Rehabilitation and Disability Allowance
A recent series of cases relating to Disability Allowance and Rehabilitation has brought to light a gross dereliction of duty of care, caused by a change of responsibility in the year 2000 that continues to this day. Thousands of people who could have received Disability Allowance on rehabilitation grounds have been denied their rights.
The case
We dealt with a particular case with widespread implications. Our client is 18 years old, with a history of neurodivergence. We assisted with an application for Disability Allowance on the grounds of rehabilitation. The application was refused.
FIOS lodged an appeal with the Social Welfare Appeals Office, and separately submitted a Freedom of Information request to the Disability Allowance Section and the Medical Assessors Section.
The results were shocking. The grounds of rehabilitation were not taken into account, and indeed the Occupational Therapist's report had not been read.
In the interim, the Appeals Officer had refused the appeal. FIOS prepared a full submission to the Chief Appeals Officer in advance of going to the High Court, assisted by Stephen Kirwan of KOD Lyons Solicitors, Dublin - a practice with a distinguished background in human rights law.
The legislative background
Rehabilitation has been maintained in every Health Act since the 1930s as a distinct basis for a Social Assistance payment. The basis for applying it stayed vague until the National Rehabilitation Board Act 1970, which gave it structure and a means of application: it remains the grounding legislation. In 1996, the Social Welfare (Consolidation) Act took the Disabled Persons (Maintenance) Allowance and Disabled Persons (Rehabilitation) Allowance out of the Department of Health's direct administration and incorporated them into Disability Allowance, still under the Department of Health. When the Act was reviewed in 2005, there were no significant changes.
In 2000, the then Minister for Health, Micheál Martin, transferred these duties to the Department of Social Protection, under receiving minister Dermot Ahern. It's incumbent on a sending minister to be clear that the receiving department has the structures in place to fulfil the duties inherent in the legislation: there's a duty of care in that handover, and the receiving minister should be satisfied the department is ready to meet it.
Part of our Freedom of Information request asked for the guidelines used within the Department of Social Protection by Medical Assessors to assess a rehabilitation case in respect of education and employment. What we found was nothing.
What the numbers suggest
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's probable that more than 5,000 people per year have fallen through this net - a conservative estimate, given that more than 20,000 applications are received per year with roughly 50 percent refused. Conservatively, 120,000 people have not been assessed on the basis of rehabilitation in the 24 years since the Minister for Health transferred this responsibility in 2000.
It's a shocking indictment of the State's approach to supporting people who could benefit from rehabilitation, and it's of a piece with how Rehabilitation Case Officers working for NGOs in this space have been treated. Those NGOs are operating in respect of a Government Department functioning with no Operational Guidelines specific to its own remit under the National Rehabilitation Board Act. It's genuinely scandalous.
The outcome
In our client's case, the Chief Appeals Officer found that the Department had failed its Duty of Care in relation to rehabilitation, and authorised payment of Disability Allowance. Some months later, in a similar case taken by FIOS, the Appeals Officer accepted that the grounds of the first case were persuasive, and allowed the appeal without escalating to the Chief Appeals Officer.
Two cases resolved is a positive outcome for those two people. It is two cases out of a putative 120,000, and it is not justice at scale.
We strongly believe that any future plans to restructure disability-related payments must address these shortcomings. We reiterate our gratitude to Stephen Kirwan of KOD Lyons for preparing the legal basis of these cases.
Figures and estimates in this case study (including numbers of people potentially affected nationally) reflect Séagh's own assessment based on this case and FOI findings, not an independently audited statistic.