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Refusal to revise a decision refusing application for Domiciliary Care Allowance is not liable to appeal

By: Colm Scott Byrne BL

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Court of Appeal dismisses appeal and upholds decision of the High Court refusing to grant judicial review of a decision of the respondent to refuse to revise the decision of a deciding officer refusing to grant the appellant's application for Domiciliary Care Allowance, on the grounds that: (a) the decisions to refuse to revise the original decision is not ‘a revised decision’ and is therefore not liable to appeal; and (b) the trial judge was correct in finding that there is no absurdity in providing for a system of appeal whereby the right of appeal is limited to the original decision and to all revisions of that decision which affect the legal consequences that flow from the original decision.

Kennedy J (nem diss): Judicial review - social welfare - statutory interpretation - applicant is the primary carer for her daughter who has a diagnosis of Asperger’s Syndrome, Attention Deficit Hyperactivity Disorder (ADHD) and borderline Oppositional Defiant Disorder - applicant made an application for Domiciliary Care Allowance on 10th November 2011 - this application was refused by a deciding officer - the applicant did not appeal this decision - the applicant made 3 applications in 2016 for a revision by a deciding officer of the original decision refusing to grant her the Allowance - each application was refused - the applicant sought to appeal the decisions made - the first named respondent wrote to the applicant to inform her that she was out of time to appeal the original decision o and to further state that where a decision is not revised by the second named respondent, there is no avenue of appeal - applicant brought judicial review proceedings - whether a decision by a deciding officer refusing to revise a decision of a deciding officer made pursuant is capable of being appealed as “a revised decision" - the Social Welfare Consolidation Act, 2005, as amended - where a first instance decision is not appealed and where a revision is sought and the earlier decision is, by virtue of the fresh decision, deemed unrevised, is the fresh (unrevised) decision a decision for the purpose of s. 311 of the Social Welfare Consolidation Act, 2005 and therefore appealable - whether treating an unrevised decision as unappealable is contrary to the Social Welfare Consolidation Act, 2005 (as amended) - section 5 of the Interpretation Act 2005 - no error of principle arises - appeal dismissed.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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