Thematic Note G0120: Disability Allowance

Title of Payment: Disability Allowance

Date of Final Decision: SWAO Annual Reports 2009-2020

Keywords: Disability Allowance, Means Test, Habitual Residence, Substantially Restricted, Suitable Employment

Casebase no: G0120

Summary of the relevant law:

The criteria that a person (aged 16-66 years) must meet in order to qualify for receipt of Disability Allowance are that they are:

1. suffering from an injury, disease, congenital deformity or physical or mental illness or defect which has continued or may reasonably be expected to continue for a period of at least a year and substantially restricted because of your disability from doing work that would be suitable for a person of your age, experience and qualifications;
2. Of insufficient financial means; and
3. Habitually resident in Ireland.

1. Disability

Section 210 (1) (b)  of The Social Welfare (Consolidation) Act 2005 (as amended) (“2005 Act”) states that in order to obtain Disability Allowance, a person must by reason of a specified disability be substantially restricted in undertaking employment of a kind which, if the person was not suffering from that disability, would be suited to that person’s age, experience and qualifications.

2. Means

Section 210 (1)(c) of the 2005 Act states that in order for a person to meet the means test for Disability Allowance, their weekly means cannot exceed the amount of Disability Allowance (including any increases of that allowance) which would be payable to the person.

3. Habitual Residence

While habitual residence is not defined in Irish law, Section 246 of the 2005 Act provides guidance. Accordingly, determination of whether an individual is habitual resident is a two-stage process in Irish law. The first step involves establishing whether a person has the right to reside in accordance with EU law. The second step is a determination of whether a person is habitually resident with reference to the specific circumstances of their case, with a particular focus on the five factors outlined in Section 246 (4) of the 2005 Act, which are as follows:

• length and continuity of residence in the State or in any other particular country;
• length and purpose of any absence from the State;
• nature and pattern of the person’s employment;
• person’s main centre of interest; and
• future intentions of the person concerned as they appear from all the circumstances.

Key grounds of appeals by appellants:

Key examples of thematic areas that individuals appealed decisions of the Appeals Officers under are as follows:

• The interpretation of mental health issues, social issues and behavioural disorders with regards to meeting the threshold of causing an individual be “substantially restricted” from employment;
• The interpretation of “suitable employment” should be a subjective assessment, based on the skills, experience and issues presently being faced by the particular appellant;
• How minors/young adults are assessed, and the differing considerations that are required when assessing this demographic;
• Overlapping conditions that are not sufficient on their own to substantially restrict an individual from employment, but the ability of the combined impact of the multiple issues to create a larger problem that prevents an individual from obtaining/retaining employment;
• Change of medical circumstance or availability of medical evidence to support Disability Allowance claim;
• The method by which means are calculated (E.g. consideration of household income, awards of damages, saving accounts with access limitations, inheritance, community employment scheme income, welfare payments from other countries etc.); and
• Appealing decisions on habitual residence on a subjective and case-by-case fact-driven basis.

Observations on appeal outcomes:

At the outset, a key observation is that the increase in variety and intersectionality of the disabilities, illnesses and diseases that are being raised by appellants as meeting the threshold for substantially restrictions to employment. In recent years, issues such as gender dysphoria, eating disorders, alcoholism, social withdrawal etc. are being considered as having the potential to substantially restrict employment opportunities. Concerning intersectionality, most appeals involved individuals who were suffering from both physical and mental issues, which are often interlinked and correlative. The SWAO has shown a willingness to expand what is classified as a disability, and to consider the compounding impacts of different issues faced by an individual.

It is evident from the determinations that how an appellant presents themselves during the course of the appeal is extremely influential; their interactions, attitude, behaviours, communication, demeanour and movements during the hearing are often cited by the SWAO when  justifying a decision reached.

Alongside the considerations we would expect the SWAO to discuss when assessing an individual’s ability to work (E.g. qualifications, experience, home-life, language proficiency etc.), they also considered factors such as hobbies, interests, caring responsibilities, volunteering, friendships, participation in community life etc. when considering an appellant’s capability.

When considering what constituted “suitable employment” it appeared that for those with more serious disabilities, more difficult circumstances or who were older, the definition of “suitable employment” was narrower and more closely linked to their previous experience and training. Otherwise, the term “suitable employment” has been defined as “[applicable] to a wide variety of employment types and not just to the person’s usual or preferred type of work.”

With regards to the medical evidence cited in the Appeals, it was extremely rare that the opinion of the medical expert would not be key in the assessment of the severity of a disability, especially when activities were profiled and ranked by a GP/medical expert. Appellants that were unable to show a medical diagnosis/medical support letter to demonstrate the severity of their disability found it difficult to succeed.

The assessment of the disabilities of minors and young adults tended to be based on the individual’s need for supervision, behaviour at home/school and, most importantly, their forecasted ability to cope with entering third-level education/work place. It was also clarified that minors do not need to show an employment record with reference to the requirements for habitual residence.

With regards to habitual residence, determining whether an appellant’s centre of interest was in Ireland seemed to be largely based on the factual matrix of the appellant’s circumstances (i.e. a tailored application of the five factors listed in 246 (4) of the 2005 Act to the precise circumstances).

It was also shown that an appellant being on a residency permission that specifically precludes their right to obtain employment in Ireland (E.g. Stamp 2A permission) should not be the precluding factor for an individual seeking Disability Allowance.

With regards to the right to reside, several appeals were made by individuals who were dependent direct relatives of an EU worker. For example, 2019/318/62 Disability Allowance – Section 318 Review below. The relative in this case was refused Disability Allowance  as not deemed to have a right to reside if to become an unreasonable burden on the social assistance system of the State. Nevertheless see the High Court decision in Voican and Casebase Case Report G0113.

With regards to means, several appeals were made by individuals that were having their means assessed on a household basis, who were seeking to be assessed on an individual basis. The determinative factor here was whether the couple were in fact living as spouses (as opposed to a separated couple living at the same address).

The appeals on means-related grounds also clarified that income received from the awarding of damages, saving accounts with access limitations, inheritance and community employment schemes should all be considered when calculating an individual’s income. A recent case confirmed that, with regards to social security payments, benefits received from other Member State that are equivalent to Irish welfare payments should be excluded when assessing the appellant’s means.