Case Report G0157 – Rent Supplement – Overpayment

Date of Final Decision: 24 July 2025

Keywords: Rent Supplement – Overpayment – Appeal to Social Welfare Appeals Office – lack of fair procedures – deductions without formal notification

Organisation who represented the Claimant: Community Law & Mediation

Casebase No. Case G0157

Factual Background:

This case relates to an appeal brought by CLM on behalf of a client to the Social Welfare Appeals Office (SWAO) of the decision of the Deciding Officer of the Department of Social Protection (“DSP”) attributing an overpayment of rent supplement to our client.

Rent Supplement

Our client had been in receipt of rent supplement for the duration of his tenancy in private rented accommodation for approximately three years. The rent supplement was always paid directly into his landlord’s bank account. Following receipt of an eviction notice, our client and his family moved into a local authority tenancy,

Our client was no longer eligible for rent supplement upon moving into social housing. However, unbeknownst to our client, rent supplement continued to be paid directly into his landlord’s bank account.

Our client first became aware of this a number of months later when he received a letter from the DSP stating that his rent supplement claim was under review. He confirmed to the DSP that he had moved out of the property, and that the rent supplement was always paid directly to his former landlord. He received no response to this correspondence.

Alleged Overpayment

Our client subsequently received correspondence from the Central Debt Unit of the DSP, notifying him that he had been overpaid rent supplement. The DSP immediately commenced deductions from his other social welfare payment for this alleged overpayment.

CLM, on behalf of our client, wrote to both the Central Debt Unit and the DSP, highlighting that no formal decision on the alleged overpayment had been issued to our client, and requesting that the process of debt recovery be immediately suspended.

The Central Debt Unit agreed to suspend the debt recovery, and our client shortly thereafter received a formal decision notifying him of the alleged overpayment of rent supplement and providing him with the opportunity to submit an appeal to the SWAO.

CLM submitted an appeal to the SWAO.

Key Legislation:

Social Welfare (Consolidation) Act 2005, in particular section sections 301, 302, and 305 to 338
Social Welfare Act 2012
Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007
Operational Guidelines: Management of Customer Overpayments and Recovery of Customer Debt

Key Arguments:

The following arguments were made by CLM in the appeal on behalf of our client:

Lack of fair procedures: We highlighted that there was a fundamental lack of fair procedures, in circumstances where a formal decision was only issued after the DSP had commenced deductions for the alleged overpayment and only after CLM had made inquiries with the DSP on behalf of the appellant. We also highlighted that the formal decision did not specify or identify the basis for the decision or if fraud had been alleged against our client. This severely hampered our client’s ability to engage with an appeals process.
Error in decision: We argued that the revised decision erred in attributing the overpayment to our client, who had never received the payment and who was unaware that his former landlord continued to receive the rent supplement payments following the conclusion of the tenancy.
DSP on notice of change of circumstances: We further submitted that the DSP was on notice of the appellant’s change of circumstances, i.e. his change of address, from when the family first moved out, and that the DSP had failed to act within a reasonable timeframe on the basis of the information it had.

In this regard, we highlighted that our client had applied for, and received, a community welfare payment to cover the expenses associated with the family’s move to social housing. This payment was administered by the same office that administers rent supplement. Furthermore, the household had provided their updated address in subsequent applications for social welfare payments.

Our client’s circumstances: Finally, we highlighted our client’s extenuating circumstances, including the fact the family had been facing homelessness, our client suffers from persistent health issues and he has limited English.

Decision of the Social Welfare Appeals Office:

The Appeals Officer allowed the appeal in full, finding that the decision giving rise to the overpayment was erroneous and that our client was not liable for the overpayment.

The Appeals Officer found that the DSP was in possession of information that our client no longer lived in private rental accommodation, by virtue of his application for a community welfare payment to cover the move.

Furthermore, the Appeals Officer accepted that the process followed had breached our client’s right to fair procedure and natural justice. In this regard, the Appeal Officer highlighted:

that the DSP had raised the issue of the overpayment with the landlord directly, and it was only on foot of the landlord’s refusal to repay that they sought to recover the overpayment from our client; and

that our client had no knowledge of the continued payment of rent supplement to his landlord, and that he believed he had discharged his obligation to notify the DSP of his change of circumstances by applying for the community welfare payment.

the mitigating factor that our client did not benefit from the alleged overpayment, and was not aware of it.

Date of final Decision: 24 July 2025

Observations:

Overpayment:

There is a specific procedure set out in law which the DSP must follow when seeking to recover an overpayment from a claimant. This procedure necessitates that the DSP issue a formal revised decision or determination before proceeding to recover any debt. Failure to comply with such procedure risks breaching a claimant’s constitutional and natural justice rights.

For more information on overpayments, please see the following Casebase reports:

Where an individual does not benefit from an alleged overpayment and is not aware of the overpayment or could not have been aware of the overpayment, this may serve as a mitigating circumstance in their favour.

Change of circumstances:

A claimant is under an obligation to notify the DSP of a change of circumstances which affects their eligibility to the payment they are receiving. However, in certain circumstances, an appellant may seek to argue that the DSP is already in possession of sufficient information that informs them of this change in circumstances. This could, for example, be through the provision of information in the context of an application for another payment.

DISCLAIMER: In developing the content of the report, every effort has been made to ensure that the information provided is accurate and up-to-date. Community Law & Mediation (“CLM”) gives no guarantees or warranties concerning the accuracy, completeness or up-to-date nature of the information provided in the course notes and does not accept any liability arising from any errors or omissions. Errors or omissions brought to the notice of CLM will be investigated and amendments or corrections will be made as soon as practicable.

For more information contact us at:

Community Law & Mediation

Northside Civic Centre, Bunratty Road, Coolock, Dublin 17

E: info@communitylawandmediation.ie | W: www.communitylawandmediation.ie | T: 01 847 7804

Case Report G0149 – Kristina Kozinceva v The Minister for Social Protection [2020] IECA 7

Title of Payment: Job Seekers Allowance

Date of Final Decision: 28 January 2020

Keywords: Jobseeker’s Allowance; homeless; no fixed abode; proof of residence; habitually resident in the State; judicial review; moot; damages

Organisation who represented the Claimant: Eileen McCabe Solicitors

Casebase No. G0149

Case Summary:

The case concerned a Latvian woman who came to the State to work. She was engaging in part time work in a shop in Stillorgan and was receiving Jobseeker’s Allowance. The Applicant became homeless and subsequently lost her Jobseekers Allowance in April 2016. To continue to obtain her Jobseeker’s Allowance, Clondalkin Intreo Centre requested that the Applicant provide proof that she was living in the Clondalkin/ Lucan/ Newcastle area. As the Applicant had no fixed abode, she could not provide this proof. The Applicant challenged this decision and sought to have her Jobseeker’s Allowance payments resumed. On 14^th ofSeptember 2016, the Assistant Principal of the Clondalkin Intreo Centre responded to the Applicant’s solicitor and stated that her Jobseeker’s Allowance claim had been closed since April 2016 and that the Applicant would be required to provide evidence that she was currently residing in the Clondalkin/Lucan/Newcastle area, in order to submit a fresh application.

The Applicant brought an application for judicial review, seeking to quash the decision made by the Respondent to refuse her Jobseeker’s Allowance. The Applicant also sought declarations that the decision to refuse to provide Jobseekers Allowance based on homelessness was ultra vires the Social Welfare Consolidation Act 2005 (the “2005 Act”) and that the Respondent had unlawfully fettered his statutory discretion by failing to decide the Applicant’s application in accordance with the legislation. The Applicant also brought a claim for damages for breach of statutory duty and costs.

When leave to seek Judicial Review was granted to the Applicant the Chief State Solicitors Office (“CSSO”) wrote to the Applicant’s solicitor seeking evidence of the days of work she had completed. When the Applicant subsequently submitted this information the CSSO transferred a sum to the Applicant in discharge of all back payments of Jobseekers Allowance.

Relevant Legislation:

The Social Welfare Consolidation Act, 2005 (as amended)

The Decision of the High Court:

The High Court rejected the Applicant’s arguments, noting that the Applicant was not denied her allowance in April 2016 because of the fact that she was homeless, but that it was because she did not submit the requisite work dockets. The High Court noted that there had been a meeting between the Respondent and the Applicant in August 2016 where the Respondent had requested details of the addresses that the Applicant had lived in since January 2016. This information was provided by the Applicant, but the Respondent had not been satisfied that it provided sufficient details to link the Applicant to the catchment area. The High Court stated that it could not therefore be concluded that the Applicant was refused Jobseeker’s Allowance on the basis of being homeless.

The Court felt that by virtue of these interactions with the Applicant, the Respondent had acted appropriately in seeking to give what assistance they could. The High Court noted that there was a requirement under Section 141(9) of the 2005 Act that for a person to obtain Jobseeker’s Allowance they must be “habitually resident in the State”. The Court stated that “it is a sad fact that a person can be (…) habitually resident in the State” but still “homeless.” It was noted by the High Court, however, that it is not unreasonable that Jobseeker’s Allowance payments are administered on the basis of the recipient being resident within the particular catchment area of the centre responsible for providing the payment.

The Applicant appealed this finding to the Court of Appeal

The Decision of the Court of Appeal:

The Court of Appeal granted the Applicant’s appeal and found that the Respondent acted ultra vires in requiring the Applicant to provide evidence that she was ‘currently residing’ in a particular Intreo Centre catchment area in applying for Jobseeker’s Allowance while homeless. The Court of Appeal also found that the Respondent had acted unlawfully in failing to have in place any appropriate process for individuals who were homeless to apply for Jobseeker’s Allowance.

Damages Claim

The Applicant had made a claim for damages based on the adequacy of the arrears that were paid to her. The Court of Appeal dismissed the Applicant’s claim for these damages as the Court of Appeal held that the onus was on the Applicant to prove loss on the balance of probabilities and the Applicant had not provided sufficient evidence to support this claim. The Applicant had also made a claim for general damages, but the Court of Appeal held that this claim did not have to be examined as for such a claim to be pursued the Applicant would have to argue that there had been misfeasance in public office and the Applicant did not attempt to pursue this claim.

Mootness

The Respondent argued in defence that the Applicant’s claim was moot, in circumstances where the CSSO had issued the Applicant with all back payments in respect of the Jobseeker’s Allowance. The Court of Appeal followed the test of whether the Applicant might have any future claim for personal injuries that are a “real possibility, and not one that is remote as to be purely hypothetical.” The Court of Appeal held that the Applicant’s claim was not moot as the Applicant is at a very real risk in the future of finding herself in the situation which she found herself in 2016, given that she has a history of homelessness. The Court of Appeal therefore rejected the argument that this claim was moot as the issue at the heart of this case could potentially affect the Applicant’s future rights.

Letter of 14^thSeptember 2016

The Respondent submitted in defence that the letter of the 14^th of September 2016 did not decide that the Applicant is not entitled to Jobseeker’s Allowance or that she was not entitled to Job Seekers Allowance because she was homeless. The Respondent contended that this letter was not a decision in itself to refuse Jobseeker’s Allowance but that it was only a confirmation of the decision in April 2016 to close the Applicant’s Jobseeker’s Allowance application. The Court of Appeal held that in all the circumstances, the letter must be viewed as an effective failure by the Respondent to accept the Applicant’s re-application for Jobseeker’s Allowance or to have in place a process for homeless persons to claim their entitlement to the Jobseeker’s Allowance.

“Currently Residing”

The Court of Appeal held that imposing a requirement of proof of current residence in a specific catchment area for a person who was known to be homeless as a precondition to applying for Jobseeker’s Allowance was ultra vires the powers that had been conferred on the Minister in the legislation. The Court noted that it may be reasonable in normal circumstances for administrative purposes to require an applicant to provide a current residential address. It stated however that this does not justify the imposition of a further residential requirement for an applicant who is known to be homeless and who does not have a catchment area in which they are “currently residing”.

Key Conclusions:

The Court of Appeal accepted that the Respondent had acted ultra vires the 2005 Act in requiring the Applicant to provide evidence that she was “currently residing” within a particular catchment area to obtain Jobseeker’s Allowance. Notably, the Court went further and recognised that the Respondent had breached the law in not providing a suitable process of application for individuals who were homeless to obtain Jobseeker’s Allowance.

Date of final Decision: 28 January 2020

Observations:

This decision highlights that the Court of Appeal will apply scrutiny to decisions of public bodies that have the effect of discriminating against individuals who are homeless. While on a strict interpretation the letter of the 14^th of September did not refuse the Applicant Jobseeker’s Allowance on the basis of her homelessness, the Court of Appeal accepted that in essence this factor is what caused the subsequent refusal. The Court of Appeal’s discussion on mootness also indicates that back payments of social welfare distributions may not render such claims moot, particularly where the individual concerned faces a risk of the same circumstances recurring in the future.

For more information contact us at:

Community Law and Mediation Centre, Northside

Northside Civic Centre, Bunratty Road, Coolock, Dublin 17

E: info@communitylawandmediation.ie | W: www.communitylawandmediation.ie

T: 01 847 7804

Case Report G0151: BM And JM (A Minor Suing By His Mother And Next Friend BM) v Chief Appeals Officer, Social Welfare Appeals Officer, Minister For Social Protection, Ireland and The Attorney General [2024] IESC 51

Title of Payment: Carer’s Allowance

Date of Final Decision: 12 November 2024

Keywords: Carer’s Allowance; means test; reduced rate; classes of carers; constitutional challenge; Article 41.2 and the role of mothers in the home

Organisation who represented the Claimant: N/A

Casebase No. G0151

Case Summary:

This case concerned judicial review proceedings, where BM and JM (the “Applicants”) challenged the payment of Carer’s Allowance to BM at a reduced rate, pursuant to the Social Welfare Consolidation Act 2005 (the “2005 Act”).

BM is the mother and carer of JM and has been a recipient the Carer’s Allowance since 2007. BM began to reside as a couple with JM’s father, which meant that her weekly means are assessed by reference to her own means and JM’s father’s means, so as to reduce the rate of Carer’s Allowance payable to her. The Applicants challenged the payment of Carer’s Allowance to BM at a reduced rate and asserted an entitlement to its payment at the full scheduled rate. BM asserted that having regard to JM’s profound dependence on her, and the corresponding commitment that being his full-time carer demands of her, it was highly unjust that she should receive anything less than the full rate of Carer’s Allowance. In particular, the allowance payable to her has been reduced by reference to her own means and not the means of her partner.

The High Court dismissed the Applicants’ application and Hyland J held that the provisions of section 186(2) of the 2005 Act were permissive and conferred a power on the Minister rather than a duty to make regulations increasing the level of allowance payable.

The High Court granted leave to appeal directly to the Supreme Court in respect of the following two issues:

Whether the Minister for Social Protection (the “Minister”) is under any obligation under section 186(1) and section 186(2) of the 2005 Act to make regulations which would dispense with the means-tested calculation of carer’s payment?

The extent (if any) to which Article 41.2 of the Constitution has any bearing on the proceedings and whether Hyland J was correct to state that Article 41.2 of the Constitution cannot be regarded as dictating the level at which the State must provide a carer’s allowance or otherwise mandating the making of regulations by the Minister under section 186(1) of the 2005 Act.

Key Conclusions:

The entitlement to Carer’s Allowance is subject to reduction (or exclusion) on the basis of a uniformly applicable prescribed means test.

The Minister has a power but is not under any duty to make regulations to provide for two classes of Carer for the purposes of means testing of Carer’s Allowance under Chapter 8 of the 2005 Act.

With respect of Article 41.2 of the Constitution, significant financial support is already being provided to BM and JM. The payment of a reduced rate of Carer’s Allowance to BM does not engage Article 41.2 which does not preclude the application of a generally applicable means test to carers such as BM, i.e. mothers providing full-time, long-term care to a profoundly dependent child in the home. It does not require that a sub-set of carers be treated preferentially or be subject to more favourable rules than other carers.

Relevant Legislation:

The Social Welfare (Consolidation) Act 2005, namely Chapter 8 of the 2005 Act; section 186(1) and section 186 (2)

Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (SI 142/2007)

Article 41.2.2 of the Constitution

Key Arguments:

The Applicant argued:

The Minister acted unlawfully in failing to make regulations under section 186(2) of the 2005 Act, which would (or might) provide for payment of Carer’s Allowance at the scheduled rate to BM and other similarly situated persons.

Section 186(2) clearly contemplates that there might be a category of recipients who ought to receive payment of Carer’s Allowance at the full rate, irrespective of means, and provides the Minister with power to make regulations to that effect. The ‘class of classes of person’ are carers whose caring commitment significantly exceeds 35 hours per week, who face a life-long care commitment and who, as a result, have no prospect of ever being in the position to take up employment.

Payment of a reduced rate of Carer’s Allowance to BM is inconsistent with the State’s obligations under Article 41.2 of the Constitution. Article 41.2 provides that “mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home”

The Respondents argued that what is now section 186(2)(b) of the 2005 Act was enacted so as to enable the Minister to make regulations addressing any difficulties that may arise in the transition from the previous regime, the Prescribed Relatives Allowance (PRA), which was not means tested.

Decision of the Supreme Court:

Issue 1

The Supreme Court held that the Applicants’ contention that section 186(2) of the 2005 Act requires the Minister to make regulations the effect of which would be to provide for two classes of carer was unpersuasive. On the face of section 186(2), the Minister had been given a broad and largely unbounded power to dispense with and/or modify the application of statutory rules relating to the means test for Carer’s Allowance, for the benefit of an unspecified class or classes of carer. The Court held that the Minister has a power, but is not under any duty, to make regulations providing for the matters in section 186(2).

The Supreme Court acknowledged the remedial nature of the 2005 Act, so as to encourage and support the provision of essential care, in a residential setting, to persons having such a disability as to require full-time care and attention. However, it was held that recognition of the 2005 Act as a remedial statute does not alter the interpretative exercise that the Court must undertake.

It was noted that the use of the word “may” in section 186(2) of the 2005 Act could indicate that the power is truly discretionary rather than mandatory in character. The Court held that the wider statutory context does not provide any support for the Applicants’ contention that section 186(2) should impose a mandatory obligation on the Minister. It was noted that the Oireachtas has in Chapter 8 set out a detailed scheme for the payment of Carer’s Allowance, and that it would not appear to make any sense for the Oireachtas simultaneously to legislate to impose a duty on the Minster to make regulations departing from that carefully delineated statutory scheme by dispensing with or relaxing the application of the rules relating to means. The Court agreed with Hyland J’s conclusion that the reference to “may” in section 186(2) is “truly permissive and confers a power on the Minister rather than imposing a duty”.

Issue 2

It was held that nothing in Article 41.2 of the Constitution precludes the application of a generally applicable means test to carers such as BM, i.e. mothers providing full-time, long term care to a profoundly dependent child in the home, or requires that sub-set of carers be treated preferentially or to be subject to more favourable rules than other carers (as would be the case if the general means testing regime did not apply, or apply in the same way, to them.

Collins J held that it appears that Article 41.2 has generally been understood to apply to the marital family only, which Woulfe J expressed the view in his concurring judgement. It was held that no court has ever held that Article 41.2 of the Constitution extends to a legally enforceable duty to provide financial support to mothers in respect of their work in the home. It was held that BM has not been obliged to work outside the home and instead she has been and is being supported in staying at home to care for JM.

Date of final Decision: 12 November 2024

Observations:

The judgement provides clarity on the entitlement to Carer’s Allowance under the 2005 Act. The rate of Carer’s Allowance payable will continue to be calculated using a uniformly applied means test, as prescribed by statute (and set out 2005 Act and the related regulations). The Minister is not permitted to derogate from the Carer’s Allowance rates prescribed by statute despite the full-time demands that carers may face.

The effect of Article 41.2.2 of the Constitution simply requires that the State through its policies and laws seeks to support the rights of mothers, as a class, not to be obliged to work outside the home. It does not commit the State to the provision of any particular form or level of support or giving individual mothers any legally enforceable right to support from the State.

For more information contact us at:

Community Law and Mediation Centre, Northside

Northside Civic Centre, Bunratty Road, Coolock, Dublin 17

E:info@communitylawandmediation.ie | W: www.communitylawandmediation.ie

T: 01 847 7804

Thematic Note G0137: Overpayment of Social Welfare – Estate of a Deceased

Theme: Overpayment of social welfare – Estate of a Deceased

Period of Analysis: SWAO Annual Reports 2009-2021

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

Casebase No. Case G0137

Summary of the relevant law:

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

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

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

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

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

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

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

The other circumstances where an overpayment may arise are covered by sections 336, 336(a) and 336(b) of the Social Welfare Consolidation Act 2005 (as amended).

Examples of this category of overpayment are:

double cashing, for example a person reports that she or he did not receive a payment due, a duplicate is issued and both payments are cashed by the person;
impersonation, for example a person makes a claim assuming the identity of another person;
cashing after death, for example a relative continues to cash a pension or allowance after the death of the person entitled to it.

Finally, the rules relating to the how the Department can recover an overpayment of social welfare are in Statutory Instrument No. 349/2005 Social Welfare (Recovery of Overpayments) Regulations, the Department’s Operational Guidelines on Management of Customer Overpayments and Recovery of Customer Debt. and more information is available through Citizen’s Information.

Observations on appeal outcomes in SWAO Case Studies:

Recovery of Overpayment from the Estate of a Deceased

Overpayments of social welfare can be recovered from the deceased’s estate if not paid prior to their death. A debt may also arise during the settlement of a deceased customer’s estate where it is determined that the customer had not adequately declared their means during the time they received an assistance payment (means tested payment) during their lifetime.

Overpayments discovered after the death of a person receiving social welfare payments can also be appealed. There are a number of appeals by the estate of a deceased in the case studies below. One example shows an appeal that was allowed because there no evidence of any other source of income to the deceased nor of him accessing the joint account which was in his name and his sister’s name. She appealed on the basis that it was her money held in the account for the upkeep on the family home that the deceased had been living in. See G4 2015/24 State Pension Non-contributory. Another successful appeal in seen in I9 2017/318/69 State Pension (Non-Contributory) where there was a failure by the Department to act on recommendations in Department reviews. The overpayment was reduced.

However in most instances, there are have very serious implications where means/assets are not communicated to the Department during one’s life and come to light when assets being dealt with on death.

Relevant Case Studies of the SWAO Annual Reports 2009-2021

G4 2015/24 State Pension Non-contributory

Question at Issue: Claim against deceased pensioner’s estate

Background: The deceased had been awarded pension in 1998 and had been in receipt of Disability Allowance prior to attaining pension age. At the time of the pension claim, he had declared a credit union account with a balance of some €1,900. His entitlement was reviewed in 2011 when he denied having any capital in the bank. Following his death, an investigation by a Social Welfare Inspector indicated undisclosed capital of €59,000 and his means were assessed retrospectively to take account of this. As a consequence of the revised means assessment, an overpayment of some €38,000 was calculated and a demand for payment was made against the estate. His sister, the executrix of the estate, made an appeal against the decision and solicitors acting on her behalf questioned the amount of the overpayment. It was submitted that the deceased never had capital in the [named] bank as his sister had provided this money for the upkeep of his residence.

Oral hearing: The sister of the deceased attended and was represented by her solicitor. The Deciding Officer attended at the request of the Appeals Officer, while the Social Welfare Inspector had moved to other duties and was unable to attend.

The solicitor in the case sought to provide some background, referring to the sister of the deceased, the fact that she had worked for some years in the United Kingdom before returning to the family home. He referred to the capital held at a [named] bank, and said that this had always belonged to his client and submitted that an affidavit from 1996 confirmed this. It was submitted that she had intended that the funds be used for the upkeep and renovation of the family home so that it would remain habitable until she returned to live there. It transpired that her brother had proved unable to maintain the house and evidence was produced showing that expenditure in the order of €230,000 had been incurred in the previous year for extensive renovations.

A copy of the grant of probate was submitted and it was pointed out that the net value of the estate came to just €20,000. It was submitted that the Department had misrepresented the ownership of the funds assessed and that the deceased had no interest in those funds. He had not been able to fulfil the purpose for which the capital had been set aside and he had never accessed the bank account at issue.

The Deciding Officer explained the assessment: the deceased had been assessed with capital held in his own name and a half share of the capital held in a joint account with his sister. She noted that there was evidence of transfers of funds between the accounts which suggested that they had been managed. In response, the deceased’s sister pointed out that her brother had received no State payments until he was aged 49 years and she had enquired about his entitlements. At that stage, he had received a Disabled Person’s Maintenance Allowance (subsequently Disability Allowance). She confirmed that she had managed the accounts and had moved the capital so that the best yield could be achieved. His sister described the deceased as having a learning disability and said that he had not been capable of managing things. They had another brother who died in 1995 and since then she had had to return home every 6 weeks. She recalled that the deceased had been duped by individuals purporting to do maintenance work and, on one occasion, had withdrawn €2,000 from his credit union account to pay them. She said that he had been vulnerable to such approaches and, after that, she had warned the bank and credit union to be aware of him seeking to withdraw funds.

The Deciding Officer conceded that the Department had not implemented its review policy over the years in question but said she believed that a reminder of the qualifying conditions had issued around the year 2000. It was accepted that there was no record of such a reminder on file. The Deciding Officer agreed there could be circumstances when a joint account was assessed in full against one of the named account holders. She went on to say, however, that she believed that the deceased could have accessed the account had he wished to. She noted that the Social Welfare Inspector had reported that there had been no evidence to indicate that the capital in the joint account was not the property of the deceased.

His sister insisted that the deceased did not have access to the [named] bank account and she said she objected to the Department seeking to recover what was, in effect, her savings. In conclusion, her solicitor reiterated the assertion that the deceased had no control over the funds at issue, the capital was the property of the deceased’s sister and he had been a party of convenience only and had never sought to access the account. It was submitted that it was wrong therefore to attribute those funds to him.

Download PDF

‚

Thematic Note G0136: Overpayment of social welfare – Allegations of Fraud under Section 302(a)

Theme: Overpayment of social welfare – Allegations of Fraud under Section 302(a)

Period of Analysis: SWAO Annual Reports 2009-2021

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

Casebase No. Case G0136

Summary of the relevant law:

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

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

In scenarios where the Department claims that the overpayment arose due to an act of fraud on the part of the claimant, a high standard of proof is present and the decisions suggest there must be evidence, not just that the person gave false information or withheld relevant information but also that he/she did so deliberately. If the overpayment is based on evidence of fraud, there is no discretion to reduce the overpayment. whether the overpayment must be paid in full still depends on the circumstances.

An example of the overpayment being successfully appealed in evident in Case Study H2 2016/23 Job Seeker’s Allowance. A finding of fraud was reversed in Case Study H1 2016/17 Disability Allowance, but the overpayment was still payable in full.

Relevant Case Studies of the SWAO Annual Reports 2009-2021

D2. 2012/22 Survivor’s (Contributory) Pension

Decision under appeal: revised entitlement with overpayment assessed – reason(s) stated:-

My decision is based on the report received from the local Social Welfare Inspector, in which he stated that [person named], was cohabiting with you for the past 20 years, and prior to your application for a Widow’s Pension. Accordingly, I have decided that you had no entitlement to Widow’s Contributory and I am terminating your payment immediately from your date of award.

This decision has been made in accordance with Section 302 (a) of the Social Welfare (Consolidation) Act, 2005, on the grounds that you wilfully concealed a material fact from the Department. As a result of this decision, you have been assessed with an overpayment. In the circumstances of this case, it is the intention of the Department to recover the overpayment in full. Our Debt Management Section will be in contact with you shortly regarding repayment of this overpayment.

Overpayment assessed: €73,300.

Background: The appellant applied for a Widow’s (Non-Contributory) Pension in 2001, following the death of her husband. The case was investigated by a Social Welfare Inspector and, shortly afterwards, the appellant withdrew her claim and signed a statement to this effect as recorded by the Inspector at the time. No formal reason was given for the withdrawal. The appellant was issued with a letter which advised her that no further action would be taken as a result of her wish not to continue with the claim. Later in that same month, however, a Deciding Officer concluded that she had an entitlement to a Widow’s (Contributory) Pension based on her late husband’s PRSI contributions and a letter was issued to the appellant advising as to the date of award .

The appellant, at the time of her initial application, was in receipt of Unemployment Assistance from a [specified] Social Welfare Local Office. In 2009, the person named in the overpayment decision applied for Jobseeker’s Allowance at that office and advised that the appellant was his partner and that she was in receipt of a Widow’s Pension. He stated that he had been cohabiting with her for the previous 20 years. The Department of Social Protection commenced an investigation into the appellant’s circumstances. Ultimately, it was decided that she was not entitled to the Widow’s Contributory Pension with effect from a date in 2000. As a consequence of this decision, an overpayment of €73,300 was assessed.

The revised decision was made under Section 302 (a) of the Social Welfare (Consolidation) Act, 2005, which refers to wilful concealment of a material fact – taken to mean cohabitation with the person named for some 20 years without advising the Department.

At oral hearing: the appellant was accompanied by a constituency worker from the office of her local T.D. The Deciding Officer attended at the request of the Appeals Officer. She read the decision and outlined details of the case history, referring to the Social Welfare Inspector’s report and letters of natural justice which had been issued to the appellant inviting her to comment before a decision was made. On the issue of the overpayment, she advised that the appellant had been awarded a State (Non-Contributory) Pension with effect from her 66th birthday and that this had the effect of reducing the overpayment amount to €50,500. She confirmed that the person named had been deemed to be an adult dependent on the appellant’s pension.

The appellant outlined the background to her relationship with the person named. She accepted that they had been living together in the period at issue. She advised that when she was interviewed by the Social Welfare Inspector in 2001, in connection with her Widow’s (Non- Contributory) Pension claim, she told the Inspector that she was co-habiting and that this was the reason for her withdrawing the claim subsequently. She said that at the time of her application she was in receipt of Unemployment Assistance and when she got the pension book from the Department, she stopped that claim.

She went on to say that she had accepted the payment in good faith on the basis that she had withdrawn her non-contributory claim and had not applied for a contributory pension.

On behalf of the appellant, her advocate asked if an application for a contributory pension had ever been made and if so, was there an application form. She stated that the appellant was distraught at the prospect of having to repay such a large overpayment, and went on to say that the appellant genuinely did not understand that she not was entitled to Widow’s (Contributory) Pension. The appellant stated that she did not deliberately set out to defraud the State.

Following a general discussion about the application, the Deciding Officer accepted that there had been no claim for a Widow’s (Contributory) Pension but she made the point that it was unclear as to why the Widow’s (Non- Contributory) Pension claim had been withdrawn. She said that, in any event, when the appellant got the award letter for the contributory pension she would have received a leaflet about the conditions for receipt of the payment. She accepted that no review had taken place after the pension was awarded and acknowledged that the only contact the Department had with the appellant was when she changed her address.

Download PDF

‚

Social Welfare Appeal G0133: Invalidity Pension

Date of Final Decision: 25 October 2022

Keywords: Invalidity Pension, Partial Capacity Benefit, Effective Date, Evidence, Section 317, Overpayment, Offset, Reduction in Overpayment, Oral Hearing

Organisation who represented the Claimant: Community Law & Mediation

Title of Payment: Invalidity Pension

Casebase no: G0133

Case Summary:

This case concerns an appeal of a decision of an Appeals Officer (AO) which had upheld the original decision of a Deciding Officer (DO). Those decisions asserted that the Appellant had been overpaid Invalidity Pension (INVP) from 30 June 2016 to 3 February 2021, as a result of her having returned to work as a carer during that period. As a consequence, it was asserted that the Appellant was liable to pay the Department of Social Protection (Department) the sum of €55,829.70. On appeal, the Appellant asserted that she had been informed by a Limerick officer of the Department that she could continue to receive INVP if she returned to work; that the Revenue and Department had been made aware on various occasions that she was working and still in receipt of INVP and had failed to act in a reasonable time, and therefore the date of effect of the decision of overpayment should take effect from the date she became aware of her mistake in February 2021 (and not the date she commenced work in June 2016).

In April 2016, the Appellant was deemed entitled to INVP as she was prevented from working due to a depressive illness. In 2016, she visited a Department Intreo office in Limerick, where she spoke with a Department work (Officer) and applied for and was granted a training grant with a view to returning to work. The Appellant claimed that she was advised at this meeting that she could continue to claim INVP if she returned to work. The Appellant was a walk-in visitor, meaning she had not booked an appointment in advance of attending the Intreo office. The Appellant claimed that she subsequently called the same Officer to tell him that she received a job offer, and that she was again advised by him that she could continue to claim INVP when she returned to work, though she would pay a higher level of tax. The Appellant commenced work as a carer in June 2016.

In October 2016, the Appellant completed a medical questionnaire relating to her continued entitlement to INVP. On the questionnaire, she declared to the Department that she was in employment. The Appellant continued to receive INVP from the Department, and she was again deemed to still be eligible for INVP following a Department review in 2017.

During her period of employment, the Appellant continued to declare her INVP income to Revenue and made seven treatment benefit claims (which she was entitled to as a result of her employment).

In February 2021, the Appellant ceased working due to a relapse. She was informed by a friend that she could be entitled to partial capacity benefit (PCB) if she returned to work. The Appellant applied for and was awarded partial capacity benefit at 50% (though she never claimed this as she did not return to work. It was around this time that she became aware of her mistake as to her entitlement to INVP. On 11 March 2021, the DO issued a decision that the Appellant had not been entitled to INVP during her period of employment with effect from 30 June 2016, and as such she had received an overpayment of INVP of €55,829.70.

The Appellant appealed this decision to the AO. While she accepted that she had not in fact been entitled to INVP during the period of employment, she argued the DO had not taken the circumstances of her case into account when deciding the decision effective date (as required by s.302(b)), in particular her “innocent mistake and the Department’s failure to notice it notwithstanding the information she provided it”. The appeal failed and the AO upheld the decision of the DO (Revised Decision).

The Appellant originally sought to appeal the AO’s decision to the Chief Appeals officer under s.318 on the basis that the AO had erred in law or in fact in deciding that the Officer would not have provided the advice claimed by the Appellant, in the absence of an oral hearing or any evidence from that Officer.

On 29 June 2022, in light of the Appellant’s submissions and request for an oral hearing, the Chief Appeals Officer considered that a review of the AO’s decision should in the first instance be conducted by an appeal officer (Second AO) under s.317. It would then be open to the Appellant to appeal such a decision to the Chief Appeals Officer under s.318 if she wanted to.

The key question for the Second AO to consider was whether the Revised Decision should be upheld, and the correct effective date of that decision.

Download PDF

‚

Thematic Note G0132: Overpayment of social welfare

Theme: Overpayment of Social Welfare – General Issues

Period of Analysis: SWAO Annual Reports 2009-2021

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

Casebase No. Case G0123

Summary of the relevant law:

A revised decision that there has been an overpayment based on fraud is made under Section 302(a)/325(a)) of the Act. If the overpayment arose as a result of fraud, the person may be criminally prosecuted even if the overpayment is repaid. See G0133 for further details.

It is therefore very important to know if fraud is alleged (ie, the decision was made based on section 302(a)) or no fraud is alleged (ie the decision is based on section 302(b).)

The other circumstances where an overpayment may arise are covered by sections 336, 336(a) and 336(b) of the Social Welfare Consolidation Act 2005 (as amended).

Examples of this category of overpayment are:

double cashing, for example a person reports that she or he did not receive a payment due, a duplicate is issued and both payments are cashed by the person;
impersonation, for example a person makes a claim assuming the identity of another person;
cashing after death, for example a relative continues to cash a pension or allowance after the death of the person entitled to it.

Observations on appeal outcomes in SWAO Case Studies:

An appeal against an overpayment can be made to the Social Welfare Appeals Office (SWAO). A person has 21 days to appeal and details on appeals are available on the SWAO website.

To assist with appeals, we have drawn together the case studies relating to overpayments in the SWAO Annual Reports below and have made some observations based on our review of the case studies in Annual Reports dating from 2009 to 2021.

Below we set out observations under the following headings –

Initial Observations
Error by the Department

We have separate Thematic Reports on Casebase relating to the following: –

Fraud (Section 302(a)) (G0133)
Cohabitation (G0134)
Recovery of overpayment from the Estate of the Deceased (G0135)

Initial Observations –

Alleged ignorance of the requirements or criteria of a social welfare payment is generally disregarded, in particular where a claimant was explicitly made aware of the requirements. (See Case Study J5 2018/54 State Pension Non-Contributory Oral Hearing below)
The SWAO will have access to information from electoral registers, vehicle registrations, tenancies, births register and Social Welfare Inspectors in assessing the facts pertaining to the case.
There is a strict obligation to inform the Department of changes to your circumstances where in receipt of social welfare. This includes changes to your financial circumstances, living arrangements, absence of the State, periods where a child or caree is not residing in the home etc.
If a change in circumstances has been notified to the Department, or the Department has made a clear error, an Appeals Officer may reduce or cancel an overpayment. This discretion arises under Article 246(1) of Part 9 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 – S.I. 142 of 2007 (as amended) which provides that the amount of an overpayment to be repaid may be reduced or cancelled where the overpayment arose because of: (i) 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 (ii) an error by the Department.
Other than in cases of fraud, an Appeals Officer can change the effective date when an overpayment is deemed to have arisen, having regard to all the circumstances of the case. This may result in no overpayment arising.
Decisions involving the assessment of means are very fact-dependent and will be governed by all circumstances relating to the individual case.

The Section 318 reviews of decisions of Appeal Officers by the Chief Appeals Officer are of particular note and show the following:

The obligation to notify the Department of a change of circumstances may be discharged if the relevant facts are disclosed in an application for a separate benefit.
A notification of relevant information to another Government body (e.g. Tusla) does not equate to the disclosure of that information to the Department.
Where an entitlement is disallowed, limited or withdrawn on the basis of cohabitation, the onus is on the Department to establish that cohabitation (i.e. in an intimate and committed relationship) exists and not the appellant to show they are not cohabiting with the nominated person. In putting together its case, the Department must follow its own Guidelines on Investigating Cohabitation and consider a range of evidence of cohabitation to make such a finding. See Cohabitation below.
In a revised decision, a Deciding Officer much set out the relevant provision in the legislation under which the decision is made and the amount of the overpayment amounts in order to respect an appellant’s right to natural justice and fair procedures.
A lack of a review by the Department may be taken into account in circumstances where they failed to act on information (e.g. a clear instruction of a Social Welfare Inspector’s report) but not generally in other circumstances.

Error by the Department

Whether an error by the Department will result of the overpayment being reduced or set aside will depend on the circumstances of the case. See Case Study I2 2017/40 Jobseeker’s Allowance Summary Decision for an example of where the level of engagement with Department by the Appellants and circumstances surrounding the error were sufficient to reduce overpayment to nil. It states:-

“The couple had numerous interactions with the Intreo Centre over the course of their claims and always went there together when issues or queries arose. Their ongoing engagement with various activation measures was also mentioned. The appellant also got statements of payments received on four occasions for submission to the university where she studied in the UK. The letter of appeal also states that the couple had never claimed separately before, and they were not aware of the level of payment each would receive. Given their ongoing engagement with the Intreo Centre, they assumed they were receiving their correct entitlement.”

Also level of communication over the course of the relevant period with Department in I3 2017/46 Supplementary Welfare Allowance Summary Decision was such that error of Department and overpayment effectively reduced to nil.

In Case Study J1 2018/35 Working Family Payment Oral Hearing, the Appeals Officer concluded that:-

“as there had been no change in the appellant’s circumstances as set out in the governing legislation, the appellant continued to be entitled to Working Family Payment for 52 weeks from the commencement of that claim. The Appeals Officer considered the retrospective examination of the hours worked from January 2015 to June 2015 as erroneous and unfair. With regard to the continuing entitlement from June 2015 to June 2016, the Appeals Officer concluded that the same principle applied. In the absence of any evidence to the contrary on the file, the Appeals Officer had to assume that at the time of renewal of Working Family Payment in June 2015, the appellant was found to be in compliance with the conditions for award, that this was likely to continue for 3 months and was payable for 52 weeks to June 2016.”

In Case Study J3 2018/49 Supplementary Welfare Allowance Summary Decision, the Appellant failed to tell the Department that she had taken up a training course while on SWA. It was on the recommendation of her GP as part of medical and psychological treatment and increased her employment possibilities. The Appeals Officer noted that “under Section 190 (3) of the 2005 Act the Department has discretion to grant Supplementary Welfare Allowance to persons attending a course of study “in a case where there are exceptional circumstances.” This concession did not appear to have been considered by the Department in this instance. The Appeals Officer considered that the evidence submitted by the appellant in support of her appeal could be regarded as constituting “exceptional circumstances” and the appeal was allowed.”

Relevant Case Studies of the SWAO Annual Reports 2009-2021

A.	2009
B.	2010
1.	2010/15 Disability Allowance	Question at issue: Over payment
C.	2011
D.	2012
1.	2012/15 One Parent Family Payment	Question at issue: Overpayment
2.	2012/22 Survivor’s (Contributory) Pension	Question at issue: Overpayment
E.	2013
F.	2014
G.	2015
1.	2015/15 Carer’s benefit & Maternity Benefit	Question at issue: Concurrent payment of benefits
2.	2015/21 State Pension (Non-Contributory)	Question at issue: means and overpayment assessed following review
3.	2015/22 & 2015/23 Unspecified payment in respect of two appellants	Question at issue: Cohabitation
4.	2015/24 State Pension Non-contributory	Question at issue: Claim against the deceased pensioner’s estate
5.	2015/25 State Pension (Non-contributory)	Question at issue: Claim against the deceased pensioner’s estate
H	2016
1.	2016/17 Disability Allowance	Question at issue: Eligibility (medical)
2.	2016/23 Job Seeker’s Allowance	Question at issue: Eligibility (retrospective assessment of needs)
3.	2016/28 State Pension (Non-contributory)	Question at issue: Eligibility (revised decision as to means)
4.	2016/318/34 Carer’s allowance	Question at issue: Overpayment assessed
5.	2016/318/36 One parent family payment	Question at issue: Means and cohabitation
I	2017
1	2017/10 One-Parent Family Payment Oral hearing	Question at issue: Overpayment whilst child in care
2	2017/40 Jobseeker’s Allowance Summary Decision	Question at issue: Overpayment (department error)
3.	2017/46 Supplementary Welfare Allowance Summary Decision	Question at issue: Eligibility (rent supplement and overpayment)
4.	2017/49 State Pension (Non-Contributory) Oral hearing	Question at issue: Claim against the State
5.	2017/51 State Pension (Contributory) Summary Decision	Question at issue: Overpayment (qualified adult)
6.	2017/318/62 Jobseeker’s Allowance	Question at issue: Whether an Appeals Officer had erred when partially allowing an appeal in relation to an overpayment
7.	2017/318/65 Disability Allowance (DA) and One Parent Family (OPF)	Question at issue: whether the appellants were cohabiting
8.	2017/318/68 State Pension (Non-Contributory)	Question at issue: overpayment assessed (means)
9.	2017/318/69 State Pension (Non-Contributory)	Question at issue: overpayment assessed (means)
J	2018
1.	2018/35 Working Family Payment Oral Hearing	Question at issue: Eligibility (hours worked)
2.	2018/39 Jobseeker’s Allowance Summary Decision	Question at issue: eligibility (whether the person was unemployed)
3.	2018/49 Supplementary Welfare Allowance Summary Decision	Question at issue: Eligibility and overpayment
4.	2018/53 State Pension (Non-Contributory) Summary Decision	Question at issue: Eligibility (means and overpayment)
5.	2018/54 State Pension Non-Contributory Oral Hearing	Question at issue: Eligibility (means and overpayment)
6.	2018/318/66 Carer’s Allowance	Question at issue: Eligibility (care provided)
7.	2018/318/67 State Pension (Non-Contributory)	Question at issue: Absence from state
K.	2019
1.	2019/03 Child Benefit Summary Decision	Question at issue: Qualified child- ordinarily resident
2.	2019/44 Jobseeker’s Allowance Summary Decision	Question at issue: Eligibility (full-time education)
3.	2019/50 Farm Assist Summary Decision	Question at issue: Overpayment
4.	2019/57 Widower’s (Non-Contributory) Pension Oral Hearing	Question at issue: Entitlement-co-habiting
L.	2020
1.	2020/01 Child Benefit – Qualified Person	Question at issue Qualified person
2	2020/49 State Pension (Contributory)
M.	2021
1.	2021/01 Child Benefit – Qualified Child	Question at issue Qualified child

Download PDF

‚

Social Welfare Appeal G0131: State Pension (contributory)

Date of Final Decision: 27 June 1997

Keywords: State Pension; Fair Procedures; Natural Justice; Fair Hearing; Oral Hearing; Cross Examination; Witnesses; Incomplete Records; Evidence; Estoppel

Organisation who represented the Claimant: N/A

Title of Payment: State Pension (contributory)

Casebase no: G0131

Case Summary:

The case reference is Galvin v Chief Appeals Officer [1997] IEHC 218.

The case concerned a challenge to the decision by the Chief Appeals Officer of the Department of Social Welfare (the “Respondent”) when assessing the application of Mr Galvin (the “Applicant”) for a contributory old age pension. The Chief Appeals Officer (and before them the deciding officer and appeals officer) had denied this application. The reason for this decision was that the Department did not have records to show that the Applicant had made sufficient social insurance contributions to be eligible to receive this benefit.

The Applicant asked the High Court to review the decision. He claimed that the failure to offer him an oral hearing where he could cross-examine the persons in charge of the records of the Department and produce his own evidence to support his claim that he had made sufficient social insurance contributions was a breach of his right to fair procedures. He also said that, in any event, he should be entitled to receive the contributory old age pension because he had received a letter from the Department of Social Protection saying that he didn’t need to make further contributions to receive a pension. The Department said that it was entitled to rely on its own records, which showed that he hadn’t made enough social contributions, and that while an appeals officer had the power to convene an oral hearing under the relevant legislation, it wasn’t obliged to do so.

The High Court found that while there is no general right to an oral hearing in all cases. However, the Applicant in this case should have been afforded an oral hearing where he could cross examine witnesses and give evidence. This decision was based on the specific circumstances of the Applicant’s case. The Department was ordered to schedule an oral hearing and to allow the Applicant a right to appeal any decision made by the appeals officer at that oral hearing to the Chief Appeals Officer.

The High Court didn’t agree with the argument that the letter sent by the Department of Social Protection entitled the Applicant to receive a pension. The Applicant said that the sending of this letter prevented (or, to use the legal term, “estopped”) the Department from denying the Applicant a pension because that would be inconsistent with that communication. The Court said that even if the Department had not said to the Applicant that he had made enough social insurance contributions, the Applicant wouldn’t have been able to change the question of his eligibility to receive a pension by making more social insurance contributions, and that this meant that this argument must fail.

Download PDF

‚

Social Welfare Appeal G0128: One Parent Family Payment / Habitual Residence Condition.

Title of Payment: One Parent Family Payment

Date of Final Decision: 31 May 2020

Keywords: Habitual Residence Condition, Right to Reside, Permission to Remain and Conditions, One Parent Family Payment, Section 318 Review.

Organisation who represented the Claimant: Irish Human Rights & Equality Commission

Casebase no: G0128

Case Summary:

The applicant was a single mother of two children, who arrived in Ireland in 2013. She applied for refugee status and was granted permission-to-remain (Stamp 4) in the State in 2019, having resided in Ireland throughout. The applicant was originally enrolled in a course, but due to lack of funds and no access to the One Parent Scheme, was forced to leave the course. Her application for the One Parent Scheme was rejected in 2020.

The Appeal Officer’s decision to refuse a social welfare One-Parent Family Payment was under Section 246 of the Social Welfare Consolidation Act 2005. This decision to refuse the applicant’s payment was made on the grounds that she had failed to satisfy the habitual-residence condition, as her presence in the State was not in accordance with her permission-to-remain.

Section 246 of the 2005 Act provides that it is a requirement for those applying for SWA and Child Benefit to be habitually resident in the State. Under section 246(4), a deciding officer or a designated person when determining whether a person is habitually resident in the State shall take into consideration all the circumstances of the case including, in particular, the following:

(a) the length and continuity of residence in the State or in any other particular country,

(b) the length and purpose of any absence from the State,

(c) the nature and pattern of the person’s employment,

(d) the person’s main centre of interest, and

(e) the future intentions of the person concerned as they appear from all the circumstances.

The applicant’s permission-to-remain was noted as being subject to certain conditions, which included:

You will make every effort to gain employment and not be a burden on the State.

At the time of the application for payment, the applicant was not working.

The Applicant sought a further review before the Chief Appeals Officer, who under section 318 of the Act of 2005 may revise any decision of an Appeals Officer where it appears that the decision was erroneous by reason of some mistake having been made in relation to the law or the facts. In her submission, the applicant argued that the appeals officer “materially erred in fact” in finding that the conditions attached to the woman’s permission-to-remain prohibited her from accessing social welfare.

As the applicant was not working at the time she applied for the One-Parent Family Payment, the Chief Appeals Officer relied on the permission-to-remain condition that states applicants must make “every effort to gain employment, set up a business or pursue a profession, and not to be a burden on the State”.

The applicant subsequently obtained employment as a cleaner. The initial refusal decision relied on the permission-to-remain condition that she makes an effort to gain employment and the appeals officer was unaware the applicant became employed Maintaining that it is lawful to consider compliance with permission-to-remain conditions when assessing the habitual residence condition requirement, the Chief Appeals Officer overturned the refusal decision following a review of all the facts, considering the woman’s compliance with the permission-to-remain and the new information submitted in respect of her recent employment status.

Download PDF

‚

Social Welfare Appeal G0101

This case concerns a challenge to a decision made by a Deciding Officer (DO) whereby it was asserted that the Appellant was not entitled to Child Benefit (CB) prior to the 1st May 2012. It was determined that the Appellant could not satisfy the habitual residence condition (HRC) prior to this date as she had no legal right of residence in the State. Reference is made in the case summary to the Appellant’s legal status only as applies to the question of her entitlement to Child Benefit.
The Appellant and her husband arrived in Ireland in January 2006 and claimed asylum. The application was refused and in March 2007 the Refugee Appeals Tribunal confirmed this decision. On 22nd of May 2007 the Appellant sought to challenge the decision of the Refugee Appeals Tribunal by way of Judicial Review proceedings. These proceedings were subsequently struck out by consent in February 2009. The Appellant applied for readmission to the asylum process and this was refused on 11th December 2009.
In 2007 a separate application was made for leave to remain on humanitarian grounds and subsidiary protection. Subsidiary protection was granted by way of letter from the Irish Naturalisation and Immigration Service (INIS) on the 1st of May 2012.
Throughout the period the Appellant, her husband, and her child (born in 2007) lived in direct provision accommodation.
The Appellant’s son was born on the 31st of December 2007. The Appellant applied for Child Benefit in February 2008. The claim was refused by a DO on the 17th of May 2008 on the grounds that the Appellant’s legal right of residence had not been determined and therefore she could not be found to be habitually resident in the State. A second application for Child Benefit was made in October 2008. This was also refused by letter in February 2009. The Appellant appealed this decision to the Social Welfare Appeals Office. By way of decision dated 7th September 2009 the AO disallowed the appeal on the grounds that the Appellant’s application to be declared a refugee had been refused, and therefore “the appellant may not be deemed to be habitually resident for the purpose of her Child Benefit claim at [that] time.
In 2012 the Appellant made representations to the Social Welfare Appeals Office requesting that the AO decision be reviewed by the Chief Appeal Officer pursuant to s 318 of the Social Welfare Consolidation Act 2005 (as amended) – (“the Principal Act”). It was the Appellant’s position that the Appeals Officer has erred in law. This request was refused on the grounds of delay, some two and a half years had lapsed since the date of the Appeals Officer’s decision. The Appellant was invited to make a new application for Child Benefit.
In February 2013 the Appellant made her third application for Child Benefit. This application was granted with effect from 1st of May 2012, the date the Appellant was granted leave to remain.

Download PDF

‚