Social Welfare Appeal G0126: Maternity Benefit

Title of Payment: Maternity Benefit

Date of Final Decision: 16 December 2021

Keywords: Maternity Benefit, Immigration, Work Permit, PRSI Payments, PAYE Tax, Contract of Services

Organisation who represented the Claimant: N/A

Casebase no: G0126

Case Summary:

This case concerns PAYE and PRSI contributions made while working in Ireland without a valid work permit, and whether they should be taken into account by the Department of Social Protection when assessing eligibility for social insurance payments, such as maternity benefit.

Ms. Shardha Sobhy, a citizen of Mauritius, arrived in Ireland on 5 March 2005, and registered with the Garda National Immigration Bureau (GNIB). From the time she arrived in Ireland until the 26 June 2012, she was granted five consecutive Stamp 2 visas. During that time she was a student and worked in a part-time job. She was lawfully in the State until 26 June 2012. On 21 November 2011, Ms. Sobhy applied to change her Stamp 2 to a Stamp 4. She received a letter from the Irish Naturalisation and Immigration Service (INIS), dated 11 May 2012, refusing her request to change to a Stamp 4. Ms. Sobhy sought an extension of her visa on 20 July 2016.

On 5 August 2016, the Residents Division of the INIS refused to extend her visa, reasoning that the visa had already expired by the time the application for an extension had been received. This letter outlined her rights under the Immigration Act 2004, highlighting that it is illegal to reside in the State without permission from the Minister for Justice and Equality, and the penalties that went with failing to follow the law under The Immigration Act of 2004. This letter also specified that, without her visa, Ms. Sobhy was not entitled to work.

A firm of solicitors representing Ms. Sobhy wrote to the Residents Division of the INIS, in a letter dated 23 November 2016, requesting a review of the decision. It is unknown whether a response was received to this letter.

In 2018, the Minister for Justice introduced a scheme that allowed certain non-EEA nationals, who had a valid student permission during the period of 01 January 2005 to 31 December 2010 and who had not acquired an alternative immigration permission in the intervening period, to apply for permission in the State. Ms. Sobhy applied to the scheme and the INIS addressed this application on 26 February 2019, granting her temporary permission to reside in the State under Stamp 4s conditions for a period of two years from the date of the letter.

Between 2008 and 2019, Ms. Sobhy made numerous social welfare contributions. The respondent and her employer made all of the necessary PRSI and PAYE contributions necessary to receive maternity benefit. The case turns on the period of 26 June 2012 to 03 March 2019 when Ms. Sobhy was a resident of and working in the State without permission to remain or work.

The following is the number of paid contributions Ms. Sobhy made during the specified years:

YearPaid ContributionsReckonable Paid Contributions for Pension
200838 A, 1 J38
200926 A26
201029 A29
201148 A48
201244 A, 1 J44
201333 A33
201452 A52
201553 A52
201648 A48
201751 A51
201837 A37

Ms. Sobhy went on maternity leave on 15 December 2018 and gave birth on 9 January 2019. On 11 April 2019, while a lawful resident in the State, Ms. Sobhy applied for maternity benefit. On 04 June 2019, a Deciding Officer refused her claim for maternity benefit on the basis that she did not have a valid work permit, making her employment uninsurable.

Ms. Sobhy appealed this decision on 23 June 2019. The Appeal was disallowed.

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.

Social Welfare Appeal G0066

The Appellant is a mother of one child and has power of attorney over her niece who lives with and is cared for by the Appellant. The Appellant is in receipt of Child Benefit in respect of her own child and she applied for Child Benefit in respect of her niece on 26 September 2012.
On 7 November 2012 the Department of Social Protection disallowed her claim for Child Benefit on the grounds that her niece was “not ordinarily resident” in the State and was here for educational purposes only.
The Appellant appealed the decision of the Deciding Officer with assistance from Citizens Information Service Northside. The Appeal was disallowed by way of summary decision (no oral hearing) on 13 June 2013. The Appeals Officer found that the Appellant was not entitled to Child Benefit in respect of her niece on the grounds that her niece was in Ireland for educational purposes only, and that the child was not therefore “ordinarily resident” in Ireland.
CLM Northside made written submissions on behalf of the Appellant on 13 September 2013 and on 25 August 2014, requesting that the Chief Appeals Officer review the decision of the Appeals Officer in accordance with sections 317 and 318 of the Social Welfare (Consolidation) Act 2005.
On 17 October 2014 the Appeals Officer issued a revised decision, allowing the appeal in light of the submission made on behalf of the Appellant.

Social Welfare Appeal G0105

The Applicant moved to Ireland from the UK in 2015 with her husband, a British citizen, and their eight children. She applied for Child Benefit from September 2015.

She was awarded Child Benefit for six of her children from September 2015 to November 2015. This was reviewed on the basis of an allegation that her husband’s self-employment was fake, that he was not therefore exercising EU free movement rights, and that, as a consequence, she was did not satisfy the habitual residence condition in section 246 of the Social Welfare Consolidation Act 2005 because she was not lawfully in the State as the family member of an EU worker. This decision was upheld on appeal.

Child Benefit was reinstated in November 2016 when her husband entered employment, but again, this was reviewed in March 2018 on the basis that his employment between June 2017 and March 2018 was not genuine. In April 2018, her husband was granted Jobseekers’ Allowance, and it was accepted that he was habitually resident at that time. Her claim for Child Benefit was reinstated from April 2018 onwards, but the Department sought repayment of the Child Benefit which, it said, had been overpaid between June 2017 and March 2018. The Applicant appealed the overpayment decision on the basis that she had, in fact, been habitually resident and that, in any event, her husband’s employment had actually been genuine.

Social Welfare Appeal G0098

This case relates to a review of a decision by the Department of Employment Affairs and Social Protection (the Department) made in July 2017 as to the weekly payments to which the Appellant is  entitled under the State Pension (Contributory) (SPC).

Social Welfare Appeal G0100

This case concerns an appeal regarding a decision by a Decision Officer (DO) to terminate the Appellant’s entitlement to Child Benefit (CB) for the period that her spouse, a Romanian citizen, was considered not to have a lawful right to reside in the State. It was determined by a DO that the Appellant was not entitled to CB payments after her husband’s self-employment ceased in November 2008 on the basis that she was not habitually resident in the State.

The Appellant sought a review of the decision of the DO. In making this request the Appellant  submitted evidence to support the issuing of a revised decision. This included  documentary evidence of her children’s school attendance and a statement confirming that she and her spouse intended to purchase a house in Ireland. On 25 May 2009 the DO refused to overturn the earlier decision asserting that no new evidence had been provided to warrant making a revised decision.

The Appellant lodged an appeal with Social Welfare Appeals Office (SWAO). An oral hearing date was scheduled for September 2010 but this was subsequently adjourned. The Appellant’s spouse first attended CLM in June 2010. The Appellant attended CLM sometime after June 2010. CLM came on record for the Appellant and requested her file under the Freedom of Information Acts.

Child Benefit – Habitual Residence Condition – Right to Reside – Judicial Review

Social Welfare Appeal G0099

This case concerns the judicial review of a decision by a Deciding Officer (DO) on 28 August 2009 whereby the Appellant was refused Jobseekers Allowance (JA) on the basis that he was a Romanian Citizen who failed to fulfil the requirements for JA. The DO held that the Appellant was not permitted to claim JA as he did not have a work permit for twelve consecutive months since 1 January 2006 and was therefore not available for full time work. This decision also had the effect of preventing the Appellant from receiving Supplementary Welfare Allowance (SWA) and Rent Supplement (RS).

The Appellant is a Romanian citizen who resided and worked in Ireland since 2004. When the Appellant first came to the State he was not aware of a requirement to have a work permit in order to work. Between September 2006 and April 2007 the Appellant worked as an insured employee and tax and PRSI was paid to the Revenue Commissioners by his employers.

From May 2007 to November 2008 he worked in a self-employed capacity paying all the requisite VAT, Income Tax and PRSI to the Revenue Commissioners. He was joined by his spouse and four children in February 2007. The Appellant lost his employment due to the economic downturn in November 2008. The Appellant’s fifth child was born in Ireland in July 2009.

Social Welfare Appeal G0089

This case relates to a review of a decision made in 2004 to retrospectively charge the claimant for an overpayment of the One Parent Family Payment (OPF), and the decision eleven years later to commence recovery of that overpayment by way of involuntary deductions from her Jobseekers Benefit claim. In October 2015 the claimant sought the assistance of Kerry MABS (MABS). In accordance with the provisions of the Freedom of Information Act, 2014, MABS wrote to the Department of Social Protection (the Department) on her behalf, requesting all records relating to the decision that had the effect of raising the debt.

Social Welfare Appeal G0097

This case relates to a decision of the Office of the Ombudsman regarding a complaint concerning a review by the Chief Appeals Officer (CAO) under Section 318 of the Social Welfare Consolidation Act 2005 as amended (the 2005 Act). The CAO determined by way of decision dated 3 November 2015 that the Appeals Officer had not erred in law or in relation to the facts in determining the effective date of award of Child Benefit to the Appellant. While the Ombudsman requested that the Department of Employment Affairs and Social Protection (the Department) backdate payment to January 2012 in view of the decision in DN and Anor v Chief Appeals Officer and Ors, the complaint ultimately was not upheld.  It is clear from the decision of the Ombudsman that upon receiving the request from the Ombudsman to backdate the payment the Department refused to do so on the basis that s 246 (8) of the 2005 Act removes any discretion to backdate a claim for Child Benefit for periods where a claimant’s right of residence has not been declared or permitted.

Social Welfare Appeal G0090

This case concerns a revised decision by a Deciding Officer (DO), whereby it was asserted that the Appellant was overpaid Jobseekers Allowance (JA) from 2012 to the date of discovery in 2015.  The Appellant was assessed as having retrospectively derived means from her husband’s earnings, earnings that were not disclosed to the Department of Social Protection (the Department) throughout the period at issue.  As a consequence of this revised decision, it was asserted that the Appellant was liable to repay to the Department the sum of €36,584.

On appeal, the Appellant asserted that though married, she was estranged from her husband. With respect to her husband’s earnings, it was the Appellant’s position that she was unaware of his changed circumstances as she and her spouse live separate and independent lives.