IRELAND: Court overturns refusal of allowance for care of autistic boy

[1 April 2014] - A High Court judge has overturned the refusal of a domiciliary care allowance for the mother of an austistic boy after finding an apparent “policy” in the Department of Social Protection of always accepting its medical assessors opinions on such applications. The Department appeared to have a “disdainful mind-set” to other evidence, Mr Justiee Max Barrett said.

A HSE mutlidisciplinary team who assessed this boy in February 2013, a month before the allowance application was made, had said he requires care, supervision and attention considerably more than that usually provided to children of his age and they recommended the parents apply for a domiciliary care allowance for him, the judge noted.

It was “remarkable” the Department asserted there was no conflict of medical “evidence” but only “opinion” when this specialist HSE team comprising a senior clinical psychologist, ocupational therapist, public health nurse and physiotherapist, who had all met the boy, were offering properly reasoned professional opinions about him.

The Department apparently adopted “a disdainful mind-set” to that evidence and instead preferred the “desk-top reviews” of its own medical assessors who have no personal knowledge of the child, he said.

The judge upheld the mother’s challenge to the refusal of the allowance and directed the Department to reconsider the application.

Gareth Noble, solicitor for the mother, had, after a Freedom of Information request, noted that all 3,806 decisions made by a deciding officer within the Department on such applications conformed to the opinion of the Department’s medical assessors.

Of the 3,806 opinions of the assessor, 2,224 were positive and 1,582 were negative and the deciding officer upheld all.

Mr Noble said he believed that officer was also the first deciding officer who had rejected his client’s application. After his client appealed, a second deciding officer rejected that appeal.

The Department also told Mr Noble, “notwithstanding that accurate statistics on this issue are not readily available”, it considered it would be “highly unusual” for a deciding officer to decide against a medical assessor’s opinion on the basis of medical eligibility.

In his judgment, Mr Justice Barrett said the case concerned whether a person who repeatedly exercises a discretion in the same way can be said to be properly exercising that discretion.

A child qualifies for the allowance if they are found to have a severe disability requiring continuious care and attention substantially in excess of the care and attention normally required by a child of the same age and for at least 12 consecutive months, he noted.

The relevant 2005 law provided a medical assessor with the Department would assess all information on the child before providing an opinion. The 2005 law required a deciding officer to “have regard” to the assessor’s opinion when deciding whether the allowance should be granted.

The judge noted the mother had set out her difficulties caring for her son, the family doctor had stated the boy had been diagnosed with autism and the diagnosis was permanent and a GP had stated the child’s social interaction anxieties were severe as was his capacity to keep well and stay safe.

The medical assessor, in her opinion of May 2013, expressed the view the medical evidence did not indicate a disability so severe as to require substantial extra care.

The judge stressed this case was not a review of the actual decision but rather the process by which it was reached.

He found the deciding officers in this case did not appear to justfully inform themselves of the views of the medical asessors but appeared invariably appeared to conform to those. This appeared to suggest an “inappropriate fettering” of their role.

The “almost disdainful” reference in the affidavit on behalf of the Department to the other medical evidence also suggested appropriate weight was not given by the decision maker to the honestly held and properly reasoned views of qualified professionals. The Department’s mind-set was that such views were necessarily coloured in favour of applicants and its own experts views were to be preferred.

The policy under which deciding officers generally defer to the views of medical assessors amounted to an abdication of statutoty duty by the deciding officer who initially decided this applcation, he ruled. That adbication vitiated the entire decision-making process and the matter must be recosnidered.

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