Social Welfare Appeal G0107

The Applicant moved to Ireland from her country of origin in September 2018 with her four children. She was separated from her husband and father of the children. Her applications for Supplementary Welfare Allowance (‘SWA’) and Child Benefit were refused in November 2018. At the time of the said applications, the Applicant had a right to reside in the State pursuant to a Stamp 4 permit and had previously reside in the State for a short period in 2003.

 

The Child Benefit and SWA applications were both refused on the basis that she had failed to satisfy the habitual residence condition, as required by section 246 of the Social Welfare Consolidation Act 2005 (the ‘Act of 2005’). While she was found to have a right to reside in Ireland, the Community Welfare Officer was not satisfied that it had been established that she was habitually resident in Ireland.

 

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. Per 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 appealed the refusal and submitted evidence to the effect that she had left her country with the intention of settling in Ireland permanently, including evidence that she had travelled on a one-way ticket and that she had sold all her belongings and closed her bank account. This evidence notwithstanding, the refusal decision was upheld by an Appeals Officer in May 2019 on the basis that the Applicant had not secured employment or childcare.

 

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.

Meanwhile, in July 2019, the Applicant applied for One Parent Family Payment. In September 2019 she was found to be habitually resident for the purposes of receiving the One Parent Family Payment, with the award backdated.

 

In her appeal to the Chief Appeals Officer, the Applicant submitted that the Appeals Officer had had sufficient evidence to conclude that she was habitually resident in the State, that it had been tacitly accepted that she had a settled intention to remain in Ireland, and that this evidence had been disregarded. It was also noted that the Applicant had been found to be habitually resident for the purposes of the One Parent Family Payment in September 2019, and it was submitted that the adverse finding in relation to her Child Benefit and SWA application was contrary to the Department of Social Welfare’s policy on consistency in decision-making on the basis that had been no significant change of circumstances in her case since that negative decision was taken.

 

In December 2019, the Chief Appeals Officer found that the Appeals Officer gave disproportionate weight to the challenges the Applicant faced in relation to childcare and housing inasmuch as it related to her stated intention to remain in Ireland. She found that the Appeals Officer did not duly consider the other factors which supported the claim. She also noted the finding of habitual residence in relation to the Applicant’s application for One Parent Family Payment. For these reasons, the Applicant’s appeal was allowed and the decision of the Appeals Officer was revised.

 

Social Welfare Appeal G0073

This case concerns a father of two children who applied for Family Income Supplement (FIS) on 5th August 2013. The Appellant does not live with the other parent, nor does he reside with his children. He maintains his children by way of monthly maintenance payments of €450.
A Deciding Officer refused the Appellant’s claim on 20th August 2013 for the reason that he was not maintaining his former spouse/partner, and therefore could not be regarded as falling within the statutory definition of a ‘family’ for FIS purposes.
The Appellant appealed this decision. On 21st July 2014 an Appeals Officer disallowed his appeal by way of a summary decision; that is, without an oral hearing. The Appeals Officer rejected the Appeal on the same grounds that the Deciding Officer had disallowed the claim in the first instance.
On 29th May 2015 Dublin City Centre Citizens Information Service (CIS), on behalf of the Appellant, requested a review of the Appeals Officer’s decision pursuant to s. 318 of the Social Welfare Consolidation Act 2005 (as amended). The CIS asserted that the Appeals Officer had erred in his interpretation of the primary legislation, and had not applied the relevant regulatory provisions in this case.
On 29th June 2015, the Chief Appeals Officer revised the decision of the Appeals Officer and allowed the appeal.
Reference should be made to Case No: G0064 on casebase. That case concerns the same question of statutory interpretation and the Appeal was allowed.

Social Welfare Appeal G0064

This case concerns a father of two children who applied for Family Income Supplement (FIS) on 17 October 2012. The Appellant does not live with the other parent, nor does he reside with his children. He maintains his children by way of monthly maintenance payments of €260. The children’s mother is not in receipt of a social welfare payment other than Child Benefit. The Deciding Officer refused the Appellant’s claim for FIS on the 24 October 2012 on the basis that he could not qualify for FIS unless he was wholly or mainly maintaining his spouse and children; or, alternatively, his children must be living with him the majority of the time.
Sligo MABS, on behalf of the Appellant, appealed this decision on 8 November 2012. On 3 April 2014, an oral hearing was held. On 9 June 2014 the Appeals Office issued its decision disallowing the appeal on the grounds that the Appellant’s circumstances did not fall within the statutory definition of a “family” as provided by s.227 of the Social Welfare (Consolidation) Act 2005 (as amended) -“the Act”, and that Article 13 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007, S.I. 142 of 2007, – “the Regulations”, which refer to the “normal residence” of a child/ren, did not apply in this case.
On 26 August 2014 the Appellant requested a review by the Chief Appeals Officer of the Appeals Officer’s decision in accordance with s.318 of the Act, submitting that the Appeals Officer had erred in law, that the Appellant’s circumstances were in fact consistent with the meaning of “family” as provided by s.227 of the Act, and that the “normal residence” of his children should be decided in accordance with Article 13 of the Regulations.
The Appeals Officer subsequently reviewed his decision and decided to allow the appeal on 10 November 2014. The Appeals Officer accepted that the Appellant’s circumstances were in fact consistent with the statutory definition of a “family” for the purpose of receiving FIS and that Article 13 of the Regulations did apply in this case. See also Case Number G0073, which was decided by the Chief Appeals Officer on 29/06/2015.
Casebase

Social Welfare Appeal G0106

The Applicant, a British citizen, moved to Ireland from the UK in 2015 with his wife, a third country national, and their eight children.

He applied for Family Income Supplement in May 2017. In June 2017, his application was refused on the basis that his employment was not genuine. He appealed this decision, but it was returned to the Department for review. A social welfare investigation concluded that his employment was fraudulent. On 1 January 2018, Family Income Supplement was reclassified as Working Family Payment.

In April 2018, the Applicant was made redundant. The Department’s negative decision was affirmed on review and then, following an oral hearing, affirmed on appeal. The Appeals Officer found that the Applicant had not produced sufficient documentary evidence of his full-time remunerative employment.

In July 2018, the Applicant sought a review of the decision of the Appeals Officer under section 318 of the Social Welfare Consolidation Act 2005 by the Chief Appeals Officer (CAO). On the Applicant’s behalf, CLM submitted that the manner in which the Applicant’s claim for WFP had been investigated by the Department was unfair, arguing that the inspector had placed undue weight on the visits that he had made to the Applicant’s place of work where he had not directly observed the Applicant working. CLM noted that, on one of these visits, the Applicant was present. On occasions when the inspector had concluded that the Applicant was not present, he had only walked past the Applicant’s place of employment. CLM further submitted that at the meeting held between the inspector and the Applicant, the inspector had never raised his concerns with the Applicant. CLM also submitted that the inspector’s conclusion was inconsistent with documentary evidence provided by the Applicant he was in full-time remunerative employment, and that the Applicant could not be held responsible for a failure to produce evidence of his employment after he had ceased to be employed by the business in question in April 2018.

The CAO found that the scope of the appeal under section 318 was confined to the decision of the Appeals Officer and could not look into the investigation concluded by the social welfare inspector. She therefore upheld the decision of the Appeals Officer on the basis that there had been no error in law.

In January 2019, the Applicant issued judicial review proceedings seeking to quash the decisions of the Appeals Officer and the CAO. These proceedings were adjourned to facilitate consideration of an appeal to the CAO under section 317.

Social Welfare Appeal G0069

This case relates to a decision to limit the amount of Rent Supplement payable to the Appellant to the sum available for a single person notwithstanding that he is a separated father and joint custodian of four children.

Following his separation from his wife in 2011 the Appellant returned to Dublin to live with his parents while his children continued to reside in the West of Ireland with their mother. In May 2012, the Appellant applied to Fingal County Council, as the relevant housing authority, for social housing and was assessed as having a housing need for himself and his four children. As no suitable accommodation was available, the Appellant was placed on a waiting list for the allocation of suitable social housing for a family of five.

The Appellant applied for Rent Supplement to enable him to secure suitable private rented accommodation for his family until the housing authority were in a position to offer him suitable accommodation. He identified suitable accommodation at a rate of €900 per month, the amount within the relevant Rent Supplement applicable to his family size as provided by the regulatory rent limits set out in S.I.  412 of 2007 as amended.[1]

In April 2013, the Appellant sought assistance from CLM Northside having been denied Rent Supplement. The Appellant had appealed this decision but the Appeals Officer determined that the Appellant’s housing need was that of a single person as the accommodation needs of his children were already met by the fact that they resided in the home of their mother.  Accordingly, the Rent Supplement limit to be applied in the Appellant’s case was €475 per month, the prescribed statutory limit in the case of a single person household.

CLM, on behalf of the Appellant, requested the Chief Appeals Officer of the Social Welfare Appeals Office (SWAO) review the decision of the Appeals Officer under section 318 of the Social Welfare (Consolidation) Act 2005, as amended (the 2005 Act). CLM asserted that the Appeals Officer had erred in fact and law.

The Chief Appeals Officer, by way of decision dated November 2013, rejected CLM’s arguments. The Chief Appeals Officer found that the Appeals Officer had not erred in law or in fact for the reason that the housing and basic needs of the Appellant’s children were met by their primary carer, the children’s Mother.  The Chief Appeals Officer also found that as the Appellant received no increase on his primary payment in respect of his children, his children could not be regarded as “qualified” children within the meaning of the 2005 Act.  Accordingly, the Appellant did not present as a claimant with dependent children for the purpose of Rent Supplement.

On 2 December 2013, the Appellant was granted leave to issue judicial review proceedings in respect of the Chief Appeals Officer’s decision. In October 2014, Ms.  Justice Baker of the High Court held in favour of the Appellant on the basis that the decision making process of the Department of Social Protection (the DSP) was flawed. Ms. Justice Baker ruled that while the Chief Appeals Officer had applied the correct legal test, that test had been applied overly narrowly to the facts when determining the extent to which the Appellant’s children were in fact “qualified” children within the meaning of the 2005 Act.

The effect of the Judgement was to set aside the decision of the Chief Appeals Officer, thereby enabling the Appellant to make another application for Rent Supplement, taking into account his accommodation needs as a separated father with four dependant children.  Please see Casebase report G0070 in respect of the High Court decision.



[1] The rent allowance limits have been amended by S.I. No. 340/2016, Social Welfare (Consolidated Supplementary Welfare Allowance) (Amendment) (No. 1) (Rent Supplement) Regulations 2016 which came into effect on 1 July 2016.

Social Welfare Appeal G0083

This case relates to an application by the Appellant for Family Income Supplement.  The appellant had been employed and was awarded FIS in August 2012. This payment was renewed for 52 week periods in accordance with governing legislation and on 6 August 2015 a renewal for a further 52 weeks was approved.  On 16 October 2015 the appellant lost his job. He applied for Jobseekers Benefit which he received.  He then secured a new job on 9 November 2015 and made a new application for FIS in respect of his new employment.

The Appellant’s application was refused. The Deciding Officer (DO) considered that the appellants’ previous FIS claim was still in existence: “FIS is a 52 week payment so once it is approved the rate remains the same for the 52 weeks…Your current FIS claim is due to expire on 24/08/2016.”

The Appellant sought help from MABS who requested that the Deciding Officer review and revise her decision on the grounds that the DO had effectively linked two separate FIS claims. The DO wrote to MABs on 6 January 2016 reaffirming her decision. On 12 January 2016, the Appellant appealed the DO’s decision to the Social Welfare Appeals Office (SWAO) on the grounds that as his entitlement to FIS ceased when his employment ended, his new application should have been assessed as an entirely new claim.

By way of summary decision dated 22 March 2016 the Appeals Officer denied the appeal on the basis that the appellant’s claim for renewal of his FIS payment in August 2015, in respect of his former job, was connected to his application for FIS in relation to his employment in November therefore once awarded, the FIS rate payable remains the same for the 52 week period so the appellant would have to wait until August 2016 to secure an increase on his payment.

On 1 September 2016 Cork MABS requested a review of the Appeals Officer’s decision in accordance with section 318 of the Social Welfare (Consolidation) Act 2005 as amended on the basis that the Appeals Officer erred in law and in fact in failing to consider the appellant’s new application for FIS in November 2015.

Social Welfare Appeal G0082

This case relates to an application by the Appellant for Carer’s Allowance (half rate) in order to care for his wife. The Appellant’s wife was 57 years of age and had a diagnosis of Recurrent Psychotic Depression.

The Appellant applied for Carer’s Allowance in 2015. The Appellant’s application was refused. On Part 10 of the application form, the Doctor certified that the Appellant’s wife was moderately affected by her condition. The Deciding Officer (DO) considered that the Appellant’s wife was not so invalided or disabled as to require full time care and attention. The Appellant appealed the DO’s decision to the Social Welfare Appeals Office (SWAO). The Appeals Officer denied the appeal, following an oral hearing; on the basis that it had not been shown that the Appellant’s wife required full-time care and attention.

The Appellant sought assistance from MABS. In May/June 2016 MABS requested a review of the Appeal Officer’s decision pursuant to section 318 of the Social Welfare Consolidation Act 2005 (the 2005 Act).  In submitting grounds for review, MABS asserted that the Appeals Officer had not demonstrated that appropriate evidential weight had been attributed to the Appellant’s written and oral testimony as to facts of his wife’s care needs. As a consequence it was asserted that the Appeals Officer’s reasoning was flawed to the extent that he had erred in fact and law.

Social Welfare Appeal G0077

This case concerns a father of one child who applied for Family Income Supplement (FIS) in April 2015. The Appellant does not live with the other parent, nor does he reside with his child. He maintains his child by way of two monthly maintenance payments of €150 (€69.23 weekly).

A Deciding Officer refused the Appellant’s claim on 27th April 2015 for the reason that he did not have a child normally residing with him, nor was he “wholly or mainly” maintaining the other parent.

In May 2015, Charleville & District MABS appealed this decision on behalf of the Appellant. On 25th August 2015 an Appeals Officer disallowed the appeal by way of a summary decision; that is, without an oral hearing.  The Appeals Officer rejected the Appeal on the grounds that the Appellant could not be regarded as “wholly or mainly” maintaining his family as required by the statutory provisions governing the award of FIS.

On receipt of this decision, MABS made a Freedom of Information request seeking all records relating to the reasoning and decision of the Appeals Officer. On receipt of these records, MABS made a submission to the Chief Appeals Officer requesting a review of the Appeals Officer’s decision pursuant to s. 318 of the Social Welfare Consolidation Act 2005 (as amended) – “the Act”, on the grounds that the Appeals Officer had erred in law.  MABS asserted that as the Appellant did not have a “spouse” within the meaning of Social Welfare Law, his claim fell to be decided in accordance with s. 3 and s. 227 of the Act, and Article 13(6) of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (as amended) – “the Regulations”, S.I. 142 of 2007.  MABS asserted the Appeals Officer had erred in her interpretation of the primary legislation, and that she had failed to apply the relevant regulatory provisions; namely, the Appellant is required to demonstrate that he is substantially maintaining his child.  MABS asserted that the Appellant had met this condition and was therefore eligible for FIS.

On 20th November 2015, the Chief Appeals Officer revised the decision of the Appeals Officer and allowed the appeal.

Reference should be made to Case No: G0064 and G0073 on casebase.  These cases concern the same question of statutory interpretation. Both appeals were allowed.

Social Welfare Appeal G0096

This  case relates to a decision of the Chief Appeals Officer (CAO) pursuant to a review under Section 318 of the Social Welfare Consolidation Act 2005 as amended (the 2005 Act) to uphold the decision of the Appeals Officer. The CAO determined that the Appeals Officer by way of decision dated 22nd  January 2014 had not erred in law or in relation to the facts in determining the effective date of award of Child Benefit to the Appellant payable in respect of her three children.

Social Welfare Appeal G0074

The issue in this case concerns the statutory rules governing the assessment of maintenance and non-cash benefits for the purpose of deciding the Appellant’s rate of Jobseekers Allowance (JA). The Appellant is separated with 3 dependant children.

By way of decision, dated 01/04/2014, a Deciding Officer determined that the Appellant had weekly means of €167, and was therefore entitled to Jobseekers Allowance at the rate of €110.40 per week for herself and her three dependant children. It was decided that the Appellant had weekly means of €12.34 from employment and means of €154.31 from maintenance.

The assessment of means from maintenance was based on the mediation agreement between the Appellant and her former spouse.  Under the terms of the agreement, the Appellant’s former spouse paid the following:

  • €1,300 monthly mortgage payments [including insurances],
  • €250 per month maintenance, and
  • €200 per month towards the children’s extracurricular activities.

The Deciding Officer found the Appellant’s total assessable income from maintenance to be €403.85 per week.  This equates to the sum of all the contributions (mortgage payments, contribution towards the children’s activities and cash maintenance) multiplied by 12 and then divided by 52.  The Deciding Officer then subtracted the statutory disregard of €95.23, and divided the remaining amount by two to arrive at a means figure of €154.31.

The Appellant appealed this decision on the grounds that the only income she received from her former spouse was the maintenance payment in the amount of s €250 per month.

By way of summary decision (without an oral hearing), the Appeal was disallowed on 10/11/2014.  The Appellant was unrepresented at Appeal.

The Appellant then sought the assistance of Kilkenny MABS.  In April 2015, Kilkenny MABS, on behalf the Appellant, made a submission to the Chief Appeals Officer in accordance with s. 318 of the Social Welfare Consolidation Act 2005, asserting that the Appeals Officer in this case had erred in fact and law.

The Chief Appeals Officer reviewed the Appeals Officer’s decision, and on 31/07/2015 she revised the decision in favour of the Appellant.  The Chief Appeals Officer found that the Appellant’s means from maintenance should be assessed as €55 per week, not €154.