Judge seeks review over denial of allowance to mother of autistic son

A High Court Judge has demanded the Department of Social Protection review its decision to deny a woman a domiciliary care allowance for her autistic son after finding there was “an abdication of statutory duty” by the deciding officer in the case.

Mr Justice Max Barrett heard that the deciding officer in the case had followed the advice of medical assessors in the provision of allowance to applicants in all 3,806 cases in which she had made a decision.

Mr Justice Barrett said such was the “deference” shown to the views of medical assessors by the original deciding officer in the case that the medical assessor’s opinion — following a desk-top review — was “in fact determinative of that application”.

The applicant in the case is a homemaker and the primary carer of her son, who has autism. In March last year, she applied for the domiciliary care allowance — worth €309 a month — on the basis that her son required continuous care and attention, highlighting “severe” social interaction anxieties and impulsive and sometimes aggressive behaviour.

The application was subjected to a “desk-top review” by a medical assessor and was turned down last May by the deciding officer, who said the medical evidence did not indicate a disability so severe as to require substantial extra care. The woman appealed but this was also turned down.

In the ruling, the judge stressed that the applicant was not seeking a review of the decision, “she is challenging only the process whereby that decision was formulated”.

The woman claimed that the department “in effect operates a policy whereby the opinions of its medical assessors are followed slavishly by departmental deciding officer irrespective of evidence submitted by claimants”, resulting in “an abdication of the deciding officer’s statutory duty”.

The woman’s solicitor, Gareth Noble, under Freedom of Information, looked at the number of applications dealt with by the first deciding officer in the woman’s case — and found that in all 3,806 cases, the officer had made the same decision as the medical assessor. In an affidavit, the department said it would be “highly unusual” for a deciding officer to rule differently to a medical assessor and that medical professionals who had dealt directly with the boy would have been “advocating” on his behalf.

But in his judgment, Mr Justice Barrett said in relation to the medical evidence of doctors who had dealt directly with the boy, “the department apparently adopts a disdainful mind-set and prefers instead the desk- top reviews of its own medical assessors who have no personal knowledge of the individual case in hand”.

He said “one might expect to see some disparity of views between deciding officers and medical assessors” and said “a situation in which it is ‘highly unusual’ for [deciding officers] to depart from those views [of medical assessors] suggests there to be a fettering of their role”.

It is open to the department to appeal.

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