Thematic Note G0119: Illness Benefit
Years: 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018, 2019, 2020
Type of Social Welfare: Illness Benefit
Deciding Body: Social Welfare Appeals Office
Title of Payment: Illness Benefit
Date of Final Decision: SWAO Annual Reports 2009-2020
Keywords: Illness Benefit; Disability; Incapable of work; PRSI Contributions
Casebase no: G0119
Summary of the relevant law:
Illness benefit is a weekly payment that can be made to an individual who:
a) is incapable of work due to illness;
b) is under 66 years old; and
c) has made the required PRSI contributions (see below).
Under Section 40 of the Social Welfare Consolidation Act 2005 (as amended), illness benefit can be paid for any “day of incapacity for work” which forms part of a “period of interruption of employment”. In this context:
- a “day of incapacity for work” means a day for which the individual is certified as unable to work (or to look for work) due to illness; and
- a “period of interruption of employment” means any 3 days (whether consecutive or not) within 6 consecutive days.
Neither weekends nor paid holiday leave are taken into account when counting “days of incapacity for work” or a “period of interruption of employment”.
Section 41 of the Social Welfare Consolidation Act 2005 (as amended) provides that, to be entitled to illness benefit, generally an individual must have:
a) at least 104 PRSI contributions paid since they first started working; and
c) 39 weeks of PRSI contributions paid or credited in the relevant tax year, of which 13 must be paid; or
d) 26 weeks of PRSI contributions paid in each of the relevant tax year and the previous tax year.
These rules are adjusted in certain circumstances, e.g. where an individual is already in receipt of certain other benefits immediately before applying for illness benefit.
For these purposes, the relevant tax year is the second-last complete tax year before the year in which a claim for illness benefit is made. E.g. where claim is made in 2022, the relevant tax year is 2020.
Social security contributions paid in certain other EEA member states or the UK can be counted for the purposes of qualifying for illness benefit, provided however that the last social security contributions were paid in Ireland. Periods of employment in certain other EEA member states of the UK can also be taken into account.
Key grounds of appeals by appellants:
The majority of the appeals are in relation to medical eligibility for Illness Benefit, i.e. that the individual is incapable of work due to illness. In the majority of these appeals, the appellant had been examined at least once by a Medical Assessor appointed by the Department of Social Protection but disagreed with their medical assessment. The various grounds for disagreement include: (1) that the medical assessment only focused on physical impairment and not on mental health issues (regardless of whether these mental health issues were separate, related or resultant); (2) that further medical evidence contradicts the medical assessment; (3) that the medical assessment failed to take into account the severity of the medical condition; or (4) that the appellant’s condition is changeable and was not at its worst on the day when the medical assessment was carried out.
There have only been two appeals where the appellant challenged the requirement to have a certain number of PRSI contributions. In both of these cases, the SWAO rejected the appeals on the basis that the PRSI contributions are a statutory requirement and that it cannot be waived.
Observations on appeal outcomes:
As an overall observation, appellants are generally successful where they provide plenty of evidence to demonstrate that they are incapable of work. The evidence does not necessarily need to be medical or specifically related to their work duties – the SWAO also takes into account the impact that the illness has on the appellant’s daily life and routine tasks, e.g. ability to look after oneself and to do recreational activities.
While this evidence can be anecdotal and provided personally by the appellant, appellants are generally more successful where they provide letters of evidence from their GP and/or other medical practitioners. Where the GP has a long term relationship with the appellant and is familiar with their medical history, the letter from the GP can sometimes even take precedence over the medical opinion from the Medical Assessor that is appointed by the Department of Social Protection. For example, in one appeal, the SWAO disregarded a medical assessment which was carried out on a day in which the appellant coincidentally wasn’t in much pain. It can also be helpful to provide copies of scans and medical tests.
In addition to physical illness, the SWAO also takes into account an appellant’s mental illness. There is only one case in the Annual Reports where an appellant has been successful in arguing that they were incapable of work due to mental illness alone, in Case 2018/11. . Similar to physical illness, the mental illness must render the appellant incapable of work – generally, moderate mental health issues, general stress or an inability to cope with the demands of a busy job are not considered to render an individual incapable of work for the purposes of Illness Benefit. That said, the SWAO does take mental illness into account where it arises in conjunction with physical illness. For example, the SWAO has considered appellants to be incapable of work for the purposes of Illness Benefit where they had mental illness at the same time as their physical illness and also where they had mental health issues after/as a result of their physical illness.
In order to prove that an appellant is currently incapable of work for the purposes of Illness Benefit, the SWAO pays particular attention to medical treatments received and to be received.
- In order to be successful, it is generally necessary for an appellant to provide evidence of current medical treatments, for example medication that they are currently taking, doctors that they are seeing regularly, etc. This can demonstrate that the appellant is currently incapable of work. That said, claims for Illness Benefit may be rejected where the medical treatments are so effective that the appellant is actually capable of work as a result.
- It can also be persuasive for an appellant to provide evidence of upcoming medical appointments and/or treatments. This can support the argument that the appellant is likely to be incapable of work for some time. In this regard, it would appear to be necessary for these appointments and/or treatment to already be scheduled. For example, the SWAO has rejected an appeal in which it was argued that an appellant might need surgery at some point in the future.
- It is not always necessary that the current medical treatments are specifically related to the original illness. For example, it can be persuasive that the appellant is taking medication for mental health issues that were triggered by the original illness.
- While evidence of past medical treatments can provide context to a claim for Illness Benefit, it is less persuasive. For example, in one appeal, the appellant was relying on the fact that she had epilepsy, but this was disregarded by the SWAO given that she had been seizure free for 30 years.
Ultimately, the key question is whether the appellant is incapable of work. The SWAO appears to determine the question of whether an individual is incapable of work objectively. The SWAO considers whether the appellant is capable of any kind of work, and not necessarily the type of work that the appellant used to do. The SWAO does not take into account the appellant’s work experience or age etc. For example, Illness Benefit is often refused where the appellant is capable of lighter, more sedentary work.
Please note that the recent decision by the Supreme Court in the Sobhy case (Sobhy v. the Chief Appeals officer, Minister for Employment Affairs and Social Protection, Ireland, and the Attorney General (2021) S:AP:IE:2021:000025). In this case, the Supreme Court held that an immigrant without the right to work, despite meeting the other criteria, including PRSI contributions, does not have the right to access maternity benefits. This may have implications for other social insurance payments.