurately described the exercise that s.

317 of the Act of 2005, as identified in Little, required the appeals officer to carry out. It sets out the new evidence put before the decision maker and the submissions that were advanced on the appellant’s behalf. It states why the appeals officer concluded that the new evidence did not demonstrate that the decision under review had been made in error. Those reasons appear sufficient, in the precise circumstances of this case, to meet the requirements of the passages from Connolly reproduced at paras. 14 and 15, above.

18. The appellant makes a number of claims that the High Court erred in its conclusions on this issue. All of the submissions made under this heading that criticise the appeals officer for not giving reasons to explain why material that had been presented in the context of the decision under review did not advance the appellant’s claim are based upon a misconception of the nature of the exercise appeals officers are empowered to carry out under s. 317 of the Act of 2005, described at paras. 9 to 11, above.

19. The onus lies on a claimant to establish an entitlement to receive an allowance. In the context of a review under s. 317 of the Act of 2005, the appellant was required to produce new facts or evidence that tended to show that the decision under review had been made in error. The letter from the appellant’s solicitors requesting that review drew four such matters to the appeals officer’s attention. The third paragraph of the impugned decision describes each of those matters. The fourth paragraph sets out the applicable legal test. The fifth paragraph explains what the appeals officer had directed his mind to and the reasons why he was not satisfied that the submissions and the material before him provided a basis upon which he could conclude that the decision under review had been made in error. Viewed in this context, there is no foundation for the allegation that the appeals officer disregarded “…salient evidence without any appropriate explanation as to why.” The appellant has, moreover, laid no basis in fact for the assertion that the appeals officer simply endorsed the views of previous decision makers, which allegation is also contradicted by the text of the impugned decision.

20. I therefore agree with, and affirm, the careful analysis of the impugned decision and the assessment thereof set out at paras. 36 to

59 of the judgment under appeal. In particular, I agree with the

conclusion at para. 59 of the judgment under appeal that:

…it is clear to me that the reasons are set out in a way that allowed the appellant to understand why the decision was made, and – to a very large extent as evidenced by the extensive initial questions of law – the appellant was equipped with sufficient information to be able to make an informed decision on whether an appeal or other challenge was warranted.

21. For all of these reasons, I dismiss Ground 1.

(b) Ground 2 – Application of an incorrect legal test

22. Counsel for the appellant contends that since the impugned

decision applied a test of “substantially restricted in seeking employment” instead of that of “substantially restricted in undertaking employment” (my emphasis), as s. 210(1)(b) of the Act of 2005 provides, it is bad at law. The appellant’s submissions proceed on the basis that the difference between “seeking” and “undertaking” is selfevident, without any explanation why it is necessarily so in the context of the instant case. Insofar as para. 62 of the judgment under appeal held that that error was a misstatement that did not affect the validity of the impugned decision; that the appeals officer had directed his efforts towards the correct test; that he had identified the correct test in the introductory paragraphs of the impugned decision; and that the

decision under revision had used the correct formulation, the appellant asserts that the impugned decision cannot be rewritten to repair what is described as “a significant error in law”.

23. In deciding whether the erroneous use of the word “seeking” in place of “undertaking” in the impugned decision amounts to a significant error in law that vitiates the impugned decision, account must be taken of the following facts. First, the impugned decision recites s. 210(1)(b) of the Act of 2005. Referencing the correct version indicates that the appeals officer must, at the very least, be taken to have been aware of the terms of that provision. Second, by reference to the nature of the allowance claimed and, in particular, the material that the appellant caused to have placed before the appeals officer for the purposes of the latter’s examination of the decision under review, it is far from clear what difference the use of “undertaking” instead of “seeking” had for the outcome of the review. Third, the reasons given for the impugned decision do not disclose that any aspect of it turned upon, or was influenced by, the appeal officer’s replacement of the word “undertaking” for “seeking”. For these three reasons, the appellant has not established that, on the balance of probabilities, the appeals officer misdirected himself in law in such a fundamental manner as to require the annulment of the impugned decision on that ground. Ground 2 accordingly stands dismissed.

(c) Ground 3 – Misapplication of “substantial restriction”

24. This ground contends that because para. 62 of the judgment under appeal relied upon the fact that the decision under review had correctly described s.210(1)(b) of the Act of 2005 as one of the bases upon which to dismiss Ground 2, the appellant was entitled to rely upon an allegation that the decision under review placed inappropriate weight upon a comment by the appellant’s General Practitioner to the effect that he considered the appellant was suitable for work/training for rehabilitative purposes as “…demonstrative of the Appeals Officer’s unduly restrictive interpretation of the test of substantial restriction.”

25. The only particular adduced to support the submission that the appeals officer adopted an unduly restrictive interpretation of the test of substantial restriction is the inappropriate weight that officer is said to have placed upon the aforecited comment by the appellant’s General Practitioner. Taking that submission at its height, it is difficult to see how a decision maker could be held to have erred in the interpretation of a concept, albeit one central to the application of a relevant statutory provision, on the sole ground that s/he placed inappropriate weight on a single comment by the appellant’s General Practitioner. In any event, as para. 63 of the judgment under appeal observes, this appeal is not concerned with the regularity of the

decision under review but with the legality of the decision that reviewed that decision. There is thus no basis upon which to uphold Ground 3.

(d) Ground 4 – Failure to define suitable employment

26. It is submitted on the appellant’s behalf that the assessment of a person’s eligibility to receive disability allowance requires that deciding officers and appeals officers direct their knowledge and expertise to the question of what employment would be suited to a claimant in the light of his or her age, experience or qualifications if that individual was under a disability. The appellant contends that

decision makers cannot make rational and reasonable decisions on eligibility to receive disability allowance unless they address their minds to that issue. The appeals officer’s failure to identify what employment was suited to the appellant’s age, experience or qualifications had he not suffered from a disability, which the appellant submits is a prerequisite for the correct application of the statutory criteria, and his failure to apply his knowledge and expertise to that end, had the consequence of making the impugned decision unlawful.

27. Paragraph 64 of the judgment under appeal rejected Ground 4 on the basis that the legislative provisions are based on the premise that it is a matter for claimants to establish eligibility for disability allowance. There is no restriction on the evidence a claimant may proffer for that purpose, and the revision process allows him or her to present new evidence or facts after the conclusion of the appeals procedure. Deciding officers and appeals officers take decisions by applying their knowledge and expertise to the material that claimants put before them. Nor is there anything in the Act of 2005 to suggest that deciding officers and appeals officers are obliged to maintain catalogues of potential employment scenarios against which they can assess applications by persons of differing ages, experiences and qualifications.

28. The High Court’s interpretation is consonant with the provisions, the structure and the purpose of the Act of 2005. To read that Act as requiring deciding officers and appeals officers to direct their minds to the various types of employment claimants for disability allowance might be able to undertake would constitute a substantive revision of its contents and a fundamental alteration of the nature and balance of the scheme that the Oireachtas enacted. I have therefore no hesitation in dismissing Ground 4.

(e) Ground 5 – Erroneous Interpretation of the 2007 Regulations

29. Paragraphs 65 and 66 of the judgment under appeal state that the appellant submitted in oral argument that, read together, s. 210(8) of the Act of 2005 and Art. 137(1) of the 2007 Regulations established that a claimant simply had to show that s/he suffered from a specified disability to be regarded as substantially restricted in undertaking suitable employment and thus be entitled to disability allowance. The learned High Court Judge observed that “[t]his was not an argument that had been made to the Deciding Officer or Appeals Officer. It was not an argument expressed as one of the questions of law in the Special Summons nor was it articulated in the appellant’s written submissions.”

30. Paragraph 5(f) of the Notice of Appeal takes issue with the High Court’s findings by reference to reliefs (ix) and (x) in the Special Summons and the appellant’s written submissions which set out Art.

137 of the 2007 Regulations verbatim. The respondents’ written submissions agree with the findings of the High Court and take issue with the contentions advanced on the appellant’s behalf.

31. The Special Summons refers neither to s. 210(8) of the Act of 2005 nor to Art. 137(1) of the 2007 Regulations. It contains no trace of the argument that the appellant seeks to make out under Ground 5. The reliefs at (ix) and (x) of the Special Summons refer exclusively to the matters canvassed under Ground 3. The appellant’s written submissions before the High Court do no more than recite the text of Art. 137 of the 2007 Regulations, without any hint of the argument now sought to be advanced. The veracity of the learned High Court Judge’s observations on this point are thus confirmed by the material before this Court.

32. Boards of Management & the Minister for Education and Skills v. Donnelly & Ors. [2020] IEHC 550 was an appeal on a point of law pursuant to s. 34(2) of the Maternity Protection Act 1994, which provides that a party to proceedings before the Employment Appeal Tribunal may appeal to the High Court on a point of law from a determination of that Tribunal. The appellant minister had not pleaded that the Tribunal had failed to give adequate reasons for its decision. She sought to advance that plea as a point of law, pointing out, inter alia, that the respondent teachers would suffer no prejudice as a consequence. At para. 58 of her judgment, Hyland J. observed that:

In this type of statutory appeal, there is no requirement for a statement of grounds. Rather the point of law must simply be introduced in a notice of motion. The Minister was admirably succinct in her identification of same. Nonetheless, given that the jurisdiction of the court exists exclusively in relation to a point of law identified by an appellant under s. 34(2), I only have jurisdiction in relation to the point of law identified in the notice of motion. The four walls of the court’s jurisdiction are delineated by the point of law identified. I do not have jurisdiction to extend the statutory appeal to points not encompassed by the point of law identified. No matter how widely I interpret the point of law in this case, I cannot define it to include a failure to give reasons. …

33. The circumstances in which the Boards of Management judgment was delivered are similar to those that arise here. The respective appellants set out points of law in an originating document. Thereafter they sought to extend the scope of their appeals, asserting that the respondents were not prejudiced by the proposed extensions, here the submission being that the High Court considered and ruled upon Ground 5. Notwithstanding the desirability of interpreting pleadings so as to facilitate the determination of matters at issue between parties, to allow a party, in an appeal on a point of law, to raise a point of law to which it did not advert in the originating document is contrary to fair procedures, which incorporate the concept that a party ought to know in advance the case that it has to meet.

34. The Special Summons asks the High Court to grant no less than thirteen different declarations, grounded upon a similar number of points of law. It contains not a whisper of the argument that the appellant now seeks to advance in Ground 5. Section 327 of the Act of 2005 confers jurisdiction on the High Court to receive and determine appeals on any question of law. The procedure it contemplates is commenced by the issue of an originating document that identifies with precision the questions of law that make up that appeal. The High Court and, on appeal, this Court have no jurisdiction to entertain a question of law that does not appear in that originating document. Ground 5 is therefore not before the Court in this appeal.

(f) Ground 6 – Burden of Proof

35. This ground commences with the unremarkable assertion that an appeals officer must determine appeals by reference to such evidence as is placed before him/her. The appellant submits that he discharged the burden of proving eligibility by adducing evidence of his circumstances. As the only material before the appeals officer, it constituted prima facie evidence that the appellant’s claim met the requirements of s. 210(1) of the Act of 2005. In the absence of any other evidence, that prima facie evidence became proof sufficient to discharge the onus to show that the appellant met the criteria for disability allowance. A separate, linked submission was advanced to the effect that the appeals officer failed to give adequate weight to the evidence adduced on the appellant’s behalf.

36. The judgment under appeal addressed these arguments in reverse order. Paragraphs 70 and 71 relied upon Attorney General v. Davis [2018] 2 I.R. 357, 385-6 per McKechnie J. as authority for the proposition that, in a statutory appeal such as that for which s. 327 of the Act of 2005 provides, there are but limited circumstances in which errors of fact can lead to a finding that a decision maker so erred as to lead to a decision being overturned. It is a core task of a decision maker to weigh evidence and to reach findings thereon. Statutory decision makers are entitled to some level of deference as to the treatment of factual matters that fall within their area of expertise. It is thus not enough for an appellant to say that the weight attached to the evidence could have been different or that different findings could have flowed therefrom. To succeed in this appeal on a question of law, the appellant must show that the appeals officer’s treatment of the evidence led to findings that were unsupported by that evidence or were ones no reasonable appeals officer could make. The appeals officer considered the facts and materials the appellant presented in support of his application. His determination, that the appellant had not established that he met the eligibility criteria for disability allowance, was one that was open to him to reach on the basis of that evidence.

37. As for the arguments on the grounds that there was allegedly uncontradicted prima facie evidence before the appeals officer, paras.

72 and 73 of the judgment under appeal observed that an application for a statutory benefit is not analogous to adversarial litigation since there is no competition between claimants and the respondents to establish facts. The Act of 2005 provides that a claimant for disability allowance must apply in the proper form and satisfy the decision maker of his/her entitlement to it. Appeals officers are appointed to exercise the power to determine and/or to revise those decisions. The exercise of that function requires them to engage with and to appraise what are said to be new facts or new evidence, and to consider the effect of those matters on the integrity of the decision under review. Appeals officers thus exercise judgement over what an appellant presents by way of proof and cannot simply endorse it by reason of its existence. The appeals officer was therefore correct to proceed on the basis that it was a matter for the appellant to establish that the new facts or new evidence before him was such as to satisfy him that the

decision under review had been made in error.

38. I will address the two elements in Ground 6 in the order that the High Court followed. Applying the passages from the judgment in McKechnie J. in Attorney General v. Davis to which the High Court referred, the appellant must show that the appeals officer’s treatment of the evidence that he was required to consider in the discharge of his functions under s. 317 of the Act of 2005 led him to make findings that were unsupported by that evidence or ones that no reasonable

decision maker could make. The submissions advanced on the appellant’s behalf in support of this leg of Ground 6 amount to an invitation to the High Court to determine the question of his eligibility for disability allowance. The jurisdiction s. 327 of the Act of 2005 confers upon the High Court does not contemplate it embarking on that exercise.

39. As for the other leg of Ground 6, the material that the appellant caused to have placed before the appeals officer so as to enable him to exercise his jurisdiction under s. 317 of the Act of 2005 was not in the nature of prima facie evidence to show that he met the criteria for entitlement to disability allowance. The appellant caused to have certain material brought to the appeals officer’s attention to enable him to decide if the decision under review was erroneous in the light of that new material. Whether that material sufficed to persuade the appeals officer of the merits of that submission was a matter for him to decide. The appeals officer was, for instance, entitled to observe that statements in Dr. N.’s medical report that repeated what the applicant’s mother had told Dr. N. was not medical evidence. The logic of the position contended for on the appellant’s behalf is that a deciding officer or an appeals officer, as the case may be, would, in the absence of countervailing evidence, be bound to deem any evidence that a claimant adduced to establish an entitlement to a benefit as sufficient to meet the statutory criteria. In that scenario deciding officers or appeals officers would receive evidence without exercising independent judgment as to whether the applicable eligibility criteria had been met. That scenario is wholly inconsistent with the requirements of the scheme and the text of the Act of 2005. Here the appeals officer neither disregarded nor rejected the evidence the appellant had caused to have placed before him but rather assessed it with a view to determining whether that material furnished a basis for deciding that the decision under review had been made in error. In carrying out that function, he had regard to no other evidence. When viewed in that context, the references to Kiely v. Minister for Social Welfare (No. 2) [1977] I.R. 267 and to C.O’B. v. Chief Appeals Officer & Ors. [2014] IEHC 485, upon which the appellant relied, are irrelevant.

40. By reason of the foregoing, I dismiss Ground 6.

(g) Ground 7 – Failure to consider receipt of relevant allowances

41. It is submitted that the fact that the appellant’s mother had met the criteria to receive domiciliary care allowance and carer’s allowance arising from his circumstances was a significant factor in deciding whether he met the criteria for disability allowance. By declining to take that factor into account in his assessment of the appellant’s claim, the appeals officer rendered the impugned decision unlawful.

42. Paragraphs 76 to 80 of the judgment under appeal consider Ground 7 under four headings. First, the High Court recognised that the scheme of the Act of 2005 made it very clear that each form of social assistance is separate and that, in order to avail of a benefit, an application must be made and eligibility established by reference to the criteria that govern access to that benefit. Second, the Oireachtas had not linked eligibility for one form of assistance to eligibility for another. Third, the trial judge was not persuaded that the presence of that link could be read into the legislation. Section 210(1) of the Act of 2005 requires an applicant for disability allowance to establish three specific matters for determination by a deciding officer and, if necessary, an appeals officer. Carer’s allowance is applied for by carers, not by a person affected by a disability. Section 179 of the Act of 2005 requires an applicant for carer’s allowance to show that they reside with and provide full time care and attention to a ‘relevant person’, who must have a disability that requires full time care and attention. Section 179(4) of the Act of 2005 stipulates that a person shall not be regarded as requiring full time care and attention unless they have such a disability that he or she requires from another person:

(i) continual supervision and frequent assistance throughout the day in connection with normal bodily functions or (ii) continual supervision in order to avoid danger to himself or herself, and that the person is likely to require that care and attention for at least twelve consecutive months. Compared with disability allowance, the tests are different, apply to different applicants, involve different criteria, and address different needs. There is thus no basis for the implication that satisfying the criteria for treatment as a relevant person under s. 179 ought to be taken into consideration when deciding whether another person meets the criteria for disability allowance in s. 210(1) of the Act of 2005. Fourth, it is a basic tenet of administrative law that, in the exercise of functions conferred upon them by statute, persons such as deciding officers and appeals officers are required to take account of only those matters as are relevant to the exercise of those functions. Here s. 317 of the Act of 2005 required the appeals officer to take account of new evidence and new facts that went to the appellant’s entitlement to disability allowance. Since an entitlement to carer’s allowance is decided by reference to different criteria, entitlement to that allowance could not be a relevant factor in the assessment of a claim for disability allowance.

43. It is sufficient for the purpose of determining this appeal to state that I endorse the entirety of the High Court’s response to Ground 7. As the respondents point out in their written submissions, the appellant’s mother had been in receipt of carer’s allowance and domiciliary care allowance in respect of the appellant since he had attained a young age. That information had been before both the deciding officer and the appeals officer when the latter made the

decision under review. Even had it been relevant, that information was thus incapable of being “new evidence or new facts” for the purposes of the appeals officer’s revision of the decision under review in the exercise of the power that s. 317 of the Act of 2005 conferred upon him.

III. Conclusion

44. The examination of the grounds of appeal at Part II, above, persuades me to dismiss the appeal in its entirety and to affirm the judgment and order of the High Court.

45. The High Court made no costs order in the proceedings notwithstanding that it refused the appeal. The appellant appealed from that order. The respondents did not but seek an order for the costs, to include all reserved costs, of the appeal. The default position under s. 169(1) of the Legal Services Regulation Act 2015 is that a party that has been entirely successful in proceedings is entitled to an award of costs against the unsuccessful party unless the court hearing the matter orders otherwise. On that basis, I am of the provisional view that, whilst the High Court costs order ought not to be disturbed, the respondents are entitled to the order they seek against the appellant for the costs of the proceedings before this Court, to include any reserved costs. Should the appellant disagree with that proposed order, he should cause to have filed and served a written submission of not more than 1,000 words within fourteen days of the delivery of this judgment, after which the respondents will have a further period of fourteen days in which to respond by the lodgment and service of a reply of no greater length.

46. Since this judgment is delivered electronically, I am authorised by Hyland and Owens JJ. to state that they agree with it and with the orders proposed therein.

Appearances:

For the Appellant: Derek Shortall SC and Maeve Cox, instructed by KOD Lyons, Solicitors

For the Respondents: Joe Jeffers SC and Joseph O’Sullivan, instructed by the Chief State Solicitor