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.

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.

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.

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.

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

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.