Social Welfare Appeal G0071

The Appellant is a mother of two children.  In 1996 she had one child, a son, and she was living in her parents home. She applied for and was awarded the One Parent Family Payment [OPFP]. The Appellant’s second child, a daughter, was born in December 2010. The Appellant did not apply for an increase on her claim in respect of her daughter, and advised the Department of Social Protection [“the Department”], in writing, that she did not wish to claim an increase because the father, John [not his real name], was supporting her daughter by providing weekly maintenance payments.

When completing and signing claim review forms in 2009 and 2011, the Appellant maintained that she continued to reside in her parents’ house.

In 2012 the Department reviewed her claim, and in the course of their investigations established that the Appellant and John had jointly purchased a property in 2008.

In December 2012 a Deciding Officer issued a letter to the Appellant setting out the facts and evidence that in the Department’s opinion were consistent with a finding that the Appellant had been cohabiting with John from February 2008 – to the present. The Appellant was afforded the opportunity to respond before a decision was made.  The Appellant replied by way of letter asserting that she had resided for a short period with John in 2008, but John’s relationship with her son was so poor she had to move out in May 2008.  The Appellant asserted that from May 2008 to October 2012 she resided with her sister. She claimed that in October 2012 she moved back in with John but did not know if the relationship would last which is why she delayed notifying the Department.

The Department rejected the Appellant’s assertions, and on 15th January 2013 a Deciding Officer issued a decision whereby it was contended that from February 2008 to 9th January 2013 the Appellant was cohabiting with John and was therefore not entitled to the OPFP.  The decision was made in accordance with s. 302(a) of the Social Welfare Consolidation Act 2005 [as amended]. As a consequence of this revised decision, the Appellant was found liable for an overpayment amounting to €48,766.80.

The Appellant appealed the decision, and an oral hearing was held on 2nd December 2013.  The Appellant was unrepresented at the time. On 17th December 2013 the Appeals Officer disallowed the appeal in respect of the periods 21st February 2008 to 14th May 2012, and 20th October 2012 to 9th January 2013.  The Appeals Officer held that on the basis of a letter issued by the mortgage provider in November 2013, which referred to a Standard Financial Statement [SFS] completed by John in May 2012, the Appellant should have the benefit of “the very slight doubt” that she was not living with John at that time. Accordingly, the Appeals Officer did not make a finding that the Appellant was cohabiting from the date of the SFS [May 2012] to October 2012.

On 23 September 2014 Waterford MABS, on behalf of the Appellant, requested a review of the Appeals Officer’s decision.  The request for a review was made in accordance with s.317 and s.318 of the Social Welfare Consolidation Act 2005. MABS asserted that the Appeals Officer’s reasoning was flawed to the extent that there had been errors in fact and law in this case. MABS also submitted new evidence in the form of an Affidavit from the Appellant’s son who was then aged 18.

The Appeals Officer reviewed his decision, and in February 2015 he rejected MABS assertions.  The Appeals Officer restated his findings and did not accept that were grounds to revise his decision.

On 10 March 2015 MABS responded, requesting that the Chief Appeals Officer review the Appeals Officer’s decision in accordance with s. 318 of the Social Welfare Consolidation Act 2005 [as amended].

On 1st May 2015 the Chief Appeals Officer revised the decision of the Appeals Officer and allowed the appeal.