A recent series of cases relating to Disability Allowance and Rehabilitation, have brought to light a
gross dereliction of duty of care due to a change of responsibility in the year 2000 which continues
to this day.
Thousands of people who could have received disability allowance with rehabilitation have been
denied their rights.
Case Study:
We have dealt with a particular case which shows widespread implications. The client is 18 years of
age with a history of neurodivergence.
We assisted with an application for Disability Allowance on the grounds of rehabilitation. The
application was refused.
FIOS Consultants then lodged an appeal with the Social Welfare Appeals Office. In addition, we
submitted a Freedom of Information to the Disability Allowance Section and the Medical Assessors
Section.
The results where shocking. The grounds of rehabilitation were not taken in account, and indeed
the Occupational Therapist’s report had not been read.
In the interim, the Appeals Officer had refused the appeal.
Fios conducted a full submission to the Chief Appeals Officer in advance of going to the High Court.
We were assisted by Stephen Kirwan of KOD Lyons Solicitors, Dublin. Stephen, and indeed the
practice, have a distinguished background in Human Rights law.
Rehabilitation is maintained in all the Health Acts since the 1930s, as a distinct basis for making a
Social Assistance payment. The application for rehabilitation was vague up to the National
Rehabilitation Board Act of 1970 which then gave structure, and the means of applying
rehabilitation. It continues as the grounding legislation.
In 1996, the Social Welfare (Consolidation) Act took responsibility for Disabled Persons
(Maintenance) Allowance and Disabled Persons (Rehabilitation) Allowance from the Department of
Health and incorporated these into the Act as Disability Allowance. This continued to the be the
responsibility of the Department of Health.
When the Act was reviewed in 2005, there were no significant changes.
In 2000, the then Minister of Health, Micheál Martin, transferred the duties of the National
Rehabilitation Board Act (1970) to the Department of Social Protection. The receiving minister at the
time was Dermot Ahern. It is incumbent for a sending Minister to be clear that the receiving
department has the structures in place to fulfil the duties inherent in the legislation. There is also a
duty of care in this regard. The receiving minister should also be satisfied that the Department is
ready to fulfil these duties.
Part of FIOS Consultants Freedom of Information request was for guidelines within the Department
of Social Protection that are in use by Medical Assessors to assess a case for rehabilitation in respect
of education and employment. What we discovered was nothing!
What this effectively means is that since 2000 no applications for Disability Allowance on the
grounds of rehabilitation have been assessed using standardised guidelines. It is probable that more
than 5000 people per year have fallen through the net.
This is a conservative estimate, given that more than 20 000 applications are received per year with
50 percent being refused.
Conservatively 120 000 people have not been assessed on the basis of rehabilitation in the 24 years
since the Minister of Health transferred his duties and responsibilities in this regard in 2000.
It truly is a shocking indictment of the State’s attitude to supporting people who could benefit from
rehabilitation. It is of a piece with the treatment of Rehabilitation Case Officers working for non-
governmental organisations trying to address these omissions.
The NGOs operating in this area are operating in respect of a Government Department, the
Department of Social Protection, that is functioning with no Operational Guidelines specific to its
remit under the National Rehabilitation Board Act. It is truly scandalous.
In the case of our client, the Chief Appeals Officer found that the Department had failed in its Duty
of Care in relation to rehabilitation and authorised the payment of Disability Allowance.
Some months later in a similar case taken by FIOS Consultants, the Appeals Officer accepted that the
grounds of the first case were persuasive, and the appeal was allowed without the case going to the
Chief Appeals Officer.
Although this is a positive outcome in two cases, This is two cases out of a putative 120 000 cases
and is not just.
In conclusion we strongly believe than any future plans to restructure disability related payments
must address these shortcomings.
Again, we reiterate our gratitude to Stephen Kirwan of KOD Lyons in preparing the legal basis of our
cases.
For further information contact:
Séagh Mac Siúrdáin
FIOS Consultants
[email protected]
Tel: 0876699023