Thematic Note G0118: Invalidity Pension

Title of Payment: Invalidity Pension

Date of Final Decision: SWAO Annual Reports 2009-2020

Keywords: Invalidity Pension; incapable of  work; Disability

Casebase no: G0118

Summary of the relevant law:

The primary legislative provisions governing invalidity pensions are set out in Part 2, Chapter 17 (ss. 118 – 122) of the Social Welfare Consolidation Act 2005 (as amended) (the “Act”). Further provisions regarding invalidity pensions are contained in Part 2, Chapter 9 (regs. 76 – 78) of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (the “Regulations”).

The Act provides that a person will be entitled to an invalidity pension where they meet two conditions:

a) the person is permanently incapable of working due to an illness or disability and would be available to work were it not for that illness or disability (the “Medical Condition”); and

b) the person has made PRSI contributions in respect of at least 260 weeks since first entering social insurance and has made PRSI contributions (or been credited with PRSI contributions) in respect of at least 48 weeks in the last or second last complete contribution year before the “relevant date” – i.e. any date after the person became permanently incapable of work (the “Contribution Condition”).

The definition of “permanently incapable of work” is set out in the Regulations (reg. 76). To be “permanently incapable of work” a person must be able to provide evidence that they:

a) have been Incapable of work for a period of one year and are likely to continue to be incapable of work for at least a further year; or

b) are likely to be incapable of work for life.

The decision as to whether a person is “permanently incapable of work” is made by a Deciding Officer in the Department for Social Protection (the “DSP”).

A person may be disqualified from receiving an invalidity pension on a number of grounds specified in both the Act (s. 118(3)) and the Regulations (reg. 78), including:

a) failure to comply with instructions from, or receive treatments recommended by, medical practitioners;

b) failure to attend any medical examinations required by the DSP; or

c) failure to respond to any reasonable enquiries from an officer of the DSP regarding their claim for an invalidity pension.

“Part 2- Chapter 8 (Sections 40 to 46) of the 2005 Act and at Part 2- Chapter 1 (Articles 20 to 28) of the 2007 Regulations. Section 40 (3) (a) of the 2005 Act provides that, for the purposes of any provision of this Act relating to illness, a day shall not be treated as a day of incapacity for work unless on that day the person is incapable of work.” (Case 2020/13)

Key grounds of appeals by appellants: 

The two key grounds for appeal were:

a) applicants challenging the finding of the Deciding Officer that they are not permanently incapable of work, often by providing additional medical evidence;

b) applicants challenging the finding of the Deciding Officer that they have not made sufficient PRSI contributions to meet the Contribution Condition.

For appeals turning on being “permanently incapable of work”:

•  immediately before the date of claim for the said pension –  see Case 2016/13, Case 2017/14. Case 2018/08, Case 2018/10, Case 2019/10, Case 2019/318/68);
• at the time of making a claim the person – see Case 2016/12, Case 2017/15, Case 2018/09, Case 2019/08, Case 2019/09, Case 2020/10, Case 2020/11, Case 2020/12);
• continuously – see Case 2016/12, Case 2016/13, Case 2017/14,Case 2017/15, Case 2018/08, Case 2018/09, Case 2018/10, Case 2019/08, 2019/09, Case 2019/10, Case 2019/13, Case 2019/318/68, Case 2020/10, Case 2020/11, Case 2020/12;
• incapable of work for a period of one year and likely to continue – see Case 2018/08, Case 2019/10, and Case 2019/318/68.

Observations on appeal outcomes: 

The majority of appeals have related to cases where applications have been disallowed on the basis of a failure to meet the Medical Condition. As would be expected, medical evidence is crucial in these appeals. A statement from a GP or other medical professional that the applicant is likely to be incapable of work for one year (or indefinitely, in cases where the applicant has been incapable of work for less than one year) is often highly persuasive. In cases of unclear or conflicting medical opinions, evidence from oral hearings is often considered significant.

Applicants who are applying for an invalidity pension following the expiry of their Illness Benefit after two years of payment will have already satisfied the requirement of being incapable of work for more than one year so only need to satisfy the lower bar of proving that they are likely to be incapable of working for a further year. Applicants who have only needed to prove that they are likely to be incapable of work for the next year have generally been more successful than those who have needed to prove that they are likely to be incapable of work for life.

Where an applicant is no longer capable of doing a certain type of work (e.g. manual work) but is capable of doing other types of work (e.g. “lighter” non-manual work), they are unlikely to be considered permanently incapable of working.

An exception may be seen in Case 2019/13 where, The Appeals Officer took into consideration the appellant’s work experience for their qualifications for them being permanently incapable of working, before ruling in the appellant’s favour.

There have been a much smaller number of appeals in cases where the applicant’s application was disallowed on the basis of a failure to meet the Contribution Condition. Where an appeal is made on these grounds, the applicant is expected to produce evidence that the DSP’s records in respect of contributions are inaccurate or incomplete. The successful appeal in Case 2018/11 suggests that Appeals Officers are  willing to interpret the “relevant date” for the purposes of the Contribution Condition as being any date after the applicant becomes permanently incapable of work. Applicants should therefore seek to identify the “relevant date” that is most favourable for their claim.

Only one section 318 review in relation to invalidity pensions has been noted in the SWAO annual reports. In Case 2019/318/68, the Chief Appeals Officer ruled that a farmer who could no longer work as a farm “employee” (i.e. performing jobs on the farm himself) but could continue to work as a farm “employer” (i.e. managing the farm and arranging for jobs to be performed by others) was not permanently incapable of work. The term “permanently incapable of work” is a neutral one which does not make a distinction between working as an employer or an employee.