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Dublin University Law Journal 2012, 35(1), 292-299

Dublin University Law Journal

2012

*292 ACCESS TO QUASI-JUDICIAL DECISIONS JAMA V

MINISTER FOR SOCIAL PROTECTION1 MEL COUSINS*

This note considers the Jama case, which concerns the issue of access to the
decisions of social welfare appeals officers. The High Court ruled that there was no
duty on the Department of Social Protection to maintain a database or open library
of decisions to which the public may have access; and, therefore, no question of a
right of access thereto arose. While the decision may have been correct on the facts
of the case, the Court's approach to the broader issue of access to social welfare
appeals decisions is rather debateable and it is arguable that, consistent with the
Supreme Court's decision in Atanasov,2social welfare appellants should also be
entitled to access to relevant decisions as a matter of constitutional justice.

Context
Appeals concerning entitlement to social welfare payments are heard by appeals
officers of the Social Welfare Appeals Office (SWAO). 3The Irish courts have held that
there is a constitutional right to a reasoned decision by a court or tribunal (at least in
order to allow an unsuccessful participant to consider an appeal). 4The reasons
should make clear to the unsuccessful appellant in general and broad terms the
grounds of the decision. 5The European Court of Human Rights has also consistently
held that Article 6 of the Convention on Human Rights includes the right to reasons
for a decision. 6In any case, Ministerial regulations provide that when an appeals
officer's decision is not in the claimant's favour, the appeals officer must give a note
of the reasons for the decision, and this *293 will be sent to the claimant. 7Unlike
the position in the UK, 8appeals officers' decisions are not generally publicly available
but, in recent years, sample case studies have been reported in the annual reports of
the chief appeals officer and a small number of decisions are now reported on the
website of the office. 9

Facts and Issues

Ms. Jama is a Somalian national who came to Ireland in August 2005 and claimed
asylum and was eventually recognised as a refugee in February 2007. She had a
child in October 2005 and claimed child benefit. One of the qualifying conditions is
that one must be habitually resident in the State at the time of making the claim. 10At
the time the Department took the view that an asylum seeker could not be habitually

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resident and her claim was refused. However, on appeal, the appeals officer found
that Ms Jama was habitually resident from February 2006 and awarded child benefit
from that date (about four months after the birth of her child). 11She requested a
review of that decision by the chief appeals officer (under section 318 of the Act) on
the grounds that the appeals decision was wrong in fact or in law. 12
Ms Jama's legal advisers believed that there were decisions of other appeals officers
which were relevant to this issue and which would assist them in making her case.
Accordingly, they sought copies of any previous decisions of an appeals officer
relevant to the date from which refugees are regarded as satisfying the habitual
residence condition. However, it appears that, other than in limited circumstances,
the SWAO did not keep a register, or copies, of decisions which are remitted to the
Department of Social Protection.13Accordingly it had no means of providing such
decisions. It further appears that the Department also did not keep a register of
decisions and it was also unable to identify any such decisions. Ms Jama brought
judicial review proceedings seeking an order

0i) that the Department provide her with access to copies of relevant reasoned decisions
of the Social Welfare Appeals Office; and

0ii) directing the Minister to publish such reasoned decisions and to establish a system
enabling such decision to be accessible to the parties to social welfare appeals.
*294

The Judgment

Critically, in his consideration of the case, Hedigan J reversed the order of these two
issues and focussed first on whether there is a duty to maintain some form of open
database recording decisions, and, second, whether the applicant was entitled to
have access thereto.14
Ms Jama argued that the constitutional requirement of fair procedures required that
she have access to such decisions. This relied, in particular on the Atanasov case in
which the Supreme Court had ruled that the refusal of the Refugee Appeals Tribunal
(RAT) to make available relevant tribunal decisions was a breach of the applicant's
rights to fair procedures and natural and constitutional justice under Article 40.3 of
the Constitution.15She accepted that not all decisions should be published, as many
are of a routine nature, but contended that all decisions which address issues of
principle, law or policy should be published. 16However, Ms Jama was faced with the
difficulty that no copy of a relevant decision could be found. Her solicitor averred that
he was aware of at least one such relevant decision, but Hedigan J stated that this
was only a belief and was contradicted by Departmental evidence. 17
As to the broader issue of whether there was an obligation to maintain a database of
decisions, Hedigan J distinguished the Atanasov case (and the English decision in
Manzeke)18on the basis that they relate to very different situations, i.e. the political
state of certain countries. 19Hedigan J argued that the type of decision-making in
relation to issues of refugee status was very far removed from the decision as to
whether a particular person meets the requirements set out in statute or detailed
guidelines. He ruled that information may be refused on public policy grounds. 20On
the (unspecified) evidence given in the case, he took the view that the maintenance

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of an anonymised database would be very expensive and of somewhat doubtful

benefit to applicants for social welfare benefits. He ruled that
*295 Public policy, notably in these straitened times, must surely outweigh a
right of access to such information.21
Hedigan J suggested that the best course of action, where an applicant did not agree
with the criteria applied by the SWAO, was to avail of the special form of appeal
provided in the statutory framework.22He concluded that there was no duty on the
Department to maintain a database or open library of decisions to which the public
may have access and, therefore, no question of a right of access thereto arose. 23

Discussion
It would appear that Hedigan J would have been correct to reject this application, on
his understanding of the facts, on the basis that there was no evidence that any
relevant decisions existed and, therefore, no question of having access to them could
arise.24However, the Court's approach to the broader issue of access to such
decisions is rather worrying (see below).
Even if related decisions did exist, it is not clear that these would be very relevant to
the actual application for review.25Ms Jama had argued that her appeal turned on an
issue of law and that, given she had been declared a refugee, entitlement to child
benefit should be backdated to the birth of the child. 26This seems doubtful at best.
Whether a person is habitually resident or not is basically a question of fact
depending on the particular circumstances of the case. Although we do not know the
details of the appeals officer's decision, there is no indication that she took the view
that a legal issue arose, and she clearly did not decide that Ms Jama could not be
entitled to child benefit until her refugee status had been declared by the Refugee
Appeals Tribunal (as she dated entitlement from February 2006 while Ms Jama was
not recognised as a refugee until February 2007). 27In fact, the appeals officer found
Ms Jama to be habitually resident within about 6 months of her arrival in Ireland.
While *296 we do not know whether the applicant had any existing links with
Ireland, in the absence of such links, a six month period to establish habitual
residence is not exceptionally long. Even if any decisions of the SWAO existed, and
even if these showed a pattern of accepting that refugees are habitually resident in a
shorter period than six months (which seems highly unlikely), any decision as to
whether Ms Jama was habitually resident would still have to be determined on the
basis of the facts of her own case, and in the light of decisions of the European Court
of Justice (as the Irish definition of habitual residence is derived from EU law). 28
Ms Jama referred to the 1951 Geneva Convention on the status of refugees and
argued correctly that a person is a refugee from the moment that the conditions set
out in international law are satisfied, i.e. a person does not become a refugee
because of recognition, but is recognised because she is a refugee. She further
referred to Article 24 of the 1951 Convention, which requires a State to accord to
refugees lawfully staying within its territory the same treatment as is accorded to its
own nationals with respect to social security.29However, this provision would not
appear to assist the applicant. Section 3(2) of the Refugee Act 1996 (in
implementation of this provision) provides that a refugee in relation to whom a
declaration is in force

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shall be entitled to receive, upon and subject to the terms and conditions
applicable to Irish citizens, the same social welfare benefits as those to which
Irish citizens are entitled
However, the habitual residence condition also applies to Irish nationals and so
requiring the applicant to satisfy this condition involves no direct discrimination. 30
Turning to the broader issue of access to decisions more generally, one *297 may
have some concerns about the approach adopted by the Court. Indeed it is perhaps
surprising that the applicant sought an order directing the establishment of a system
allowing access to decisions, given that in Atanasov, in response to the argument
that the Court should hold that there was an obligation to provide an open library of
decisions, Geoghegan J stated that
I do not think that it would be the function of this court or of any other court to
direct the establishment of systems of that kind. What this court is concerned
with is the personal rights of the particular applicants before it. Provided each of
those applicants is given reasonable access in whatever form the Tribunal
considers fit to previous decisions which are being reasonably required for legal
relevance within the meaning which I have indicated, that aspect of the duty to
provide fair procedures is complied with.
The focus of the case should rather have been as in Atanasov on whether or not
there was a right of access to relevant decisions. In Atanasov the Court was
obviously dealing with issues concerning refugee status and the quite different
factual issues involved there. It was also careful to confine the judgment to persons
appearing before the Refugee Appeals Tribunal and to the obligations of that
Tribunal.31Nonetheless, the Atanasov judgment is based on the principles of
constitutional justice and there are a number of strong statements in that case about
the advantages of publically accessible decisions in ensuring consistency and equality
of arms.
The question is, therefore, whether or not the social welfare decision-making process
can be distinguished such that access to relevant decisions is not required. This turns
in part on the nature of the appeals process. Hedigan J stated that the applicant
considered the process to be an adversarial one leading to indicative, if not binding,
precedent, He stated that the Department, in contrast, argued that the process was
more in the nature of an administrative application resulting in a bare
determination recording the decision made. Unfortunately, the Court did not take the
opportunity to resolve this dispute but the answer is clear. More than 50 years ago,
the Supreme Court ruled that appeals officers perform a quasi-judicial function and
are required to be free and unrestricted in discharging their functions.32While it is
indeed true that a majority (perhaps a vast majority) of cases raise only issues of
fact, it is the case that, in practice, appeals officers' decisions do act as a form of
precedent. For example, in cases concerning insurability of workers, sample cases
are often selected for hearing whereby the outcome will be applied in relation to
other workers in the *298 same employment. 33Appeals officers do refer to previous
decisions of appeals officers and comment on whether they are following them or not
(and if not, why not). 34The Department (nominally the Oireachtas) recently
amended the social welfare code to provide that asylum seekers cannot be
considered to be habitually resident, following a decision by the then chief appeals

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officer ruling that they could (and rejecting the Departmental view). Frankly, the
argument that the appeals system is simply an administrative application is an
untenable one and should not be entertained by the judiciary.
Can the appeals system be distinguished from the Refugee Appeals Tribunal (RAT)
based on the difference in issues involved? Obviously the issues involved in the
refugee appeals process are factually very different from those involved in most
social welfare appeals. Nonetheless the social welfare appeals system involves the
interpretation of a complex code of law and issues of legal interpretation frequently
arise. It would appear that the advantages of access to decisions outlined in
Atanasov would also apply in relation to social welfare appeals and that, in an
appropriate case, a social welfare appellant should also be entitled to access to
relevant decisions as a matter of constitutional justice. Hedigan J suggested that if
an applicant did not agree with the criteria applied by the SWAO she should appeal
to the courts. Now, assuming that a right of appeal could act as a functional
alternative to access to decisions, one might doubt whether a cost-benefit analysis
would find that this was a cheaper option.

Conclusion
The good news from this case is perhaps that the Social Welfare Appeals Office is
already putting in place a new IT system which records decisions and which will be
used to increase the number of cases published (either in its annual report or
online). In the current context, online access seems to be the fastest and most costeffective option.35This should allow a much greater *299 access to legally important
decisions. Presumably appeals officers will be able to suggest decisions for
publication but it may be left open to other interested parties to suggest decisions
for publication. 36As Geoghegan J suggested in Atanasov the definition of legally
important should not be construed too narrowly and should not be confined to
narrow points of law in a technical sense. At the same time, while it may be
interesting to see how appeals officers approach cases, many of the decisions
currently published are primarily of a factual nature and it may be important to focus
more closely on decisions of legal importance. Hopefully the development of such a
system may obviate the need for further litigation.
This journal may be cited as e.g. (2009) 31 D.U.L.J. (ns) 1 [(year) (Volume number)
D.U.L.J. (ns) (page number)]
1.

This journal may be cited as e.g. (2009) 31 D.U.L.J. (ns) 1 [(year) (Volume number)
D.U.L.J. (ns) (page number)]
Dublin University Law Journal 2012, 35(1), 292-299

___________________________________________________________________________________________

*. Visiting Lecturer, National University of Ireland, Maynooth.

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2. Atanasov v Refugee Appeals Tribunal [2006] IESC 53.

3. See generally Part 10 of the Social Welfare (Consolidation) Act 2005 (the Act) as amended, discussed in Mel Cousins,
Social Security in Ireland (Kluwer Law International 2010) 299 et seq.

0
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4. State (Creedon) v Criminal Injuries Compensation Tribunal [1988] IR 51.

5. See ibid; Crake v Supplementary Benefits Commission [1982] 1 All ER 498.
6. See, for example, Hirvisaari v Finland, 49684/99, 27 September 2001. The extent to which this obligation applies,
however, may vary according to the nature of the decision and must be determined in light of the circumstances of the
case. Article 6.1 does not require a detailed answer to every argument and, in dismissing an appeal, an appellate court
might, in principle, simply endorse the reasons for the lower court's decision. A lower court or authority must, in turn,
give such reasons as to enable the parties to make effective use of any right of appeal.

0
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7. Article 18 of the Social Welfare (Appeals) Regulations 1998 [SI 108 of 1998].
8. In the UK there is a two-tier system of initial appeals, followed by appeal to a specialised appeal system (now the
Upper Tribunal), which deals with points of legal importance and has, for many decades, published its decisions.

0
0
0
0
0
0
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9. <www.socialwelfareappeals.ie>.
10. s 244 of the Act. See Cousins (n 3) 280 et seq.
11. The reasons for the decision are not recorded in the judgement.
12. The decision of the appeals officer has subsequently been upheld.
13. From 2011, new procedures are being developed, which are discussed below.
14.

[2011] IEHC 379, para 6.1.

15.

[2006] IESC 53.

16.

[2011] IEHC 379, para 3.2.

17. para 6.5. It would appear that the learned judge unfortunately mis-stated the facts on this point. Ms Jama's solicitor
stated that he was personally aware of at least one decision on this issue and the DSP evidence did not, in fact, contradict
this statement but focused on the lack of any database of decisions.

18. Manzeke v Secretary of State for the Home Department [1997] EWCA Civ 1888. The comments of Lord Woolf MR on
the usefulness of having the views of the Immigration Tribunal available so as to assist in consistency were cited with
approval by the Supreme Court in Atanasov. However, the English decision did not involve an issue concerning publication
of decisions and the views appear to have been, strictly speaking, obiter.

0
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19. para 6.6.

20. Citing State (Williams) v Army Pensions Board [1983] IR 308.
21. para 6.7.
22. para 6.8. Presumably, the reference is to the right to appeal to the High Court on a point of law under s 327.
23. para 6.9.
24. As noted above, it would appear that Hedigan J mis-stated the facts on this point and that the evidence was that at
least one decision did exist. However, as I argue and as the Department submitted, it is not clear that any such decision
would have been of major significance to the outcome of Ms Jama's appeal.

0
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0

25. Of course, the full circumstances of the case may not be apparent from the judgement.
26. para 3.2.
27. Note that this position has now been reversed by s 246(7) (as inserted by s 15 of the Social Welfare and Pensions
(No.2) Act, 2009), which provides that various persons shall not be regarded as being habitually resident in the State for
the purpose of the Act. These include asylum seekers in respect of whom a declaration of refugee status has not (yet)
been granted. See the discussion in Bob Clark's note on the Act in the Irish Current Law Statutes Annotated.

28. The only decision of the Irish courts on this issue is the ex tempore ruling in Douglas v Minister for Social Protection
[2012] IEHC 27. The decision in Solovastru v Minister for Social and Family Affairs (unreported, High Court, 1 June 2011)
did not consider any issues of relevance to this case.

0
0

29. See the decisions of the British Social Security Commissioner in CIS 564/94 & 7250/95.
30. The applicant also referred to the UK case of FK v HMRC [2009] UKUT 134 (the citation given in the judgement is
incorrect), in which it was argued that the Court ruled that the normal rules concerning the date of an award of benefit did
not apply where the claimant was granted asylum and that such a person is entitled to receive child benefits from the
date of claim for refugee status. In fact the Upper Tribunal did not rule to this effect as these provisions are set out in UK
law. The only issue in that case was whether the date of claim for refugee status was the date of initial unsuccessful

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application or the date of a subsequent successful claim. Again the case appears to provide no assistance to Ms Jama.

0
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31. The Court explicitly stated that its ruling did not concern applications to the Minister for Justice for leave to remain.
32. McLoughlin v Minister for Social Welfare [1958] IR 1.
33. As in Brightwater Selection v Minister for Social and Family Affairs [2011] IEHC 510.
34. As in Brightwater and ESB v Minister for Social, Community and Family Affairs [2006] IEHC 59.
35. See, for example, the website of the British Upper Tribunal (formerly the Social Security Commissioners), which has
an
excellent
database
of
decisions:
<http://www.justice.gov.uk/guidance/courts-andtribunals/tribunals/aa/decisions.htm>. Irish courts and tribunals do not provide many examples of good practice. There
are frequently long delays before decisions of the Irish High Court are online and many are still not in paragraphed format
(to allow easy reference); online (or any) access to Circuit Court decisions is practically non-existent; the RAT confines
access to decisions to appeal applicants' legal representatives; the Employment Appeals Tribunal provides open access to
all decisions but without any categorisation making location of relevant decisions very difficult; the Revenue Appeals
Commissioners publish very few decisions; and so on. As shown by UK practice, this is really not necessary.

36. There are also a number of historic decisions that are, however, of ongoing relevance and might be published, such
as the PARC Aviation decision concerning agency workers (discussed in Robert Clark, Agency Workers and Social
Insurance (2003) 23 DULJ 198) or the more recent decision by the chief appeals officer concerning asylum seekers and
habitual
residence

summarised
in
a
FLAC
Briefing
Note
at
<www.flac.ie/download/doc/09_09_01_hrc_briefing_note_final.doc>.

1..

[2011] IEHC 379.

The Authors and Dublin University Law Journal.