Social Welfare Appeal G0134: Carer’s Allowance – Overpayment

Year: 2022

Type of Social Welfare: Carer’s Allowance

Deciding Body: Social Welfare Appeals Office

Title of Payment: Carer’s Allowance

Date of Final Decision: 29 August 2022

Keywords: Overpayment – Carer’s Allowance – Reduction of Overpayment

Organisation who represented the Claimant: Community Law & Mediation

Casebase No. G0134

Case Summary:

This case relates to an appeal of the decision of the Deciding Officer of the Department of Social Protection (DSP) that there was an overpayment of the Carer’s Allowance to the appellant. 

Carer’s Allowance is a means-tested social assistance payment available to people on low incomes who are full-time carers of another person.  The person being cared for may need support due to disability, illness or age and they must require full-time care.  There is a number of criteria which needs to be fulfilled in order for a carer to be found entitled and granted payment.  In accordance with social welfare legislation, the carer is under a legal obligation to inform the DSP of any change in circumstances after they have been granted payment.

One of the qualifying conditions for this payment is that the person being cared for must not be living in a hospital, convalescent home or other similar institution.

The appellant in this case had been receiving Carer’s Allowance since having been found eligible for the payment in March 2011.  However, in June 2015, the DSP was notified that the person being cared for had been in long-term residential care since May 2013.  Following this, the Directing Officer of the DSP notified the appellant that they were not entitled to receive payment for the period of 6 May 2013 to 17 June 2015.  This gave rise to an overpayment of €25,037 and this would have to be recovered.

As the appellant genuinely believed that they were entitled to the payment during this period, and had not lied nor hidden information, this was found not to be fraud.  If it was fraud, the appellant may have been criminally prosecuted and a reduction in the sum of the overpayment recoverable would not be available.  However, regardless of the fact that this was not fraud, there was still deemed to have been an overpayment.

The Social Welfare Appeals Process in accordance with the Social Welfare (consolidation) Act 2005 as amended is as follows:

s. 300 – Deciding Officer makes decision on social welfare application.

s. 301 – Applicant can request that a Deciding Officer reviews a refusal.

s. 311 – Applicant can appeal to the Social Welfare Appeals Office (SWAO) and an Appeals Officer makes a decision.

s. 317 – Appellant can request a review of the Appeals Officer’s decision.

s. 318 – Appellant can request a review by the Chief Appeals Officer.

s. 327 – Appellant can make a statutory appeal to the High Court.

The appellant took the following actions to challenge the Deciding Officer’s decision.

On 1 July 2015, the client initially responded to the Deciding Officer of the DSP stating that they genuinely believed they were entitled to the payment during this period as they were still providing care.  They also explained that they were already in a difficult financial situation.

On 19 April 2021, Money Advice and Budgeting Service (MABS) sent a letter on behalf of the appellant

submitting that there had been no offset and that the appellant would have been entitled to Supplementary Welfare Allowance (SWA) during that period.  This was an unsuccessful argument for the following reasons. 

Firstly, the Carer’s Allowance overpayment could not be offset as  the SWA was an allowance or social assistance payment. An overpayment can only be offset if the payment the appellant would have been eligible for was a benefit or social insurance payment.  The difference being that an allowance is means tested whereas a benefit is a PRSI benefit from having worked previously.

Secondly, the appellant could only be held eligible if they had applied for SWA.  They could then apply in 2021, however it could only be backdated by six months and so this would not apply to the period of concern.  The Social Welfare Services Office decided to not revise the Deciding Officer’s decision.

The appellant then appealed the decision to the Social Welfare Appeals Office (SWAO).  The SWAO upheld the decision, dismissing the appeal, and held that discussion concerning the recovery of overpayment should be with the Debt Recovery Unit of the DSP.  The SWAO also held that only the issue of the entitlement of the appellant to Carer’s Allowance was under review.  Issues such as other potential entitles, off sets and the appellant’s financial situation was held to be outside the scope of the SWAO.

Therefore, on the 29 August 2022, the final decision was made by the SWAO that the appeal remained disallowed.