High Court dismisses claim for access to social welfare appeal decisions citing public policy and cost.

Neutral Citation Number: [2011] IEHC 379

THE HIGH COURT

JUDICIAL REVIEW

2010 1076 JR

BETWEEN

IKRAAN JAMA

APPLICANT

AND

THE MINISTER FOR SOCIAL PROTECTION

RESPONDENT

JUDGMENT of Mr. Justice Hedigan delivered on the 11th day of October, 2011

1. Application

1.1 These proceedings arise by way of an appeal under the Social Welfare Consolidation Act 2005, concerning the eligibility of the

applicant for child benefit during the period from October 2005 to February 2006. The applicant seeks an order requiring the

respondent to provide her with access to copies of relevant reasoned decisions of the Social Welfare Appeals Officer, and the Chief

Appeals Officer, and also seeks orders directing the Minister to publish such reasoned decisions and to establish a system enabling

such decisions to be accessible to parties to a social welfare appeal, together with related declaratory relief.

2. Factual Background

2.1 The applicant is a Somali national who entered the State on 26th August, 2005. Initially refused, on appeal she was declared a

refugee on 22nd of February, 2007. While her application for refugee status was pending, she applied for child benefit in respect of

her son, who was born on 14th October, 2005. The Deciding Officer awarded her child benefit from March 2007. The Deciding Officer

relied upon the habitual residency test in the Social Welfare (Consolidation) Act 2005 (hereinafter ‘the 2005 Act’), and the fact that

the applicant had been notified by the Department of Justice that her appeal had been successful by letter dated 22nd February,

2007.

2.2 The applicant appealed from the decision of the Deciding Officer to an Appeals Officer under s. 311 of the 2005 Act. The Appeals

Officer, who reviewed the restriction of child benefit on appeal, found that the applicant satisfied the habitual residence condition for

eligibility for child benefit from the date in February 2006, when a determination (albeit negative) had been made in respect of her

refugee status, but not from the date of birth of her son in October 2005. The applicant then sought a review of this decision

pursuant to s. 318 of the 2005 Act, on the basis that the Appeals Officer erred, in law and on the facts, in finding that she is entitled

to child benefit only from February 2006, and not from the date of birth of her son. The Chief Appeals Officer has accepted the review

application, which is under consideration. She has been asked to review the decision of the Appeals Officer on the basis that the

latter was wrong, in law and in fact, in her determination regarding the habitual residence condition and/or qualifying for social welfare

benefits from the respondent.

2.3 By letter dated 11th May, 2010, the applicant sought from the respondent copies of any previous decisions by Appeals Officers or

the Chief Appeals Officer in relation to the date from which persons, who have been recognised as refugees, are regarded as

satisfying the habitual residence condition and/or qualifying for Social Welfare benefits. The Social Welfare Appeals Office had

previously informed the applicant that it does keep copies of decisions, but sends them to the respondent, who is also invariably the

respondent in the appeals coming before the Social Welfare Appeals Office. Consequently, the request for copies of previous decisions

was directed to the respondent. By letter dated 4th June, 2010, the applicant repeated the request to the Chief Appeals Officer.

That office replied by letter dated 4th June, 2010, advising that, (with some limited exceptions), decisions are not filed or kept in the

Social Welfare Appeals Office, but are returned to the “relevant line section of the Department”. The respondent has since furnished

decisions in two cases by letter dated 16th June, 2010, which relate to persons who obtained leave to remain, as opposed to

refugees, and which staff “remembered”. These two cases are not of particular relevance, in that the legal status of a person

declared a refugee is different to that of a person who has been granted leave to remain.

3. Applicant’s Submissions

3.1 The applicant submits that, in the absence of access to relevant decisions, she cannot be sure that the decision in her case is

objectively fair and not arbitrary, and her lawyers are thus hampered in advising her. It is accordingly contended that the failure to

provide for the recording of relevant decisions in an accessible manner is unfair and offends the requirements of constitutional justice.

This lack of fairness is accentuated by the fact that the decision maker, i.e. the Social Welfare Appeals Office, furnishes copies of all

decisions to the respondent to appeals, i.e. the Department of Social Protection, but does not make them available to claimants, such

as the applicant.

3.2 The applicant contends that decisions which address issues of principle, law or policy should be published. The applicant accepts

that not all decisions of the Social Welfare Appeals Office should be published, as there are many decisions which are of a routine

nature. The applicant submits that her appeal turns on what is, essentially, an issue of law, and argues that it would be surprising if

the Appeals Officers and Chief Appeals Officer had not considered and made a decision on the issue in the past. It is contended that,

as any such decision would have been sent to the respondent, the principles of mutuality and equality of arms would require that the

applicant and her advisors would require that the applicant should have access to them.

3.3 The applicant argued before the Chief Appeals Officer that, in circumstances where she has been declared a refugee, the

entitlement to child benefit should be backdated to the birth of the child in respect of whom the benefit is to be paid. The applicant

bases her case on the proposition that a person is a refugee from the moment the conditions set out in international law by the

Convention relating to the Status of Refugees 1951 (hereafter ‘the 1951 Convention’) are satisfied, and that the domestic claims

process merely provides the mechanism by which the status is identified. It is contended that the State’s duties apply with

retrospective effect once a person’s status as a refugee has been established. The applicant points to Article 24(1)(b) of the 1951

Convention in this regard, insofar as it provides that the State shall accord to refugees lawfully staying in their territory the same

treatment as is accorded to nationals in relation to social security.

3.4 The applicant argues that, in order to honour this obligation, the State must ensure that a refugee claimant’s entitlement to social

security benefits is not affected by the delay in recognising his or her status. The applicant cites FK v. HMRC [2009] IKUT 124, as

support for this proposition, in which the Court ruled that the normal rules regarding the effective date for an award of benefit do not

apply if a claimant is granted asylum. The Court ruled that such a person is considered to be eligible to receive child benefit from the

date of the claim for refugee status rather than the date of the decision.

3.5 The applicant relies upon the constitutional right to fair procedures in a decision making process, and contends that such right

includes the requirement that relevant information, documentation and matters of evidence be disclosed. The applicant relies upon

Kiely v. the Minister for Social Welfare (1) [1977] IR 267, in this regard, in which Henchy J. held that a lack of mutuality and the

potential for an unjust determination would be breach of natural justice. Henchy J. further found that natural justice is not observed

where “the scales of justice are tilted against one side through all proceedings”. The applicant accordingly submits that both parties

were not heard fairly as the respondent had access to earlier relevant decisions while the applicant did not. The applicant refers to

Nolan v. the Irish Land Commission [1981] IR 23, where Costello J. upheld the right of the plaintiff to have “full information as to the

case he has to meet”. The applicant also refers to Re R Limited [1989] IR 216, where Finlay J. in the Supreme Court, held that, where

a judgment contains determinations of questions of law or principles, the judgment should be circulated for the benefit of the legal

profession and the public.

3.6 The applicant further contends that the publication of relevant decisions will not only assist claimants in making their case, but

would also ensure greater consistency in decision making by the Social Welfare Appeals Office. The applicant contends that the need

for consistency in relation to applications for refugee status has been expressly acknowledged, and relies in this regard on Manzeke v.

The Secretary of State for the Home Department [1997] Imm AR 524, where Lord Woolf M.R. held that it is beneficial to the general

administration of asylum appeals for adjudicators to have the benefit of the views of a Tribunal in other cases of a general situation in

a particular part of the world. The applicant also cites Atanasov & Others v. Refugee Appeals Tribunal [2007] 4 IR 94, where

MacMenamin J. in the High Court held that conformity and consistency in decision making are essential facets of fair procedures, and

that these standards would be difficult to achieve in the absence of access to previous decisions of the Tribunal.

3.7 The applicant contends, in relation to the respondent’s attempt to rely on administrative difficulties, that a database of decisions

has, in fact, been created, and that the respondent is overstating the difficulties. Further, the applicant argues that, even if

administrative difficulties do exist, they should not override the obligation to provide fair procedures. In Gallagher v. The Revenue

Commissioners [1995] IR 55, Hamilton CJ relied on the dicta of Lane L.J. in R v. Board of Visitors of Hull Prison [1979] 1 W.L.R. 141,

who said that “mere administrative difficulties, simpliciter, are not in our view enough” and that “[c]onvenience and justice are often

not on speaking terms”.

3.8 The applicant relies heavily on the Supreme Court decision of Atanasov & Others v. Refugee Appeals Tribunal [2007] 4 IR 94. The

question in that case was whether an applicant before the Refugee Appeals Tribunal is legally and/or constitutionally entitled to

access previous decisions of the Tribunal. The Court held that previous decisions of the Tribunal should be made available to

applicants and that the established system, which did not allow for previous decisions to be accessed, was manifestly unfair.

4. The Respondent’s Arguments

4.1 The respondent submits that the decision in Atanasov is readily distinguishable from the instant case. Firstly, no database of the

type sought by the applicant is maintained, or has historically been maintained, by the respondent, and, in the circumstances, there

is no inequality of arms as between the applicant and the respondent. Further, as individual decisions are determined on their

particular facts, even if a database were established and available, it would have no material impact on the determination of Social

Welfare appeals. The respondent also submits that it would be very expensive and time consuming to develop a system of the type

sought by the applicant.

4.2 The respondent also argues that the reliefs ought to be refused on the basis that the cost and logistical and administrative

burden of establishing the system contended for by the applicant would be wholly unreasonable and disproportionate, having regard

to the value of the benefit at issue in her appeal and the minimal benefit that would accrue even if such an appeal were established.

5. Legal Framework

5.1 Section 220(3) of the Social Welfare Consolidation Act 2005 (hereafter ‘the 2005 Act’) provides that a person shall not be

qualified for child benefit unless he or she is “habitually resident” in the State at the date of the making of the application for child

benefit. Section 246(1) of the 2005 Act creates a presumption that a person is not habitually resident in the State at the date of

application unless the person has been present in the State or any other part of the Common Travel Area for a continuous period of

two years ending on that date. Section 246(4) provides that, notwithstanding that presumption, a Deciding Officer, when determining

whether a person is habitually resident in the State, shall take into consideration all the circumstances of the case, including, in

particular, five listed factors such as the person’s main centre of interest and future intentions.

5.2 Social Welfare appeals are provided for under Part 10 of the 2005 Act. Under s. 311, where any person is dissatisfied with the

decision given by a Deciding Officer, the question shall, on notice of appeal, be referred to an Appeals Officer. Pursuant to Regulation

19 of the Social Welfare (Appeals) Regulations 1998, decisions on appeals are issued in brief summary with reasons for the decision

given where it is a negative one.

5.4 Section 318 of the 2005 Act provides for revision by the Chief Appeals Officer of the 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.

5.5 Section 307 of the 2005 Act provides that, where a person appeals a decision of a Deciding Officer and the Chief Appeals Officer

certifies that the ordinary appeals procedures are inadequate to secure the effect of processing that appeal, the Chief Appeals

Officer shall cause a direction to be issued to the appellant directing them to submit the appeal to the Circuit Court for determination.

Under Section 306, the Chief Appeals Officer may, where she considers it appropriate, refer any question to the High Court.

5.6 Pursuant to s. 327 of the 2005 Act, any person who is dissatisfied with the decision of an Appeals Officer or the revised decision

of the Chief Appeals Officer, save for an exception under s. 320, which is not material to the case at hand, may appeal that decision

or revised decision to the High Court on any question of law.

6. Decision

6.1 The issue that arises may be summarised as follows: whether there is a duty to maintain some form of open database recording

important decisions and whether the applicant is entitled to have access thereto in order to search for relevant previous decisions in

similar applications.

6.2 In relation to the duty only to maintain a database, Kiely is relied upon for the assertion that there should be access to previous

decisions. The respondent herein, however, says that there are not any previous relevant decisions. In Kiely, the appellant’s husband

suffered severe burns on his arms and hands in an accident in June 1966 while he was working for the respondent. He died in October

1968, and Coronary Thrombosis was certified to be the cause of death. The appellant made a claim for death benefit. Section 16 of

the Social Welfare (Occupational Injuries) Act 1966, provides that death benefit shall be payable where an insured person dies as a

result of personal injury caused by accident arising out of and in the course of his insurable employment. The appellant contended

that the stress and anxiety experienced by her husband due to his injuries had induced the Thrombosis which killed him. The claim

was rejected by a deciding officer and by an appeals officer on appeal. In the High Court, it was held that the applicant should know

what type of case he has to meet. Henchy J stated:-

“It would be contrary to natural justice if one side were allowed to shelter behind his controverted documentary evidence

while the other side had to bring his witnesses to the hearing, where they might be required to give their evidence on

oath and to be subject to cross-examination. The lack of mutuality and the potential for an unjust determination inherent

in such a procedure would put it in conflict with the rule of audi alteram partem.”

Henchy J went on to state:-

“… This Court has held, in cases such as In re Haughey [1971] IR 217, that Article 40, s. 3, of the Constitution implies a

guarantee to the citizen of basic fairness of procedures. The rules of natural justice must be construed accordingly.

Tribunals exercising quasi-judicial functions are frequently allowed to act informally - to receive unsworn evidence, to act

on hearsay, to depart from the rules of evidence, to ignore courtroom procedures, and the like - but they may not act in

such a way as to imperil a fair hearing or a fair result. I do not attempt an exposition of what they may not do for, to

quote the frequently-cited dictum of Tucker L.J. in Russell v. Duke of Norfolk [1949] 1 All E.R. 109,118, ‘There are, in my

view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The

requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under

which the tribunal is acting, the subject matter that is being dealt with, and so forth.’

Of one thing I feel certain, that natural justice is not observed if the scales of justice are tilted against one side all

through the proceedings. Audi alteram partem means that both sides must be fairly heard. That is not done if one party

is allowed to send in his evidence in writing, free from the truth-eliciting processes of a confrontation which are inherent

in an oral hearing, while his opponent is compelled to run the gauntlet of oral examination and cross-examination. The

dispensation of justice, in order to achieve its ends, must be even-handed in form as well as in content.”

6.3 In Nolan, Costello J. in the High Court held that a plaintiff has the right to have “full information as to the case he has to meet”.

In this case, the plaintiff, who owned land which the defendants wanted to acquire, was seeking a declaration that, prior to the

hearing by the lay commissioners of his objection to the acquisition of the land, his solicitor was entitled to inspect certain documents

referred to in the summons. Costello J granted the relief sought and held:-

“The plaintiff should know prior to the hearing the case that he has to meet so as to enable him to cross-examine the

defendants' witnesses and to adduce evidence himself, if he should be so advised. It follows from this conclusion that, as

the plaintiff will not have had an adequate opportunity to know the case he has to meet, the proposed hearing would

infringe the principles of natural justice because it would be held contrary to the principle audi alteram partem and

because the absence of the procedures sought would imperil a fair hearing of the issues to be determined.”

6.4 The Supreme Court has also acknowledged the importance of the promulgation of previous decisions. In Re R concerned an appeal

against orders made in the High Court pursuant to s. 205 of the Companies Act, 1963. These orders directed that the proceedings be

held in camera and that none of the affidavits or exhibits referred to should be disclosed to anyone who was not a party to the

proceedings. Finlay C.J. stated, albeit in a dissenting judgment,:-

“Where a judgment contains decisions on questions of law or principles applicable to the interpretation of s. 205, it is

desirable that even though the decision only may have been announced in public, the detailed judgment is delivered in

camera, that an edited version of the judgment, avoiding the revealing of seriously prejudicing information, should be

circulated for the benefit of the legal profession and of the public.”

6.5 The nature of the Appeal Officer hearings is somewhat differently perceived by the applicant and the respondent. The applicant

considers them to be hearings which are adversarial in nature and which may result in a form of judgment which could approximate to

an indicative, as opposed to binding, precedent. The respondent considers them to be more in the nature of an administrative

application which results in a bare determination recording the decision made. Important decisions are recorded and reported in the

annual report for the assistance of the public and Appeal Officers alike. This report is exhibited and contains the kind of information on

particular decisions that the applicant would like to see were there any such decisions relevant to the issues arising in her appeal. Yet

the respondent says that there are none, save the decisions which they notified the applicant’s solicitor of and which are not helpful.

The applicant’s solicitor avers his belief that there must be more relevant decisions. I accept this averment is made with complete

honesty and considerable professional expertise. It is, nonetheless, an opinion and one which is contradicted by Mr. Barry in his

affidavit at paragraph 6. Mr. Barry has not been cross-examined and the onus lies on the applicant to prove her case. In this regard,

the applicant is in some difficulty.

6.6 Is there an obligation to maintain a database? It seems that such a system is currently being developed. I am informed that the

Social Welfare Appeals Office has, earlier this year, introduced a new decisions/reports computer system which Appeals Officers now

use to record decisions and reports of hearings. This database is not, however, available to either the public or the Department of

Social Protection, but will be used to increase the number of cases which will be published in the annual report and on the Appeals

Office website. The respondent argues, and I accept, that the problem with public access to this database is that it, of its nature,

contains information that is personal and therefore confidential. Anonymzing such a large database would inevitably be a very costly

exercise. The applicant relies upon Manzeke and Atanasov, yet these cases relate to very different situations, i.e. the political state

of certain countries. Consistency of decisions requires in these kinds of cases that they do not involve very different assessments of

countries where there is no evidence of change. This type of decision-making is very far removed from the decision as to whether a

particular person meets the requirements set out in statute or detailed guidelines.

6.7 Information, even for the purposes of maintaining a claim, may be refused on public policy grounds, see The State (Williams) v.

Army Pensions Board & Anor [1983] IR 308. On the evidence herein, the maintenance of such an anonymized database would be very

expensive. This must be balanced against the somewhat doubtful benefit that might accrue from the ability of applicants for social

welfare entitlement to access such information. Public policy in this regard, notably in these straitened times, must surely outweigh a

right of access to such information.

6.8 The applicant’s concern in this application is the criteria applied to assess “habitual residence” of a refugee in applying for child

benefit, and specifically, as to when that entitlement commences. It seems to me that the best course of action in these cases,

where an applicant does not agree with the criteria applied, is to avail of the special form of appeal provided in the statutory

framework.

6.9 In summary, there is, in my judgment, no duty on the respondent to maintain a database or open library of decisions made to

which the public can have access to research those decisions. This being so, the question of a right of access thereto does not arise.

For the reasons outlined, I hereby refuse the reliefs sought.