Theme: Carer’s Allowance

Period of Analysis: SWAO Annual Reports 2009-2022

Keywords:  Full-Time Care; Means Test; Care Required; Oral Hearing; Evidence

Casebase No. Case G0141

Summary of the relevant law:

What is the relevant legislation?

The Social Welfare Consolidation Act 2005 (as amended) (the “Act”) caters for various types of benefits, to include but not limited to, (i) illness benefit, (ii) disability allowance, (iii) child benefit, (iv) maternity benefit, (v) jobseeker’s benefit/allowance, (vi) state pension and early retirement, (vii) widow’s, widower’s or surviving civil partner’s pension and (vii) carer’s allowance/benefit.  Chapter 8 of Part 3 (Social Assistance) of the Act deals with carer’s allowance which this note will focus on. 

Chapter 4 of Part 3 (Social Assistance Payments) of the Social Welfare (Consolidated Claims, Payments and Controls) Regulations 2007 (the “2007 Regulations”) provides further guidance for assisting carer’s allowance applications.  

The  Act deals with the entitlement to the carer’s allowance.  The 2007 Regulations is supplemental to the Act and deals with conditions to be satisfied by a carer.

What is carer’s allowance?

This is a weekly payment to people who care for another person because of age, disability or illness (including mental illness).  The carer’s income is means tested and must be below a certain threshold in order to qualify for the payment.

Who does the law consider to be a ‘carer’ for the purpose of receiving carer’s allowance?

A “carer” is a person who resides with or, subject to certain conditions does not reside with, and provides full-time care and attention to a “relevant person”. 

A “relevant person” is a person (other than a person in receipt of an increase of disablement pension under section 78 of the Act in respect of constant attendance) who has such a disability that he/she requires full-time care and attention who is either 16 years or over; or is under 16 and is in receipt of an allowance for domiciliary care of children under section 61 of the Health Act 1970. 

A person is considered to require “full-time care and attention” if that person has such a disability that he/she –

(i) requires from another person either

(a) continuous supervision and frequent help throughout the day in relation to normal bodily functions, or

(b) continuous supervision to avoid danger to themselves; and

(ii) is likely to need such full-time care and attention for at least 12 consecutive months.

When is a carer entitled to carer’s allowance?

In addition to the above, a carer is entitled to carer’s allowance if he/she meets the following criteria:

1. is a person aged 18 or over and satisfies a means test;
2. is a person habitually resident in the State;
3. is not living in a hospital, convalescent home or other similar institution;
4. for a non-resident carer, (a) there must be a direct system of communication between the carer’s residence and that of the relevant person (to include a telephone or alarm system) and (b) the relevant person is not already receiving full-time care and attention within his/her own residence from a person other than the applicant; and
5. the care must be for at least 35 hours per week, over 5 to 7 days.

A carer can continue to receive carer’s allowance:

• for up to 13 weeks, if the carer or the relevant person is receiving medical or other treatment of a temporary nature in a hospital (or other institution);
• for up to 12 weeks, where the carer would qualify for the allowance but for the fact that the relevant person has been permanently admitted to a hospital (or other institution);
• where the relevant person is attending either (i) a non-residential course of rehabilitation training provided by a recognised organisation or (ii) a non-residential place of day care approved by the Minister for Health;
• where provision has been made for the care of the relevant person and the carer is employed, self-employed or attending any course of education or training for not more than 18.5 hours a week;
• where the number of hours providing such care is not less than 35 hours in a period of 7 consecutive days, and care is provided on any 5 days, whether consecutive or not, within a period of 7 consecutive days; or
• for up to 26 weeks, if (i) the relevant person is under 16 years of age, (ii) that relevant person meets the criteria for the domiciliary care allowance and (iii) the relevant carer would otherwise qualify for the allowance but for the fact that the relevant person is undergoing medical or other treatment of a temporary nature in a hospital (or other institution).

What type of decisions relating to carer’s allowance have been challenged in recent years?

The Annual Reports of the Social Welfare Appeals Office (the “SWAO”) during the period of 2009 to 2022 highlight forty-five appeals relating to carer’s allowance. These are a sample of the types of appeals the SWAO receives, which are hereinafter referred to as the “Case Studies”.  The majority related to the care required and/or care provided (i.e. whether full-time care and attention was required and whether such care was being provided in line with the eligibility criteria),  and a few Case Studies related to the means test.  

Key grounds of appeals by appellants:

Assessment of Means

Four Case Studies address the assessment of means.  To qualify for carer’s allowance, the applicant’s means must fall below a certain figure which is reviewed by the Department of Social Protection (the “Department”).  The Department looks at all sources of the applicant’s and/or their spouse/civil partner/cohabitant’s income and then deducts some costs as set out in the legislation.   

Where there is a change in the applicant’s income, this may affect their entitlement to the payment. It is important to note that a recipient of social welfare has an obligation to inform the Department o of a change in their circumstances, including an increase or decrease in their means or income.

In an appeal, the Appeals Officer may take into account any evidence relating to a change of income. For example, in Case Study 2016/19, the applicant’s yearly income was affected by a drop in milk prices, reducing projected milk income by some 23%, while overheads remained largely the same.  The Appeals Officer took this into account to the extent that it affected the applicant’s gross income and projected net profit.

In other Case Studies relating to means, it has been noted that an applicant can seek a review of their entitlement at any time where there is a decrease in means.

Overpayment of carer’s allowance

 One of the Case Studies concerned overpayment of carer’s allowance (2016/318/34).  For more details on Overpayment, see Thematic Note on Overpayments on Casebase.

In this Case Study, it was determined that a mother was no longer entitled to carer’s allowance as her son was admitted to a children’s residential unit and therefore, she was no longer considered to be providing full-time care and attention.  The issue then arose that she had been overpaid carer’s allowance for a period in which she was no longer entitled to the carer’s allowance.  The overpayment had been appealed and refused so a further appeal to the Chief Appeals Officer was made under section 318 of the Act.

The appellant challenged the decision of the Appeals Officer in an effort to reduce the overpayment due, however the Chief Appeals Officer upheld the Appeal Officer’s decision on all three grounds of appeal:

1. the appellant argued the overpayment due should be reduced due to an error or failure on the part of the Department.  The Chief Appeals Officer upheld the decision of the Appeals Officer and would not reduce the overpayment due as the Deciding Officer had written to the appellant advising her that her change in circumstances would affect her entitlement to carer’s allowance.
2. the appellant argued her case fell within the exemption of section 136 of the 2007 Regulations which provide that a carer may be considered to continue to be providing full-time care and attention in circumstances where the caree is living in an institution, and not with the carer, for a period not longer than 13 weeks.  The Chief Appeals Officer determined on the facts that the care arrangements were not temporary and therefore did not fall within the scope of this exemption; and
3. the Chief Appeals Officer affirmed the appeal officer’s stance on recovery of overpayment; this is a matter for the Department and not the SWAO.

Full-time care and attention required – SWAO considerations & evidence

There have been many appeals in this area that assess whether a person has such a disability that he/she (i) requires from another person either (a) continuous supervision and frequent help throughout the day in relation to normal bodily functions, or (b) continuous supervision to avoid danger to themselves; and (ii) is likely to need such full-time care and attention for at least 12 consecutive months.

The appeals in this area, while strict in the application of the legislation, have taken into account the following evidence:

• medical practitioner reports,
• Garda reports and/or
• a social welfare officer reports.

Oral and documentary evidence has also proven helpful in supporting medical evidence and can provide background to that relevant person’s specific circumstances.

Such evidence can be particularly important where, for example, a carer is not resident with the relevant person on a full-time basis, other family members assist with carer or where the medical condition has deteriorated sufficiently since the initial assessment.

Distinctions have been made in such appeals between requiring ongoing care and attention as opposed to full-time care and attention. In Case Study 2015/11, medical evidence provided in respect of the appellant’s parents indicated that there was a moderate effect of mental health, balance/co-ordination, vision and hearing and a mild to moderate effect on their ability to undertake the activities of daily living.  There was no concern in relation to the parent’s safety.  While the Appeals Officer acknowledged that the appellant undertook domestic tasks (e.g. preparing meals, cleaning and washing clothes) and attended to some of her parent’s personal needs, the evidence indicated that the parent’s were able, without support to mobilise and for the most part attend to their own normal bodily functions.  The level of care required in this case was not considered full-time care and attention within the meaning of the legislation.

Case Study 2016/218/33 was a review of an appeal which was disallowed on the basis that full-time care and attention was not required.  In this Case Study, the reviewing officer considered a medical report and letter from a psychiatrist and whether or not such evidence supported the appellant’s argument that the person being cared for required full-time care and attention.  It was specifically examined whether the caree required continual supervision in order to avoid being a danger to herself as it was accepted that she did not require supervision and assistance with normal bodily functions.  It was held that the medical evidence provided did not provide definitive proof that the caree required full-time care and attention but was sufficient to indicate that full-time care and attention was probable.  This conclusion along with oral testimony established a likelihood that she could not function safely without continual supervisions by the appellant.  The decision was revised and the appeal was allowed on the basis that evidence presented supported the appellant’s argument that the caree required continual supervision to avoid danger to herself and the extent of the care provided by the appellant was full-time care and attention.

This case highlights the importance of requesting an oral hearing in appeals of this nature, especially where factual evidence is in dispute.

In Case Study 202/318/63, a decision was revised on the basis that the written and oral testimony established that the caree required continual supervision and frequent assistance throughout the day in connection with normal bodily functions and that the Appeals Officer gave disproportionate weight to the evidence that the caree tried to do some light housework.  The evidence however did not support that the caree required continual supervision in order to avoid danger to herself.

Case Study 207/29 assessed whether the caree met the medical criteria for the scheme and whether the appellant was working/studying for more than 15 hours per week outside the home.  The Appeals Officer was satisfied that the nature of the caree’s medical conditions and the severity of these conditions, as certified by a GP, were such that he required continual supervision and frequent assistance throughout the day in connection with normal bodily functions and continual supervision to avoid danger to himself.  The Appeals Officer was also satisfied that, based on evidence from the appellant’s place of study, that the aggregate duration of the appellant’s course of study did not exceed 15 hours per week.

Full-Time Care Provided

There have been many appeals in this area that assess whether the care being provided by the carer is full-time care and attention.

In Case Study 2015/12, the appellant applied for carer’s allowance in connection with care being provided to her grandfather, who resided with his daughter.  The claim was refused on the grounds that the appellant was held not to be providing full-time care and attention as she was not resident with the caree on a full-time basis and that the care was shared with her aunt who was living with the caree.  At an oral hearing, the carer provided background on the arrangement and outlined the daily routine.  The appellant undertook a carer’s training course with the intention of caring for the caree. It was noted that the appellant was unemployed and in receipt of jobseeker’s allowance.  The appeal was allowed on the basis of the evidence put forward to include that the appellant lived with the caree for the majority of the time and was his sole carer.

Where care is shared among parties, a claim depends on how much care the appellant is providing within the context of a number of parties providing care in order to assess whether the care being provided by the appellant constitutes full-time care and attention (Case Study 2017/318/63).

In Case Study 2018/25, the appeal was disallowed on the basis that there is no provision in the legislation for a payment to be made in respect of part time care.  In this Case Study, the appellant provided care to the caree for 4.5 hours per day, 7 days a week and requested a part payment of the carer’s allowance.  On-call periods are also not considered as part of the overall provision of care based on the outcome of Case Study 2018/318/66.

In Case Study 2019/28 an appeal was disallowed on the basis that the appellant was working more than 15 hours per week (which was supported by documentary evidence from the appellant’s employer) outside the home and was therefore not providing full-time care and attention.  The appellant was advised that should her circumstances change, it was open for her to re-apply for carer’s allowance.

In Case Study 2020/23, the Appeals Officer noted that, while full-time care is not defined in the legislation, the Department’s  guidance considers 35 hours per week to be necessary to meet the full-time care and attention requirement set out in the legislation.  In the circumstances of this Case Study, the Appeals Officer was satisfied that the appellant had not included the hours of care provided to the caree in the carer’s home.  In those circumstances the Appeals Officer was satisfied that the appellant was providing full-time care and that the level of care provided was in excess of the guidelines.  In contrast, the Appeals Officer dismissed the appeals in Case Study 2021/39 and 2022/30 that, based on the appellant’s evidence, the appellants did not satisfy the minimum 35 hours of care per week requirement and was therefore not considered to be full-time care and attention within the meaning of the legislation.

Appeals have been dismissed based on lack of information to support the claim that the carer is providing full-time care and attention.  For example, in Case Study 2020/22 the appellant had informed the Appeals Officer that he provided care seven days a week but did not state for how many hours each day.

It is also necessary that an applicant meets the criteria of providing full-time care at the time of making the application for carer’s allowance.  The Appeals Officer explained in Case Study 2019/27, that in circumstances where the level of care provided by the applicant has increased since the making of the application, it is advisable that the applicant re-applies rather than appealing the Deciding Officer’s decision, as the Appeals Officer will only consider the facts at the time of the making of the application.  It is worth noting that there is inconsistency between Case Studies as additional medical evidence was submitted at the appeals stage to assist in corroborating a claim as seen in Case Study 2021/36 and 2018/26.

Observations on appeal outcomes:

Each Case Study demonstrates the SWAO’s adherence to the criteria set out in the Act in respect of carer’s allowance.  The SWAO will look at the totality of the evidence presented in a case (e.g. medical reports, documentary evidence, oral testimony etc.) in order to assess the requirement for full-time care and attention and whether it is being provided.

It is clear from the Case Studies that only one limb of the care test (i.e. that the relevant person requires from another person either (a) continuous supervision and frequent help throughout the day in relation to normal bodily functions or (b) continuous supervision to avoid danger to themselves) needs to be satisfied in order to establish whether full-time care and attention is required.   

If making an application for carer’s allowance it is advisable to provide the Department with an, as detailed as possible, account of the level of care provided.  It is clear from the Case Studies that there is a high evidentiary threshold to satisfy for the level of care to be deemed as ‘full-time’.

There may be circumstances where other social welfare payments (such as illness benefit) may affect the full rate entitlement to carer’s allowance.  It is important to notify the Department in any change of circumstance which may affect the carer’s entitlement to carer’s allowance.

The Case Studies demonstrate that the SWAO’s approach to matters concerning carer’s allowance are consistent with the requirements of the Act and the 2007 Regulations taking into account the specific circumstances of each appeal. 

Relevant Case Studies of the SWAO Annual Reports 2009-2022

A.	2009
	N/A
	2010
	N/A
	2011
	N/A
	2012
1.	2012/01 Carer’s Allowance	Question at issue: Eligibility (Care Required)
2.	2012/02 Carer’s Allowance	Question at issue: Eligibility (Care Required)
	2013
	N/A
	2014
	N/A
	2015
1.	2015/11 Carer’s Allowance	Question at issue: Eligibility (Care Required)
2.	2015/12 Carer’s Allowance	Question at issue: Eligibility (Care Provided)
	2016
1.	2016/18 Carer’s Allowance	Question at issue: Eligibility (Provision of Full-Time Care)
2.	2016/19 Carer’s Allowance	Question at issue: Eligibility (Means)
3.	2016/318/33 Carer’s Allowance	Question at issue: Full-Time Care and Attention Required
4.	2016/318/34 Carer’s Allowance	Question at issue: Overpayment Assessed
	2017
1.	2017/28 Carer’s Allowance	Question at issue: Means & Overlap of Entitlement between Schemes
2.	2017/29 Carer’s Allowance	Question at issue: Full-Time Care Required & Working/Studying more than 15 hours per week
3.	2017/30 Carer’s Allowance	Question at issue: Eligibility (Care Required)
4.	2017/31 Carer’s Allowance	Question at issue: Eligibility (Full-Time Care)
5.	2017/318/63 Carer’s Allowance	Question at issue: Full-Time Care
6.	2017/318/64 Carer’s Allowance	Question at issue: Full-Time Care Required
	2018
1.	2018/25 Carer’s Allowance	Question at issue: Eligibility (Care Provided)
2.	2018/26 Carer’s Allowance	Question at issue: Eligibility (Care Provided)
3.	2018/27 Carer’s Allowance	Question at issue: Eligibility (Care Required)
4.	2018/28 Carer’s Allowance	Question at issue: Eligibility (Care Required)
5.	2018/29 Carer’s Allowance	Question at issue: Eligibility (Care Provided)
6.	2018/318/65 Carer’s Allowance	Question at issue: Eligibility (Care Required)
7.	2018/318/66 Carer’s Allowance	Question at issue: Eligibility (Care Provided)
	2019
1.	2019/27 Carer’s Allowance	Question at issue: Eligibility (Care Provided)
2.	2019/28 Carer’s Allowance	Question at issue: Eligibility (Care Required & Care Provided)
3.	2019/29 Carer’s Allowance	Question at issue: Eligibility (Care Required)
4.	2019/30 Carer’s Allowance	Question at issue: Eligibility (Care Required)
5.	2019/318/63 Carer’s Allowance	Question at issue: Eligibility (Care Required)
	2020
1.	2020/22 Carer’s Allowance	Question at issue: Eligibility (Care Provided)
2.	2020/23 Carer’s Allowance	Question at issue: Eligibility (Care Provided)
3.	2020/24 Carer’s Allowance	Question at issue: Eligibility (Care Required)
4.	2020/25 Carer’s Allowance	Question at issue: Eligibility (Care Required)
5.	2020/26 Carer’s Allowance	Question at issue: Eligibility (Care Required & Care Provided)
6.	2020/27 Carer’s Allowance	Question at issue: Eligibility (Means)
7.	2020/318/63 Carer’s Allowance	Question at issue: Eligibility (Care Required)
8.	2020/318/64 Carer’s Allowance	Question at issue: Eligibility (Care Required)
	2021
1.	2021/36 Carer’s Allowance	Question at issue: Eligibility (Care Required)
2.	2021/37 Carer’s Allowance	Question at issue: Eligibility (Care Required)
3.	2021/38 Carer’s Allowance	Question at issue: Eligibility (Care Provided)
4.	2021/39 Carer’s Allowance	Question at issue: Eligibility (Care Required & Care Provided)
5.	2021/40 Carer’s Allowance	Question at issue: Eligibility (Care Provided)
5.	2021/77 Carer’s Allowance	Question at issue: Eligibility
	2022
1.	2022/27 Carer’s Allowance	Question at issue: Eligibility (Care Required)
2.	2022/28 Carer’s Allowance	Question at issue: Eligibility (Care Required)
3.	2022/29 Carer’s Allowance	Question at issue: Eligibility (Care Required)
4.	2022/30 Carer’s Allowance	Question at issue: Eligibility (Care Required)
5.	2022/31 Carer’s Allowance	Question at issue: Eligibility (Means)

2012:

2012/01 Carer’s Allowance

Decision under appeal: claim rejected – reason(s) stated:

The Chief Medical Advisor having examined the medical evidence has decided that, in his opinion, the person being cared for is not so invalided or disabled as to require full-time care and attention as laid down in the Carer’s Allowance legislation.

Background: In 2007, Carer’s Allowance was awarded in respect of the appellant’s son. Following a review in 2011, payment was terminated in line with the decision outlined above. It was the opinion of the Department’s Medical Advisor that while available medical evidence indicated a level of dependence, it did not indicate the need for full-time care and attention. Her son’s GP advised that he expected the condition diagnosed to continue indefinitely; in completing an ability/disability profile, he indicated that her son’s condition was severe under a number of headings, including mental health/behaviour; learning/intelligence and consciousness/seizures.

Diagnosis: Epilepsy, depression and ADHD Hyperkinetic disorder

At oral hearing: the appellant referred to her son’s diagnosis. She said that he is 17 years old and cannot be left alone at any time. She provided an outline of a typical day, which included getting up at 9-10 a.m. and then sitting in the living room wrapped in a duvet. She said that he does not go out alone, but sometimes goes to the shops with her. She reported that this can be difficult as he has temper tantrums and is easily provoked. She went on to say that he gets more agitated in the evenings and can lash out. He goes to bed at about 10 p.m. but can still be awake at 2-3 a.m. The appellant said that they had removed a television from his bedroom as a precaution when he began throwing things out the window.

The appellant spoke about her son’s depression and said that he also experiences frustration. He had attended counselling for three sessions but then refused to go back. She advised that the Gardaí had been called to the house on a number of occasions, the last being three weeks earlier, because of her son’s aggression within the household. In terms of his epilepsy, he attends Beaumont Hospital every six months. The appellant said that he takes ‘petit mal’ seizures every two to three days; he drools, gets headaches and generally has to go to bed until the episode passes. Previously, he had suffered from ‘grand mal’ seizures, but these had been controlled since he was hospitalised with one during 2011. He also attends the Child and Adolescent Mental Health Services every two to three months, and is under the guidance of the child psychologist there. In addition, he attends his GP every two months or so. The GP talks to him, checks his medication and observes him. In conclusion, the appellant submitted a number of letters and reports in respect of her son’s condition.

Comments/Conclusions: In determining the appeal, the Appeals Officer took into consideration the testimony of appellant at the hearing, and an assessment of the relevant documentation on file and the additional documentary evidence submitted at the oral hearing. In the circumstances set out by the appellant, and supported by the medical evidence to hand, he concluded that the appeal should succeed.

Decision of the Appeals Officer: The appeal is allowed.

2012/02 Carer’s Allowance

Decision under appeal: claim terminated – reason(s) stated:-

Your Carer’s Allowance claim is terminated with effect from [specified date] on grounds that you are no longer proving full-time care and attention for a relevant person.

Background: The appellant had been in receipt of Carer’s Allowance in respect of his father, who was in his late sixties, and had been diagnosed with alcohol dependency, diabetes and depression. Following a report to the Department of Social Protection from the local Gardaí, the claim was reviewed and subsequently terminated. In his appeal submission, the appellant contended that he provided full-time care for his father. He outlined the nature of that care, including the supervision of medication and being available around the clock. He stated that his father had fallen two months earlier and had broken his hip and arm. He submitted that his father was totally reliant on him.

At oral hearing: the Deciding Officer attended at the request of the Appeals Officer, as did the Garda who was involved in the case. The Deciding Officer confirmed that he had relied upon a Garda report made to the Department of Social Protection, in which it was stated that the appellant appeared not to be carrying out his caring duties and suggested that the appellant’s father be placed in alternative care.

The Garda reported that he had visited the appellant’s address and had found the house in filth. He stated that there was evidence of intravenous drug use and that he had observed the appellant to be in a very unhealthy state. He submitted that the appellant was obviously using heroin and was incapable of looking after himself, not to mention his father. He noted that there were other occupants in the house, living upstairs.

In response, the appellant stated that he was now off drugs and had been on a methadone treatment programme for the previous four months. He reported that he was in receipt of Jobseeker’s Allowance, that he was availing of meals on wheels and that the public health nurse visited once a week. He conceded that he had been incapable of providing full-time care for his father while using heroin.

The Garda accepted that the appellant had cleaned himself up and noted that he had put on weight. He expressed concern that the appellant’s erstwhile friends might resume their residence with the appellant, to his detriment and that of his father. However, he acknowledged that the appellant genuinely wanted to care for his father and said he hoped that the situation could be resolved.

In conclusion, the Appeals Officer advised the appellant that he would require an update from the Department of Social Protection (the local Social Welfare Inspector) to the effect that the qualifying conditions for Carer’s Allowance were satisfied before reinstatement could be considered.

Consideration: The Appeals Officer noted receipt of the Social Welfare Inspector’s report. He considered that it confirmed that the Deciding Officer was correct to withdraw payment of Carer’s Allowance on the grounds that the appellant had not been caring for his father at the time: he had been incapable of providing care. He noted that the Garda involved in the case had accepted that the appellant was now addressing his drug habit, and that the Social Welfare Inspector had noted a significant improvement by comparison with his earlier visit to the appellant. He concluded that it had been established that the appellant once again satisfied the conditions for payment of Carer’s Allowance. In the absence of an alternative date, he determined that Carer’s Allowance should be reinstated with effect from [specified date], when the appellant attended the oral hearing and the indications were that he was in a position to care for his father.

The Appeals Officer observed that this case had had an encouraging outcome and that the role of the Gardaí was appreciated. As the Gardaí would not always be in a position to attend oral hearings, he suggested that future reports should be directed through Social Welfare Inspectors who could then present the evidence of their investigations.

Decision of the Appeals Officer: The appeal is allowed from [specified date] only.

Note on reason(s) for decision: In the absence of an alternative date, I am prepared to re-instate the Carer’s Allowance from [specified date], when the appellant attended the oral hearing and the indications were that he was in a position to care for his father.

2015:

2015/11 Carer’s Allowance

Question at issue: Eligibility (Care Required)

Background: The appellant made a claim for Carer’s Allowance in respect of care being provided for her parents, both of whom were in their seventies. Her father had been diagnosed with Ischaemic Heart Disease, Diabetes Mellitus and Chronic Obstructive Pulmonary Disease (COPD), while her mother had a diagnosis of Diabetes Mellitus, Anaemia, Hypertension, High Cholesterol, COPD and Chronic Kidney Disease. The claim was refused on grounds that neither person was held to require full-time care and attention as provided for in the governing legislation.

Oral hearing: The appellant attended the hearing in the company of one of her parents. The Appeals Officer sought to clarify the provisions of the legislation, making reference to the circumstances in which a person may be considered to have a need for full-time care and attention. He outlined the medical evidence which was available.

In outlining her parents’ care needs, the appellant provided some background to her circumstances and an account of a typical day, with specific attention to her caring role. In this she submitted:

o Her parents live close by and she would generally call into them at around 9.30 a.m. By that time, they have usually mobilised, dressed and groomed. They do not need regular assistance with dressing or matters of hygiene, including washing/showering. She assists her mother with showering occasionally and also does physiotherapy to relieve joint discomfort associated with Arthritis.

o The appellant attends to making the breakfast and housekeeping, which includes making beds, cleaning and washing clothes.

o Her parents are reluctant to go out and usually stay indoors, watching television or listening to the radio. She usually accompanies her mother to collect her pension and do a little shopping. Her father takes short walks for exercise.

o The appellant prepares the dinner for 1 p.m. and all the family, including the appellant’s own family, have their dinner in her parents’ house. Her parents usually stay around the house in the afternoon. They have a light tea in the evening.

o The appellant does not usually call on her parents in the evening but is available, if needed. Her parents retire to bed, unassisted.

o The appellant pointed out that she monitors her mother’s bloods daily as she is unable to do it herself. She understands the readings and notifies the relevant service when bloods are high. He mother self-injects her insulin.

o The appellant’s brother brings both parents to their various hospital and G.P. appointments. He also looks in daily on his parents and looks after the fire, fetching turf and so on.

Consideration: The governing legislation, Section 179 of the Social Welfare (Consolidation) Act, 2005 prescribes that for the purposes of Carer’s Allowance a relevant person is regarded as requiring full-time care and attention where –

(a) The person has such a disability that he or she requires from another person –

(i) Continual supervision and frequent assistance throughout the day in

connection with normal bodily functions, or

(ii) Continual supervision in order to avoid danger to himself or herself, and

(b) The nature and extent of his or her disability has been certified in the prescribed

manner by a medical practitioner

The Appeals Officer noted the medical evidence provided in respect of each of the appellant’s parents, and the fact that the family G.P. had suggested that they both required ongoing care and attention. He noted also that no issues of concern were raised in relation to their safety. In relation to the appellant’s father, he noted that his medical condition was considered to have a moderate effect on his mental health, balance/co-ordination, vision and hearing, a mild effect on his continence and a mild to moderate effect on his ability to undertake the activities of daily living.

The Appeals Officer noted that the medical evidence provided in relation to the appellant’s mother indicated that her condition had a moderate effect on her mental health, balance/co-ordination and vision and a mild to moderate effect on her ability to undertake the activities of daily living.

The Appeals Officer noted that the appellant’s evidence had indicated that her parents were able, without support, to mobilise in the morning and attend to their own grooming, including hygiene. She had advised that her parents spend most of their time indoors, being reluctant to going out particularly because of mobility challenges associated with their medical conditions. He noted that for the most part, the appellant does the domestic tasks, including preparing all meals, making beds, cleaning and washing clothes. He noted that the appellant attended to some of her parents’ personal needs, including assisting her mother with bathing, monitoring her blood sugar levels, and providing some physiotherapy. After a careful assessment, he concluded that whilst the evidence established that the appellant’s parents required a level of care, it had not been established that they required full-time care and attention within the meaning of the provisions of social welfare legislation.

Outcome: Appeal disallowed.

2015/12 Carer’s Allowance

Question at issue: Eligibility (Care Provided)

Background: The appellant applied for Carer’s Allowance in respect of care being provided for her grandfather, who resides with his daughter and her family. He is in his late sixties and had been deemed to require full-time care. The appellant lived with her parents and went to a rural area to care for her grandfather on a Monday to Friday basis. This was confirmed in the report of a Social Welfare Inspector. The claim was refused on grounds that the appellant was held not to be providing full-time care and attention as she was not resident with her grandfather on a full-time basis and the care was shared with her aunt who was living with him. In her appeal, the appellant stated that she provides full-time care from Sunday to Friday and that her aunt looks after her grandfather on Saturdays only.

Oral hearing: The appellant advised that she was in receipt of Jobseeker’s Allowance and that she continued to live at her parents’ home. She outlined the background to the current arrangement in which she provides care for her grandfather. The appellant’s aunt continued to live with her parents after she married. She has three children and is in full-time employment. When the appellant’s grandmother became ill some years ago, the appellant went to live with and care for her. She continued to visit her grandfather for a few days a week after her grandmother’s death in 2012, initially just to keep him company. As his health declined, however, she began and has continued to care for him. She referred to her grandfather’s diagnosis of Parkinson’s disease, together with Angina and renal problems.

The appellant stated that she used to stay with her grandfather from Monday to Friday, going home each Saturday and returning on Sunday and, more recently, going home on Sunday and returning around mid-day on Monday. She advised that she travels by train and she submitted receipts for some of the weeks involved (a total of 19 return tickets), stating that she had not kept them all.

The appellant reported that she gets her grandfather up in the morning, helps him to wash and dress and then gets his breakfast. She advised that his Parkinson’s has deteriorated and that he is almost fully incontinent. She administers his medications, collecting them and putting them in order. Her aunt collects his pension and assists him in paying the bills and she has no knowledge or input to this. She advised that she had completed a carer’s training course, which had helped her to cope, especially in relation to protecting her back, which had been taking a lot of strain. She went on to say that she cooks for all the family, does her grandfather’s laundry and, while she does not drive, she accompanies him to all medical appointments, usually getting a lift from a neighbour or another family member, who lives nearby.

Consideration: The Appeals Officer noted that the appellant was fully unemployed and in receipt of Jobseeker’s Allowance, whilst her aunt and family were working. She noted the circumstances in which the current arrangements had arisen and the fact that the appellant had undertaken a carer’s training course, with the intention of caring for her grandfather. She had regard also to the fact that the other household members were absent during the day, returning only in the evening, and that the appellant was providing personal care on a daily basis. She observed that the appellant’s account, given at the oral hearing, was genuine and credible and she noted that the provision of care now extends to part of each weekend. On the basis of the evidence available, including the fact that appellant lives with her grandfather for the majority of the time and is his sole carer, the Appeals Officer was satisfied that she was providing full-time care and attention, despite travelling home at weekends.

Outcome: Appeal allowed

2016:

2016/18 Carer’s Allowance

Question at issue: Eligibility (Provision of Full-Time Care)

Background: The appellant’s claim for Carer’s Allowance was disallowed on grounds that she was not providing full-time care and attention for her husband, who was in his late 70s. He had a diagnosis of severe chronic obstructive pulmonary disease (COPD), cerebral vascular accident (CVA) and coronary artery disease (CAD). The claim had been referred to a Social Welfare Inspector, who interviewed the appellant. At that time, her husband was in hospital. The Inspector reported that while there was a level of personal care being provided, he considered that the care the appellant was providing was not full-time care and attention within the meaning of legislation. This had been accepted by the Deciding Officer in his determination. In her appeal, the appellant asserted that she provides care around the clock.

Oral hearing: The appellant attended the hearing alone, while the Social Welfare Inspector attended at the request of the Appeals Officer. He outlined the details of his report and stated that he was satisfied that it reflected accurately the information which had been provided by the appellant during the course of their meeting. He stated that the appellant had advised that her husband was able, for the most part, to attend to his own personal care needs, independent of her support. He reported that while it was clear that she was providing some support, it appeared that the major part of the time she spent with her husband was in situations where companionship was required rather than care. In response, the appellant contended that her husband requires full-time care and attention and, given the circumstances, that she is his carer. She reported that her husband had experienced three stokes which had a significant impact on his independence and his ability to undertake daily activities without continual support and supervision. She made reference to a significant history of COPD and advised that he was using home oxygen at all times.

The appellant advised that her husband receives Home Help, for one hour a day, two days a week. She said that at such times he is assisted with showering and at all other times she is his only carer. She advised that he is susceptible to losing his balance and falling, that he uses crutches when getting around the house and has a wheelchair for outdoor use. She reported that his sleep can be disturbed significantly and that she is on constant alert for any difficulties arising, particularly any problems with oxygen intake or supply. The Social Welfare Inspector confirmed that the appellant’s husband had been in hospital at the time he interviewed her and conceded that it might have been more helpful if he had observed him at home.

Consideration: The Appeals Officer noted that the question of the appellant’s husband requiring full-time care and attention was not at issue and accepted, based on this fact and having regard to the medical evidence available, that full-time care and attention was required. He noted also that the appellant was the main care provider, albeit her husband had the benefit of two hours a week by way of Home Help. He made reference to the significant difficulties her husband was experiencing as a consequence of the medical conditions diagnosed and noted that the appellant was in constant attendance, to ensure his safety. He concluded that the appellant must be held to be providing full-time care within the meaning of the governing social welfare legislation.

Outcome: Appeal allowed.

2016/19 Carer’s Allowance

Question at issue: Eligibility (Means)

Background: In 2015, the appellant made a claim for Carer’s Allowance in respect of care being provided for her son. This was rejected on grounds that her weekly means, derived from her husband’s income from self- employment as a farmer, were in excess of the statutory limit. In assessing means, the Deciding Officer referred to farm income of the order of €67,000 per annum, recorded as drawings in the accounts for 2013.

Oral hearing: The appellant was accompanied by her son, for whom she provides care. It was confirmed that the question at issue referred only to means. The appellant asserted that in assessing means from the farm holding, no account had been taken of the price drop experienced by milk suppliers. She stated that this had resulted in a significant reduction in projected gross income for 2016 and she submitted monthly statements from her local Creamery Co-Operative (Co-Op) as evidence of the drop in milk prices. She asserted that it was unreasonable to calculate means with reference to accounts for previous years when the milk price had effectively collapsed in 2016, forcing the farm enterprise to engage in further borrowing.

The appellant accepted that all other current income and expenditure was broadly in line with 2014 returns, which had formed the basis of the assessment, and she undertook to provide details. She also submitted evidence of an operating loan issued by the bank in 2016, with details of interest applied and repayments being made. She undertook to provide details of milk supply in 2015 and 2016 for comparison purposes and to illustrate why projected income was expected to fall sharply. She provided farm accounts for 2014 which recorded a net profit of some €70,000. (Further documentary evidence, as outlined, was submitted following the oral hearing.)

Consideration: The Appeals Officer noted that the profit from the holding had not been assessed and, instead, personal drawings recorded in the accounts were used. He observed that, in the assessment of means, drawings were not to be assessed without qualification. He noted that a decision maker must be satisfied that the drawings are sustainable on an ongoing basis before being assessed as means and, in addition, that the source of the funds from which the drawings are made must be examined. In this case, he noted that the drawings at issue were made up of farm income, rental income, a Revenue refund, a Value Added Tax (VAT) refund, a dividend and an insurance settlement. He observed that, of these, only the farm income was assessable as means derived from cash income as the rental income had already been considered as capital. By assessing the drawings as income, he suggested that the decision maker was attempting to assess the same source of means as both capital and as income, and he pointed out that this was not appropriate.

The Appeals Officer accepted the appellant’s contention that current yearly income was affected by the drop in prices, reducing projected milk income by some 23%, while overheads had remained largely the same. He noted that this was reflected in gross income and projected net profit. He made an assessment on this basis and concluded that the appellant had weekly means of €87.00.

Outcome: Appeal partially allowed

2016/218/33 Carer’s Allowance

Question at issue: Full-Time Care and Attention Required

Grounds for review: It was asserted that the Appeals Officer had provided little if any information with respect to the evidential weight attributed to the evidence in the case and that his reasoning and findings were not compatible with the facts and the law. It was submitted, essentially, that the evidence pointed to a finding that full-time care and attention was required although the Appeals Officer’s decision was to disallow the appeal.

Background: The claim in this case was made in respect of the care of a person, in their late 50s, who had a diagnosis of recurrent psychotic depression. It was reported that she had been attending a psychiatrist since 2009, when she presented with a severe depressive episode with associated psychotic symptoms and severe anxiety. Her psychiatrist provided an account of her responses to treatment and subsequent relapses, as well as an account of what were described as three different powerful medications which she had been prescribed. The appellant made a claim for Carer’s Allowance in 2015 in respect of care he was providing and this was refused as the Deciding Officer considered that the person being cared for was not so invalided or disabled as to require full-time care and attention, in line with the provisions of the relevant legislation. The Appeals Officer held an oral hearing and concluded subsequently that while it had been shown that support was required, it had not been established that there was a need for full-time care and attention as defined in social welfare legislation.

Review: The relevant legislation is Section 179(4) of the Social Welfare Consolidation Act 2005, which provides that a relevant person shall be regarded as requiring full-time care and attention where –

(a) the person has such a disability that he or she requires from another person—

(i) continual supervision and frequent assistance throughout the day in

connection with normal bodily functions, or

(ii) continual supervision in order to avoid danger to himself or herself,

(b) the person has such a disability that he or she is likely to require full-time care and

attention for at least 12 consecutive months, and

(c) the nature and extent of the person’s disability has been certified in the prescribed

manner by a registered medical practitioner.

In the course of my review, I considered all of the evidence which was before the Appeals Officer including the following medical evidence:

• Medical report which formed part of the Carer’s Allowance claim form – completed by a nominated psychiatrist,

• Letter (specified date in 2015), from the same psychiatrist.

The question at issue was whether or not the evidence which was before the Appeals Officer supported the appellant’s contention that the person being cared for required full- time care and attention within the meaning of the governing social welfare legislation. In considering this matter, I examined the question as to whether she might be held to require continual supervision in order to avoid danger to herself, in line with Section 179(4)(a)(ii) of the Social Welfare Consolidation Act 2005. It was accepted that she did not require supervision and assistance with normal bodily functions, as outlined in Section 179(4)(a)(i).

I noted that the evidence which was before the Appeals Officer comprised the medical evidence outlined above, as well as the appellant’s written submission and his testimony at oral hearing. The salient points made in relation to the care requirements of the person in question were as follows:

• She is unable to do any cooking as she forgets she is cooking and lets food burn.

• She falls asleep most days and has fallen on to the floor on a number of occasions.

• She puts items away and becomes distressed thinking they are lost.

• She often thinks other people are talking about her and can get distressed.

• She will not go anywhere unaccompanied.

• She will not answer the phone or open post.

• She does not really manage any tasks independently.

• When the appellant must be away, he arranges for someone to stay in the house as

she would not be safe left on her own.

In the request for a review of the Appeals Officer’s decision, it was submitted that while the medical evidence did not provide definitive proof that the person being cared for required full-time care and attention, it included sufficient information to indicate that the need for full-time care was quite probable. It was asserted that when this was examined together with the appellant’s testimony, it established the likelihood that she could not function safely without continual supervision by the appellant.

Having reviewed the evidence in the case, I took the view that the Appeals Officer did not give sufficient consideration or weight to the question as to the level of supervision required in order that the person being cared for would avoid danger to herself, in the context of her diagnosis and having due regard to the appellant’s account of the difficulties she encountered in relation to the activities of daily living. I considered that the evidence presented supported the contention that she required continual supervision in order to avoid danger to herself in accordance with Section 179(4)(a)(ii) and that the extent of the care which the appellant had outlined was, therefore, consistent with full-time care and attention as defined in the legislation. For that reason I decided to revise the Appeals Officer’s decision and to allow the appeal.

Outcome: Decision revised and appeal allowed.

2016/318/34 Carer’s Allowance

Question at issue Overpayment Assessment

Grounds for Review: A review was sought on the basis that the Appeals Officer had not given sufficient weight to certain facts relating to the appeal, as follows:

• The appellant had relied on an opinion of a social worker engaged with Tusla

regarding her continued entitlement,

• No consideration had been given to the exemption of 13 weeks provided for in the

Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (No.

142 of 2007),

• In relation to the recovery of any amounts due, the appellant was prepared to make

repayments as specified.

Background: The appellant was awarded Carer’s Allowance in September 2009 in respect of care she was providing for her son. In 2015, a Social Welfare Inspector called to her home and it emerged at this meeting that her son was no longer residing there having been admitted to a children’s residential unit at the end of 2013. As a result, a Deciding Officer, relying on Section 302(b) of the Social Welfare Consolidation Act 2005, decided that the appellant was not entitled to Carer’s Allowance with effect from the relevant date. In addition, she was held not to have had an entitlement to a Respite Care Grant paid in 2014. (This was re-named Carer’s Support Grant in 2016.) Following an oral hearing, an Appeals Officer disallowed the appeal.

Review: I examined each of the three grounds separately.

Information provided in error by Tusla: The contention here is essentially that the appellant’s reliance on information provided by Tusla should be equated to the provisions of Article 246(1) of the of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142 of 2007) which provides that:

The amount of an overpayment to be repaid may be reduced or cancelled where the

overpayment arose because of –

(a) a failure by the Department to act within a reasonable period on

information which was provided by or on behalf of the person concerned, or

(b) an error by the Department,

and the person concerned could not reasonably have been expected to be aware that

a failure or error had occurred.

It cannot be said that the Department acted in error in this case and I can find no grounds on which I can equate the provisions of Article 246(1) to the provision of information provided by Tusla. There is an onus on all recipients of social welfare payments to notify the Department of any change in their circumstances that may impact on their entitlement or continued entitlement. It was open to the appellant to contact the Department if she had any enquiries relating to her payment or her continued entitlement to Carer’s Allowance. The onus was not on Tusla to contact the Department.

From my review of the evidence, I note that some weeks before the appellant’s son was admitted to the residential unit, a Deciding Officer of the Carer’s Allowance section had written to her and advised that a review of her entitlement had been undertaken. This letter outlined in some detail the events which may affect entitlement to Carer’s Allowance, including circumstances where full-time care and attention is no longer being provided or where the carer or the person being cared for is admitted to hospital or to residential care. For the reasons outlined I found no grounds to revise the decision of the Appeals Officer on the basis of this contention.

Consideration of exemption for 13 weeks: It was submitted that the report of the oral hearing indicated that the Appeals Office did not consider if the exemption provided for by Article 136(a) of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142 of 2007) applied in the appellant’s case. Article 136(a) provides that a carer may continue to be regarded as providing full-time care and attention to a relevant person where –

(a) he or she would qualify for payment of an allowance but for the fact that either

the carer or the relevant person is undergoing medical or other treatment of a

temporary nature in an institution for a period of not longer than 13 weeks, or …

I noted that the Appeals Officer’s report of the oral hearing made reference to the appellant’s account of the arrangements put in place for her son, stating that it had been intended initially that he would return home on 3 to 4 days per week. However, his behaviour had become increasingly violent and it was agreed that he would remain in the residential unit from late in 2013. From my review of the evidence, it was clear that the care arrangement was voluntary and that both the appellant and her husband were actively involved in a shared parenting plan and visited their son on a daily basis. However, I am satisfied that the care arrangement, while voluntary, was not temporary in the sense provided for by Article 136(a). I therefore found no grounds to revise the decision of the Appeals Officer on the basis of this contention.

Recovery of Overpayment: As outlined by the Appeals Officer, the recovery of the overpayment does not come within the remit of the Social Welfare Appeals Office and is a matter between the Department of Social Protection and the appellant. For the reasons outlined above, I was satisfied that the Appeals Officer did not err in fact or law and consequently I declined to revise the decision in this case.

Outcome: Request for revision denied.

2017:

2017/28 Carer’s Allowance

Question at issue: Means & overlap of entitlement between schemes

Background: The appellant’s entitlement to Carer’s Allowance was reviewed based on her means from her husband’s insurable employment. She was informed her payment would cease from 14 April 2017 as she was assessed with means of €261.23 per week which exceeded the statutory limit appropriate to her family circumstances. This assessment was based on her husband’s income details for the full year of 2016. She appealed this decision and provided recent pay slips for her husband’s income. The Department reviewed her entitlement on the basis of these new income details for her husband and decided that she should be assessed with means of €181.26 per week. These means were assessed from a backdated date of 5 January 2017.

Consideration: The Appeals Officer reviewed the means calculation and was satisfied that the revised means were correct and calculated in accordance with the legislation. However, he also noted that the appellant was in receipt of Illness Benefit until 31 March 2017 which meant that she was getting half rate Carer’s Allowance. He pointed out that while she was receiving Illness Benefit payment, she had not been entitled to an increase in her Carer’s Allowance in respect of her children. However, when the Illness Benefit ended on 31 March 2017, and she was entitled to Carer’s Allowance at the full rate appropriate to the means assessable, she would also be entitled to an increase for her two dependent children and would therefore be on a higher rate of payment from 1 April 2017. The Appeals Officer also noted that, as with all means tested payments, the appellant was entitled to seek a review of her entitlement at any time if her means decreased. Equally, she was required to inform the Department if her means increased.

Outcome: Appeal partially allowed.

2017/29 Carer’s Allowance

Question at issue: Full-time care requirement and working/studying more than 15 hours per week

Background: The appellant applied for Carer’s Allowance in respect of his father in January 2016 and was refused by the Department on two grounds: that the caree did not meet the medical criteria for the scheme and the appellant was working/studying for more than 15 hours per week outside the home. The medical evidence showed that the caree suffered from multiple significant medical conditions. The GP indicated that the conditions would continue indefinitely, that he was attending a number of specialists on an ongoing basis, that he was severely affected in manual dexterity, standing and walking, and profoundly affected in lifting/carrying and climbing stairs/ladders. The appellant was attending a part- time course in legal studies.

Consideration: In order to meet the medical eligibility criteria for Carer’s Allowance, the person being cared for must have such a disability that he/she requires full time care and attention from another person. The Appeals Officer was satisfied that the nature of the caree’s multiple medical conditions and the severity of these conditions, as certified by the GP, was such that he required continual supervision and frequent assistance throughout the day in connection with normal bodily functions, as well as continual supervision in order to avoid danger to himself. In accordance with Section 179(4) of the Social Welfare Consolidation Act 2005, the Appeals Officer was satisfied that full time care and attention was required.

Section 136 of Social Welfare (Consolidated Claims Payments and Control) Regulations, 2007 (S.I. No. 142 of 2007) states that a carer may, subject to adequate provision being made for the care of the relevant person, engage in employment/self-employment/training for a maximum of 15 hours per week. The evidence presented by the appellant’s place of study confirmed that he was a student and attended tuition on average every 2nd weekend over a 16 hour period for 14 weekends. The appellant clarified that the average number of hours that he attended classes was 8.75 hours per week and that he was able to care for his father as well as continue with his studies. The Appeals Officer was satisfied that the aggregate duration of the appellant’s course of study did not exceed 15 hours per week and therefore the appellant satisfied this condition in respect of his Carer’s Allowance application.

Outcome: Appeal allowed.

2017/30 Carer’s Allowance

Question at issue: Eligibility (Care Required)

Background: The appellant’s claim for Carer’s Allowance was disallowed on the grounds that her partner who was in her early 30s was not so invalided or disabled as to require  full time care and attention. Her partner had a diagnosis of fibromyalgia, IBS and severe lower back pain. The GP had assessed her abilities as severely affected in lifting/carrying and moderately affected in mental health/behaviour, reaching, manual dexterity, bending/kneeling/squatting, sitting/rising, standing, climbing stairs/ladders and walking. He stated that she required assistance with basic activities of daily living such as dressing, sitting and standing, and with using the toilet and personal hygiene. She could not do any housework or lift her child.

Oral Hearing: The appellant attended the hearing accompanied by her partner for whom she had applied for Carer’s Allowance. As well as the fibromyalgia, IBS and back pain she had been diagnosed 6 months ago with pubis symphysis and was awaiting a review with a gynaecologist in relation to this. She had been reviewed by an orthopaedic specialist with regard to her back problem but they were prevented from doing anything until the pelvic problem was further investigated. She outlined her medications. She was due to start physiotherapy for her back and pelvis. She required a wheelchair or rollator for mobility when outside the home.

The appellant outlined the care she provided for her partner. She assisted her getting in and out of bed, dressing, bathing, washing hair, and toileting. She also helped her with mobility and assisted her when arising and when sitting. She did all of the housework and cooking. She had to do all physical activities with their child as her partner was not able to do these.

Consideration: The Appeals Officer noted that in order to qualify for Carer’s Allowance, the legislation requires that the person receiving care must be so impacted by an illness/ disability as to require continual supervision and frequent assistance throughout the day in connection with normal bodily functions, or continual supervision in order to avoid danger to himself or herself. She noted the medical evidence submitted which outlined the extent of the appellant’s partner’s symptoms which were on-going and severe and were markedly limiting in terms of basic activities of daily living. She also noted the appellant’s testimony provided at oral hearing as to the nature of the care that she provides on a daily basis. The Appeals Officer concluded that the appellant’s partner required full-time care and attention and that the need for such care was likely to last for at least 12 months.

Outcome: Appeal allowed.

2017/31 Carer’s Allowance

Question at issue: Eligibility (Full-Time Care)

Background: The appellant’s claim for Carer’s Allowance was disallowed on the grounds that she was not providing full-time care and attention to the caree. She did not reside with the caree but called to his home every day. The caree was 73 years of age and had a diagnosis of emphysema, cognitive impairment, low back pain, heart disease and anxiety. His GP provided a letter of support for the Carer’s Allowance application, listing his medical conditions and noting that the caree was very dependent on the appellant on a daily basis.

Oral hearing: The appellant explained that she called to the caree’s home every morning to physically help him out of bed. She explained that he would not get up or take his medications if she was not there. She would bring him to the bathroom, wash him, assist him to dress, and give him his medications in the morning, afternoon and night-time. She explained that, if left alone, he would not take his medications. She encouraged him to get out of the house and brought him for a walk each day. She helped him to undress again at night-time, into bed and then returned to her own home. He would stay in bed until she returned the following day. She brought him to all medical appointments, and helped to calm him when he was feeling anxious or having a panic attack.

Consideration: The Appeals Officer noted that the available medical evidence supported the appellant’s contention that, as a result of restrictions in the caree’s abilities, he required assistance with washing, dressing and mobilising. He also noted that the caree had poor memory and that, despite strong medical recommendations that he was at high risk of stroke and should take warfarin to thin his bloods, he refused to do so. This evidence supported the appellant’s contention that, if she did not administer his medications to him at the appropriate times he would not take them and would be a danger to himself. The Appeals Officer was satisfied that the caree required full-time care and attention as legislatively prescribed, and so the remaining question to be answered was whether this care was being provided. The appellant’s evidence was that she called to the caree’s home every day, seven days per week at about 12 noon and remained with him to provide this care on a continuous basis from mid-day until he went to bed at night. The Appeals Officer decided that this evidence established the appellant provides full-time care and attention, as legislatively prescribed.

Outcome: Appeal allowed.

2017/318/63 Carer’s Allowance

Question at issue: Provision of Full-Time Care

Grounds for review: The appellant requested a review of an Appeals Officer’s decision on the grounds that the Appeals Officer erred in fact and/or law in concluding that the care the appellant was providing to another person could not be regarded as full-time care and attention within the meaning of social welfare legislation.

Background: The appellant applied for Carer’s Allowance, but this was rejected by the Department, including on review, on the grounds that he was not providing full-time care and attention. Following an oral hearing, the appeal was also disallowed on the same grounds.

Review: The relevant legislation in this case is Chapter 8 of Part 3 of the Social Welfare Consolidation Act 2005 and Chapter 4 of Part 3 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142 of 2007).

The key legislative provisions in this case are:

Section 179(1) of the Act of 2005, which provides for a definition of “carer” as follows:

““carer” means—

a. person who resides with and provides full-time care and attention to a relevant person, or

b. person who, subject to the conditions and in the circumstances that may be prescribed, does not

reside with but who provides full-time care and attention to a relevant person.” and

Section 179(4) of the Act of 2005, which provides as follows:

“(4) For the purposes of the definition of ‘relevant person’ in this Chapter, a person shall not be

regarded as requiring full-time care and attention unless the person has such a disability that he or

she—

a. requires from another person—

i. continual supervision and frequent assistance throughout the day in connection with normal

bodily functions, or

ii. continual supervision in order to avoid danger to himself or herself, and

b. is likely to require such full-time care and attention for at least 12 consecutive months.”

Article 57(1)-(3) of S.I. No.142 of 2007 also provides that where it is shown to the satisfaction of a Deciding Officer or an Appeals Officer that adequate provision has been made for the care of the relevant person, a carer may engage in employment where the aggregate duration of the activities outside the home shall not exceed 15 hours per week and the earnings derived from employment outside the home shall not exceed €332.50 per week.

The issue before the Appeals Officer was to determine if the appellant was providing full time care and attention within the meaning of the legislation. In reviewing the Appeals Officer’s decision I didn’t concern myself with a large number of written comments submitted by the appellant in relation to the Appeals Officer’s report and instead focussed on the evidence relating to the core issue that was before the Appeals Officer.

I reached a number of conclusions in this review. Firstly, I concluded that the inclusion of certain, arguably extraneous, information by the Appeals Officer did not of itself render the decision erroneous by reason of a mistake of fact or law. It was simply an attempt by the Appeals Officer to grapple with detailed comments made and information provided by the appellant. Secondly, I found no evidence that the Appeals Officer had drawn certain inferences that the appellant had alleged were tainted with sexism in the context of male carers. Thirdly, I agreed with the appellant’s contention that there is no requirement that a carer must or should know what social welfare payments a caree is receiving.

Of more central relevance, however, was my finding that the Appeals Officer had correctly identified the relevance of the fact that there were a number of parties providing care in this case. That several people were providing care was relevant to the question of whether full time care and attention was being provided specifically by the appellant. That is not to say that other family members are not permitted to help with the caring role, but I found that the Appeals Officer was correct to identify how much care the appellant was providing within that context in order to assess whether it constituted full-time care and attention.

In conclusion, I found that the contentions advanced by the appellant did not identify any error of fact or law which rendered the decision of the Appeals Officer erroneous.

Outcome: Decision not revised.

2017/318/64 Carer’s Allowance

Question at issue: Full-Time Care Requirement

Grounds for review: It was submitted that an Appeals Officer erred both in law and in fact in his consideration of an appeal in relation to whether full-time care and attention was required by a person who was already in receipt of Disability Allowance. In summary, it was contended that the Appeals Officer failed to fully assess the application in a manner compatible with natural and constitutional justice, fair procedures and the relevant Departmental guidelines; that the Appeals Officer overlooked or afforded insufficient weight to significant medical evidence, including evidence of mental ill health; and that the Appeals Officer appeared to discriminate against mental health disabilities in favour of physical disabilities.

Background: The appellant submitted a claim for Carer’s Allowance in respect of the care of her husband but this was rejected, including on review, by the Department on the basis that the person being cared for did not meet the care requirements as set out in Section 179(4) of the Social Welfare Consolidation Act 2005. That decision was appealed and was again rejected, including on review, by an Appeals Officer.

Review: The relevant legislation in this case is Chapter 8 of Part 3 of the Social Welfare Consolidation Act 2005 and Chapter 4 of Part 3 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142 of 2007).

The key legislative provisions in this case were:

Section 179(1) of the Act of 2005, which provides for a definition of “carer” as follows:

““carer” means—

a. person who resides with and provides full-time care and attention to a relevant person, or

b. person who, subject to the conditions and in the circumstances that may be prescribed, does not

reside with but who provides full-time care and attention to a relevant person.”

And section 179(4) of the Act of 2005, which provides as follows:

“(4) For the purposes of the definition of ‘relevant person’ in this Chapter, a person shall not be

regarded as requiring full-time care and attention unless the person has such a disability that he or

she—

a. requires from another person—

i. continual supervision and frequent assistance throughout the day in connection with normal

bodily functions, or

ii. continual supervision in order to avoid danger to himself or herself, and

b. is likely to require such full-time care and attention for at least 12 consecutive months.”

There are therefore, two main requirements to be met in order to be entitled to Carer’s Allowance: that the carer must be providing full-time care and the caree must require that full-time care. It was clear from the Deciding Officer’s decision that the claim was disallowed on the basis that it was considered that the care required did not meet the statutory requirements, but the question of the care being provided was not at issue. While the question of the care provided is an important element to be considered, I did not agree with the appellant’s contention that the primary focus of the appeal should have been on the care provided by her.

With regard to the legislative requirements, I noted that the Appeals Officer had incorrectly paraphrased the applicable legislation in that he set out that the legislation in relation to the care required must be “on a continuous and continual basis for period of at least 12 months”. This is incorrect as the legislation does not specify that the care required must be continuous (as in all of the time), but rather that the caree requires from another person:

continual supervision (as in frequently or on a regular basis) and frequent assistance throughout the day in connection with normal bodily functions, OR continual supervision in order to avoid danger to himself or herself.

This error appeared to have been central to the Appeals Officer’s overall consideration of the appeal and in this respect I found that the Appeals Officer misdirected himself as to the level of care required as set out in the governing legislation.

In the course of my review I also reviewed all of the evidence which was before the Appeals Officer, including the medical evidence which indicated the caree was severely affected in relation to his mental health (there was a diagnosis of depression) and in relation to several aspect of his physical mobility and well-being (there was a diagnosis of epilepsy and ongoing repercussions from a past spinal fracture).

The Department’s guidelines on Carer’s Allowance, which are provided to facilitate medical assessors in determining eligibility for Carer’s Allowance, were referred to in the grounds for review wherein ‘Mental Health and Suicidal Intent’ is listed as a condition for which Carer’s Allowance would automatically be granted. The guidelines specify that the condition must be recent and medically confirmed.

Having reviewed the evidence, I formed the view that the Appeals Officer had factually erred in his account of the caree’s medical history and had overlooked significant details relating to those medical conditions and resulting care needs. I found that the Appeals Officer did not have due regard to the medical evidence relating to the appellant’s mental health in that he had incorrectly noted that the caree had not been attending psychiatry services when the evidence on file showed that he was attending a Consultant Psychiatrist. For that reason alone, I was satisfied that the Appeals Officer had erred and the decision should be revised.

It appeared to me that the Appeals Officer had also discounted significant medical and oral evidence in favour of his own observations during the limited period of time available for the oral hearing and that the medical evidence indicated that the caree required continual supervision in order to avoid danger to himself, in line with Section 179(4)(a)(ii) of the Social Welfare Consolidation Act 2005.

I also concluded that in incorrectly paraphrasing the governing legislation, the Appeals Officer misdirected himself and applied an incorrect legal standard.

Outcome: Decision revised and appeal allowed.

2018

2018/25 Carer’s Allowance

Question at issue: Eligibility (full time care provided)

Background: The appellant’s claim was disallowed on the grounds that he was not providing full time care and attention to the caree, as set out in the governing legislation. The information provided on the Carer’s Allowance application form was that the caree was residing in a property adjacent to the appellant. The appellant stated that he provided care to the caree 4.5 hours per day, 7 days per week. He stated that there was a communications link between the residences. The appellant outlined that the daily duties he performed for the caree included administrating medicine, shopping, taking the caree to hospital and GP appointments, and looking after her house. In his appeal, the appellant stated that although he did not provide full time care, his application was based on the hours for which he provided care. He requested a part payment of a Carer’s Allowance.

Consideration: The Appeals Officer considered all of the information provided by the appellant, with his application and on appeal. The legislation governing Carer’s Allowance is specific in that a person acting as a carer must be providing full time care, as set out in Section 179 (1)(b) of the Social Welfare Consolidation Act 2005. There is no provision in the legislation for a payment to be made in respect of part time care, as was set out in the appellant’s appeal. Noting the level of care provided by the appellant as stated on the application form, and his statement on appeal the appellant recognised that he was not providing full time care to the caree, the Appeals Officer concluded that the appellant did not meet the definition of “carer” as set out in the governing legislation.

Outcome: Appeal disallowed.

2018/26 Carer’s Allowance

Question at issue: Eligibility (full time care provided)

Background: The appellant applied for Carer’s Allowance in respect of the care provided to his father. The appellant’s claim was disallowed by the Department on the basis that he was not providing full time care and attention. A review under Section 317 of the Social Welfare Consolidation Act 2005 by way of oral hearing was recommended following further evidence being submitted by the appellant. Section 317 provides that an Appeals Officer may at any time revise any decision of an Appeals Officer, where it appears to the Appeals Officer that the decision was erroneous in light of new evidence or new facts brought to his or her notice since the date on which it was given.

Oral Hearing: The appellant stated when he made his application he provided care for 4 hours per day for 6 or 7 days per week. His father was admitted to hospital in January 2018 for approximately two weeks and was waiting for two surgical procedures. The appellant outlined that his father’s health had deteriorated since his hospital admission and he had lost two stone in weight. All his meals needed to be supervised. The appellant had to provide personal care to his father such as helping him out of bed, dressing, washing and toileting.

His father needed help with mobility and medication due to failing sight. The appellant also continued to bring his father to appointments and anywhere he needed to go. The appellant outlined that his hours of caring had increased since his father’s hospitalisation and he went over to his house at 8.30 a.m. most days and spent the whole day there. Other family members stayed with his father if the appellant needed to go anywhere. The appellant outlined that his mother had her own health issues and was unable to physically look after his father.

Consideration: Having examined all the evidence, including that adduced at oral hearing, the Appeals Officer concluded that while the appellant was providing care and assistance to his father at the time of his application, the amount of care he was providing at that time could not be considered to be full time care and attention as required under the legislation.

However, taking account of his evidence at oral hearing and the fact that his father’s health had deteriorated necessitating more personal care since his discharge from hospital, the Appeals Officer concluded that from the date his father was discharged from hospital, the appellant could be regarded as providing full-time care and attention within the meaning of the social welfare legislation from that date.

Outcome: Appeal partially allowed.

2018/27 Carer’s Allowance

Question at issue: Eligibility (medical – care required)

Background: The appellant’s application for Carer’s Allowance in respect of the care provided to his wife was disallowed by the Department on the grounds that full time care and attention was not required by the person being cared for. The appellant’s wife, in her early 50s, had a diagnosis of arthritis in her hands, shoulders and knees, spondylitis of the spine and gastritis. She was in receipt of Disability Allowance. The medical evidence consisted of the medical report completed by her GP. The appellant stated on the application form that her husband provided full time care 7 days a week. No detail was given in relation to daily duties. In appealing the decision, the appellant expressed his dissatisfaction with the disallowance and stated that his wife needed help.

Consideration: The question under appeal was whether the appellant’s wife required full time care and attention as defined in the legislation. The Appeals Officer noted the medical report completed by the caree’s GP which indicated diagnoses of arthritis in her hands, shoulders and knees, spondylitis of the spine and gastritis. The caree was awaiting a rheumatology appointment, was on medication and was getting hydrotherapy. The GP indicated that the caree had restricted movement due to pain in wrists, shoulders and knees. On the ability/disability profile, the GP had indicated that the caree was ‘moderately’ affected. The appellant noted that his wife got dizzy spells and her knees could go from underneath her. Though it had not yet happened, he was concerned about her falling and felt she needed to be supervised at all times.

Having considered the evidence including that adduced at oral hearing, the Appeals Officer concluded that while it was clear that the appellant’s wife had a number of medical conditions that had an impact on her daily functioning and that necessitated some assistance with daily activities, the Appeals Officer did not consider that the level required constituted either continual supervision and frequent assistance throughout the day in connection with normal bodily functions, or continual supervision in order to avoid danger to herself, as required in the governing legislation.

Outcome: Appeal disallowed.

2018/28 Carer’s Allowance

Question at issue: Eligibility (medical – care required)

Background: The appellant’s application for Carer’s Allowance in respect of the care provided to her mother was disallowed by the Department on the grounds that full time care and attention was not required by the person being cared for. The medical evidence showed that the caree had severe asthma, COPD and a history of hypertension and diverticulitis. On the disability/ability profile the GP indicated that the caree was severely affected in 5 areas: lifting/carrying, bending/kneeling/squatting, sitting/rising, climbing stairs, walking and the remaining 11 areas were normal. The GP indicated that the condition was likely to continue indefinitely. Subsequent to the Department’s decision, additional medical evidence was submitted from a consultant respiratory physician to the effect that the caree had end stage lung disease.

Oral Hearing: At the oral hearing the appellant outlined that her mother’s condition had deteriorated dramatically, that her medication was no longer effective and that surgery was not an option as she was too frail. The appellant outlined the daily care she provided including assistance with dressing, toileting, showering, cooking, cleaning/housework, administration of medication, transport to appointments. She said that she was the youngest of a large family and other family members were not in a position to care for their mother. She said that she would have liked to work part-time for the permitted 15 hours per week but could not countenance that as she was caring for both her son and her mother. The appellant stated that she would care for her mother even if her appeal were not successful.

Consideration: To qualify for Carer’s Allowance the caree must be so disabled that they require from another person continual supervision and frequent assistance throughout the day in connection with normal bodily functions, or continual supervision in order to avoid danger to themselves. The caree must be likely to require full-time care and attention for at least 12 consecutive months. The Appeals Officer noted the medical evidence submitted and the appellant’s oral evidence, in particular, the evidence that the caree needed ongoing assistance with the activities of daily living. The Appeals Officer concluded that it was shown that the caree met the medical criteria for the award of Carer’s Allowance.

Outcome: Appeal allowed.

2018/29 Carer’s Allowance

Question at issue: Eligibility (provision of full-time care)

Background: The appellant applied for Carer’s Allowance in respect of the care provided to his grandson. The application was refused by the Department on two grounds: (1) that there was no system of communication between the appellant’s household and the caree’s household and (2) that the appellant was not providing full-time care and attention to his grandson as the child was already receiving full-time care and attention within his own home from his mother.

Consideration: In relation to there being no system of communication between the appellant’s household and the caree’s household, the Appeals Officer found that this did not stand up in relation to the unchallenged evidence that the appellant spent most of his time, including most overnights, in his grandson’s home. The question in relation to the existence of a mobile phone was unanswered by the appellant on the application form and the ‘no’ box was ticked by the Social Welfare Inspector in relation to whether there was a panic button or other form of direct communication between the two households. The Appeals Officer found that this ground for refusal was weak in the overall context of an appellant who was mostly physically present with the child.

In relation to the appellant not providing full-time care and attention, the medical evidence before the Appeals Officer was clear that the caree had very complex care needs requiring round-the-clock interventions. Special training in how to care for the child was given to the appellant and his daughter (as the two principal carers) as attested to by Crumlin Children’s Hospital. The evidence on file provided by the appellant and his daughter and the medics who were personally known to them was that the child required and received from his grandfather, an extraordinary amount of care and attention, well in excess of the Department’s 35 hours per week guidelines as to what constituted ‘full-time care’. The Appeals Officer was of the view that if it was considered that a full week consisted of 168 hours and the child needed care for all of them, the caree’s mother could not possibly do that, or even half of that, alone, in the context of having two other young children and, at the time of application, expecting another child. The Appeals Officer concluded that the uncontested evidence was that the appellant provided care to the caree for well in excess of 60 hours per week. The Appeals Officer was of the view that to describe the appellant as being in a ‘secondary’ caring role was an unfair representation of the care arrangements. The Appeals Officer outlined that the term ‘full-time care and attention’ could mean radically different things in different contexts and in the context of this child it meant multiples of the Department’s 35 hours per week guideline. The Appeals Officer, based on the evidence presented, formed the view that it would not be humanly possible for the child’s mother to provide full-time care and attention in the context of the child’s complex care needs and the evidence supported a conclusion that the appellant was certainly providing ‘full-time care and attention’ in the context of the legislation and the guidelines.

Outcome: Appeal allowed.

2018/318/65 Carer’s Allowance

Question at issue: Eligibility (Care Required)

Background: The appellant submitted a claim for Carer’s Allowance in respect of the care provided to her husband. The application was refused on the basis that the Deciding Officer and an Appeals Officer on appeal considered that the person being cared for did not meet the care requirements as set out in Section 179(4) of the 2005 Act.

Grounds for review: The primary contention submitted by the appellant was that the Appeals Officer either overlooked, or awarded insufficient weight to a number of significant facts outlined by the appellant in the course of her appeal and that the Appeals Officer failed to give proper consideration to the level of supervision required by the appellant’s husband in order to avoid danger to himself.

Review: The conditions for receipt of Carer’s Allowance are contained in Chapter 8 of Part 3 of the Social Welfare Consolidation Act 2005 and Regulations made thereunder.

Section 179 (1) provides that a “carer” means:

(a) a person who resides with and provides full-time care and attention to a relevant person,

or

(b) a person who, subject to the conditions and in the circumstances that may be prescribed,

does not reside with but who provides full-time care and attention to a relevant person.

“relevant person” means a person (other than a person in receipt of an increase of disablement

pension under section 78 in respect of constant attendance) who has such a disability that he or she

requires full-time care and attention, and who—

(a) has attained the age of 16 years, or

(b) is under the age of 16 years and is a person in respect of whom an allowance is paid for

domiciliary care of children under section 61 of the Health Act 1970;

(2) The Minister may make regulations specifying the circumstances and conditions under which a

person is to be regarded as providing full-time care and attention to a relevant person.”

The circumstances and conditions under which a person is to be regarded as providing full- time care and attention to a relevant person are set out in Chapter 4 of Part 3 of the Social Welfare (Consolidated Claims Payments and Control) Regulations, 2007 (S.I. No. 142 of 2007).

The circumstances in which a person shall be regarded as requiring full-time care and attention are set out in Section 179 (4) of the Social Welfare Consolidation Act 2005 (as amended) which provides that “a relevant person shall be regarded as requiring full-time care and attention where –

“(a) the person has such a disability that he or she requires from another person—

(i) continual supervision and frequent assistance throughout the day in connection with

normal bodily functions, or

(ii) continual supervision in order to avoid danger to himself or herself,

(b) the person has such a disability that he or she is likely to require full-time care and

attention for at least 12 consecutive months, and

(c) the nature and extent of the person’s disability has been certified in the prescribed manner

by a registered medical practitioner.”

There are therefore, two requirements to be met in order to be entitled to Carer’s Allowance: the carer must be providing full-time care and the caree must require care. With regard to these legislative requirements, I noted that the Appeals Officer has correctly set out the applicable legislation.

It was clear from the Deciding Officer’s decision that the appellant’s claim was disallowed on the basis that it was considered that the care required by the caree did not meet the statutory requirements. The question of care being provided was not at issue. While the question of care provided is an important element to be considered, the focus of this appeal was on the care required and not on the care provided by the appellant. In this respect, I noted that many of the points submitted by the appellant related to the care being provided.

The appellant’s submission was to the effect that the Appeals Officer erred in overlooking significant details relating to the care needs of the caree, and, in particular that the Appeals Officer failed to properly consider the caree’s mental health issues and the level of supervision he required as a result of those issues in order to avoid danger to himself.

In the course of my review, I considered the evidence which was before the Appeals Officer which included medical evidence with a particular focus on the appellant’s contention that her husband required full time care and attention within the meaning of the governing social welfare legislation.

In considering this matter, I examined each aspect of the ‘care test’ set out in Section 179(4) of the 2005 Act:

Whether the caree required continual supervision and frequent assistance throughout the day in connection with normal bodily functions

In light of the appellant’s testimony and the medical evidence, it was clear that the appellant assisted her husband to a considerable extent with some of the activities of daily living e.g. preparation of meals, taking his medication, accompanying him to medical appointments etc.

However, in my view, the evidence did not show that the caree required continual supervision and frequent assistance throughout the day in connection with normal bodily functions (such as  dressing, going to the toilet, bathing etc.) as required in the governing legislation.

Whether the caree required continual supervision in order to avoid danger to himself The evidence which was before the Appeals Officer regarding this aspect of the legislative care test included the documentary and oral evidence adduced by the appellant. The medical evidence made no specific references to the question of danger, so I did not consider the medical evidence relevant in considering this aspect of the care test. I noted however, that the medical evidence outlined that the caree was taking anti-depressants.

The evidence also showed that the caree had regular falls and on occasion in the past this had resulted in significant injury.

Notwithstanding that my review of the Appeals Officer’s decision, his subsequent review of that decision and having regard to the medical evidence and the direct evidence of the appellant at the oral hearing, I was satisfied that the Appeals Officer gave full consideration to all of the evidence and has not overlooked any of the evidence presented. While it was clear that the appellant was understandably concerned about her husband’s general health issues and their effects on him, on balance, I did not consider that the totality of the evidence presented pointed to a need for continual supervision to be provided to the caree in order to avoid danger to himself.

Outcome: Decision not revised.

2018/318/66 Carer’s Allowance

Question at issue: Eligibility (Care Provided)

Grounds for Review: The appellant’s solicitors requested a review, under Section 318 of the Social Welfare Consolidation Act 2005, of the Appeals Officer decision on the grounds that the Appeals Officer erred in fact and law in concluding that the care which the appellant provided to her uncle could not be regarded as full-time care and attention within the meaning of the social welfare legislation.

It was contended that the Appeals Officer failed to take account of the fact that the appellant was effectively on-call 24 hours a day and it was submitted that the on-call periods must be considered as part of the overall provision of care. It was further contended that there is no legislative basis for the requirement that a carer must be providing 35 hours per week in care. In this respect it was submitted by the appellant’s solicitors that arguably such a requirement would be contrary to law, or at least morally indefensible, as it would create an effective pay rate of €5.97 per hour, which is substantially below the minimum pay rate.

Background: The appellant was awarded Carer’s Allowance in respect of the care she provided to her uncle. Following an investigation by the Department, a Deciding Officer relying on Section 302(b) of the Social Welfare Consolidation Act 2005 determined that the appellant was not entitled to Carer’s Allowance for a two month period as she was not providing full-time care and attention in line with the eligibility criteria for Carer’s Allowance. The effect of this decision was the raising of an overpayment. An Appeals Officer disallowed the appeal on the same grounds as the Deciding Officer.

Review: The conditions for receipt of Carer’s Allowance are contained in Chapter 8 of Part 3 of the Social Welfare Consolidation Act 2005 and Regulations made thereunder.

Section 179 (1) provides that a “carer” means:

“(a) a person who resides with and provides full-time care and attention to a relevant person,

or

(b) a person who, subject to the conditions and in the circumstances that may be prescribed,

does not reside with but who provides full-time care and attention to a relevant person.

“relevant person” means a person (other than a person in receipt of an increase of disablement pension under section 78 in respect of constant attendance) who has such a disability that he or she requires full-time care and attention, and who—

(a) has attained the age of 16 years, or

(b) is under the age of 16 years and is a person in respect of whom an allowance is paid for

domiciliary care of children under section 61 of the Health Act 1970;

(2) The Minister may make regulations specifying the circumstances and conditions under which a person is to be regarded as providing full-time care and attention to a relevant person.”

The circumstances and conditions under which a person is to be regarded as providing full-time care and attention to a relevant person are set out in Chapter 4 of Part 3 of the Social Welfare (Consolidated Claims Payments and Control) Regulations, 2007 (S.I. No. 142

of 2007).

Article 136 provides:

“136. A carer may, for the purposes of Chapter 8 of Part 3 and this Chapter, continue to be regarded

as providing full time care and attention to a relevant person where –

(a) he or she would qualify for payment of an allowance but for the fact that either the carer or the relevant person is undergoing medical or other treatment of a temporary nature in an institution for a period of not longer than 13 weeks,

or

(b) the relevant person is attending –

(i) a non residential course of rehabilitation training provided by an organisation (being an organisation recognised by the Minister for Health and Children for the purposes of the 4.6 Case Studies: Section 318 Reviews135 provision of such training), or

(ii) a non residential place of day care approved by the Minister for Health and Children, or

(c) subject to paragraph (d), where it is shown to the satisfaction of a deciding officer or an appeals officer that adequate provision has been made for the care of the relevant person, a carer may –

(i) engage in employment, or

(ii) engage in self-employment, or

(iii) undertake such training or courses of education as the Minister may from time to time determine.

(d) the aggregate duration of the activities outside the home referred to in sub-paragraphs (i), (ii) and (iii) shall not exceed 15 hours per week.”

My conclusion, on review, was that the legislation as outlined above envisages the actual provision of care and attention and does not make any reference to the taking account of on- call periods. In this respect, I did not consider that the Appeals Officer had erred in law or in fact.

In relation to the contention that there is no legislative basis for the requirement that a carer must be providing 35 hours per week in care, I agreed that it is the case that the legislation does not set out the number of hours of care that constitutes full time care and attention. In the absence of a legal definition, full time care is considered to be 35 hours per week by the Department. I formed the view that it is open to the Department to provide such guidance in order to ensure a consistent approach by all decision makers in their consideration of whether full time care and attention is being provided. The report of the Social Welfare Inspector outlined that the appellant spends approximately 17 hours per week caring for her uncle. The Appeals Officer noted in his report of the oral hearing of the appellant’s appeal, that the evidence adduced was very much in line with what the appellant told the Social Welfare Inspector albeit that at the oral hearing the appellant outlined some additional hours in the afternoons. Notwithstanding that, the number of hours of care provided by the appellant per week fell significantly short of the 35 hours per week considered by the Department to be the required number of hours of care in order to be considered to be providing full time care and attention. I did not consider that the decision of the Appeals Officer was rendered erroneous by his adherence to this guidance.

In relation to the contention that the requirement to be providing care for 35 hours per week is contrary to law or as contended morally indefensible, I outlined that the rates of payment of all social welfare payments are set out in social welfare legislation as passed by the Oireachtas. Social welfare payments provide income support to people meeting certain contingencies such as unemployment, illness or, as in this case, the provision of care and are  also subject to scheme specific eligibility conditions. I outlined that social welfare payments are not ‘pay’ in the sense of being subject to employment law legislation and/or national minimum wage legislation and as such I found that this contention was misplaced.

Outcome: Decision not revised.

2019:

2019/27 Carer’s Allowance

Question at issue: Eligibility (care provided)

Background: The appellant’s application for Carer’s Allowance was refused on the basis that she was not providing full-time care and attention as required by the governing legislation. On the application form, the appellant stated that she assisted the caree in bathing and showering, dressing and toileting. The caree also needed assistance with mobility. The appellant completed a full-time care and attention form, issued by the Department, in which she stated that she resided a short distance from the caree. She stated that she provided care to the caree 7 hours per day, 3 days per week, and set out the type of assistance she provided. The caree resided alone. In her appeal, the appellant provided additional medical information and a schedule of care which she provided for the caree, in which she stated that she had increased the hours during which she provided care.

Oral Hearing: At the oral appeal hearing the appellant stated that the caree’s medical condition had worsened and she was now prone to falls. The appellant stated that she increased the number of hours that she provided care, since the original decision was made, to 5 hours on three days and 9 hours on another three days. Further letters were provided relating to the caree’s medical condition.

Consideration: The Appeals Officer noted the level of care which the appellant stated that she was providing prior to the Deciding Officer’s decision being made on her application. He also noted that the level of care, which she submitted with her appeal, commenced some months after that decision had been made, as confirmed by the appellant at the oral hearing.

The Appeals Officer was restricted to taking account of evidence which existed at, or prior to, the date of the application. As the caree’s circumstances had changed since the date of the original decision, and the level of care provided as set out in the appeal was based on those changed circumstances, the Appeals Officer was restricted to assessing the evidence on the basis of the level of care that was being provided at the date of claim.

The Appeals Officer concluded that at the date of claim the appellant was not providing full- time care and attention to the caree as required by the governing legislation. The appellant was advised that it was open to her to re-apply for Carer’s Allowance and have her current eligibility assessed on the basis of any change in circumstances.

Outcome: Appeal disallowed

2019/28 Carer’s Allowance

Question at issue: Eligibility (care required and care provided)

Background: The appellant applied for Carer’s Allowance and was refused on the basis that she was not providing full-time care and attention to the caree and that the caree was not in need of full-time care and attention as required by the governing legislation.

The appellant stated on the application form that she provided care to the caree 13 hours per day, 7 days per week and she outlined the daily duties that she performed for the caree. The appellant stated that she was working up to 15 hours per week and planned to remain working for up to 15 hours per week. The appellant’s employer completed a form confirming the number of hours that the appellant worked each week for a set period. The employer stated that she worked not less than 24 hours for each week during the period in question.

In her appeal the appellant stated that she had to work full-time in order to pay off her mortgage. She stated that if she was unsuccessful in her application she would reduce her working hours.

The medical report in respect of the caree, completed by his GP, stated that he had severe depression for a number of years. He had a medical history of severe and chronic depression, hypertension and mild coronary artery disease. He had multiple admissions to hospital as a result of his medical conditions and had attended specialists and was prescribed multiple medications. The manner in which his medical condition affected his ability to perform certain activities was stated to be severe to profound in the case of mental health/behaviour and normal in the case of all other listed activities. In her appeal, the appellant stated that the caree had been an in-patient in two hospitals on several occasions. She stated that on his last visit he was deemed not to be fit to live on his own and she elaborated further on the care requirements of the caree.

Consideration: The questions to be considered by the Appeals Officer were whether the caree was in need of full-time care and if the appellant was providing full-time care as set out in the governing legislation.

The Appeals Officer noted the caree’s medical condition, the treatment that he was receiving and the degree to which it affected his activities of daily living, as certified by his GP. The Appeals Officer also noted the description of his medical condition and his care needs, as set out by the appellant in her appeal. On the basis of the information available to him the Appeals Officer determined that the caree was in need of full-time care and attention within the meaning of the governing legislation.

The Appeals Officer noted the documentation provided by the appellant’s employer stating that she continually worked more than 15 hours per week for the period from July 2018 to March 2019. The relevant regulations provide that a person who is working outside the home for more than 15 hours per week cannot be considered to be providing full-time care to a caree. On the basis of the information available to the Appeals Officer, he determined that the appellant was working more hours outside the home than those permitted by the regulations and that the appellant could not be considered to be providing full-time care. The appellant was advised that should her circumstances change it was open for her to re- apply for a Carer’s Allowance and have her eligibility assessed on the basis of any change in her circumstances.

Outcome: Appeal disallowed

2019/29 Carer’s Allowance

Question at issue: Eligibility (care required)

Background: The appellant’s application for Carer’s Allowance in respect of the care of his wife was disallowed by the Department on the grounds that it had not been established that the caree required full-time care and attention. The appellant’s wife, who was in her late 30’s, had diagnoses of fibromyalgia, chronic fatigue, chronic back pain and depression. She was in receipt of Disability Allowance. The appellant indicated on his application form that the daily duties he carried out for his wife included: household chores, looking after their child, school runs, grocery shopping, cooking, laundry, and caring for his wife’s daily needs.

Oral hearing: At the oral hearing, the appellant provided a detailed account of his wife’s medical conditions and how they affected her daily functioning. The appellant explained how his wife needed assistance in getting out of bed, going up and down stairs, getting in and out of the car, and putting on socks. He described how she could not manage ordinary household chores or to look after their two young children without assistance.

He stated that she managed her own medication, and used the toilet, bathed/showered and dressed herself, apart from putting on her socks, independently. The appellant stated that he was not employed himself and had never been employed. His wife had worked full-time prior to becoming ill.

Consideration: The Appeals Officer noted that from the detailed account provided by the appellant in his written evidence and at oral hearing, it was evident that he took responsibility for all household tasks. It was noted that the appellant looked after the couple’s two children as well as providing practical assistance to his wife with whatever she needed in addition to giving her emotional support.

Full-time care and attention is defined in Section 179 (4) of the 2005 Act as “continual supervision and frequent assistance throughout the day in connection with normal bodily functions”, or “continual supervision in order to avoid danger to himself or herself”. While the Appeals Officer accepted that the appellant’s wife required assistance and was restricted in many of her otherwise normal daily activities, she was not satisfied that it reached the level where it could be considered that she required full-time care and attention as defined in the governing legislation.

Outcome: Appeal disallowed

2019/30 Carer’s Allowance

Question at issue: Eligibility (care required)

Background: The appellant applied for Carer’s Allowance in May 2018 in respect of the care she provided to her husband. The application was disallowed on the grounds that the caree was not in need of full-time care and attention as prescribed in the governing legislation. The caree was in his early 60s and was diagnosed with Ischaemic Heart Disease (IHD) with recent coronary artery bypass surgery, Chronic Obstructive Pulmonary Disease (COPD) and peripheral vascular disease for which he was awaiting surgery. He was deemed to be severely affected in terms of his manual dexterity, ability to reach, to lift/carry, to bend/ kneel/squat to sit/rise, to stand, to climb stairs and to walk. The appellant explained that her husband had been advised that he was facing more cardiac surgery. She stated that due to COPD, he could not go anywhere without assistance. She stated that he would become very faint and lethargic which left him with a very poor quality of life and she stated that his independence was gone. She explained that her husband needed her assistance on a daily basis and at night time, it could be difficult for him given that he could wake up feeling breathless.

In support of her appeal, the appellant submitted additional medical evidence which included report from her husband’s doctor. It stated that the caree had a quadruple bypass in April 2018 and he had shortness of breath on minimal exertion and got cramps in both legs when walking. It stated that his shortness of breath may be caused from mild COPD and IHD.

Consideration: The appellant’s husband was suffering from serious illnesses and had quadruple by-pass surgery in April 2018. The appellant’s GP had certified that the caree was severely affected in all aspects of his agility and mobility.

It was noted that the caree would require further surgery which was complicated by the fact that he was suffering with COPD. As per her letter of appeal, the appellant had clearly  outlined her husband’s ill health.

It was accepted that the caree was likely to recover from his surgery; however, he remained severely affected by his condition and the Appeals Officer took due consideration for the requirement for further surgery as confirmed by the caree’s GP.

Having therefore, considered all of the evidence on file and noting that the caree was severely affected in terms of agility and mobility, the Appeals Officer concluded the evidence confirmed that the caree was severely compromised in terms of his ability to manage basic tasks of daily life without significant care and attention. In such circumstances, the Appeals Officer was satisfied that the caree required full-time care and attention. The evidence also indicated the requirement for supervision given that the caree was severely affected with mobility and suffered with shortness of breath on movement. The evidence also indicated that the caree was likely to require full-time care and attention for at least 12 consecutive months, as provided for in the governing legislation.

Outcome: Appeal allowed.

2019/318/63 Carer’s Allowance

Question at issue: Eligibility (Care Required)

Grounds for review: An advocate acting on behalf of the appellant requested a review of the Appeals Officer’s decision on the basis that the Appeals Officer erred in fact and in law. The  question at issue was whether the appellant’s son required care within the meaning of the governing social welfare legislation. Specifically, it was contended that the Appeals Officer failed to:

• fully assess the appellant’s application and subsequent oral hearing in a manner compatible with natural and constitutional justice and fair procedures – in this respect it was asserted that the Appeals Officer did not fully consider the factors given at the oral hearing;

• give appropriate weight to the evidence presented;

• assess the risk factor in relation to the child’s safety; and

• fully recognise the additional care needs carried out by the appellant for her son.

Background: The appellant’s claim for Carer’s Allowance in respect of the care of her son was refused on the basis that the Deciding Officer of the Department considered that the person being cared for did not meet the care requirements as set out in Section 179(4) of the 2005 Act. The subsequent appeal was disallowed and the position remained unchanged following a review conducted by the Appeals Officer under the provisions of Section 317 of the 2005 Act in light of additional evidence provided by the appellant.

Review: The conditions for receipt of Carer’s Allowance are contained in Chapter 8 of Part 3 of the 2005 Act and Regulations made thereunder. In accordance with Section 179 (1) there are two requirements to be met in order to be entitled to Carer’s Allowance: the carer must be providing full-time care and the caree must require care.

The circumstances and conditions under which a person is to be regarded as providing full- time care and attention to a relevant person are set out in Chapter 4 of Part 3 of the Social Welfare (Consolidated Claims Payments and Control) Regulations, 2007 (S.I. No. 142 of 2007).

The circumstances in which a person shall be regarded as requiring full-time care and attention are set out in Section 179 (4) of the 2005 Act which provides that “a relevant person shall be regarded as requiring full-time care and attention where –

(a) the person has such a disability that he or she requires from another person—

(i) continual supervision and frequent assistance throughout the day in connection with

normal bodily functions, or

(ii) continual supervision in order to avoid danger to himself or herself,

(b) the person has such a disability that he or she is likely to require full-time care and

attention for at least 12 consecutive months, and

(c) the nature and extent of the person’s disability has been certified in the prescribed manner

by a registered medical practitioner.”

In my review of the Appeals Officer’s decision, I found no grounds to support the contention that the Appeals Officer had failed to consider all of the evidence presented by the appellant. The remaining contentions related by and large to the weight the Appeals Officer afforded to the evidence submitted by the appellant and the medical evidence.

I noted that the Appeals Officer formed the view that there was no doubt but that the appellant’s son required a level of care, but it had not been established that he required continual supervision and frequent assistance throughout the day in connection with normal bodily functions or continual supervision in order to avoid danger to himself.

It was also asserted that the Appeals Officer erred in refusing to obtain photographic evidence on the grounds that it was not medical evidence and therefore irrelevant. From my review it was unclear what specific evidence was being referred to but the appellant was afforded an opportunity to submit this evidence which could then be reviewed under the provisions of Section 317 of the 2005 Act.

Insofar as it was contended that the Appeals Officer erred in failing to access the risk factor in relation to the safety of the appellant’s son, it seemed to me that this assertion was related to the contention that if the appellant did not provide constant care and attention her son’s health would deteriorate rapidly and this would ultimately result in him being admitted to ICU. From my review of the file, I was satisfied that this assertion was not supported by the evidence. The Appeals Officer reported that the appellant’s son’s last admission to hospital was some years previous and the medical evidence before the Appeals Officer indicated that the appellant’s son was moderately affected by his conditions in some areas. While the caree needed assistance with diet and sugar monitoring, insulin calculation and administration, all other activities were indicted as normal. The evidence also indicated that the caree could manage many functions of daily living independently but required supervision with bathing and showering. However, the evidence did not, in my opinion, support a conclusion that the caree required ‘continual supervision in order to avoid danger to himself’ as required by Section 179 (4) of the 2005 Act.

The evidence which was before the Appeals Officer regarding this latter aspect of the legislative care test included the documentary and oral evidence adduced at the oral hearing. The medical evidence made no specific references to the question of danger. Having regard to the totality of the evidence that was before the Appeals Officer, I did not consider that the evidence supported a conclusion of a need for continual supervision to be provided to the caree in order to avoid danger to himself.

It was clear from the Deciding Officer’s decision that the appellant’s claim was disallowed on the basis that it was considered that the care required by the appellant’s son did not meet the statutory requirements. The question of care being provided was not at issue. I noted however that many of the points submitted by the appellant’s advocate related to the care provided by the appellant. While the question of care provided is an important element to be considered, the focus of the appeal in this case had to be on the care required by the caree and not on the care provided by the carer.

Outcome: Decision not revised

2020:

2020/22 Carer’s Allowance

Question at issue: Eligibility (care provided)

Background: The appellant’s application for Carer’s Allowance was refused on the grounds that he was not providing full-time care and attention as required by the governing legislation. In his application form, the appellant stated that he resided 10 kilometres from the care recipient’s address, he worked during the week and sometimes at weekends and that he intended to remain at work for up to 15 hours per week. He stated that he provided care seven days a week but did not state how many hours per day he provided this care. He outlined that there was a communication link between the residences. He described the daily duties that he performed for the care recipient as reminding him to eat sometimes and to take medication. He stated that he brought the care recipient to collect his pension and also helped with personal hygiene and housework. He stated that the care recipient resided alone.

In his appeal, the appellant stated that he was providing full-time care to the care recipient who had substantial medical needs. A letter from a public representative was provided which stated that the appellant was of the view that he had been providing quite substantial care to the care recipient. At the time of the appeal the appellant informed the Appeals Officer that he had ceased caring for the care recipient and stated that he had been available and looking for full-time employment.

Consideration: The Appeals Officer noted the information provided by the appellant in his application form. He noted that the appellant stated that he was in employment and that he intended to work less than 15 hours per week. He noted that while the appellant stated that he was providing care to the care recipient seven days a week, he did not state how many hours care he provided each day. The Appeals Officer concluded that while the appellant set out in general terms the duties he had been performing for the care recipient, he had not provided sufficient information in either his application or in his appeal to demonstrate that he was providing care to a level or for a sufficient time period that could be considered to be full-time in nature within the meaning of the governing legislation.

Outcome: Appeal disallowed

2020/23 Carer’s Allowance

Question at issue: Eligibility (care provided)

Background: The appellant’s application for Carer’s Allowance was refused on the grounds that she was not providing full-time care to the care recipient as required by the governing legislation.

The appellant lived three kilometers from the care recipient and stated in her application form that she provided 28 hours care over seven days every week. The medical report showed that the care recipient was diagnosed with anxiety, panic disorder and depression and the conditions were expected to last indefinitely. In the ability/disability profile the care recipient was assessed as severely affected in relation to mental health and had hospital admissions in connection with psychiatric issues. He was on high doses of medication to treat his conditions. The medical evidence also outlined that the care recipient’s mental health had deteriorated dramatically in the previous year and he could not function or look after himself. A social worker was visiting weekly and a new plan was being put in place for homecare.

Consideration: At the oral hearing the appellant provided a detailed account of the care provided to the care recipient. She outlined that on a typical day she went to the care recipient’s house and, in addition to attending to household chores, assisted with getting the care recipient out of bed, washing, dressing and preparing food. The care recipient was prescribed some 20 tablets per day and the appellant dispensed this medication. At lunchtime the appellant brought the care recipient to her home until late evening when he returned to his own home. The appellant also informed that since the date of the Department’s decision the care recipient had been diagnosed with vertigo and prescribed additional medication in connection with that diagnosis.

The Appeals Officer noted that while full-time care is not defined in legislation, the Department considers 35 hours of care per week to be necessary to meet the full-time care standard set out in the governing legislation. The Appeals Officer also noted that the Department was not satisfied that the appellant’s provision of care met this threshold. However, having regard to the evidence adduced at the oral hearing the Appeals Officer was satisfied that the appellant had not included the hours of care provided to the care recipient in her own home. In those circumstances, the Appeals Officer was satisfied that the appellant was providing full-time care and that the level of care provided was well in excess of the guidelines set out by the Department.

Outcome: Appeal allowed

2020/24 Carer’s Allowance

Question at issue: Eligibility (care required)

Background: The appellant’s application for Carer’s Allowance was disallowed on the grounds that it was considered that it had not been demonstrated that the care recipient was in need of full-time care and attention as required by the governing legislation.

The medical report stated that the care recipient, aged in his early 40s, suffered from lower back pain arising from an accident several years previously. He had no history of surgery or recent hospital admissions. At the time of application, he was waiting to see a specialist and was prescribed medication for his condition which was stated to affect his mental health. The medical evidence stated that the care recipient was independent in terms of feeding, continence, and bathing/showering, and dependent in dressing. He was independent in terms of mobility but had some difficulty with walking due to pain. His GP stated that he sustained a deficit in his activities of daily living of at least 25% to 30% since his accident. Letters from a specialist were provided which stated that the care recipient was walking/moving independently. Following the results of an MRI the care recipient was advised to continue with physiotherapy and was encouraged to do

core strengthening exercises and pool-based exercises.

In his appeal, the appellant stated that he did everything for the care recipient and referred to  the content of the report completed by the care recipient’s GP.

Consideration: The Appeals Officer noted that the care recipient’s GP indicated that he was independent in most functions with the exception of mental health and dressing. Based on the GP’s report that the care recipient “can need help” with dressing the Appeals Officer concluded that the need for help was occasional and not continuous or frequent. The Appeals Officer also noted that the GP stated that the care recipient had some difficulty with mobility, despite indicating that he was independent in relation to this activity.

Section 179(4) of the 2005 Act provides that a person shall not be regarded as requiring full-time care and attention unless the person has such a disability that requires “continual supervision and frequent assistance throughout the day in connection with normal bodily functions”, or “continual supervision in order to avoid danger to himself or herself”.

Having regard to the totality of the evidence presented in this case, the Appeals Officer concluded that the need for continuous supervision or frequent assistance in connection with normal bodily functions had not been demonstrated or supported by the evidence. Consideration of the need for supervision in order to avoid danger to himself did not arise.

Outcome: Appeal disallowed

2020/25 Carer’s Allowance

Question at issue: Eligibility (care required)

Background: The appellant’s application for Carer’s Allowance was disallowed on the grounds that the care recipient did not require full-time care and attention as required by the governing legislation. The care recipient, in her late 40s, had diagnoses of abdominal wall defect and mental health issues. The care recipient’s GP certified that the care recipient suffered from bipolar disorder and her physical ailments had an adverse effect on her mental health. It was stated that she required someone with her at all times, required assistance getting in and out of the bath and was dependent due to restricted mobility caused by abdominal pain. It was stated that the care recipient was expected to require on-going care for a period of 12 to 24 months.

In support of his claim the appellant submitted an additional GP report where it was certified that the care recipient had a long history of mental health issues and required numerous medications. She was diagnosed with a stage 1B melanoma which had been excised and required on-going treatment. It was stated that she had suffered severely with abdominal wall issues over the last number of years which required surgery. Following complications arising from surgery the care recipient was on a waiting list for combined plastic surgery and gastrointestinal surgeons to coordinate a repair. It was stated that she had an open wound which needed repair and had been in constant pain related to this issue. The GP outlined that the care recipient had been suffering from unusual seizure like episodes and had been diagnosed with a functional neurological disorder. It was stated that the combined issues had a significant debilitating effect on her day to day quality of life.

In appealing the decision, the appellant outlined that the care recipient had a long history of poor health for which she had been heavily medicated for the past number of years. He explained that due to abdominal issues she had been in constant pain and unable to walk or complete basic tasks and required strong doses of morphine. He outlined that arising from the certified neurological condition the care recipient was prone to collapse and therefore he had to be with her at all times.

Consideration: Section 179(4) of the 2005 Act provides that a person shall not be regarded as requiring full-time care and attention unless the person has such a disability that requires “continual supervision and frequent assistance throughout the day in connection with normal bodily functions”, or “continual supervision in order to avoid danger to himself or herself”.

The Appeals Officer noted that the care recipient had been diagnosed with multiple chronic conditions and had significant mobility issues for which she required assistance. Having regard to the care report the Appeals Officer noted that due to mental health issues and other diagnoses the care recipient required someone with her at all times. The Appeals Officer was satisfied that the evidence confirmed that the care recipient required continual supervision and frequent assistance throughout the day and that this requirement was likely to continue for a period in excess of at least one year.

Outcome: Appeal allowed

2020/26 Carer’s Allowance

Question at issue: Eligibility (care required and care provided)

Background: The appellant’s application for Carer’s Allowance in respect of the care of her mother was disallowed on the grounds that full-time care and attention was not required by the person being cared for and that, although the appellant was providing a certain level of care, the time involved was not considered to be full-time.

The care recipient, in her early 70s, had diagnoses of anaemia and chronic obstructive pulmonary disease. She lived across the road from the appellant, with the appellant’s sibling who was in full- time employment. The appellant indicated that she provided four hours of care each weekday and five hours of care each day at the weekend.

In appealing the decision, the appellant stated that she lived one minute from her mother’s house and was available during the day whenever the need arose. She stated that she prepared breakfast as otherwise the care recipient would not eat. She assisted with washing/showering in the morning and helped with changes of clothes which were sometimes wet due to incontinence. She prepared lunch and dinner, arranged GP visits, brought the care recipient to medical appointments, collected prescriptions, supervised the taking of medication, collected her pension, paid household bills, did the shopping and assisted with cleaning. A GP letter was submitted with the appeal which summarised what the appellant had informed the GP of in terms of her mother’s care needs. The GP stated that he would further review the care recipient regarding

these concerns.

Consideration: The Appeals Officer considered the medical evidence which consisted only of the GP medical report and which noted diagnoses of COPD and anaemia. It indicated that the care recipient was on two inhalers and no other medication. The care recipient was noted to have become forgetful and was due to attend for assessment of same. She was also awaiting assessment by a gynaecologist in relation to continence. Mild anxiety was reported. No impairment or care needs were reported in relation to consciousness/seizures, speech/hearing, vision or dressing. The GP noted the appellant prepared meals, but the care recipient was able to feed herself. She needed some assistance to shower. She was independent in her mobility but needed inhalers for any walks. The appellant estimated that she provided approximately 30 hours of care per week.

The Appeals Officer accepted from the evidence that the appellant provided considerable supports to her mother on a daily basis, both in terms of practical household support (cooking, cleaning, shopping, collecting pension) and some support with her mother’s personal care (assistance with showering, changing/dressing and taking medication). However, on the basis of the evidence, the Appeals Officer was not satisfied that it had been established that the extent and nature of the care that was required, and that was being provided by the appellant, was at a level where it could be considered either continual supervision and frequent assistance throughout the day in connection with normal bodily functions, or continual supervision to avoid danger to herself.

Outcome: Appeal disallowed

2020/27 Carer’s Allowance

Question under appeal: Eligibility (means)

Background: The appellant’s claim for Carer’s Allowance was disallowed on the basis that his means, assessed as being over €2,000 per week, were in excess of the statutory limit applicable in his case. The means derived from property, investments and an occupational pension.

In appealing the decision, the appellant submitted that he had no family support and was not receiving any state support to reflect the reality of their situation. He stated that he wanted to care for his wife at home for as long as possible and that the Carer’s Allowance would make a great difference. The appellant acknowledged that his income exceeded the means test limit and he did not contest the assessment of means but stated that he has been advised by many to make the application.

Consideration: The Appeals Officer outlined that, in accordance with Section 179(3) of the 2005 Act, a person’s means for the purposes of Carer’s Allowance must be calculated in accordance with the Rules contained in Part 5 of Schedule of that Act. The Appeals Officer outlined that under the governing legislation all cash income, investments, and the yearly advantage of any property other than a domestic dwelling are taken into account. The Appeals Officer also outlined that in assessing the means of a couple for the purposes of Carer’s Allowance, Article 144(b) of the 2007 Regulations provides for a weekly income disregard of €665.

The Appeals Officer was satisfied that the appellant’s means were assessed correctly in accordance with the legislative provisions and that there was no discretion to deviate from these provisions.

Outcome: Appeal disallowed

2020/318/63 Carer’s Allowance

Question at issue: Eligibility (care required)

Grounds for Review: The appellant requested a review of the Appeals Officer’s decision on the basis that he considered that the evidence submitted supported a conclusion that the qualifying conditions for the receipt of Carer’s Allowance were met.

Background: The appellant’s claim for Carer’s Allowance in respect of the care of his wife was refused on the basis that the Deciding Officer considered that the person being cared for did not meet the care requirements set out in Section 179(4) of the 2005 Act. The subsequent appeal was disallowed and the position remained unchanged following a review by the Appeals Officer under the provisions of Section 317 of the 2005 Act in light of additional evidence provided by the appellant. The appellant provided further correspondence stating that his wife’s condition had deteriorated and provided details of modifications being undertaken to the family home in recognition of his wife’s difficulties climbing stairs.

Review: The conditions for receipt of Carer’s Allowance are contained in Chapter 8 of Part 3 of the 2005 Act and Regulations made thereunder. In accordance with Section 179(1) there are two requirements to be met in order to be entitled to Carer’s Allowance: the carer must be providing full-time care and the caree must require full-time care. It was the second of these conditions that was at issue in this appeal.

The circumstances in which a person is to be regarded as requiring full-time care and attention are set out in Section 179 (4) of the 2005 Act which provides that a person shall not be regarded as requiring full-time care and attention unless the person has such a disability that he or she:

(a) requires from another person—

(i) continual supervision and frequent assistance throughout the day in connection with normal bodily functions, or

(ii) continual supervision in order to avoid danger to himself or herself,

(b) the person has such a disability that he or she is likely to require full-time care and attention for at least 12 consecutive months, and

(c) the nature and extent of the person’s disability has been certified in the prescribed manner by a registered medical practitioner.

In the course of my review I considered all of the evidence which was before the Appeals Officer including the medical evidence. In considering this matter I examined each aspect of the ‘care test’ set out in Section 179(4) of the 2005 Act separately.

The first question to be considered was whether the caree required continual supervision and frequent assistance throughout the day in connection with normal bodily functions.

The evidence before the Appeals Officer clearly established that the caree required considerable assistance throughout the day with cooking, cleaning, washing and dressing. It was also clear that the caree was primarily housebound and needed assistance with other household work, shopping and caring for the couple’s children. The Appeals Officer also noted that the caree tried to do some light housework but was only able to sustain this for short periods of time. The caree’s GP outlined that the caree had suffered from low back pain with sciatica for a number of years, which had gradually got worse. The GP outlined that the pain affected the caree’s sleep, she had trouble dressing, was on long-term pain relief and was attending a pain clinic. The GP also stated that he advised the caree regarding her safety in climbing stairs and also getting in/out of a bath as she was at risk of falling.

In light of the appellant’s written and oral testimony and the evidence from the caree’s treating doctor, it was clear that the caree required considerable assistance with all activities of daily living. I concluded that the evidence established that the caree required continual supervision and frequent assistance throughout the day in connection with normal bodily functions as required in the governing legislation and I considered that the Appeals Officer gave disproportionate weight to the evidence that the caree tried to do some light chores.

In light of the above conclusion and while it was not then necessary to examine if the caree met the requirements of Section 179(4)(a)(ii), I also examined this aspect of the care test.

The medical evidence which was before the Appeals Officer regarding this aspect of the legislative care test certified that the caree was at risk of falling when using stairs and also getting in/out of a bath. Evidence was also provided that work was underway to install a stair lift and construct a bedroom and shower downstairs as the caree could no longer use the stairs.

While I formed the view that the evidence may not have supported a conclusion that the caree required continual supervision in order to avoid danger to herself the evidence strongly supported the conclusion that the caree required continual supervision and frequent assistance throughout the day in connection with normal bodily functions.

Outcome: Decision revised

2020/318/64 Carer’s Allowance

Question at issue: Eligibility (care required)

Grounds for Review: The appellant in this case requested a review of the Appeals Officer’s decision on the basis that she considered that the decision was unfair and that the evidence submitted supported a conclusion that the qualifying conditions were met. The appellant also asserted that she and her husband were discriminated against on grounds of ethnic origin.

Background: The appellant’s claim for Carer’s Allowance in respect of the care of her husband was refused on the basis that the Deciding Officer of the Department considered that the person being cared for did not meet the care requirements as set out in Section 179(4) of the 2005 Act. The subsequent appeal was disallowed and the position remained unchanged following two further reviews by the Appeals Officer under the provisions of Section 317 of the 2005 Act in light of further correspondence from the appellant which included additional medical evidence.

Review: The appellant asserted that the Appeals Officer had failed in his duty by not taking account of the caree’s health problems and the evidence provided. It was also asserted that the Appeals Officer failed to take into consideration the caree’s mental health conditions. It was clear the Appeals Officer accepted that the appellant’s husband suffered from a number of medical conditions including mental health conditions and required a level of care that was provided by the appellant. However, the question before the Appeals Officer was whether the evidence supported a conclusion that the caree had a disability that required Continual supervision and frequent assistance throughout the day in connection with normal bodily functions. In this respect the Appeals Officer outlined that the caree’s GP certified that the caree’s incapacities included diaphragmatic hernia, depression, sleep apnea, knee and lower back pain. The GP also certified the caree as being normal in cognition and consciousness /seizures and as being independent in speech, hearing, vision, feeding, bathing/showering, dressing, continence and toileting. The GP also certified that the caree was dependent with regards to mobility and that knee and back pain were having an impact. The GP outlined that the caree’s mental health was affected.

From my review of the decision I was satisfied that the Appeals Officer had considered all of the medical evidence. I was satisfied from my review that the evidence provided by the appellant and the evidence from the caree’s GP and consultant psychiatrist did not support a conclusion that the caree required full-time care and attention within the meaning of Section 179(4) of the 2005 Act.

In addition, I found no evidence or reference in the Appeals Officer’s decision or in his consideration of the appellant’s requests to review his decision that he discriminated against the couple on grounds of ethnic origin.

Outcome: Decision not revised

2021:

2021/36 Carer’s Allowance

Question at issue: Eligibility – care required.

Background: The appellant’s application for Carer’s Allowance was disallowed by the Department on the grounds that the care recipient did not require full-time care and attention as required by the governing legislation.

The care recipient had diagnoses of depression/anxiety, borderline personality disorder with a history of addiction, self-harm, OCD and fractures.

The Department’s Medical Assessor who provided an opinion reported that there were no safety concerns and constant supervision was not required by the care recipient.

The medical report confirmed that the care recipient had impaired mental health with polysubstance addiction and history of overdoses. The medical reports also confirmed that the care recipient had up to 20 admissions to a mental health unit. The care recipient’s doctor confirmed that the care recipient had attended him on 17 occasions in the previous 5 months. The medical evidence also recorded a suicide attempt some years prior to the claim for Carer’s Allowance.

In the appeal submission, the appellant provided additional significant updates from the GP and she elaborated on the supports and care which included looking after his finances, doing shopping, preparation of food, administering medication, ensuring self-care and responding to self-harm ideation.

Consideration: The Appeals Officer noted that the Department’s Medical Assessor did not have the benefit of the additional report from care recipient’s GP.

The Appeals Officer outlined that in accordance with Section 179(4) of the Act, a person shall not be regarded as requiring full-time care and attention unless the person has such a disability that requires continual supervision and frequent assistance throughout the day in connection with normal bodily functions, or continual supervision in order to avoid danger to himself or herself.

The Appeals Officer took account of the hospital admissions, frequent medical support and medication management/supervision. He found that the appellant had made a convincing submission which was corroborated by additional medical evidence and concluded that the evidence confirmed that the care recipient required constant supervision in order to avoid being a danger to himself.

Outcome: Appeal allowed.

2021/37: Carer’s Allowance

Question at issue: Eligibility – care required.

Background: The appellant’s application for Carer’s Allowance was disallowed by the Department on the grounds that the care recipient did not require full-time care and attention as required by the governing legislation.

The care recipient had diagnoses of ischaemic heart disease, moderate COPD and hypercholesterolemia. In the ability/disability profile the care recipient was assessed as normal in relation to cognition, mental health, speech/hearing and consciousness/seizures, and independent/age appropriate in relation to bathing/showering, feeding, dressing, continence/toileting, and mobility. It was outlined that the care recipient wore glasses and had recent cataract surgery. In support of her claim the appellant submitted an additional GP report indicating that the care recipient had weakness and fatigue with breathlessness on minimal effort. She couldn’t do household duties and required assistance with personal tasks. The appellant submitted that the care recipient’s conditions were permanent and progressive and complicated by deafness which was leading to increasing isolation and she needed assistance at home.

In her appeal submission the appellant stated that she looked after her mother from early in the morning until late in the evening. She stated that her mother was in very bad health, had poor hearing, could not walk for more than a few feet and could not talk for more than a few minutes without getting breathless and coughing. The appellant stated that she did everything for her mother including shopping, cleaning, household duties, cooking, lighting fires and bringing her to appointments and that her mother totally depended on her care for any quality of life.

Consideration: The Appeals Officer outlined that Section 179 of the Act provides that a person shall not be regarded as requiring full-time care and attention unless the person has such a disability that requires from another person continual supervision and frequent assistance throughout the day in connection with normal bodily functions or continual supervision in order to avoid danger to himself or herself.

The Appeals Officer concluded that while the medical evidence outlined the care recipient’s conditions, the degree to which it affected her ability in certain areas, it did not indicate the need for assistance with normal bodily functions throughout the day or that the care recipient required continual supervision in order to avoid danger to herself. The Appeals Officer concluded, that while the care recipient required a level of care and support which the appellant provided, it had not been established that she required full-time care and attention within the meaning of the governing legislation.

Outcome: Appeal disallowed

2021/38: Carer’s Allowance

Question at issue: Eligibility – care provided.

Background: The appellant’s application for Carer’s Allowance was disallowed by the Department on the grounds that she was not providing full-time care and attention to the care recipient as required by the governing legislation.

In her application form the appellant stated that she provided a total of 21 hours care per week over 7 days. The appellant described the daily duties that she carried out which included giving the care recipient his medication, preparing breakfast and spending at least 1.5 hours with the care recipient in the mornings. The appellant spent a further 3-4 hours preparing meals, doing housework and helping the care recipient to shower. In her appeal submission, the appellant stated that she forgot to mention in her application that she also went to his home every night for 2 hours to sort his medications and to help him get ready for bed. In addition, she accompanied the care recipient to all his medical appointments. She stated that she may need to reduce her working hours in order to continue to provide the care required.

Oral Hearing: During the oral hearing the appellant provided a more detailed account of the care she provided to the care recipient. She stated that she worked 15 hours per week over three evenings. She confirmed that she went to the care recipient’s home each morning. In the afternoon she went back to his house for a number of hours to do housework if she was not in work. On the three evenings that she worked the appellant called to the care recipient for an hour before going to work. She accompanied him on the train to all his medical appointments.

Consideration: The Appeals Officer outlined that Section 179 of the Act provides that in order to be considered a carer for the purposes of Carer’s Allowance the person must be providing full-time care and attention to a person who requires continual supervision and frequent assistance throughout the day in connection with normal bodily functions, or continual supervision in order to avoid danger to himself or herself.

Article 136(1)(e) of the 2007 Regulations provides that a carer may be regarded as providing full-time care and attention, where the number of hours of care provided is not less than 35 hours in a period of 7 consecutive days, and care is provided on any 5 days, whether consecutive or not, within a period of 7 consecutive days. The Appeals Officer determined that both the hours of care provided and the nature of the care provided fell to be considered.

The Appeals Officer concluded that while the evidence demonstrated that the appellant provided support to the care recipient, the care related mainly to household duties and general assistance rather than personal care aligned with continual supervision and frequent assistance throughout the day in connection with normal bodily functions, or continual supervision in order to avoid danger to the care recipient.

The Appeals Officer concluded that the evidence provided by the appellant did not support a conclusion that she provided care to a level or for a sufficient time period that could be considered to be full-time within the meaning of the governing legislation.

Outcome: Appeal disallowed.

2021/39: Carer’s Allowance

Question at issue: Eligibility – care required and care provided.

Background: The appellant’s application for Carer’s Allowance was disallowed by the Department on the grounds that he was not providing full-time care and attention to the care recipient and that the care recipient did not require full-time care and attention within the meaning of the governing legislation.

The care recipient, in her 60s, was the appellant’s father’s partner and had diagnoses of arthritis, back pain and depression. In the medical report submitted with the application form the care recipient was assessed as having chronic anxiety and low mood and experienced significant pain while walking, shopping or doing

household chores.

The appellant reported that the care recipient had chronic pain and arthritis and required support with cooking, cleaning, household duties, shopping, attending appointments and general assistance due to reduced mobility.

Consideration: The Appeals Officer noted that the medical report was consistent with the appellant’s account that the care recipient had back pain/arthritis and mobility needs. The Appeals Officer acknowledged that the appellant provided practical supports to the care recipient, such as housework and shopping. However, the Appeals Officer concluded that the need for continual supervision and frequent assistance throughout the day in connection with normal bodily functions had not been demonstrated or supported by the evidence. The Appeals Officer also concluded that it had not been demonstrated that the care recipient required continual supervision in order to avoid danger to herself.

The Appeals Officer also noted that the appellant’s evidence was that he provided 28 hours of care and attention per week. In those circumstances the Appeals Officer concluded that as the appellant did not provide a minimum of 35 hours of care per week he could not be considered to be providing full-time care and attention.

Outcome: Appeal disallowed.

2021/40: Carer’s Allowance

Question at issue: Eligibility – care provided.

Background: The appellant’s application for Carer’s Allowance was refused by the Department on the grounds that he was not providing full-time care and attention as required by the governing legislation. In his application form, the appellant stated that he resided next door to the care recipient and provided care for 17 hours per week over 7 days. He described the daily duties that he performed for the care recipient as shopping, doing laundry and other household duties, preparing meals, collecting medication and bringing the care recipient to medical appointments. The appellant also brought the care recipient to and from day care service two mornings per fortnight. The appellant also stated that he provided emotional support and companionship to the care recipient.

In his appeal, the appellant stated the care recipient had complex medical and physical needs, had extremely limited mobility and was in the early stages of memory loss. The care recipient was reported to be independent in terms of personal care.

Consideration: The Appeals Officer outlined that Section 179 of the Act provides that in order to be considered a carer for the purposes of Carer’s Allowance the person must be providing full-time care and attention to a person who requires continual supervision and frequent assistance throughout the day in connection with normal bodily functions, or continual supervision in order to avoid danger to himself or herself.

Article 136(1)(e) of the 2007 Regulations provides that a carer may be regarded as providing full-time care and attention, where the number of hours of care provided is not less than 35 hours in a period of 7 consecutive days, and care is provided on any 5 days, whether consecutive or not, within a period of 7 consecutive days.

The Appeals Officer concluded that while the appellant provided support to the care recipient it had not been established that the appellant provided care to a level or for a sufficient time period that could be considered to be full-time within the meaning of the governing legislation.

Outcome: Appeal disallowed

2021/77 Carer’s Allowance

Question at issue: Carer’s Allowance eligibility – care required

Grounds for Review: The medical evidence in this case was that the care recipient, in his mid-20s, had diagnoses of oppositional defiant disorder, obsessive compulsive disorder and attention deficit disorder. It was submitted that he was vulnerable to suggestion and recently served a term of youth detention in relation to a drugs offence. It was outlined that the evidence presented demonstrated that the care recipient remained vulnerable in his local area. The carer submitted that the care recipient’s behaviour was erratic, and she was concerned that the care recipient was vulnerable to gangs in the area in which he lived and he had become a prisoner in his own home. The carer was concerned as to the level of naivety demonstrated by the care recipient and submitted that the care recipient presented a danger to himself and was easily taken advantage of by others. It was submitted that the carer’s sole purpose was to protect the care recipient against these risks.

Background: The appellant’s claim for Carer’s Allowance, in respect of care which she was providing was disallowed by the Department on the grounds that the care recipient was not in need of full-time care and attention as required by the governing legislation.

The Appeals Officer noted historical medical evidence from the appellant’s previous application but concluded that the evidence was of limited relevance to a current claim.

In considering the question of care required in the context of Section 179(4)(a)(i) of the Act, the Appeals Officer outlined that the medical evidence was to the effect that the care recipient was largely independent in terms of normal bodily functions and that the appellant had not demonstrated that the care recipient required continual supervision and frequent assistance throughout the day in connection with these functions.

In considering the question of care required in the context of Section 179(4)(a)(ii) of the Act, the Appeals Officer noted the content of the GP’s report and referral for counselling but there was no medical evidence that the care recipient was a danger to himself. The Appeals Officer noted the appellant’s evidence adduced at the oral appeal hearing in relation to the care recipient’s activities and behaviour and the associated dangers that they posed to him. However, the Appeals Officer was not satisfied from the information provided that the appellant had demonstrated that the care recipient required continual supervision in order to avoid danger to himself.

In those circumstances the Appeals Officer concluded that the appellant was not a “relevant person ” as defined by Section 179(1) of the Act.

Consideration: In reviewing the Appeals Officer’s decision, I set out the legislation that applied to the claim. It was clear from the Department’s decision that the appellant’s claim was disallowed on the basis that it was considered that the care required by the care recipient did not meet the statutory requirements. I outlined that the question of care being provided, while important, was not at issue and the focus of the appeal must therefore be on the care required by the care recipient and not on the care provided by the appellant.

The evidence that was before the Appeals Officer in relation to whether the care recipient required continual supervision in order to avoid danger to himself was to the effect that the care recipient presented a danger to himself and was easily taken advantage of by others, required protection against risks outside of the home and the appellant protected him against these risks. However, the Appeals Officer was not satisfied from the information provided that it had been demonstrated that this aspect of the legislative care test had been satisfied. In reviewing the Appeals Officer’s decision I found no error of fact or law such that the decision should be revised.

I found that the evidence presented did not contain the degree of detail in relation to the specific risks that the care recipient encountered such that he required continual supervision in order to avoid danger to himself as is envisaged by Section 179(4)(a)(ii) of the Act.

Outcome: Decision not revised.

2022:

2022/27 Carer’s Allowance

Question at Issue: Eligibility – care required

Background: The appellant was disallowed Carers Allowance on the grounds that the care recipient did not require full-time care and attention as required by the governing legislation.

The care recipient, her husband, had been diagnosed with insulin dependent diabetes and ischaemic heart disease. His medical report indicated that the care recipient was independent in terms of his personal care, and assessed as normal in terms of mental health, speech and hearing, vision, feeding, bathing/showering, dressing, continence/toileting, and mobility. He attended a diabetes clinic and had not been referred to a specialist for assessment/investigation. 

The appellant has stated that she provides 58 hours of care per week for the care recipient and has been providing care for over two years.

Consideration: The Appeals Officer outlined that in accordance with Section 179(4) of the 2005 Act, a person shall not be regarded as requiring full-time care and attention unless the person has such a disability that requires continual supervision and frequent assistance throughout the day in connection with normal bodily functions, or continual supervision in order to avoid danger to himself or herself.

The care recipient’s medical condition as identified in the medical report, was acknowledged. The Appeals Officer noted that that the care recipient did not require any assistance in connection with normal bodily functions. The Appeals Officer was not satisfied that the medical evidence established that he required continual supervision in order to avoid danger to himself.

Having examined the evidence in this appeal, the Appeals Officer concluded that the care recipient did not meet the definition of ‘relevant person’ as specified in Section 179(4) of the 2005 Act.

Outcome: Appeal disallowed

2022/28 Carer’s Allowance

Question at Issue: Eligibility – care required and care provided

Background: The appellant was disallowed Carer’s Allowance in respect of his father on the grounds that he was not providing full-time care and attention as within the meaning of the governing legislation. Although he was seen as providing a certain level of care, the time involved was not considered to be full time by the Department. The appellant had stated on the application form that he provided 30 hours care per week care to the care recipient.

In his grounds of appeal, the appellant submitted that the decision was unfair because, as it stood, he already cared for his father by helping him with showering, dressing, cleaning, shopping etc He provided a letter from his father’s GP that indicated that his patient was a frail gentleman with a complex medical history.

Consideration: The Appeals Officer determined that both the hours of care being provided and the nature of that care fell to be considered under the governing legislation. Section 179 of the 2005 Act defines the nature of full-time care as providing the care recipient with frequent assistance throughout the day in connection with normal bodily functions and/or continual supervision in order to avoid danger. Article 136(1)(e) of the 2007 Regulations defines the measure of full-time care as being not less than 35 hours in a period of 7 consecutive days, where the care is provided on any 5 days of that 7.

In this particular case the appellant declared on the application form for Carer’s Allowance that he cared for his father for 30 hours per week. Whilst he did not specifically address the number of hours of care that he provided in his appeal correspondence, he did outline the nature of that care. The Appeals Officer noted that this included a very significant level of personal care and supervision. Given the nature of his father’s medical diagnosis and the most recent medical evidence, the Appeals Officer was satisfied that the evidence demonstrated that he was providing frequent assistance throughout the day to his father in connection with normal bodily functions and also continual supervision to avoid danger to him.

Therefore, having considered all the evidence available, the Appeals Officer was satisfied that the appellant was providing full-time care and attention for the purposes of Carer’s Allowance under the governing legislation.

Outcome: Appeal allowed

2022/29 Carer’s Allowance

Question at issue: Eligibility – care required

Background: The appellant, aged 73 applied for a Carer’s Allowance in respect of the provision of care and attention to her friend, aged 79. When completing the medical report the caree’s GP stated that she was normal in terms of cognition, mental health,  consciousness/seizures, speech, and hearing – independent in terms of feeding, bathing/showering, dressing, continence/toileting and mobility – and was impaired in terms of her vision, corrected with glasses. The Department was not satisfied that full-time care and attention was required.

Consideration: The Appeals Officer outlined that Section 179 of the 2005 Act provides that a person shall not be regarded as requiring full-time care and attention unless the person has such a disability that requires from another person continual supervision and frequent assistance throughout the day with normal bodily functions or continual supervision to avoid being a danger to themselves. The evidence submitted indicated that the appellant did not need assistance with normal bodily functions or that she was danger to herself. While the GP states that the caree attends Psychotherapy and Counselling – no reports or additional information was submitted as to same. The Appeals Officer was not satisfied that the appellant had demonstrated that her friend required full-time care and attention as detailed in the governing legislation.

Outcome: Appeal disallowed

2022/30 Carers Allowance

Question at Issue: Eligibility – care required

Background: The appellant was disallowed Carer’s Allowance on the grounds that she was not providing full time care and attention as required. The appellant had stated on the application form that she provided care to her father for 19 hours per week.

In her appeal letter, the appellant stated that due to the nature of her father’s care needs, she may need to call to him multiple times throughout the day. She assisted with daily living activities, transport, and supervised his medication. The appellant also disputed the means assessment carried out in relation to her claim.

Consideration: The relevant legislation in this case is Section 179 (1), Section 179 (3) in accordance with the Rules contained in Part 5 of Schedule 3 and Section 179 (4) of the 2005 Act.

The appellant declared on application that she cared for her father 19 hours per week (3 hours per day Monday to Friday and 2 hours per day on Saturday and Sunday). The Appeals Officer determined that the duration of care provided did not constitute full time care and attention as prescribed in the legislation. This is generally accepted to mean at least 35 hours per week.

Having regard to the evidence, the Appeals Officer did not consider that the care recipient had such a disability that he required full-time care and attention, Further, the Appeals Officer was not satisfied that the appellant had established that she was providing a type and level of care that is deemed to constitute full-time care and attention, within the legislatively defined care needs of the person being cared for. The appellant had not addressed this contention in her appeal letter or given any reasoning as to why there was an increase in the care provision subsequent to her application.

Having examined all the evidence in this case at the time of application, the Appeals Officer concluded that the care provided did not constitute full-time care and attention within the meaning of the social welfare legislation.

The Appeals Officer clarified that the total net weekly means of €116.00 assessed related to the spouse’s employment. The disputed capital assessment of her Credit Unit balance and loan recorded a ‘nil’ means amount.

Outcome: Appeal disallowed

2022/31 Carer’s Allowance

Question at issue: Calculation of Means

Background: The appellant’s weekly payment of Carer’s Allowance was reduced in a revised decision based on means from her and her spouse’s income from employment. Means were calculated from gross earnings per provided payslips. The Department allowed legislative disregards, plus administrative deductions for PRSI, Union subscriptions and weekly travel expenses and halved the means for a couple. The appellant’s grounds for appeal were that the payment reduction was unjust in light of the severe care needs of both children and rising medical costs.

Consideration: Section 181 of the 2005 Act provides for payment of Carer’s Allowance where the weekly means do not exceed the amount of Carer’s Allowance payable if the person had no means and for a reduced rate where means are lower than this amount. Rules for calculating means for Carer’s Allowance in Part 5, Schedule 3 of the 2005 Act, provide which income is taken into account, and that the means of a couple are halved. Article 144 of the 2007 Regulations prescribes amounts that may be disregarded in the calculation of means.

The Appeals Officer reviewed the Department’s calculations of the appellant’s means and found, based on the information available, that the means were assessed correctly in line with legislation with all legislative disregards applied. The Appeals Officer advised that ongoing entitlement to Carer’s Allowance is dependent on a recipient continuing to meet the qualifying conditions, including having means below a certain threshold, with the amount of entitlement reduced by any means assessed. It was noted the means calculations were not disputed by the appellant.

Outcome: Appeal disallowed

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