Jama -v- Minister for Social Protection

Neutral citation (2011) IEHC 379.

High Court

Judgment was delivered on October 11th, 2011, by Mr Justice John Hedigan.

Judgment

There is no obligation on the Department for Social Protection to maintain an anonymised database of decisions of appeals officers, available for examination by members of the public, in relation to claims for social welfare benefit.

Background

The applicant is a Somali refugee who entered the State in August 2005 and applied for refugee status. She gave birth to a child in October 2005.

Her claim for refugee status was refused in February 2006, but was granted on appeal in March 2007. She was granted child benefit for her child from this date on the grounds of habitual residence. She appealed this and was then granted child benefit from February 2006, the date of the first decision.

She sought a review of this decision, seeking the back-dating of the child benefit to the date of his birth in October 2005, citing refugee law which states that refugees are regarded as qualifying for social welfare benefit.

Her lawyers argued that a person is a refugee when they flee persecution, they do not become one when they receive recognition from the State. Therefore the habitual residence should apply from the time of entry into the State and, in this case, from the subsequent birth of the child.

The matter is under review by the chief appeals officer in the social welfare appeals office.

In pursuit of the review, the applicant sought copies of any previous decisions by appeals officers or chief appeals officers in relation to the date from which persons, who have been recognised as refugees, are regarded as satisfying the habitual residence requirement. The social welfare appeals office said it did not keep such decisions, but forwarded them to the department. The decisions are therefore being sought from the Department of Social Protection.

The applicant argued that in the absence of access to relevant decisions, she could not be sure that the decision in her case was objectively fair and not arbitrary. She accepted that not all decisions should be published, but said that those which address issues of principle, law or policy should.

She relied upon her constitutional right to fair procedures. She also argued that the publication of such decisions would ensure greater consistency in decision-making by the Social Welfare Appeals Office.

She cited the case of Atanasov Others -v- Refugee Appeals Tribunal (2007), where the High Court and the Supreme Court on appeal found that previous decisions of the tribunal should be made available to applicants for refugee status.

The department argued that the decision in this case was distinguishable, in that no database was maintained, so there was no inequality of arms between the applicant and the respondent. Further, it argued that decisions are made on individual facts, and also that the cost and logistical burden of establishing such a system would be unreasonable and disproportionate.

Decision

Mr Justice Hedigan said that the nature of appeals officer hearings was differently perceived by the applicant and the respondent. The applicant considered them to be hearings which were adversarial in nature which may result in a form of judgment; the respondent considered them to be more of an administrative application resulting in a determination recording the decision made.

He said that the respondent had said there was no database of such decisions and the applicant had not cross-examined the department’s witness in this regard and so had not shown there was.

Considering whether there was an obligation to maintain such a database, he said he understood the social welfare appeals office was introducing a computer records system, but this was not available either to the public or the department. The problem with such a database was that it contained information that was personal and therefore confidential. Anonymising such a large database would be a very costly exercise.

Referring to the cases cited, he said that these related to the political situation in certain countries, while the social welfare decisions related to whether a person met the requirements set down in statute.

Information could also be refused on public policy grounds and the maintenance of an anonymised database would be very expensive, which had to be balanced against the somewhat doubtful benefit that might accrue to the applicant.

The issue here was the criteria used to access “habitual residence” and when the entitlement to child benefit commenced. The best course of action was to avail of the special form of appeal under the legislation.

He ruled therefore that there was no duty on the department to maintain a database of decisions, to which the public could have access.