Chief Appeals Officer Archives

Case Report G0154 – Little v the Chief Appeals Officer, Social Welfare Appeals Office and Minister for Social Protection [2023] IESC 25

Little v the Chief Appeals Officer, Social Welfare Appeals Office and Minister for Social Protection [2023] IESC 25

Title of Payment: Domiciliary Carers Allowance

Date of Final Decision: 14 November 2023

Keywords: Domiciliary Care Allowance, Social Welfare Appeals, Judicial Review, Severe Disability, Continual Care, Social Welfare Consolidation Act 2005; section 317 review; eligibility as at date of application

Organisation who represented the Claimant: N/A

Casebase No. Case G0154

Case Summary:

Background

This case relates to a decision of the Supreme Court dismissing an appeal of a decision of the High Court in relation to an appeal on a point of law under the Social Welfare Consolidation Act 2005, as amended (the “2005 Act”). The crux of the case related to the refusal of the applicant’s application for Domiciliary Care Allowance (“DCA”) in respect of her young son.

In dismissing the appeal, the Supreme Court affirmed that the legislative framework requires eligibility to be assessed and based on the conditions at the time of the application. The Supreme Court ruled that the appellant had to establish eligibility for DCA as of the date of the original application in 2018, and that new evidence from 2020 could not be used to revise the original decision.

Initial application:

The appellant initially applied for DCA in June 2018 with respect to her son, who was five years and two months old at the time. The application was assessed by a deciding officer who concluded that her son’s care needs did not meet the qualifying conditions for DCA, which require that the child has a severe disability necessitating continual or continuous care substantially in excess of that required by children of the same age without disabilities. This decision was communicated to the appellant on 30 August 2018. Following this, the appellant appealed the decision. A subsequent review by another deciding officer in December 2018, in accordance with s.301 of the 2005 Act upheld the original decision.

Appeal to Social Welfare Appeals Office (“SWAO”)

The appellant’s appeal of the initial decision was then heard by an appeals officer in February 2019. The appeals officer also disallowed the appeal on similar grounds, concluding that her son’s care needs were not substantially in excess of those required by other children of the same age. The appellant sought a review of this decision under section 317 of the 2005 Act, which allows for a decision to be revised by an appeals officer if new evidence or facts come to light. However, the appeals officer determined that there were no new facts or evidence to warrant a revision and upheld the original decision in June 2019. The appellant then requested a review by the Chief Appeals Officer, who also found no error in fact or law in the appeals officer’s decision and declined to revise it in September 2019.

Additional evidence

In late 2020, an assessment by the Health Service Executive (“HSE”) concluded that the appellant’s son had a substantial restriction in capacity due to an enduring impairment, meeting the criteria for disability under the Disability Act 2005. Based on this assessment, in April 2021 the appellant sought another review of the 2019 decision of the appeals officer pursuant to section 317 of the 2005 Act, arguing that the new assessment demonstrated that the original decision was erroneous. However, the appeals officer refused to revise the decision, stating that the new evidence pertained to her son’s condition in 2020 and did not provide new information about his condition at the time of the original application in 2018.

Key Legislation:

Social Welfare Consolidation Act 2005, particularly sections 186C, 301, 317, and 318
Disability Act 2005
Legal Services Regulation Act 2015, section 169

Decision of the High Court

The appellant brought judicial review proceedings in the High Court. The High Court dismissed the challenge, on the basis that the issue to be decided was whether at the time of her son’s original application for DCA he had met the criteria.

The High Court concluded that none of the additional information provided addressed whether or not the applicant’s son met the criteria for DCA as at the time of his original application.

The High Court held that the test in section 301 of the 2005 Act means that if new material only goes to a change of circumstance since the original decision, then it cannot be considered as a basis for concluding that the original decision was erroneous in the light of new evidence or new facts which have been brought to the notice of the deciding officer since the date on which the decision was given.

Appeal to the Supreme Court

The appellant was granted leave to appeal the matter to the Supreme Court.

The key arguments on behalf of the appellant were as follows:

The 2005 Act should be interpreted broadly to allow for eligibility determination based on new evidence. New did not mean having only come into existence after the original appeal but instead means that the evidence or facts in question simply must not have been before the original decision maker at the time the decision was made.
The appeals officer should have considered new evidence from 2020 demonstrating her son’s disability. In refusing to revise the decision under s. 317(1) of the 2005 Act, the appeals officer must be satisfied that the outcome would remain unchanged if the new material had been before them previously. It does not follow that an appeals officer’s review jurisdiction is confined to a reversal of the original decision; rather, it may consist simply of an adjustment of some kind.
The High Court erred in focusing on the date of the original application rather than the evidence available at the time of the appeal.

The key arguments on behalf of the respondent were as follows:

Eligibility for DCA must be assessed based on the conditions at the time of the original application. The legislative framework does not permit retrospective eligibility based on new evidence of changed circumstances as it is clear from the ordinary, basic, and natural meaning of the words in the relevant legislative provision that the assessment to be made is whether the evidence establishes eligibility for the benefit as of the date of the application and not as of some future date as the relevant words are in the present tense.
The intention of the Oireachtas to allow only evidence as to the circumstances present at the date of the original application is clear by the fact that an assessment of the eligibility is made by reference to whether a child has a severe disability requiring care and attention substantially in excess of “the care and attention normally required by a child of the same age” and the care and attention needs of a child aged five years and two months differ to those of a child who is seven years and seven/eight months which is a different question to be assessed in the first instance.
The statutory wording must be viewed within the full context including the other sections of the 2005 Act. The structure of the 2005 Act is such that it is the question that is originally determined by the deciding officer that frames the subsequent appeal or revision jurisdiction. The question originally determined by the deciding officer is whether the eligibility criteria were met when the application was made, and this must also be the question for an appeals officer exercising their revision jurisdiction.

Decision of the Supreme Court:

The Supreme Court distilled the case to the following net issue: “…when seeking a revised decision in 2021, did the appellant in this case have to establish eligibility for DCA as of the time of the original application for DCA in 2018, or did it suffice to show entitlement as to the date of the revision application in 2021”.

The Supreme Court, in dismissing the appeal, found that an appellant has to establish eligibility as at the date of the making of the original application. In this regard, it further held that the legislative framework does not permit retrospective eligibility based on new evidence of changed circumstances. It held that while retrospective payments in respect of periods prior to the date of the claim are premised on the assumption that claimants have the right to benefits as at the time of the claim.

The Supreme Court further held that this requirement remains even where there is an appeal under section 311 of the 2005 Act, or an application for revision of a decision of an appeals officer under section 317 of the 2005 Act. In this regard, the Supreme Court found the legislative history to be instructive, and placed significance on the fact that section 317 had been amended in 2013 to remove the ability of an appeals officer to revise a decision where there had been a change of circumstances. This amendment meant that any change of circumstances since the date of application must trigger a fresh claim.

Date of final Decision: 14 November 2023

Observations:

The ruling underscores the importance of assessing eligibility for social welfare benefits based on the conditions at the time of the original application, rather than allowing for retrospective eligibility based on new evidence of changed circumstances.

The Court’s findings clarify that if an applicant’s situation changes after the initial application, they cannot use this new information to argue for a revision of the original decision. Instead, the applicant needs to submit a new application reflecting the current circumstances. Applicants should be aware of this limitation and plan accordingly. For example, in the case of DCA, applicants should be mindful that any significant changes in their child’s condition or care needs will require a new application, rather than a revision of the previous one. For completeness, it should be noted that the Court did also refer to the fact that if a claim is successful, DCA can be backdated if appropriate having regard to section 241(4A) of the 2005 Act.

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.

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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.

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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.

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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.

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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.

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Social Welfare Appeal G0125: Domiciliary Care Allowance

Title of Payment: Domiciliary care allowance

Date of Final Decision: 10 March 2021

Keywords: Domiciliary care allowance; appeal; judicial review; evidence; eligibility; change of circumstances

Organisation who represented the Claimant: N/A

Casebase no: G0125

Case Summary:

This case concerned the question of whether it was fundamental to a claim for benefit or assistance under the Social Welfare (Consolidation) Act 2005 (the “Act”) that the person claiming that benefit or assistance should be entitled to it at the time the claim is made. A person may become entitled to a benefit which was previously claimed at a time when they were not eligible. This case concerned the question of whether, when this occurs following the rejection of a claim, is it necessary to make a fresh claim, or can the rejected claim be revived in accordance with the Act.

The facts here concern determinations made by appeals officers to refuse to revise earlier decisions of appeals officers which declined claims for domiciliary claim allowance. The claimants argue that the latter appeals officers erred in stating that any new fact or evidence provided in an application to review a decision must bear on establishing the right of the claimant at the time of the claim for benefit, and not at a later time. Owens J notes that the Chief Appeals Officer disagrees with the applicants’ position that the appeals officers erred and that the Chief Appeals Officer is correct in this view:

“The statutory framework governing decisions and appeals relating to a claim does not permit a claimant to demonstrate that changes in circumstances subsequent to the time of that claim give rise to a right to benefit so as to enable this issue to be revisited in a revival of a claim which has been rejected following an appeal.”

Accordingly, Owens J rejected the judicial review claim that the appeals officers acted contrary to law in determining that a claimant under the 2005 Act must establish entitlement at the time of submission of the claim.

The background to each of LL and DZ’s claims are detailed in the judgment. With respect to LL (and LL’s child H), the initial claim was submitted in April 2015 and was subsequently rejected. In 2019, the applicant’s solicitor provided a letter for the purpose of supporting LL’s application for domiciliary care allowance which detailed a medical prescription from 2017 and contained further information on H’s health. This letter was submitted as “further evidence which was not available at the time of the oral hearing”. It was determined that the letter did not provide any additional information relating to the care required by H at the time of the application in 2015. Owens J supports the position of Chief Appeals Officer that “while an applicant is entitled to rely on evidence that post-dates the original application or any earlier decision, the substance of that evidence must relate to the eligibility of an applicant at the time of the original application for the purpose of deciding whether a decision to refuse that payment was erroneous”.

Owens J was also critical of the delay in bringing judicial review proceedings a “very long time” after the date of the decision which it challenged, and did not find the attributing of the delay to Covid-19 restrictions to be convincing. Owens J found that the excusing circumstances offered were not sufficient to extend the time limit for judicial review under O.84 r.21(3) of the Rules of the Superior Courts.

DZ’s claim (relating to her son K) was made in March 2018, rejected and subsequently appealed. A HSE report was made available in October 2019 relating to K and submitted with a request for review of the original decision. The appeals officer wrote on 31 January 2020 to state that an appeal may only be reviewed if new information of acts come to light which would render the initial appeal decision erroneous at the time it was made, and stated specifically that:

“We appreciate that K’s conditions will present challenges but regret that it has not been established that the original appeal decision in this case was erroneous based on the evidence available at the time…”

Owens J determined that this is not the correct test to apply. New facts and evidence may be presented under the Act (albeit relating to the time of the application). On the basis of this error which may have affected the outcome of the process, Owens J ordered that the decision of 31 January 2020 be set aside and the application be remitted back to the appeals officer.

In the case of DZ, Owens saw fit to extend the time allotted for judicial review on the basis that the initial delay related to circumstances outside the control of DZ and her solicitors, in particular correspondence between solicitors and the Social Welfare Appeals Office.

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Thematic Note G0116: Right to Reside and Habitual Residence Condition

Theme: Right to Reside and Habitual Residence Condition

Period of Analysis: SWAO Annual Reports 2009-2020

Keywords: Habitual Residence Condition, Right to Reside

Casebase No. G0116

Summary of the relevant law:

The term “habitually resident” is not defined in Irish law. In practice it means that you have a proven close link to Ireland. The term also conveys permanence – that a person has been here for some time and intends to stay here for the foreseeable future.

The legislation providing for the habitual residence condition is contained in Section 246 of the Social Welfare Consolidation Action 2005 (as amended). However, Deciding Officers and Designated Persons must also have regard to S.I. No. 548/2015 – European Communities (Free Movement of Persons) Regulations 2015. , which deals with the right of residence for EU/EEA citizens and their families. Habitual residence in Ireland is a condition that you must satisfy for certain social welfare payments , for example Child Benefit. This condition took effect from 1 May 2004 and affects all applicants regardless of nationality.

With all social welfare payments in Ireland, you must satisfy the rules for each scheme to qualify.

Your spouse, civil partner or cohabitant and any dependent children you have are not required to satisfy the habitual residence condition in their own right. So if you apply for a social welfare payment only you, the applicant, has to satisfy the habitual residence condition.

Proving you are habitually resident relies heavily on fact. If you have lived in Ireland all your life, you will probably have no difficulty showing that you satisfy the factors which indicate habitual residence.

To satisfy the Habitual Residence Condition (HRC) you must:

Have the right to reside in the State AND

Show that you are habitually resident, having regard to all of your circumstances, including in particular the following which are set out in the legislation:

the length and continuity of your residence in Ireland or in any other particular country
the length and purpose of any absence from Ireland
the nature and pattern of your employment
your main centre of interest AND
your future intentions as they appear from all the circumstances

These are sometimes called the “five factors”.

Who has the right to reside?

People who have a right to reside include:

Irish nationals have a right of residence in Ireland;
UK nationals coming in from the Common Travel Area (CTA) also have a right to reside here under the CTA agreement;
EEA nationals who are employed or self-employed in Ireland have a right to reside;[1]
non-EEA nationals who have a residency or work permit to legally reside and work in the State, provided that there are no restrictions attached to that residency or work permit.

Permission to reside will generally be evidenced by an appropriate immigration stamp in the person’s passport, a letter of authorisation or a Certificate of Registration issued by the Garda National Immigration Bureau (GNIB), that is a GNIB card.

Key grounds of appeals by appellants:

The majority of the appeals are brought on the basis that the deciding/appeals officer erred in applying the correct legislation and/or legal grounds and erred in finding that the conditions of HRC were not met.

Observations on appeal outcomes:

Given that the majority of the appeals are brought on the basis that the deciding officer / appeals officer erred in finding that the criteria for ‘habitual resident’ was not been met, the appeals reported below focus principally on how the conditions of ‘habitually resident’ must be met and the application of the correct legislation.

In accordance with Section 246 of the 2005 Act establishing habitual residence is a two stage process which firstly requires that the person has a right to reside in the State. If it is established that the person has a right to reside, an assessment of their situation under 5 factors is carried out to determine their centre of interest and future intentions.

The reports below suggest that appellants are usually unsuccessful where they cannot establish a right to reside or on the basis of fact that they don’t fall under other factors to allow them to exercise this right. They further show that the majority of decisions may fall on the factual matrix of the particular case and the particular circumstances relevant to the person at issue.

[1] Regarding the right to reside of EU workers, see Casebase Report G0113 and Georgeta Voican v. Chief Appeals Officer, Social Welfare Appeals Office, Minister for Employment Affairs and Social Protection, Ireland and the Attorney General [2019] No.748 J.R

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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.

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.

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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.

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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

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