Supreme Court allows appeal where applicant was not informed of appeal route and remedies were not exhausted.

THE SUPREME COURT

[S.C. No: 412 of 2004]

Denham J.

Hardiman J.

Finnegan J.

Between/

Martin Maher

Applicant/Appellant

and

The Minister for Social Welfare

Defendant/Respondent

Judgment delivered the 9th day of April, 2008 by Denham J.

1. This is an appeal by Martin Maher, the applicant/appellant, hereinafter referred to as 'the applicant', from the judgment and order

of the High Court (Murphy J.) delivered on the 27th May, 2004, which ordered that his motion be refused. The Minister for Social

Welfare is the defendant/respondent, hereinafter referred to as 'the respondent'.

2. At the core of this case is the withdrawal of disability benefit from the applicant by a deciding officer of the respondent, pursuant

to s.247 and s.31(3)(a) of the Social Welfare (Consolidation) Act, 1993.

3. There is a long history to this appeal.

4. The applicant was born on the 30th June, 1962. He left school at 15. He commenced employment with C.I.E., as an engineering

operative carrying out general low skilled manual work in October, 1978. He remained in continuous employment with C.I.E. until

September, 1998.

On about the 30th September, 1998, the applicant was injured at work, suffering injury to his back and neck. As a result of his

injuries he was unable to continue with his work as a foundry worker with C.I.E. and as and from the 30th September, 1998, he was in

receipt of occupational injuries benefit from the Department of Social Welfare. In January, 1999 at the request of the respondent he

presented for a medical examination by a medical assessor and was found to be incapable of work. As a result of the injuries the

applicant instituted proceedings against C.I.E. in February, 1999 seeking compensation for personal injuries. In April, 1999 the

applicant was transferred from occupational injuries benefit to disability benefit. On about 3rd June , 1999, he received a letter from

his employer advising that it had been unsuccessful in securing sustainable employment for him in an alternative location and that he

was being retired on grounds of ill health with effect from 11th June , 1999. It appeared that he was entitled to a pension of €18.52

per week and a gratuity of €1,926.08. In July, 1999 the applicant presented for a second medical examination by another medical

assessor on behalf of the respondent. On about the 13th October, 1999, the applicant was given permission by the respondent to

commence a University Access Course at Pearse College, Dublin, disability benefit would continue to be paid and that the applicant

should not be paid by the college for the duration of the course. On about 30th November, 1999 the applicant presented for a further

examination by another medical assessor on behalf of the respondent. The applicant deposed that he was asked:

"a) Do you have a pension from the company?

b) How much per week?

c) Do you have a claim against the company?

d) Who are your solicitors?"

The medical assessor wrote "legal case pending" on the report.

By letter dated 2nd December, 1999, from a deciding officer on behalf of the respondent the applicant was informed that the medical

assessor of the respondent who had examined the applicant on the 30th November, 1999 was of the opinion that he was capable of

work. The deciding officer concluded that the applicant was not entitled to disability benefit from 8th December, 1999. The applicant

deposed that this came as an enormous shock to him. He had not been informed by the medical assessor that this was his opinion. He

was given no warning that a deciding officer was considering his eligibility for disability benefit. He was not invited to comment on the

proposed disallowing of the benefit or provide any contrary evidence or opinion. He was of the opinion that the deciding officer was in

breach of fair procedures and natural and or Constitutional justice by failing to inform him that his disability benefit was being

reviewed, by failing to tell him the grounds upon which he was considering disallowing further payment, by failing to give him an

opportunity to answer the case made against him, that the deciding officer took into account matters he ought not to have and that

the decision was in breach of audi alteram partem.

The applicant appealed the decision of the deciding officer of the respondent and in February, 2000 he was called for a further

medical examination by another medical assessor on behalf of the respondent. At this examination, he deposed, the medical assessor

had on her desk the three previous reports compiled by the other medical assessors on behalf of the respondent.

In April, 2000 the applicant got a letter dated 23rd March, 2000. That informed him that his disablement was assessed and he was

awarded a disablement gratuity of €498.80 which was the amount of gratuity payable for 10% disablement for a period of 11 months.

He was informed that this would be reviewed and that he could appeal. He decided not to appeal.

On about the 9th August, 2000, an oral hearing of the appeal of the decision of the deciding officer made on 2nd December, 1999,

was held. The applicant was represented by Mr. Brian Cusack, a young barrister working on a voluntary basis for the Citizens Advice

Centre. Counsel submitted that none of the non-medical questions should have been asked by the medical assessor and that the

inclusion of the statement "legal case pending" should not have been included on the report. It was submitted that such evidence

would cause bias, was prejudicial, and was in breach of the Medical Council's guidelines.

The applicant stated that his counsel was not given the opportunity to lead evidence in chief with regard to his physical well being

and capability but that the appeals officers cross examined him on the medical reports. The applicant deposed:-

"Notwithstanding that the appeals officer decided to hold an oral hearing of the appeal, no witnesses and in particular

none of the medical assessors to whom I had been referred were called to give evidence of any of the matters contained

in their medical reports and neither I was not given (sic) the opportunity to cross examine or confront any of the

individuals whom had tendered written evidence in relation to my capability for work."

By letter dated 8th September, 2000, the appeals officer rejected the appeal. The letter stated:-

"Dear Mr. Maher

I have been asked by the Chief Appeals Officer to refer to your Disability Benefit appeal, and to inform you that the

Appeals Officer's decision is as follows:

'I decide that the appellant was not incapable of work within the meaning of Social Welfare Legislation from 8/12/99

and is not entitled to be paid Disability Benefit from that date.'

A note on the reasons for the Appeals Officers decision is set out hereunder.

'Having examined all the evidence before me, including that adduced at the appeal hearing, I consider that while the

appellant may be limited and restricted by his back condition, there is a significant range of employment of which he

would be capable.'

A copy of this letter has been sent to the Social Welfare Services Officer.

Yours sincerely"

The applicant deposed that he was informed by counsel and believed that the appeals officer acted in breach of fair procedures and

principles of Constitutional and natural justice, and many grounds were set out in the pleadings.

Legal Aid

The applicant deposed that on receipt of the decision of the appeals officer on the 6th September, 2000, he discussed an appeal with

a number of solicitors with a view to seeking a judicial review. He was not in a position to fund legal representation. On the 12th

October, 2000, he applied for legal aid. By letter of 10th May, 2001, the applicant's contribution for legal aid was notified as assessed

at €23. By letter of 25th May, 2001, the applicant was notified of his appointment to Raymond Finucane, Solicitor, on Monday 11th

June, 2001. The applicant met Mr. Finucane who submitted an application for legal aid. On the 6th July, 2001, Mr. Bowden, on behalf

of the Legal Aid Board, suggested Mr. Finucane should advise the applicant to contact the Ombudsman's office. On the 20th July,

2001, the Legal Aid Board wrote to Mr. Finucane confirming that authority had been granted to obtain counsel's opinion on the

matter. Counsel's opinion was obtained from Mr. Brian Cusack who advised proceedings to apply for judicial review. It was then

suggested that Senior Counsel's opinion be sought. On the 16th January, 2002, Mr. Finucane forwarded the opinion of Senior Counsel

to the Legal Aid Board. By letter dated the 24th May, 2002, the application for legal aid was refused. The applicant then appealed this

refusal. On the 20th September, 2002, the Appeal Committee of the Legal Aid Board decided to refuse the appeal. Owing to an error

some information was not available to the Appeals Committee. The Appeals Committee reconsidered the matter on the 23rd January,

2003, and affirmed their earlier decision. The applicant continued to try and judicially review the decisions of the officers of the

respondent.

Benefit Allowance

The applicant deposed that as a result of the matters complained of he has suffered considerable loss, damage, inconvenience and

expense. The applicant deposed that on the 8th December, 1999, pending his appeal he was put on unemployment benefit and

subsequent to the appeal he was put on supplementary welfare allowance. He deposed that the payment of his C.I.E. pension was

deducted from his supplementary welfare allowance whereas if he was in receipt of disability benefit this would not have been taken

into account.

College Place

The applicant deposed that as a result of being on supplementary welfare allowance he had been prevented from taking up a place in

university, as had been arranged. If he took up a place in university, he deposed, his supplementary welfare allowance would be

terminated. He deposed that had he commenced full time university education at U.C.D. with the disability benefit he believed that he

would have been exempt from the normal rules relating to disability benefit, including the requirement to attend medical assessments

for the duration of the time he was undergoing a course of training with a view to taking up another occupation.

PRSI

He also deposed that as a result of the termination of his entitlement to disability benefit his pay related social insurance credits have

been stopped, he having contributed for the previous 21 years. Had he continued in receipt of disability benefit, he deposed that his

PRSI benefits would have continued to accrue. However, this does not occur on supplementary welfare allowance.

The applicant sought relief from the High Court in the terms of the application for judicial review. He was represented by Senior and

Junior Counsel in the High Court.

5. Reliefs Sought

The applicant was granted leave by the High Court (O'Donovan J.) on the 10th March, 2003, to apply by way of judicial review for the

following reliefs:

(i) Certiorari quashing the decision of the deciding officer of the respondent made on the 2nd December, 1999

discontinuing the applicant's entitlement to disability benefit as and from the 8th December, 1999; and further quashing

the decision of the appeals officer on the 6th October, 2000, disallowing the applicant's appeal of the decision of the

deciding officer.

(ii) A declaration that the decision of the deciding officer and the appeals officer were ultra vires, their powers in excess

of jurisdiction and null and void.

(iii) A declaration that the deciding officer and the appeals officer of the respondent adopted procedures which failed to

vindicate the applicant's right to fair procedures and acted in breach of natural and/or Constitutional justice.

(iv) Necessary orders including such order directing the payment of arrears of disability as the Court shall seem meet.

Further reliefs were also included.

6. Ground for Review

The grounds for such a review were as follows:-

(i) The determination of the deciding officer was in breach of fair procedures and the principles of natural and/or

Constitutional justice and ultra vires in that:

(a) The deciding officer failed to inform the applicant that his position was being reviewed prior to disallowing

payment.

(b) The deciding officer failed to inform the applicant of the grounds upon which he was considering disallowing

further payment and failed and neglected to give the applicant an opportunity to answer the case being made

against him.

(c) The deciding officer of the respondent took into account matters which he ought not to have taken into

account and/or refused to take into account or neglected to take into account matters he ought to have taken into

account.

(d) The deciding officer acted in breach of the principle audi alteram partem.

(ii) The determination of the appeals officer of the respondent was in breach of fair procedures and the principles of

natural and/or Constitutional justice and ultra vires in that:-

(a) The appeals officer took into account matters which she ought not to have taken into account and or refused

to take into account or neglected to take into account matters which ought to have been taken into account.

(b) Having decided to hold an oral hearing she failed to have in attendance all witnesses whose evidence may be

relevant to the matter to be decided and failing to allow the applicant to cross examine such witnesses.

(c) The appeals officer held an oral hearing in which the evidence of the applicant was challenged but which was

based on written evidence which the applicant could not satisfactorily challenge.

(d) The appeals officer acted in breach of the principle of audi alteram partem.

(e) The appeals officer applied a standard of proof disproportionate to the nature and gravity of the matter to be

determined.

(f) The purported refusal of the applicant's appeal was made without any or any sufficient evidence to reasonably

justify such a decision.

(g) The appeals officer failed to give adequate reasons for her decision.

(h) The purported refusal was ultra vires in that it flies in the face of fundamental reason and common sense.

(iii) The deciding officer and the appeals officer did not disclose sufficiently to the applicant what their concerns were so

as to enable the applicant to address same.

(iv) As a result of the foregoing the applicant has been caused to suffer loss, damage, inconvenience, and expense, full

particulars of which shall be delivered in due course.

7. The respondent filed a statement of opposition, as follows:-

(i) The applicant's claims were denied.

(ii) It was submitted that the applicant had not exhausted his remedies before going to the High Court. Section 263 of the

Social Welfare (Consolidation) Act, 1993 provides that the Chief Appeals Officer may, at any time, revise any decision of

an appeals officer, if it appears to him that the decision was erroneous by reason of some mistake having been made in

relation to the law or the facts.

(iii) It was denied that the respondent acted ultra vires their powers or in excess of jurisdiction.

(iv) It was denied that the respondent, his servants or agents, failed to vindicate the applicant's right to fair procedures

or that they acted in breach of natural and/or Constitutional justice.

(v) It was denied that the deciding officer acted in breach of fair procedures or that she acted in breach of natural

and/or Constitutional justice as alleged.

(vi) It was denied that the two decisions referred to in the statement of grounds were unreasonable.(vii) It was

submitted that the clear purpose for continued medical assessment by the respondent of a person in the applicant's

position is to review their entitlement to disability benefit. The applicant was, or should have been, aware of that fact.

The respondent is obliged to ensure that only those who are entitled to receive disability benefits are in fact receiving

such benefits.

(viii) The grounds upon which an officer would decide to disallow benefits in such a situation are medical grounds, taking

all of the relevant circumstances into account. These were the grounds on which the deciding officer made her decision

and further, that decision was made on the information provided to her by the medical assessor, on the basis of his

examination of the applicant.

(ix) The applicant's position was under constant review.

(x) It was denied that the deciding officer took matters into account which might not to have been considered, or that

she did not consider matters which she might to have taken into account.

(xi) The medical opinion on which the officer relied was that the applicant was capable of work. Specifically, there is no

indication that the fact that the applicant had instituted legal proceedings affected the officer's decision in any way.

(xii) The deciding officer did not breach the audi alteram partem rule. Her decision was made on the basis of the medical

assessor's findings. That assessor reached his conclusion in relation to the applicant's fitness for work based on his own

observations and the information given to him by the applicant who must have known the purpose of the assessment. The

applicant was afforded every opportunity to set out his condition and symptoms to the medical assessor.

(xiii) Any unfairness in the decision of the deciding officer, which is denied, was cured by the availability of a full appeal

against that decision.

(xiv) It was denied that the appeals officer acted in breach of fair procedures or that she acted in breach of natural

and/or Constitutional justice as alleged.

(xv) It was denied that the appeals officer took matters into account which ought not to have been considered, or that

she did not consider matters which she ought to have taken into account. All relevant maters were taken into account by

the appeals officer, including all evidence adduced by the applicant and all submissions made by his legal advisor at the

oral hearing.

(xvi) The hearing referred to was fair and unbiased in every way. The material on which the original decision had been

made was available to the appeals officer and to the applicant and his legal advisor. A second doctor assessed the

applicant for the purposes of the appeal. The applicant was represented at the hearing by counsel. The determination of

such an appeal is not a matter which necessitates the hearing of oral evidence from every possible relevant witness.

Nonetheless the appeals officer would have facilitated any reasonable request by the applicant or his advisor in relation to

oral evidence. No request was made by the applicant or his legal advisor to examine or cross-examine witnesses. The

applicant and his legal advisor were given every opportunity to challenge any statement in the reports before the appeals

officer.

(xvii) The procedures described in the statement of grounds are those required for the fair trial of a criminal matter and

such procedures are not required either by the Constitution or by the rules of natural justice in a decision relating to the

payment of benefits in these circumstances. In any event, the appeals officer in question was never asked to amend her

procedures, nor was it ever suggested or requested that any witness give oral evidence.

(xviii) The appeals officer did not fail to allow the applicant to cross-examine any witnesses. As stated above, the

applicant did not seek to cross-examine any witness at any stage in the proceedings, either personally or through his

counsel.

(xix) The evidence of the applicant was not 'challenged' as set out in paragraph E2(c), rather he was asked to clarify and

confirm certain matters and expand on his position in a way that none of the other witnesses were able to do, not being

present. Further, the applicant was in a position, either personally or through his counsel, to challenge any matter

contained in the witnesses' statements and medical reports. There was no complaint at the hearing that this was

unsatisfactory, nor was it suggested that any or all witnesses should be available for cross-examination. There was no

application from the applicant that he should be allowed to call medical witnesses to refute the reports of the

respondent's assessors or any matter therein.

(xx) The standard of proof in such a determination is proof on the balance of probabilities. If the applicant maintains that

his benefit ought to have been paid until the respondent proved beyond reasonable doubt that he was fit for work then

he is incorrect in that regard.

(xxi) There was sufficient evidence to justify the decision of the appeals officer herein.

(xxii) The reasons for the appeals officer's decision were set out for the benefit of the applicant and were adequate to

justify and explain the decision taken.

(xxiii) The decision of the appeals officer was a reasonable one.

(xxiv) The issues in the applicant's case were clearly outlined to him and to his counsel at the oral hearing.

(xxv) The issue of bias did not arise in the applicant's case. It was not alleged that any person had a material interest in

the applicant's benefit being disallowed. It is not alleged that any person had a prior knowledge of the applicant or had

prior dealings with him. It is not clear whether or not the applicant is alleging a personal attitude on the part of one of the

medical assessors who examined him, or a perceived attitude but if so, this is denied. In any event, the impugned

decisions were based only on the evidence of the applicant's physical condition. There was no real likelihood of bias in the

circumstances of this case, nor was there any appearance of bias.

(xxvi) Insofar as it is suggested that a second medical assessor pre-judged the applicant's case on the basis of an earlier

medical report, this is denied. Insofar as it is maintained that this created a perception of bias, this too is denied.

(xxvii) If the applicant had an apprehension of bias in the processing of his claim and appeal, it was not a reasonable

apprehension in the circumstances.(xxviii) It was clear from the decision of the deciding officer and that of the appeals

officer that the respondent's concerns were that first one and then a second doctor had assessed the applicant as

sufficiently healthy so as to be fit for certain types of work.

(xxix) If, which is denied, the applicant suffered loss, damage, inconvenience and expense as alleged, same were not

caused, or contributed to, by the respondent, his servants or agents.

(xxx) The applicant is not entitled to the relief sought or to any relief.

8. The High Court

The High Court (Murphy J.) dismissed the motion, deciding:-

"The application was by way of judicial review. It was not an appeal nor a re-hearing where the applicant could introduce

new evidence.

Moreover the applicant would appear not to have exhausted his remedies under the social welfare legislation, in particular

under s.263 of the Social Welfare (Consolidation) Act, 1993. This would have allowed the applicant to argue that there

had been some mistake having regard to the facts of the case or the law in relation thereto.

The applicant was represented by counsel at the appeal hearing. There appeared to have been no conflict of evidence.

The medical reports were before the appeal committee. There appeared to be no contradictory evidence. There was no

application to have the medical witnesses present.

There was no evidence of the applicant having applied for jobs.

The central question relates to who certifies fitness for work. It is clear that the appeals committee had regard to the

medical reports as they appear to be entitled to do. This was the objective evidence that was before the appeals

committee. The findings of fact were not significantly different on the reverse the medical reports. The role of the

assessors is giving professional opinion was not challenged.(sic) The alternative medical evidence offered, that of the

applicant's own doctor found a marked improvement but noted, in relation to mental health, a mild category - 'upset re

back'.

The appeal committee acted reasonably in considering the findings of the medical assessor. The decision of the appeals

committee was based on those findings. There was no indication that the note "legal case pending" influenced their

decision.

There were clearly reasons before the appeals committee for them to make the decision they did.

Accordingly, the respondent did not act ultra vires or in excess of jurisdiction. There was no evidence that they did not

take into account all the matters that were relevant to their decision. There was no evidence that they took into account

all the matters extraneous to the appeal. In the circumstances the decisions arrived at were not unreasonable.

Moreover, the applicant was granted an oral hearing and was represented by counsel and was not, accordingly, deprived

of fair procedures and/or deprived of any Constitutional and/or other right.

In the circumstances the applicant was not entitled to leave to apply for the relief sought."

9. Appeal

The applicant has appealed to this Court from the decision of the High Court. The applicant filed the following grounds of appeal:-

1. The violation by the respondent's agents and servants of my Constitutional right to fair procedures.

2. The failure of the respondent's agents and servants to adhere to the law and natural and or Constitutional justice as

interpreted and laid down by the Supreme Court as it pertains to the functions of the respondent's medical assessors and

the requirement of cross examination at an oral appeal hearing where prime facie evidence has been controverted by

probative evidence to the contrary.3. The respondent's deciding officer is terminating my disability benefit failed to afford

me proper opportunity to deal fully with the case being made against me as to my continued entitlement to disability

benefit. This failure contravened the law as interpreted and laid down by the High Court wherein it was held, that it was

essential that no decision as to termination should be made without affording her an opportunity to deal fully with a case

adverse to an applicant and affording her an opportunity to deal with the case being made against her and to make her

own contentions in her own evidence.

4. The respondent's medical assessor conducted a personal examination of me as to whether I was in receipt of an

occupational pension. The respondent's medical assessor asked me what was the monetary value of that pension. The

respondent's medical assessor questioned me as to whether I had instituted legal proceedings against my employer. The

respondent's medical assessor questioned me as to the name of the firm of solicitors who had done so on my behalf. The

respondent's medical assessor wrote 'legal case pending' in the medical report in order to alert any other reader of the

report to this fact. The respondent's medical assessor asked me no questions whatsoever as to how my condition

affected me in any way in my every day life. The respondent's medical assessor generated a bias by conveying non

medical and extraneous information in a medical report for the purposes of informing other persons reading the report. The

medical assessor breached the limitation of his function as laid down by the Supreme Court. The medical assessor

breached the written guidelines of the Medical Council. The medical assessor breached the written guidelines of the

respondent.

5. The appeals officer of the respondent expressly factored in the biased medical report in coming to her decision. My

representative spokesperson made strenuous objections at the oral hearing, on the grounds of bias and to the other non

medical questions that were asked of me by the medical assessor and to the questions that were not asked and which

should have been asked of me by the medical assessor. My representative emphasised to the respondent's appeals officer

that the medical assessor's role was confined to eliciting information on medical matters and forming a medical opinion. My

representative referred to the express and patent breach of the Medical Council guidelines due to the actions of the

medical assessor. The respondent's appeals officer registered these objections in her notes. The respondent's appeals

officer however, manifestly failed to make any deliberation upon these points raised on my behalf by my representative,

either at the oral hearing or in her recorded notes of the oral hearing.

6. Documentary evidence adverse to my case was in the possession of the respondent's appeals officer and was not

made known to me.

7. Evidence adduced by me at the oral hearing which resulted in the respondent's appeals officer's decision disallowing my

appeal, was formulated in a manner in which I was given no opportunity to context or dispute such evidence.

8. Having been informed by a lawyer two years after the appeal that an official known as the Chief Appeals Officer could

review an appeals officer's decision I requested such review on the grounds of bias and the failure by the appeals officer

to give adequate reasons for her decision. The evidence was retained by the respondent and the medical evidence was

being recalled by the respondent's appeals officer to be reviewed by the respondent's Chief Appeals Officer, following

another request by myself to this effect. The following week however, the appeals officer refused my request to review

the evidence stating I would need to furnish evidence of an error of law or fact. The evidence was extant in the

respondent's possession. The agents and servants of the respondent did not review my appeal as I requested.

9. The existence of the Chief Appeals Officer is unknown to the members of the public who utilise the social welfare

appeals system. The information circulated by the respondent's appeals office refers to the decision of an appeals officer

as being 'final and conclusive, subject to appeal to the High Court on a point of law'. No reference is made to the

respondent's Chief Appeals Officer. It is respectfully submitted to this honourable court that the failure to make this

procedure transparent is misleading for members of the public. Fair procedures cannot operate in the dark only to be made

luminous if a citizen, however, materially impoverished, attempts to invoke his or her right to have his or her Constitutional

rights vindicated in court. The invoking of what is in effect a concealed procedure in attempting to restrain a citizen

accessing court to protect a right guaranteed by the constitution is I respectfully submit, repugnant to the principles of

basis fairness enshrined in the constitution and guaranteed for all citizens of this state.

10. It is submitted that Mr. Justice Murphy erred in law in not taking account of the above points.

11. It is submitted that Mr. Justice Murphy erred in fact in stating 'it is in issue' whether my retirement or 'resignation' was

'forced'. The documentary evidence clearly demonstrates that I was 'retired on the grounds of ill health', the only option

open to me being whether I wished to commute a portion of my pension in return for a lump sum (gratuity and

commutation) upon retirement.

12. The office of the Ombudsman informed me in July 2001 that the only body that could decide upon the constitutionality

of actions of government departments was 'the courts'. It is respectfully submitted to this honourable court that the

actions taken and the procedures followed by the agents and servants of the respondent violated fair procedure, are

inconsistent with the Constitutional guarantee of fair procedures and that the just orders sought in my application for

judicial review should be granted.

10. Submissions

On this appeal the applicant represented himself. He filed crafted written submissions and addressed oral submissions to the Court,

which I have considered carefully.

It is unnecessary to set these submissions out in detail. The applicant referred to the key issues. As to the issue of not exhausting

his remedies, he pointed out that he did not know how to proceed to the Chief Appeals Officer, that he should have been informed of

the process, that he was not given the material and that the State had the evidence in their possession. He pointed out that he was

not legally represented at the oral hearing - that he merely had the benefit of a Citizens Advice Counsel. As to the finding of "no

conflict of interest", the applicant stated that his General Practitioner did not agree. The applicant submitted that the legality of

proceedings before the appeals officer had not been addressed. Further, he submitted that the High Court addressed issues not

before that court, i.e. whether he had applied for jobs. The applicant stressed his concern at the reference made on the file to "legal

case pending" and considered it must have weighed in the balance. The applicant stressed that the case he wished to make was as

to the procedure. He submitted that the medical assessors breached their function and took extraneous matters into account; that

the function of a medical assessor is limited to medical matters. The applicant pointed out that the medical assessor referred to non-

medical issues, for example: 1) the legal case pending, 2) his pension, and 3) his solicitor. These were, he submitted, irrelevant to the

medical matters.

The applicant stated that he got the letter and the payments terminated the next day. He claimed he had no opportunity to put his

case before the payment was terminated. He said that he was unaware that someone had decided that his status had changed. He

stated that "I was broadly aware that the situation could change" but he submitted that he should have been given an opportunity to

put his case before a decision was made. He argued that the appeal was not carried out in accordance with law, that only one side

gave oral evidence and was cross-examined by the appeals officer; who was making the decision. He submitted that the adjudicator

here acted as Henchy J. said should not be done in his judgment in Kiely v. Minister for Social Welfare [1971] 1 I.R. 21. He referred

also to the Freedom of Information Act, 1997 and submitted that they were mandated to inform him but it was not done and he was

kept in the dark. The respondent also filed written submissions. In summary, it was submitted that:-

(i) The High Court correctly ruled that the applicant had not exhausted his remedies.

(ii) The applicant had not demonstrated any error of law in the decision of the learned High Court judge.

(iii) The applicant submitted that both decisions by the respondent's officials were biased but this was not born out by

the facts or his submissions.

(iv) The applicant submitted that irrelevant considerations were taken into account but has not established that this was

the case.

(v) Given the nature of the decision, an oral hearing based on written reports was entirely sufficient for the purposes of

deciding the factual issues involved. Notwithstanding that the applicant was on notice that he was entitled to call

witnesses and was legally represented at that hearing. He did not request the attendance of any witnesses either to

adduce evidence or for the purposes of cross-examination. In all these circumstances it cannot be said that the hearing

was inadequate.

(vi) There was ample evidence to justify both the deciding officer and the appeals officer.

(vii) Taking all the matters into account, the High Court was correct to exercise its discretion against the applicant.

(viii) The applicant is not entitled to the relief sought.

Counsel also addressed in oral argument the issues of (i) the exhaustion of remedies, (ii) the role of the medical assessor, (iii) the

claim that the applicant had no opportunity to respond to the deciding officer's decision to cut the disability benefit, (iv) that there is

no automatic right to an oral hearing, yet he received one. Counsel distinguished the Kiely case on the basis that in that case the

medical assessor sat in on the oral hearing, which was not the situation in this case. (v) Lastly, as to the claim that the applicant

was not informed of appeal procedures by the respondent, counsel referred to correspondence. I shall return to this issue later in the

judgment. Counsel submitted that the applicant chose another route, i.e. judicial review.

11. The first issue on this appeal is whether the High Court was correct in determining that the applicant would appear not to have

exhausted his remedies under the social welfare legislation, in particular under s.263 of the Social Welfare (Consolidation) Act, 1993.

The High Court held that this would have allowed the applicant to argue that there had been some mistake having regard to the facts

of the case or the law. The law opened to this Court was s. 263 of the Social Welfare (Consolidation) Act, 1993, which provides:-

"The Chief Appeals Officer may, at any time, revise any decision of an appeals officer, if it appears to him that the

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

On the 16th October, 2002 the applicant wrote to the Chief Appeals Officer stated:-

"I have been told that you can review any appeals officer's decision. As I am not sure of the reply from the appeals office

about my case to a T.D. in December, 2000 was a review, I would like to point out that I feel there are grounds for a

review of my appeal of Aug 9, 2000 (sic). The grounds are that the appeals officer did not give me proper reasons for

refusing my appeal and that she was biased against me and my case.

As I was waiting 8 months on the appeal and as it is now nearly 3 years since I have been off the disability benefit, I

would appreciate it if you would let me know over the following week."

This raises grounds of appeal as to absence of reasons and bias. Yet on the 18th November, 2002, the applicant received a letter

from the Social Welfare Appeals Office. It stated:-

"I refer to your letter of 16 October 2002 requesting a review, by the Chief Appeals Officer of your Disability Benefit

appeal which was disallowed on 8 September 2000.

Under Social Welfare (Appeals) legislation, the Chief Appeals Officer is empowered to revise an Appeals Officer's decision,

only on the basis that the Appeals Officer made an error in relation to the facts of the case or in applying the law. To

date no such evidence has been furnished and accordingly, there is not basis on which the Chief Appeals Officer could

make such a finding.

However, if you can forward any evidence to support a review on this basis, it would be considered by the Chief Appeals

Officer."

This is a 'form' letter and not a full response to the enquiry. It did not engage with the letter written by the applicant.

On behalf of the respondent it was deposed by Mary Keane in her affidavit sworn on 19th day of June , 2003, that it:-

"appears that the Applicant requested an appeal to the Chief Appeals Office, as is clear from the letters [as referred to

above], this course was not pursued by the Applicant herein. Having been asked by letter dated 18th November, 2002 he

furnish evidence of the alleged error in fact or law, he did not reply to the letter … It would be misleading to say that this

remedy was exhausted in these circumstances."

It was submitted that the applicant was aware of the availability of the appeal to the Chief Appeals Officer. However, this has to be

considered in context.

The absence of clear information as to the process is illustrated by an appeals office information document entitled SW53, "A Guide to

Appeal Hearings". Paragraph 7 stated:-

"7. Finality of Appeal Decision?

In general, the decision of an Appeals Officer is final and conclusive, subject to an appeal to the High Court on a point of

law. It may be reviewed in the light of new evidence, i.e. evidence which was not before the Appeals Officer when the

decision was made, or where an error has been made as to the facts or the law."

Given that many applicants are lay litigants and may not be very legally literate, the information was stark.

Conclusion

The applicant spent years trying to progress his case as a lay litigant, years seeking legal aid, and years writing to many people.

Clearly he felt that there had been an injustice. He stressed that the case he wished to make was one of procedure. Ultimately he

launched this judicial review. It was not a situation where a careful legal analysis led to a considered decision on a choice of routes.

The existence of an appeal to the Chief Appeals Officer is not easily discernible from the information furnished by the respondent. This

is a matter which should be addressed. Further, the mode of access to such a review should be laid out clearly and provided for in

documentation.

In all the circumstances, I am satisfied that the applicant was not adequately informed of the route of appeal to the Chief Appeals

Officer and was not provided with sufficient information on this process. This insufficiency of information rendered the process unfair.

This aspect of the appeal relates to documents, so I am in the same position as the learned High Court judge, and may review the

documents and the exercise of discretion. In all the circumstances, I am satisfied that the applicant was not sufficiently informed of

the remedies within the social welfare code. In such circumstance s.263 of the Act of 1993 may not be used as a sword against him;

it should instead be a shield.

Consequently, I am satisfied that the learned trial judge fell into error on this issue in holding that the applicant had not exhausted his

remedies under Social Welfare legislation.

For years the applicant has sought that the decisions as to his disability benefit be reviewed. Doing the best I can, I am satisfied that

the most appropriate remedy in all the circumstances, is that there should be a review by the Chief Appeals Officer. Owing to the

many years which have elapsed, which are not the fault of the applicant, new medical assessments may be required to be obtained,

indeed medical evidence from both parties. Any such assessment by medical practitioners should be limited to medical issues. Broader

issues are for the Chief Appeals Officer. Thus I would remit this matter to the Chief Appeals Officer who should enable a full review of

the situation.

Quite apart from this decision, it is clear under s.263 of the Act of 1993 that the Chief Appeals Officer may "at any time" review any

decision. In all the circumstances of this case, justice would be best met by a review of the applicant's situation by the respondent in

a fair manner. Any such application should have the benefit of all relevant material, including any which the applicant may wish to put

before the Chief Appeals Officer.

Thus I would allow the applicant his appeal on this issue.