Title: Maher -v- Minister for Social Welfare
Supreme Court
Judgment was given by Mrs Justice Denham on April 9th, 2008, Mr Justice Hardiman and Mr Justice Finnegan concurring
Judgment
This was an appeal from a High Court ruling upholding a decision of a social welfare appeals officer to withdraw disability benefit from Mr Maher.
The Supreme Court found the High Court had fallen into error in finding he had not exhausted his remedies before seeking a judicial review, and stated that the appropriate remedy now was that the chief appeals officer should review the decision.
Background
Martin Maher left school at 15 in 1978 and joined CIÉ as a foundry worker. On or about September 30th, 1998, he suffered an injury to his neck and back at work, and was unable to work. He received occupational injuries benefit until January 1999, when he was assessed by a medical assessor for the Department of Social Welfare and found incapable of work. In April he was transferred to disability benefit by the Department.
Meanwhile in February 1999 he instituted proceedings against his employer for his injuries. In June of that year he received a letter from CIÉ stating it was unable to secure sustainable employment for him in a different location and informing him he was being retired on grounds of ill-health. He received a gratuity of €1,926 and a pension of €18.52 a week.
In July he had a second medical assessment from the Department of Social Welfare, and in October of that year received permission from it to embark on a pre-university course while retaining his disability benefit.
In November of that year he was called for a third medical assessment, during which he was asked whether he had a pension from his employer, how much it was, whether he had made a claim against the company and for the name of his solicitor. The medical assessor wrote "legal case pending" on his report.
In December 1999 he was written to by a deciding officer stating that the medical assessor had found him capable of work, and that he was not entitled to disability benefit from December 8th, 1999. It immediately ceased.
Mr Maher was greatly shocked by this, as he had not been warned that his eligibility was being considered, and the medical assessor had not indicated he considered him capable of work.
He appealed the decision, and was called for further medical assessment in February 2000. The three previous reports were on the desk of this assessor. In April he received a letter stating that his disablement was assessed at 10 per cent, and receiving €498.80 which was 10 per cent of disability benefit for 11 months.
In August 2000 an oral hearing was held of his appeal of the December decision. He was accompanied to this hearing by Brian Cusack BL, a young barrister working on a voluntary basis with the Citizens Advice Centre.
Mr Cusack submitted that the medical assessor should not have asked non-medical questions, and that writing "legal case pending" was prejudicial, contrary to Medical Council guidelines, and would cause bias.
He also submitted that none of the medical assessors were called to give evidence and be cross-examined, and that Mr Maher was not permitted to give evidence with regard to his well-being and capability.
His appeal was rejected.
He discussed the outcome with a number of solicitors with a view to taking a judicial review, but could not afford a private solicitor.
In October he applied for legal aid. Initially he was allocated a private solicitor, who sought two counsels' opinions on his case, but in May 2002 the Legal Aid Board refused legal aid for judicial review proceedings. Mr Maher appealed this decision, but the appeal committee of the Legal Aid Board upheld the board's decision.
After the disability benefit was withdrawn Mr Maher received supplementary welfare allowance. His CIÉ pension was deducted from this. In addition, he lost his place at university as he would have lost the supplementary welfare allowance if he attended. Neither would not have occurred if he was on disability allowance. His PRSI credits were also stopped because of being placed on supplementary welfare allowance.
He obtained leave to apply to the High Court for judicial review of the decision to disallow disability benefit on various grounds, including that his right to fair procedures had been breached and that matters had been taken into account which should not have been. He sought the quashing of the decision and the payment of arrears.
The Department of Social Welfare responded that the procedures were fair and unbiased, and also stated that he had not exhausted all available remedies before seeking a judicial review, notably by seeking a review of the decision by the chief appeals officer.
The High Court dismissed Mr Maher's motion on the grounds that he had not exhausted his remedies under S 263 of the Social Welfare (Consolidation) Act 1993, which would have allowed him argue before the chief appeals officer that there had been some mistake on the facts of the case or the law.
Mr Justice Murphy added that the appeals committee acted reasonably in considering the findings of the medical assessor and that the applicant was granted an oral hearing, where he was represented by counsel.
Mr Maher then appealed to the Supreme Court, where he represented himself, claiming that his constitutional right to fair procedures had been violated.
He also stated that the respondent's medical assessor had generated bias by conveying non-medical and extraneous information in a medical report.
The assessor also did not ask any questions as to how his condition affected his daily life and ability to work.
He pointed out that he had sought a review from the chief appeals officer, but this had been refused.
Decision
Mrs Justice Denham said that the first issue on the appeal was whether he had exhausted all available remedies.
Having examined the legislation and the correspondence where the applicant sought a review by the chief appeals officer, she said: "This is a 'form' letter and not a full response to the enquiry. It did not engage with the letter written by the applicant."
In conclusion, she said: "The applicant spent years trying to progress his case as a lay litigant, years seeking legal aid, and years writing to many people.
"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 that should be addressed.
"Further, the mode of access to such a review should be laid out clearly and provided for in documentation."
She said she was 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.
For years he had sought that decisions on 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."
New medical assessments may now be required, she said, and these should be confined to medical issues.
Allowing the appeal, she said: "Justice would best be met by a review of the applicant's situation by the respondent in a fair manner."
The full text of this judgment is available on www.courts.ie
Lawyers: applicant represented himself; Mary Rose Gearty BL, instructed by Chief State Solicitor, for the respondent