Thematic Note G0135: Overpayment of Social Welfare and Cohabitation

Years: 2009, 2021

Types of Social Welfare: Cohabitation, Overpayment of social welfare

Deciding Body: Social Welfare Appeals Office

Theme: Overpayment of social welfare – Cohabitation

Period of Analysis: SWAO Annual Reports 2009-2021  

Keywords: Overpayments; Fraud; Appeals; Oral Hearing; Burden of Proof; Cohabitation; Reviews

Casebase No. Case G0135

Summary of the relevant law: 

Overpayments of social welfare occur where a person gets a payment of an allowance, pension or any other benefit from the Department of Social Protection (the “Department”) that they are not entitled to. The Social Welfare (Consolidation) Act 2005 sets out the circumstances where an overpayment may arise and the liability of a person to repay an overpayment. 

An overpayment can arise where a person has been granted a payment but subsequently a revised decision is made by the Department under Section 302 or 325 of the Social Welfare (Consolidation) Act 2005 (the “Act”) to reduce a person’s entitlement to a social welfare payment retrospectively. In such circumstances, the Department will issue a letter informing the person of the revised decision.

A key question with overpayments is whether the Department allege fraud on the part of the recipient. Fraud occurs where the Department is told or led to believe something that the person receiving the payment knew was false or misleading or a key piece of information is withheld from the Department.

A revised decision that there has been an overpayment based on fraud is made under Section 302(a)/325(a)) of the Act.

If the overpayment arose as a result of fraud, the person may be criminally prosecuted even if the overpayment is repaid.

Where no fraud is alleged by the Department, they have some discretion to take into account the facts and circumstances that gave rise to the overpayment and this will be relevant in an appeal against such an overpayment. It is also possible to appeal the date when the overpayment is deemed to have arisen, which may result in the amount of the overpayment being reduced. A revised decision with no allegation of fraud is made under section 302(b).

It is therefore very important to know if fraud is alleged (ie, the decision was made based on section 302(a)) or no fraud is alleged (ie the decision is based on section 302(b).) A person can appeal the revised decision alleged fraud and if successful, the fact and circumstances that gave rise to the overpayment can also be considered in the appeal.

Observations on appeal outcomes in SWAO Case Studies re Cohabitation

The onus is on the Department to establish that cohabitation (i.e. in an intimate and committed relationship) exists based on evidence. It is not for the appellant to show they are not cohabiting with the nominated person. In putting together its case, the Department must follow its own Guidelines on Investigating Cohabitation and consider a range of evidence of cohabitation to make such a finding. For -an example of a situation where there was sufficient evidence of cohabitation, see Case Study D1 2012/15 One Parent Family Payment.

See Case Study G3 2015/22 & 2015/23 for an example where cohabitation was not found on appeal. It is states as follows:-

“On the basis of this evidence, and having regard to the unequivocal findings of Baker J [2015] IEHC 309, that a relationship must have been, at some point in time, a sexual relationship for intimacy to be found, he concluded that it had not been established that the appellants were cohabiting within the meaning of the governing legislation for the period since 2010 or, in the period prior to 2010, ‘as husband and wife’ within the meaning of the legislation which applied at the time. Accordingly, each of the appellants was entitled to the named payment during the period at issue and no overpayment applied.”

Likewise, see Case Study H5 2016/318/36 One parent family payment where is states:-

“I note that the Appeals Officer considered that the evidence advanced by the Department was more credible and convincing than that put forward by the appellant and that the Officer concluded the appellant had failed to show that she was not cohabiting with the nominated person. This was clearly an error of law. In misdirecting themselves on this point, I could only conclude that the Appeals Officer had placed an unreasonable burden of proof on the appellant such as to render the appeal hearing unfair. The Department, in its guidelines on cohabitation, accepts that ‘where an entitlement may be disallowed, limited or withdrawn, the onus is on the Department to establish that cohabitation exists’. I am of the view that the Department did not meet the requirements set out in its own guidelines to establish that cohabitation existed and that the Appeals Officer did not give sufficient weight to this fact and to the other evidence provided by the appellant, as outlined above, in support of her position.”

In addition the CAO notes: “I could find no evidence to indicate that the revised decision was made with reference to any of the provisions in Section 302, nor could I see where the appellant had been advised of the amount of the overpayment. This combination of failures is an error in law and in my view a serious denial of the appellant’s right to natural justice and fair procedures. The Appeals Officer did not direct her attention to the provisions and the obligations arising from this section in their consideration of the appeal. In light of all of the above considerations I concluded that the Appeals Officer had erred in law and, in the circumstances, revised the decision.”

For comments on reliance on Facebook evidence, see Case Study I7 2017/318/65 Disability Allowance (DA) and One Parent Family (OPF):-

“ In particular, it was my view that the photographic evidence of the presence of the appellants attending family events together did not in any way prove cohabitation within the meaning of the governing legislation.

With regard to the issue of Facebook evidence generally, I did not accept the appellants’ contention that an Appeals Officer must be an expert on Facebook or other forms of social media in order to properly determine an appeal involving evidence of this nature. In determining an appeal, an Appeals Officer must of course give due consideration to and weigh up all of the evidence presented, including evidence of social media interactions, in order to decide on the weight which should be applied to that evidence and/or the veracity of same.”

 Relevant Case Studies of the SWAO Annual Reports 2009-2021

G3 2015/22 & 2015/23 Unspecified payment in respect of two appellants

Question at Issue: Cohabitation

Background: The appellants were each in receipt of named payments. In the context of a review of entitlement, and an investigation by a Social Welfare Inspector, a question arose as to cohabitation. The Inspector interviewed each of the appellants and submitted reports and accompanying documents for determination. The Deciding Officer made reference to the interviews conducted by the Social Welfare Inspector and concluded that each of the appellants had concealed a material fact, that is, that they were cohabiting with one another. Ultimately, it was concluded that both persons were disqualified for receipt of the named payments as they were cohabiting. A revised decision was made in each case, with reference to the provisions of Section 302 (a) of the Social Welfare (Consolidation) Act, 2005, and overpayments were assessed. An appeal was made by both parties. In response to a request made by solicitors acting for each of the appellants, and with the approval of the Chief Appeals Officer, the appeals were heard together – with a separate report and decision completed in each case.

Oral hearing: The appellants attended, and each was represented separately by a solicitor. The Social Welfare Inspector attended at the request of the Appeals Officer. The decision at issue in each case was outlined, as was the manner in which the Appeals Officer intended to proceed.

It was acknowledged that the second appellant resided at the address of the first appellant for some years. It was contended, however, that the parties had never cohabited within the meaning of the Social Welfare Acts and, in particular, that they had not been engaged in an intimate/sexual relationship at any time. It was submitted that they had been nothing but platonic friends, had separate bedrooms, that the first appellant had her own independent means, that she was not engaged to, nor did she have any intention of marrying the other person.

In support of the appeal, reference was made to a Court Judgment, dated 5 May 2015, In the matter of Section 194 of the Civil Partnership and Certain Rights and Obligations Cohabitants Act 2010 [2015] IEHC 309, where Baker J found [paras. 21, 77, 78, 79] that in order to be a cohabitant for purposes of the 2010 Act, a relationship must be more than one of mere friendship and must be or have been at some point sexually intimate.

Medical evidence was submitted outlining medical issues which prevented a sexually intimate relationship. It was also submitted on behalf of both appellants that in the report of his investigation of the two claims, the Social Welfare Inspector had stated that the appellants were co-resident.