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.
Deciding Body: Chief Appeals Officer
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.
Social Welfare Appeal G0071
The Appellant is a mother of two children. In 1996 she had one child, a son, and she was living in her parents home. She applied for and was awarded the One Parent Family Payment [OPFP]. The Appellant’s second child, a daughter, was born in December 2010. The Appellant did not apply for an increase on her claim in respect of her daughter, and advised the Department of Social Protection [“the Department”], in writing, that she did not wish to claim an increase because the father, John [not his real name], was supporting her daughter by providing weekly maintenance payments.
When completing and signing claim review forms in 2009 and 2011, the Appellant maintained that she continued to reside in her parents’ house.
In 2012 the Department reviewed her claim, and in the course of their investigations established that the Appellant and John had jointly purchased a property in 2008.
In December 2012 a Deciding Officer issued a letter to the Appellant setting out the facts and evidence that in the Department’s opinion were consistent with a finding that the Appellant had been cohabiting with John from February 2008 – to the present. The Appellant was afforded the opportunity to respond before a decision was made. The Appellant replied by way of letter asserting that she had resided for a short period with John in 2008, but John’s relationship with her son was so poor she had to move out in May 2008. The Appellant asserted that from May 2008 to October 2012 she resided with her sister. She claimed that in October 2012 she moved back in with John but did not know if the relationship would last which is why she delayed notifying the Department.
The Department rejected the Appellant’s assertions, and on 15th January 2013 a Deciding Officer issued a decision whereby it was contended that from February 2008 to 9th January 2013 the Appellant was cohabiting with John and was therefore not entitled to the OPFP. The decision was made in accordance with s. 302(a) of the Social Welfare Consolidation Act 2005 [as amended]. As a consequence of this revised decision, the Appellant was found liable for an overpayment amounting to €48,766.80.
The Appellant appealed the decision, and an oral hearing was held on 2nd December 2013. The Appellant was unrepresented at the time. On 17th December 2013 the Appeals Officer disallowed the appeal in respect of the periods 21st February 2008 to 14th May 2012, and 20th October 2012 to 9th January 2013. The Appeals Officer held that on the basis of a letter issued by the mortgage provider in November 2013, which referred to a Standard Financial Statement [SFS] completed by John in May 2012, the Appellant should have the benefit of “the very slight doubt” that she was not living with John at that time. Accordingly, the Appeals Officer did not make a finding that the Appellant was cohabiting from the date of the SFS [May 2012] to October 2012.
On 23 September 2014 Waterford MABS, on behalf of the Appellant, requested a review of the Appeals Officer’s decision. The request for a review was made in accordance with s.317 and s.318 of the Social Welfare Consolidation Act 2005. MABS asserted that the Appeals Officer’s reasoning was flawed to the extent that there had been errors in fact and law in this case. MABS also submitted new evidence in the form of an Affidavit from the Appellant’s son who was then aged 18.
The Appeals Officer reviewed his decision, and in February 2015 he rejected MABS assertions. The Appeals Officer restated his findings and did not accept that were grounds to revise his decision.
On 10 March 2015 MABS responded, requesting that the Chief Appeals Officer review the Appeals Officer’s decision in accordance with s. 318 of the Social Welfare Consolidation Act 2005 [as amended].
On 1st May 2015 the Chief Appeals Officer revised the decision of the Appeals Officer and allowed the appeal.
Social Welfare Appeal G0068
The Appellant applied for Invalidity Pension on 10 May 2013 and this claim was refused on the grounds that the Appellant was found not to be permanently incapable of work. The Appellant sought a review of the decision. The Appellant’s review was unsuccessful, and the Department of Social Protection’s (DSP) decision was confirmed on 16 August 2013. The Appellant then appealed the decision of the Deciding Officer and submitted further medical evidence as part of this appeal. On 13 January 2014 the appeal was disallowed by way of summary decision; that is, without an oral hearing.
On 27 February 2014 the Appellant requested a review of the Appeals Officer’s decision, and provided grounds of appeal by way of letter as well as supporting medical evidence.
CLM, on behalf of the Appellant, gave notice of review to the Social Welfare Appeals Office and made a request for the Appellant’s file under the Freedom of Information Act. The Appeals Officer decided to reopen the appeal by way of oral hearing. This was set down for 25 September 2014. On medical grounds, the Appellant requested that this hearing be adjourned, and a new date was set for 11 November 2014.
On 3 November 2014 CLM made a further written submission on behalf of the Appellant, setting out the grounds for revising the Appeals Officer’s decision under sections 317 and 318 of the Social Welfare Consolidation Act 2005 (as amended). The written submission included new medical evidence in support of the Appellant’s claim.
On 11 November 2014 CLM represented the Appellant at oral hearing; however, at the hearing the Appeals Officer adjourned proceedings due to the Appellant’s inability to participate as a consequence of her medical condition.
On 3 December 2014 the Appeals Officer revised the previous decision and allowed the appeal.
Social Welfare Appeal G0058
The Appellant is a mother of four. She had been in receipt of the OPFP [or equivalent] since August 1994, shortly after the birth of her eldest child. The Appellant had twins in 1996 and the relevant increases were awarded on her claim. The Appellant’s fourth child was born in 2010.
Following an investigation by the Department of Social Protection [DSP], a decision was issued by a Deciding Officer on 12th February 2013, advising the Appellant that her payment was withdrawn for the reason that she was regarded as cohabiting with the father of her three eldest children. The Deciding Officer made the decision pursuant to section 302[b] of the Social Welfare Consolidation Act 2005. The Appellant sought an appeal of the determination to an Appeals Officer. An oral hearing was held on the 14th January 2014. The Appeals Officer disallowed the appeal on 10th February 2014.
The Appellant’s Family Income Supplement claim was also the subject of an appeal. This payment had been disallowed as a consequence of the decision in respect of the OPFP; that is, the Department asserted that the Appellant should be treated as one of a couple rather than a one parent family.
Social Welfare Appeal G0061
This case relates to the Appellant’s Carer’s Allowance (CA) claim in respect of her son for whom she cares.
The Appellant had been in receipt of Carer’s Allowance and Domiciliary Care Allowance [DCA] in respect of her son until the 15th May 2013. At this time, the Appellant’s son reached aged 16, and therefore, in accordance with the relevant statutory provisions, the Appellant could no longer claim DCA. The Appellant’s son subsequently applied for, and was refused, Disability Allowance. Following a successful appeal, Disability Allowance was awarded. The Disability Allowance appeal was allowed on 30th April 2014.
At the time when the DCA payment ceased, the Appellant’s eligibility for Carer’s Allowance was reviewed. It was decided that the Appellant’s son did not require full time care and attention as set out in the relevant legislation. The Appellant appealed the decision. The Appeal was disallowed by the Social Welfare Appeals Office on the 13th January 2014. The decision was made on a summary basis; that is, without an oral hearing.
The Appellant subsequently sought a review of the Appeals Officer’s decision under Sections 317 and 318 of the Social Welfare (Consolidation) Act 2005 (as amended). The Appeals Officer revised his decision and the appeal was allowed on the 6th August 2014.
Social Welfare Appeal G0063
This case relates to the effective date of award of the Appellant’s Rent Supplement payment. The Appellant applied for Rent Supplement in August 2009. The Appellant claimed that she made an application to the Local Authority for a housing needs assessment at the same time, but the Local Authority did not register the Application until 19th October 2009. On the 8th March 2010 the Local Authority confirmed in writing that the Appellant was in need of, and eligible for, social housing, and they also advised that the assessment process had been completed on the 22nd January 2010. Rent Supplement was awarded from the Local Authority assessment completion date, 22nd January 2010, not the date of the application for Rent Supplement, or the date of application for a housing needs assessment (August/October 2009). As a consequence, the Appellant incurred significant rent arrears. The Appellant appealed this decision seeking arrears of Rent Supplement from the date of her application.
The Appeals Officer rejected the appeal on 8th May 2012 for the reason that under the Supplementary Welfare Allowance Scheme, Rent Supplement may be paid where a person is certified as having a housing need by the Local Authority, and as the Appellant’s housing assessment was not complete until 22nd January 2010, she was not entitled to the payment prior to that date. On 2nd July 2014, Kerry MABS on behalf of the Appellant requested a review of the Appeals Officer’s decision in accordance with section 318 of the Social Welfare Consolidation Act 2005, asserting that the Appeals Officer had made a mistake in the facts and the law as he failed to consider that the Appellant’s housing need may be regarded as having commenced at the time of her application.
Kerry MABS asserted that section 198 [3F] [a] of the Social Welfare Consolidation Act 2005 [as amended] does not preclude the award of Rent Supplement from the date of application for a housing needs assessment, and furthermore the wide positive discretion afforded to a Designated Officer arguably compels the award of assistance where a prima facie need exists. It was asserted that the effect of the Appeals Officer’s decision presented as being at odds with the facts and the objective intent of the statute; namely, that a person has sufficient means to meet their basic needs, including rental costs.
The Appeals Officer reviewed his decision and on 28th July 2014 he issued a revised decision, finding that the Appeal should be allowed taking into account all of the circumstances of the case. As the Appeals Officer made a revised determination in this case, the Chief Appeals Officer did not have to address the matter under section 318 of the Act.
Social Welfare Appeal G0040
The Appellant’s One Parent Family Payment was disallowed on the 9th February 2011. The Appellant re-applied for the One Parent Family Payment on the 21st February 2012. This was refused as she was employed under a Community Employment Scheme and, due to a recent change in the law, it was no longer permissible to receive payments from a CE scheme and the One Parent Family Payment simultaneously. The Appellant appealed on the 27th February 2012 on the grounds that she had been employed under the CE scheme since 2010 and therefore the legislative changes in 2012 did not apply to her circumstances. This appeal was disallowed by way of a summary decision on the 21st September 2012. A review of the decision was sought under section 318 of the Social Welfare Consolidation Act 2005 on the grounds that the Appeals Officer had made a mistake in the law. This review under Section 318 was successful and the Appellant was awarded arrears of payment from February 2012 to June 2013 which amounted to €13,603.80.
Social Welfare Appeal G0051
The Appellant was in receipt of Illness Benefit from October 2007 until December 2010. Her on-going entitlement to Illness Benefit was examined on foot of an application by her for Invalidity Pension. Following a medical examination by a Departmental Medical Assessor the Deciding Officer (DO) deemed that the Appellant was fit for work. Her Illness benefit was subsequently withdrawn with effect from the 1st of December 2010. This decision was appealed. The appellant was assisted by Roscommon CIC.
Before proceeding to Appeal, the Appellant sought a review of DO’s decision. In the course of this review a second opinion from a different Department Medical Assessor was sought. Based on the opinion of this Medical Assessor, that the Appellant was capable of work (if her difficulty was taken into account), the original disallowance was upheld on the 5th of July 2011. The appeal was disallowed by way of summary decision on 12th September 2011. Further representations were made including a request for an oral hearing of her case. A letter was issued to the Appellant stating that the original decision should stand. (This appeal was eventually allowed upon review by the Chief Appeals Officer under Section 318 of the Social Welfare Consolidation Act 2005 [as amended]. Please see Casebase report G0052 for an overview of that decision.)
Social Welfare Appeal G0011
The Appellant was in receipt of Child Benefit in respect of her child. In September 2006, the Department of Social and Family Affairs informed the Appellant that she should not have been paid Child Benefit from May 2005 as Child Benefit was payable to the person with whom a qualified child “normally resides”. From April 2005 until March 2006, the child lived with her aunt. From March 2006 until August 2006, the child lived with her father.
The Appeals Officer disallowed the Appeal on the grounds that the child was not resident with the Appellant during the period April 2005 – August 2006.
The Appellant requested that the Chief Appeals Officer review the decision of the Appeals Officer’s on a point of law. The Chief Appeals Officer held that the Appellant was entitled to be paid child benefit during the period May 2005 – August 2006 as the child could be regarded as “normally resident” with the Appellant under the relevant statutory provisions. The Appeal was allowed.