Doctoring Statistics: C.S.B -v- The Minister for Social Protection, [2016] IECA 116

I have posted before on unsuccessful efforts, in Australia and Canada, to invoke statistical evidence in order to demonstrate bias on the part of an administrative decision-maker. In the Australian and Canadian scenarios, the claims of bias were based on evidence showing that immigration officials invariably rejected asylum applications. An interesting recent Irish case, C.S.B -v- The Minister for Social Protection, [2016] IECA 116, is another example of unsuccessful resort to statistics — but in light of Hogan J.’s decision for a unanimous Court of Appeal one wonders whether it would ever be possible to demonstrate bias in this way.

Here, the mother of a young boy who had been diagnosed with autism was refused a domiciliary care allowance by the Minister. Her argument was “that the Department of Social Protection in effect operates a policy whereby the opinions of its medical assessors are dutifully followed by departmental deciding officers, irrespective of the medical evidence actually submitted by claimants” (at para. 9). Affidavit evidence from the Department suggested that it would indeed be “unusual” for deciding officers not to defer to medical experts (at paras. 10-11).

Remarkably, the particular decision-maker here had followed the medical assessors in 3,806 out of 3,806 cases, 100% of the time, with no particular bias in favour or against claimants. Barrett J. found at first instance ([2014] IEHC 186) that the decision-making process had been tainted by undue deference to the medical assessor and sent the decision back for fresh consideration. Hogan J. disagreed, noting in particular that the deciding officer is bound by statute to have regard to the medical assessor’s opinion, and concluding:

I find myself in respectful disagreement with [Barrett J.’s] analysis. It comes back to the same point, namely, that the deciding officer inevitably follows the medical assessor’s opinion, a matter to which he or she is statutorily required in any case to have regard. If it were indeed the case that the deciding officer regarded himself or herself as bound by the medical assessor’s opinion, this would clearly amount to an unlawful fettering of discretion…While the deciding officer is required by statute to have regard to that opinion, he or she is nonetheless required to make his or her own independent decision. But short of that, the fact that the deciding officer invariably follows the views of the medical assessor is not in point (at para. 30).

The Australian and Canadian cases would appear to support Hogan J.’s conclusion: without more, statistics cannot demonstrate bias. Maybe the officials in the Australian and Canadian cases were just unlucky to be assigned weak asylum claims and the deciding officer here might simply have been unlucky to be assigned claims where the medical assessor always made a strong recommendation one way or the other.

However, this is not really a pre-judgement case. Rather, it represents a variant on the old ‘rubber stamping’ problem, which arises where the statutorily designated decision-maker adopts the view of a third party rather than reach an independent judgement on the merits. The problem was not that the deciding officer was prejudiced against claimants, but that the deciding officer “had effectively applied a fixed policy position whereby the medical assessor’s opinion was unthinkingly and unquestioningly endorsed…” (at para. 33).

Hogan J. held that this was still not enough: “Statistics aside, there is no evidence that the deciding officer in question adopted this attitude. In this case, statistics alone do not, however, prove the existence of a fixed policy position” (at para. 33).

I tend to disagree. Statistics might not be enough to demonstrate pre-judgement for or against a particular type of claimant, but at some point they must be capable of demonstrating an unlawful sub-delegation of decision-making authority. Invariably following the recommendation of a third party, regardless of whether those recommendations are favourable or unfavourable to a claimant, is to substitute the third party for the statutorily-designated decision-maker. Doubtless difficult borderline cases might arise, but 3,806 out of 3,806 is a statistic that speaks for itself. As Barrett J. concluded:

[T]he policy whereby deciding officers generally defer to the opinions of department medical assessors in the manner and circumstances described has yielded a situation in the instant case in which there has been an abdication of statutory duty by the deciding officer who decided B.’s initial application. Indeed the manner of implementation of such policy in the case of the deciding officer who decided B.’s initial application is such that the court finds it has vitiated the decision-making process employed in relation to that application; this is because the deference manifested by this particular deciding officer to the opinion of medical assessors has been proven to be so great that the court concludes that the medical assessor’s opinion volunteered in the course of the consideration of B.’s initial application was in fact determinative of that application…([2014] IEHC 186, at para. 26).

At the very least, the onus should have been on the Minister to demonstrate that, despite the statistics, deciding officers were exercising independent judgement on the merits of individual cases. Here, the affidavit evidence did no such thing.

If statistical evidence is insufficient to win a case like this one, it will always be insufficient.

This content has been updated on May 9, 2016 at 11:58.