Social Welfare Appeal G0050

Year: 2013

Type of Social Welfare: Guardian's Payment Contributory

Deciding Body: Appeals Officer

This case concerns the Appellant’s entitlement to Guardian’s Payment (Contributory), formerly Orphan’s (Contributory) Allowance, in respect of her two grand children, for the period 5th of January, 2011 to 7th of March, 2013.

The Appellant had been in receipt of Guardian’s Payment (Contributory), hereafter GPC, since 13th September 2002. Following a review, a letter was issued by a Deciding Officer [DO] on 25th of February, 2013 advising the Appellant of the factors which indicated that she was not eligible for the payment of the GPC between January 2011 – March 2013, and that she had incurred an overpayment. The Appellant was afforded the opportunity to bring any relevant matters to the notice of the DO before a final decision was issued. The Appellant duly submitted evidence at this time in support of her claim.

The Appellant’s claim was suspended on 1st of March 2013 for the reason that the children’s mother was “resident at same address and has not abandoned and failed to provide for her children”. However, on review of the evidence submitted by the Appellant, a decision was made on 21st of May 2013 to reinstate the claim with effect from 8th March 2013. This decision was made on the basis that this was the date when the children’s mother allegedly ceased residing at the Appellant’s address.

The DO affirmed the position that for the period 5th January 2011 to 7th March 2013 the Appellant was not eligible for the GPC for the reason that “it could not be considered that the [children’s mother] had abandoned her [children].”

On the 3rd July 2013, the DO confirming her findings with regard to the period January 2011 – March 2013 made a revised decision as follows:

According to the records of the Department, the children’s mother stayed with them two or three nights a week and had regular contact with the children during the period 5 January 2-11 to 7 March 2013, therefore, the children’s mother could not have been considered to have abandoned and failed to provide for them.

The decision was retrospective in effect; that is, the DO found that that Appellant was not eligible for GPC for the period 5th January 2011 to 7th March 2013. As a consequence, the Appellant was assessed with a liability for an overpayment of GPC amounting to €32,522.

On the same date, an officer, authorised by the Department of Social Protection [the Department] to recover debts owed to the Department, issued a letter seeking the recovery of the overpayment.

On behalf of the Appellant, NCL&MC submitted notice of appeal to the Social Welfare Appeals Office on the 20th of August 2013.

On 17Th December 2013, the Appeals Officer allowed the appeal. The Appeals Officer found that “the children were orphans for the purposes of social welfare legislation in the period 7/1/11 to 7/3/13.”