Social Welfare Appeal G0085

Year: 2016

Type of Social Welfare: Jobseekers Allowance

Deciding Body: Appeals Officer

This case relates to the decision by a Deciding Officer (DO) to assess the Appellant as though one of a couple for the purpose of his Jobseekers Allowance (JA) claim, despite his declaration that he is a separated single man.

The Appellant asserted that he separated from his wife, Ms.X, in or around 2000, but did not leave the family home for financial reasons.  The Appellant and Ms.X, though separated, continue to reside in the same house, which they jointly own.  They did not obtain a legal separation.  During previous periods of unemployment following his separation the Appellant had been assessed as a single person for JA purposes.

At the end of May 2016, the Appellant ceased employment and made a claim for JA. When making his application he declared that he was separated, and he provided information with respect to other members of the household, including his wife, Ms. X.  On 1st June 2016 JA was awarded to the Appellant at the rate of €188 per week, the amount payable in respect of a single person .  After awarding the payment, the Appellant’s claim was referred to a Social Welfare Inspector (SWI) for investigation, and the Appellant was interviewed on 16th June 2016. The SWI requested that the Appellant submit evidence of his wife’s earnings despite his assertion that he was a separated man.  On receipt of this evidence, means of €305 from Ms. X’s employment were assessed against the Appellant’s claim, and a decision was made to reduce his JA to €7.80 per week. This decision took effect from 22nd June 2016. In making this decision, the DO made a finding that the Appellant was one of a couple, that the Appellant had not established that he was separated from his wife.

Shortly after receiving the decision of the DO, the Appellant submitted Notice of Appeal to the Social Welfare Appeals Office, together with a letter from the Legal Aid Board confirming that he had made an appointment with respect to commencing separation proceedingsThe Appellant then sought the assistance of CLM. CLM sought the release of documents held by the Department of Social Protection under the Freedom of Information Act 2014.

The Department of Social Protection (DSP) referred the matter to another SWI for further review following the Appellant’s submission of his Notice of Appeal. On 28 July 2016 a SWI made an un-notified call to the Appellant’s home. According to the “Means Reporting Form” completed by the SWI on that date, the Appellant’s status was recorded as “married – but separated the last 15 years”.  The report also confirmed that the Appellant and his wife jointly own the property in which they live.

The SWI in her report, of 29 July 2016, noted:

“ [w]hile there did appear  to be bedding on the kitchen table , there was no evidence of any disarray that would result in 2 people sleeping downstairs  and 2 adults and 2 children sleeping upstairs in a 2 bedroomed house…Though Mr… does appear to be now proceeding legally with separation, they are both living under the one roof and I cannot rule out cohabitationI recommend that the means applied to the client’s claim continues and that he be advised of his right to appeal that decision.”

The SWI did not interview the Appellant’s wife, Ms. X.

CLM made a written submission setting out legal arguments, and on 7 December 2016, CLM represented the Appellant at an oral hearing. In addition to the written submission, affidavits attesting to the relevant facts were submitted from the Appellant, his wife, and his sister.

On 20 December 2016, the Appeals Officer allowed the appeal