Thematic Note G0123: Child Benefit
Type of Social Welfare: Child Benefit
Deciding Body: Social Welfare Appeals Office
Theme: Child Benefit
Period of Analysis: SWAO Annual Reports 2009-2021
Keywords: Child Benefit, Qualified Child, Qualified Person, Full-time Education, Normal Place of Residence, Ordinarily Resides, Habitual Residence Condition
Casebase No. Case G0123
Summary of the relevant law:
Child Benefit is a monthly payment that is made to a qualified person for a qualified child. It is not means tested or taxable and there are no PRSI conditions.
- Qualified Child
Section 219 of the Social Welfare Consolidation Act 2005 (as amended)(the “2005 Act”) defines a “qualified child” as the child is (i) under 16 years of age or (ii) between 16 and under 18 years of age if the child is in full-time education or full-time training or has a disability and cannot support themselves.
In accordance with Section 14(2) of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (the “2007 Regulations”), full-time education and training does not include courses (i) which form part of an employment or apprenticeship or work experience programme; (ii) which arise from employment; (iii) where the period of paid work experience exceeds the time spent in the classroom; and (iv) where the period of work experience in a course run by Teagasc exceeds the time spent in the classroom in the academic year.
Section 219(1)(b) provides that a child between the age of 16 and 18 shall be eligible where, by reason of physical or mental infirmity, the child is incapable of self-support and is likely to remain incapable for a prolonged period. A Deciding Officer will seek the advice of the Chief Medical Officer as to the acceptability of the relevant medical certification.
Child benefit is not paid on behalf of children 18 or older, even if they are in education or training.
The child must be ordinarily resident in the State. There is no statutory definition of ordinarily resident for these purposes. This requirement can be satisfied, pursuant to Section 2019(2) of the 2005 Act, in cases where the qualified person or that person’s spouse, civil partner or cohabitant is: (i) a member of the Defence Forces or the Irish Civil Service serving abroad, (ii) a volunteer development worker or (ii) persons temporarily employed abroad by an Irish employer and paying Irish social insurance contributions.
In addition, pursuant to Section 219(1)(d) a child will not qualify for Child Benefit if they are currently detained in a child detention school or imprisoned or detained in legal custody.
- Qualified Person
Section 220(1) of the 2005 Act defines a qualified person as “[a] person with whom the qualified child normally resides.” Section 220(2)(a) of the 2005 Act provides that the Minister may make rules for determining with whom a qualified child shall be regarded as normally residing. Those rules are contained in Article 159 of the 2007 Regulations. An example of those rules includes the following Rule 4, which has been applied by Appeals Officers in cases:
Subject to Rule 8, a qualified child, who is resident elsewhere than with a parent or a step-parent and whose mother is alive, shall, where his or her mother is entitled to his or her custody whether solely or jointly with any other person, be regarded as normally residing with his or her mother and with no other person.
Additionally, Section 220(3) provides the applicant must satisfy the Habitual Residence Condition, which applies to all applicants regardless of nationality.
The Habitual Residence Condition consists of two parts. Firstly, a person must have an established right of residence in the State, pursuant to Section 246(5) of the 2005 Act and in accordance with S.I. No. 548/2015 – European Communities (Free Movement of Persons) Regulations 2015. This right of residence must be unconditional in that it does not preclude the person from accessing social welfare payments. Secondly, pursuant to Section 246(4) of the 2005 Act, a person’s situation and intentions will be taken into consideration by a Deciding Officer or Designated Person, in particular: (i) the length and continuity of residence in the State or any other country; (ii) the length and purpose of any absence from the State; (iii) the nature and pattern of the person’s employment; (iv) the person’s main centre of interest, and (v) the future intentions of the person concerned. This list is non-exhaustive and other information may be considered relevant in arriving at a decision. Also see Thematic Note on Right to Reside and Habitual Residence Condition (Thematic Note G0116).
It is worth noting that Child Benefit is classified as a Family Benefit under EU law. Accordingly, employed and self-employed EEA Nationals, whose entitlement derives from the application of EEC Regulation 883/04 on the coordination of social security systems and have become subject to Irish PRSI, do not have to satisfy the Habitual Residence Condition. This entitlement continues even if they become unemployed and receive Irish Unemployment Benefits.
Key grounds of appeals by appellants:
- Qualified child ordinarily resident in the State
There were four appeals relating to whether a child was ordinarily resident in the State. The majority of appeals dealt with whether a period of absence meant that the appellant was no longer entitled to the benefit. For example, in Case 2019/03 it was held that the child was no longer qualified following an absence of 6 months from the State. Another deciding factor in these decisions was whether the appellant had custody of the child at the time of claiming the payments.
- Qualified child’s normal place of residence
There were four appeals relating to a qualifying child’s normal place of residence which mainly dealt with who was considered the qualified person in accordance with Article 159 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142 of 2007). The various grounds for disagreement included: making educational and medical payments (Case 2016/01); providing payments from employment in the State to the qualified child’s mother in another state (Case 2018/02); being in regular contact, visiting and providing food, shelter and clothing during their child’s time in shared and full-time care (Case 2020/01); and having legally shared custody but arguing the amount of time actually spent in one parent’s home over another should be taken into account (Case 2021/01).
- Qualified child attending full-time education between age of 16 and 18 years
There were two appeals where the appellant challenged whether sufficient evidence was provided to demonstrate that the child was either attending full-time education or was incapable of self-support by reason of mental infirmity. In both cases, the appeal was allowed on the basis that the appellants had met the threshold under the 2005 Act and the 2007 Regulations.
- Backdating: See Thematic Notes on Backdating Claims (Thematic Note G0114)
Observations on appeal outcomes:
As there is no definition or test for qualifying as ordinarily resident, clear evidence establishing when a qualified person or child was resident in the State greatly impacted the success of appeals. The majority of ordinarily resident appeals were rejected due to the lack of the appellants’ ability to establish when the child left and/or returned to the State. Out of four cases, the appeal in Case 2012/03 was the exception, as the appellant successfully demonstrated the child was ordinarily resident in the state by way of an Irish Court Order in 2010, which granted the appellant full custodial rights in 2010. The loose assessment of 183 days in a year, or six months, was applied by Appeal Officers to determine those ordinarily resident in the state, with Case 2019/03 being disallowed as a 6 month absence meant that it could not be said that the children were ordinarily resident. Appeals Officers tended to be particularly strict in this regard, as appeals where explanations such as holidays or visiting family were used for absences from the State were disallowed.
Decisions in appeals of normal place of residence included a Section 318 review, Case 2020/318/57. Section 220(2)(a) states that Ministers may make rules to determine with whom a qualified child is normally residing. Despite the child residing with a guardian in the State rather than their parents outside of the State, Rule 4 of the Ministerial Rules provides that that the mother’s legal custody of the child overrode guardianship. The review concluded that this Rule 4 applied notwithstanding that the child’s mother was resident outside of Ireland.
Finally, these reports indicate that Appeals Officers were willing to allow appeals when evidence could be provided that a child between the ages of 16 and 18 years was being home-schooled or is incapable of continuing in an institution of full time education due to severe mental health issues. Evidence was also key in these cases.
Relevant Case Studies of the SWAO Annual Reports 2009-2020
|1.||2010/01 Child Benefit – oral hearing||Question at issue: Habitual Residence Condition|
|2011/04 Child Benefit – summary Decision||Question at issue: Habitual Residence Condition|
|2011/06 Child Benefit – summary decision||Question at issue: Habitual Residence Condition|
|2011/10 Child Benefit – oral hearing||Question at issue: Habitual Residence Condition|
|2011/12 Child Benefit – oral hearing||Question at issue: Habitual Residence Condition|
|2011/13 Child Benefit – oral hearing||Question at issue: Habitual Residence Condition|
|2011/15Child Benefit – oral hearing||Question at issue: Habitual Residence Condition|
|2011/16 Child Benefit – oral hearing||Question at issue: Habitual Residence Condition|
|2012/03 – Child Benefit – oral hearing||Question at issue: Date of Award / Qualified Child – ordinarily resident|
|2012/04 – Child Benefit – summary decision||Question at issue: Qualified Child – ordinarily resident|
|2015/01 Child Benefit – oral hearing||Question at issue: Habitual Residence Condition|
|2016/01 Child Benefit – oral hearing||Question at issue: Normal residence of qualified child|
|2016/02 Child Benefit – summary decision||Question at issue: Habitual residence|
|2017/01 Child Benefit – oral hearing||Question at issue: Habitual residence condition|
|2017/02 Child Benefit – summary decision||Question at issue: Backdating of payment|
|2017/03 Child Benefit – oral hearing||Question at issue: Extended payment of Child Benefit / Whether the child is in full-time education|
|2017/04 Child Benefit – summary decision||Question at issue: Extended payment of Child Benefit / Whether the child is in full-time education|
|2017/318/59 Child Benefit – Section 318 Review||Question at issue: Habitual residence|
|2017/318/60 Child Benefit – Section 318 Review||Question at issue: Right to reside in the State|
|2018/01 Child Benefit – summary decision||Question at issue: Eligibility (habitual residence condition)|
|2.||2018/02 Child Benefit summary decision||Question at issue: Normal residence of qualified child|
|1.||2019/01 Child Benefit – summary decision||Question at issue: Backdating|
|2.||2019/02 Child Benefit – summary decision||Question at issue: Backdating (Habitual Residence Condition)|
|3.||2019/03 Child Benefit – summary decision||Question at issue: Qualified Child – ordinarily resident|
|2020/01 Child Benefit – summary decision||Question at issue: Qualified Person – normal residence|
|2020/02 Child Benefit – summary decision||Question at issue: Eligibility (habitual residence condition)|
|2020/318/57 Child Benefit – Section 318 Review||Question at issue: Eligibility (qualified child and resident in the State)|
|2021/01 Child Benefit – summary decision||Question at issue: Qualified child – normal residence|
|2021/02 Child Benefit –summary decision||Question at issue: Habitual residence; backdating|