Social Welfare Appeal G0133: Invalidity Pension

Year: 2022

Type of Social Welfare: Invalidity Pension

Deciding Bodies: Appeals Officer, Chief Appeals Officer

Date of Final Decision: 25 October 2022

Keywords: Invalidity Pension, Partial Capacity Benefit, Effective Date, Evidence, Section 317, Overpayment, Offset, Reduction in Overpayment, Oral Hearing

Organisation who represented the Claimant: Community Law & Mediation

Title of Payment: Invalidity Pension

Casebase no: G0133

Case Summary:

This case concerns an appeal of a decision of an Appeals Officer (AO) which had upheld the original decision of a Deciding Officer (DO). Those decisions asserted that the Appellant had been overpaid Invalidity Pension (INVP) from 30 June 2016 to 3 February 2021, as a result of her having returned to work as a carer during that period. As a consequence, it was asserted that the Appellant was liable to pay the Department of Social Protection (Department) the sum of €55,829.70. On appeal, the Appellant asserted that she had been informed by a Limerick officer of the Department that she could continue to receive INVP if she returned to work; that the Revenue and Department had been made aware on various occasions that she was working and still in receipt of INVP and had failed to act in a reasonable time, and therefore the date of effect of the decision of overpayment should take effect from the date she became aware of her mistake in February 2021 (and not the date she commenced work in June 2016).

In April 2016, the Appellant was deemed entitled to INVP as she was prevented from working due to a depressive illness. In 2016, she visited a Department Intreo office in Limerick, where she spoke with a Department work (Officer) and applied for and was granted a training grant with a view to returning to work. The Appellant claimed that she was advised at this meeting that she could continue to claim INVP if she returned to work. The Appellant was a walk-in visitor, meaning she had not booked an appointment in advance of attending the Intreo office. The Appellant claimed that she subsequently called the same Officer to tell him that she received a job offer, and that she was again advised by him that she could continue to claim INVP when she returned to work, though she would pay a higher level of tax. The Appellant commenced work as a carer in June 2016.

In October 2016, the Appellant completed a medical questionnaire relating to her continued entitlement to INVP. On the questionnaire, she declared to the Department that she was in employment. The Appellant continued to receive INVP from the Department, and she was again deemed to still be eligible for INVP following a Department review in 2017.

During her period of employment, the Appellant continued to declare her INVP income to Revenue and made seven treatment benefit claims (which she was entitled to as a result of her employment).

In February 2021, the Appellant ceased working due to a relapse. She was informed by a friend that she could be entitled to partial capacity benefit (PCB) if she returned to work. The Appellant applied for and was awarded partial capacity benefit at 50% (though she never claimed this as she did not return to work. It was around this time that she became aware of her mistake as to her entitlement to INVP. On 11 March 2021, the DO issued a decision that the Appellant had not been entitled to INVP during her period of employment with effect from 30 June 2016, and as such she had received an overpayment of INVP of €55,829.70.

The Appellant appealed this decision to the AO. While she accepted that she had not in fact been entitled to INVP during the period of employment, she argued the DO had not taken the circumstances of her case into account when deciding the decision effective date (as required by s.302(b)), in particular her “innocent mistake and the Department’s failure to notice it notwithstanding the information she provided it”. The appeal failed and the AO upheld the decision of the DO (Revised Decision).

The Appellant originally sought to appeal the AO’s decision to the Chief Appeals officer under s.318 on the basis that the AO had erred in law or in fact in deciding that the Officer would not have provided the advice claimed by the Appellant, in the absence of an oral hearing or any evidence from that Officer. 

On 29 June 2022, in light of the Appellant’s submissions and request for an oral hearing, the Chief Appeals Officer considered that a review of the AO’s decision should in the first instance be conducted by an appeal officer (Second AO) under s.317. It would then be open to the Appellant to appeal such a decision to the Chief Appeals Officer under s.318 if she wanted to.

The key question for the Second AO to consider was whether the Revised Decision should be upheld, and the correct effective date of that decision.