Thematic Note G0137: Overpayment of Social Welfare – Estate of a Deceased

Theme: Overpayment of social welfare – Estate of a Deceased

Period of Analysis: SWAO Annual Reports 2009-2021

Keywords: Overpayments; Fraud; Appeals; Oral Hearing; Burden of Proof; Cohabitation; Reviews

Casebase No. Case G0137

Summary of the relevant law:

Overpayments of social welfare occur where a person gets a payment of an allowance, pension or any other benefit from the Department of Social Protection (the “Department”) that they are not entitled to. The Social Welfare (Consolidation) Act 2005 sets out the circumstances where an overpayment may arise and the liability of a person to repay an overpayment. 

An overpayment can arise where a person has been granted a payment but subsequently a revised decision is made by the Department under Section 302 or 325 of the Social Welfare (Consolidation) Act 2005 (the “Act”) to reduce a person’s entitlement to a social welfare payment retrospectively. In such circumstances, the Department will issue a letter informing the person of the revised decision.

A key question with overpayments is whether the Department allege fraud on the part of the recipient. Fraud occurs where the Department is told or led to believe something that the person receiving the payment knew was false or misleading or a key piece of information is withheld from the Department.

A revised decision that there has been an overpayment based on fraud is made under Section 302(a)/325(a)) of the Act.

If the overpayment arose as a result of fraud, the person may be criminally prosecuted even if the overpayment is repaid.

Where no fraud is alleged by the Department, they have some discretion to take into account the facts and circumstances that gave rise to the overpayment and this will be relevant in an appeal against such an overpayment. It is also possible to appeal the date when the overpayment is deemed to have arisen, which may result in the amount of the overpayment being reduced. A revised decision with no allegation of fraud is made under section 302(b).

It is therefore very important to know if fraud is alleged (ie, the decision was made based on section 302(a)) or no fraud is alleged (ie the decision is based on section 302(b).) A person can appeal the revised decision alleged fraud and if successful, the fact and circumstances that gave rise to the overpayment can also be considered in the appeal.

The other circumstances where an overpayment may arise are covered by sections 336, 336(a) and 336(b) of the Social Welfare Consolidation Act 2005 (as amended).

Examples of this category of overpayment are:

  • double cashing, for example a person reports that she or he did not receive a payment due, a duplicate is issued and both payments are cashed by the person;
  • impersonation, for example a person makes a claim assuming the identity of another person;
  • cashing after death, for example a relative continues to cash a pension or allowance after the death of the person entitled to it.

Finally, the rules relating to the how the Department can recover an overpayment of social welfare are in Statutory Instrument No. 349/2005 Social Welfare (Recovery of Overpayments) Regulations, the Department’s Operational Guidelines on Management of Customer Overpayments and Recovery of Customer Debt.  and more information is available through Citizen’s Information.

Observations on appeal outcomes in SWAO Case Studies:

Recovery of Overpayment from the Estate of a Deceased

Overpayments of social welfare can be recovered from the deceased’s estate if not paid prior to their death. A debt may also arise during the settlement of a deceased customer’s estate where it is determined that the customer had not adequately declared their means during the time they received an assistance payment (means tested payment) during their lifetime.

Overpayments discovered after the death of a person receiving social welfare payments can also be appealed. There are a number of appeals by the estate of a deceased in the case studies below. One example shows an appeal that was allowed because there no evidence of any other source of income to the deceased nor of him accessing the joint account which was in his name and his sister’s name. She appealed on the basis that it was her money held in the account for the upkeep on the family home that the deceased had been living in. See G4 2015/24 State Pension Non-contributory. Another successful appeal in seen in I9 2017/318/69 State Pension (Non-Contributory) where there was a failure by the Department to act on recommendations in Department reviews. The overpayment was reduced.

However in most instances, there are have very serious implications where means/assets are not communicated to the Department during one’s life and come to light when assets being dealt with on death.

Relevant Case Studies of the SWAO Annual Reports 2009-2021

G4 2015/24 State Pension Non-contributory

Question at Issue: Claim against deceased pensioner’s estate

Background: The deceased had been awarded pension in 1998 and had been in receipt of Disability Allowance prior to attaining pension age. At the time of the pension claim, he had declared a credit union account with a balance of some €1,900. His entitlement was reviewed in 2011 when he denied having any capital in the bank. Following his death, an investigation by a Social Welfare Inspector indicated undisclosed capital of €59,000 and his means were assessed retrospectively to take account of this. As a consequence of the revised means assessment, an overpayment of some €38,000 was calculated and a demand for payment was made against the estate. His sister, the executrix of the estate, made an appeal against the decision and solicitors acting on her behalf questioned the amount of the overpayment. It was submitted that the deceased never had capital in the [named] bank as his sister had provided this money for the upkeep of his residence.

Oral hearing: The sister of the deceased attended and was represented by her solicitor. The Deciding Officer attended at the request of the Appeals Officer, while the Social Welfare Inspector had moved to other duties and was unable to attend.

The solicitor in the case sought to provide some background, referring to the sister of the deceased, the fact that she had worked for some years in the United Kingdom before returning to the family home. He referred to the capital held at a [named] bank, and said that this had always belonged to his client and submitted that an affidavit from 1996 confirmed this. It was submitted that she had intended that the funds be used for the upkeep and renovation of the family home so that it would remain habitable until she returned to live there. It transpired that her brother had proved unable to maintain the house and evidence was produced showing that expenditure in the order of €230,000 had been incurred in the previous year for extensive renovations.

A copy of the grant of probate was submitted and it was pointed out that the net value of the estate came to just €20,000. It was submitted that the Department had misrepresented the ownership of the funds assessed and that the deceased had no interest in those funds. He had not been able to fulfil the purpose for which the capital had been set aside and he had never accessed the bank account at issue.

The Deciding Officer explained the assessment: the deceased had been assessed with capital held in his own name and a half share of the capital held in a joint account with his sister. She noted that there was evidence of transfers of funds between the accounts which suggested that they had been managed. In response, the deceased’s sister pointed out that her brother had received no State payments until he was aged 49 years and she had enquired about his entitlements. At that stage, he had received a Disabled Person’s Maintenance Allowance (subsequently Disability Allowance). She confirmed that she had managed the accounts and had moved the capital so that the best yield could be achieved. His sister described the deceased as having a learning disability and said that he had not been capable of managing things. They had another brother who died in 1995 and since then she had had to return home every 6 weeks. She recalled that the deceased had been duped by individuals purporting to do maintenance work and, on one occasion, had withdrawn €2,000 from his credit union account to pay them. She said that he had been vulnerable to such approaches and, after that, she had warned the bank and credit union to be aware of him seeking to withdraw funds.

The Deciding Officer conceded that the Department had not implemented its review policy over the years in question but said she believed that a reminder of the qualifying conditions had issued around the year 2000. It was accepted that there was no record of such a reminder on file. The Deciding Officer agreed there could be circumstances when a joint account was assessed in full against one of the named account holders. She went on to say, however, that she believed that the deceased could have accessed the account had he wished to. She noted that the Social Welfare Inspector had reported that there had been no evidence to indicate that the capital in the joint account was not the property of the deceased.

His sister insisted that the deceased did not have access to the [named] bank account and she said she objected to the Department seeking to recover what was, in effect, her savings. In conclusion, her solicitor reiterated the assertion that the deceased had no control over the funds at issue, the capital was the property of the deceased’s sister and he had been a party of convenience only and had never sought to access the account. It was submitted that it was wrong therefore to attribute those funds to him.

Thematic Note G0136: Overpayment of social welfare – Allegations of Fraud under Section 302(a)

Theme: Overpayment of social welfare – Allegations of Fraud under Section 302(a)

Period of Analysis: SWAO Annual Reports 2009-2021

Keywords: Overpayments; Fraud; Appeals; Oral Hearing; Burden of Proof; Cohabitation; Review

Casebase No. Case G0136

Summary of the relevant law:

Overpayments of social welfare occur where a person gets a payment of an allowance, pension or any other benefit from the Department of Social Protection (the “Department”) that they are not entitled to. The Social Welfare (Consolidation) Act 2005 sets out the circumstances where an overpayment may arise and the liability of a person to repay an overpayment. 

An overpayment can arise where a person has been granted a payment but subsequently a revised decision is made by the Department under Section 302 or 325 of the Social Welfare (Consolidation) Act 2005 (the “Act”) to reduce a person’s entitlement to a social welfare payment retrospectively. In such circumstances, the Department will issue a letter informing the person of the revised decision.

A key question with overpayments is whether the Department allege fraud on the part of the recipient. Fraud occurs where the Department is told or led to believe something that the person receiving the payment knew was false or misleading or a key piece of information is withheld from the Department.

A revised decision that there has been an overpayment based on fraud is made under Section 302(a)/325(a)) of the Act.

If the overpayment arose as a result of fraud, the person may be criminally prosecuted even if the overpayment is repaid.

Where no fraud is alleged by the Department, they have some discretion to take into account the facts and circumstances that gave rise to the overpayment and this will be relevant in an appeal against such an overpayment. It is also possible to appeal the date when the overpayment is deemed to have arisen, which may result in the amount of the overpayment being reduced. A revised decision with no allegation of fraud is made under section 302(b).

It is therefore very important to know if fraud is alleged (ie, the decision was made based on section 302(a)) or no fraud is alleged (ie the decision is based on section 302(b).) A person can appeal the revised decision alleged fraud and if successful, the fact and circumstances that gave rise to the overpayment can also be considered in the appeal.

In scenarios where the Department claims that the overpayment arose due to an act of fraud on the part of the claimant, a high standard of proof is present and the decisions suggest there must be evidence, not just that the person gave false information or withheld relevant information but also that he/she did so deliberately. If the overpayment is based on evidence of fraud, there is no discretion to reduce the overpayment. whether the overpayment must be paid in full still depends on the circumstances.

An example of the overpayment being successfully appealed in evident in Case Study H2 2016/23 Job Seeker’s Allowance. A finding of fraud was reversed in Case Study H1 2016/17 Disability Allowance, but the overpayment was still payable in full.

Relevant Case Studies of the SWAO Annual Reports 2009-2021

D2.  2012/22 Survivor’s (Contributory) Pension

Decision under appeal: revised entitlement with overpayment assessed – reason(s) stated:-

My decision is based on the report received from the local Social Welfare Inspector, in which he stated that [person named], was cohabiting with you for the past 20 years, and prior to your application for a Widow’s Pension. Accordingly, I have decided that you had no entitlement to Widow’s Contributory and I am terminating your payment immediately from your date of award.

This decision has been made in accordance with Section 302 (a) of the Social Welfare (Consolidation) Act, 2005, on the grounds that you wilfully concealed a material fact from the Department. As a result of this decision, you have been assessed with an overpayment. In the circumstances of this case, it is the intention of the Department to recover the overpayment in full. Our Debt Management Section will be in contact with you shortly regarding repayment of this overpayment.

Overpayment assessed: €73,300.

Background: The appellant applied for a Widow’s (Non-Contributory) Pension in 2001, following the death of her husband. The case was investigated by a Social Welfare Inspector and, shortly afterwards, the appellant withdrew her claim and signed a statement to this effect as recorded by the Inspector at the time. No formal reason was given for the withdrawal. The appellant was issued with a letter which advised her that no further action would be taken as a result of her wish not to continue with the claim. Later in that same month, however, a Deciding Officer concluded that she had an entitlement to a Widow’s (Contributory) Pension based on her late husband’s PRSI contributions and a letter was issued to the appellant advising as to the date of award .

The appellant, at the time of her initial application, was in receipt of Unemployment Assistance from a [specified] Social Welfare Local Office. In 2009, the person named in the overpayment decision applied for Jobseeker’s Allowance at that office and advised that the appellant was his partner and that she was in receipt of a Widow’s Pension. He stated that he had been cohabiting with her for the previous 20 years. The Department of Social Protection commenced an investigation into the appellant’s circumstances. Ultimately, it was decided that she was not entitled to the Widow’s Contributory Pension with effect from a date in 2000. As a consequence of this decision, an overpayment of €73,300 was assessed.

The revised decision was made under Section 302 (a) of the Social Welfare (Consolidation) Act, 2005, which refers to wilful concealment of a material fact – taken to mean cohabitation with the person named for some 20 years without advising the Department.

At oral hearing: the appellant was accompanied by a constituency worker from the office of her local T.D. The Deciding Officer attended at the request of the Appeals Officer. She read the decision and outlined details of the case history, referring to the Social Welfare Inspector’s report and letters of natural justice which had been issued to the appellant inviting her to comment before a decision was made. On the issue of the overpayment, she advised that the appellant had been awarded a State (Non-Contributory) Pension with effect from her 66th birthday and that this had the effect of reducing the overpayment amount to €50,500. She confirmed that the person named had been deemed to be an adult dependent on the appellant’s pension.

The appellant outlined the background to her relationship with the person named. She accepted that they had been living together in the period at issue. She advised that when she was interviewed by the Social Welfare Inspector in 2001, in connection with her Widow’s (Non- Contributory) Pension claim, she told the Inspector that she was co-habiting and that this was the reason for her withdrawing the claim subsequently. She said that at the time of her application she was in receipt of Unemployment Assistance and when she got the pension book from the Department, she stopped that claim.

She went on to say that she had accepted the payment in good faith on the basis that she had withdrawn her non-contributory claim and had not applied for a contributory pension.

On behalf of the appellant, her advocate asked if an application for a contributory pension had ever been made and if so, was there an application form. She stated that the appellant was distraught at the prospect of having to repay such a large overpayment, and went on to say that the appellant genuinely did not understand that she not was entitled to Widow’s (Contributory) Pension.  The appellant stated that she did not deliberately set out to defraud the State.

Following a general discussion about the application, the Deciding Officer accepted that there had been no claim for a Widow’s (Contributory) Pension but she made the point that it was unclear as to why the Widow’s (Non- Contributory) Pension claim had been withdrawn. She said that, in any event, when the appellant got the award letter for the contributory pension she would have received a leaflet about the conditions for receipt of the payment. She accepted that no review had taken place after the pension was awarded and acknowledged that the only contact the Department had with the appellant was when she changed her address.

Thematic Note G0135: Overpayment of Social Welfare and Cohabitation

Theme: Overpayment of social welfare – Cohabitation

Period of Analysis: SWAO Annual Reports 2009-2021  

Keywords: Overpayments; Fraud; Appeals; Oral Hearing; Burden of Proof; Cohabitation; Reviews

Casebase No. Case G0135

Summary of the relevant law: 

Overpayments of social welfare occur where a person gets a payment of an allowance, pension or any other benefit from the Department of Social Protection (the “Department”) that they are not entitled to. The Social Welfare (Consolidation) Act 2005 sets out the circumstances where an overpayment may arise and the liability of a person to repay an overpayment. 

An overpayment can arise where a person has been granted a payment but subsequently a revised decision is made by the Department under Section 302 or 325 of the Social Welfare (Consolidation) Act 2005 (the “Act”) to reduce a person’s entitlement to a social welfare payment retrospectively. In such circumstances, the Department will issue a letter informing the person of the revised decision.

A key question with overpayments is whether the Department allege fraud on the part of the recipient. Fraud occurs where the Department is told or led to believe something that the person receiving the payment knew was false or misleading or a key piece of information is withheld from the Department.

A revised decision that there has been an overpayment based on fraud is made under Section 302(a)/325(a)) of the Act.

If the overpayment arose as a result of fraud, the person may be criminally prosecuted even if the overpayment is repaid.

Where no fraud is alleged by the Department, they have some discretion to take into account the facts and circumstances that gave rise to the overpayment and this will be relevant in an appeal against such an overpayment. It is also possible to appeal the date when the overpayment is deemed to have arisen, which may result in the amount of the overpayment being reduced. A revised decision with no allegation of fraud is made under section 302(b).

It is therefore very important to know if fraud is alleged (ie, the decision was made based on section 302(a)) or no fraud is alleged (ie the decision is based on section 302(b).) A person can appeal the revised decision alleged fraud and if successful, the fact and circumstances that gave rise to the overpayment can also be considered in the appeal.

Observations on appeal outcomes in SWAO Case Studies re Cohabitation

The onus is on the Department to establish that cohabitation (i.e. in an intimate and committed relationship) exists based on evidence. It is not for the appellant to show they are not cohabiting with the nominated person. In putting together its case, the Department must follow its own Guidelines on Investigating Cohabitation and consider a range of evidence of cohabitation to make such a finding. For -an example of a situation where there was sufficient evidence of cohabitation, see Case Study D1 2012/15 One Parent Family Payment.

See Case Study G3 2015/22 & 2015/23 for an example where cohabitation was not found on appeal. It is states as follows:-

“On the basis of this evidence, and having regard to the unequivocal findings of Baker J [2015] IEHC 309, that a relationship must have been, at some point in time, a sexual relationship for intimacy to be found, he concluded that it had not been established that the appellants were cohabiting within the meaning of the governing legislation for the period since 2010 or, in the period prior to 2010, ‘as husband and wife’ within the meaning of the legislation which applied at the time. Accordingly, each of the appellants was entitled to the named payment during the period at issue and no overpayment applied.”

Likewise, see Case Study H5 2016/318/36 One parent family payment where is states:-

“I note that the Appeals Officer considered that the evidence advanced by the Department was more credible and convincing than that put forward by the appellant and that the Officer concluded the appellant had failed to show that she was not cohabiting with the nominated person. This was clearly an error of law. In misdirecting themselves on this point, I could only conclude that the Appeals Officer had placed an unreasonable burden of proof on the appellant such as to render the appeal hearing unfair. The Department, in its guidelines on cohabitation, accepts that ‘where an entitlement may be disallowed, limited or withdrawn, the onus is on the Department to establish that cohabitation exists’. I am of the view that the Department did not meet the requirements set out in its own guidelines to establish that cohabitation existed and that the Appeals Officer did not give sufficient weight to this fact and to the other evidence provided by the appellant, as outlined above, in support of her position.”

In addition the CAO notes: “I could find no evidence to indicate that the revised decision was made with reference to any of the provisions in Section 302, nor could I see where the appellant had been advised of the amount of the overpayment. This combination of failures is an error in law and in my view a serious denial of the appellant’s right to natural justice and fair procedures. The Appeals Officer did not direct her attention to the provisions and the obligations arising from this section in their consideration of the appeal. In light of all of the above considerations I concluded that the Appeals Officer had erred in law and, in the circumstances, revised the decision.”

For comments on reliance on Facebook evidence, see Case Study I7 2017/318/65 Disability Allowance (DA) and One Parent Family (OPF):-

“ In particular, it was my view that the photographic evidence of the presence of the appellants attending family events together did not in any way prove cohabitation within the meaning of the governing legislation.

With regard to the issue of Facebook evidence generally, I did not accept the appellants’ contention that an Appeals Officer must be an expert on Facebook or other forms of social media in order to properly determine an appeal involving evidence of this nature. In determining an appeal, an Appeals Officer must of course give due consideration to and weigh up all of the evidence presented, including evidence of social media interactions, in order to decide on the weight which should be applied to that evidence and/or the veracity of same.”

 Relevant Case Studies of the SWAO Annual Reports 2009-2021

G3 2015/22 & 2015/23 Unspecified payment in respect of two appellants

Question at Issue: Cohabitation

Background: The appellants were each in receipt of named payments. In the context of a review of entitlement, and an investigation by a Social Welfare Inspector, a question arose as to cohabitation. The Inspector interviewed each of the appellants and submitted reports and accompanying documents for determination. The Deciding Officer made reference to the interviews conducted by the Social Welfare Inspector and concluded that each of the appellants had concealed a material fact, that is, that they were cohabiting with one another. Ultimately, it was concluded that both persons were disqualified for receipt of the named payments as they were cohabiting. A revised decision was made in each case, with reference to the provisions of Section 302 (a) of the Social Welfare (Consolidation) Act, 2005, and overpayments were assessed. An appeal was made by both parties. In response to a request made by solicitors acting for each of the appellants, and with the approval of the Chief Appeals Officer, the appeals were heard together – with a separate report and decision completed in each case.

Oral hearing: The appellants attended, and each was represented separately by a solicitor. The Social Welfare Inspector attended at the request of the Appeals Officer. The decision at issue in each case was outlined, as was the manner in which the Appeals Officer intended to proceed.

It was acknowledged that the second appellant resided at the address of the first appellant for some years. It was contended, however, that the parties had never cohabited within the meaning of the Social Welfare Acts and, in particular, that they had not been engaged in an intimate/sexual relationship at any time. It was submitted that they had been nothing but platonic friends, had separate bedrooms, that the first appellant had her own independent means, that she was not engaged to, nor did she have any intention of marrying the other person.

In support of the appeal, reference was made to a Court Judgment, dated 5 May 2015, In the matter of Section 194 of the Civil Partnership and Certain Rights and Obligations Cohabitants Act 2010 [2015] IEHC 309, where Baker J found [paras. 21, 77, 78, 79] that in order to be a cohabitant for purposes of the 2010 Act, a relationship must be more than one of mere friendship and must be or have been at some point sexually intimate.

Medical evidence was submitted outlining medical issues which prevented a sexually intimate relationship. It was also submitted on behalf of both appellants that in the report of his investigation of the two claims, the Social Welfare Inspector had stated that the appellants were co-resident.

Social Welfare Appeal G0134: Carer’s Allowance – Overpayment

Title of Payment: Carer’s Allowance

Date of Final Decision: 29 August 2022

Keywords: Overpayment – Carer’s Allowance – Reduction of Overpayment

Organisation who represented the Claimant: Community Law & Mediation

Casebase No. G0134

Case Summary:

This case relates to an appeal of the decision of the Deciding Officer of the Department of Social Protection (DSP) that there was an overpayment of the Carer’s Allowance to the appellant. 

Carer’s Allowance is a means-tested social assistance payment available to people on low incomes who are full-time carers of another person.  The person being cared for may need support due to disability, illness or age and they must require full-time care.  There is a number of criteria which needs to be fulfilled in order for a carer to be found entitled and granted payment.  In accordance with social welfare legislation, the carer is under a legal obligation to inform the DSP of any change in circumstances after they have been granted payment.

One of the qualifying conditions for this payment is that the person being cared for must not be living in a hospital, convalescent home or other similar institution.

The appellant in this case had been receiving Carer’s Allowance since having been found eligible for the payment in March 2011.  However, in June 2015, the DSP was notified that the person being cared for had been in long-term residential care since May 2013.  Following this, the Directing Officer of the DSP notified the appellant that they were not entitled to receive payment for the period of 6 May 2013 to 17 June 2015.  This gave rise to an overpayment of €25,037 and this would have to be recovered.

As the appellant genuinely believed that they were entitled to the payment during this period, and had not lied nor hidden information, this was found not to be fraud.  If it was fraud, the appellant may have been criminally prosecuted and a reduction in the sum of the overpayment recoverable would not be available.  However, regardless of the fact that this was not fraud, there was still deemed to have been an overpayment.

The Social Welfare Appeals Process in accordance with the Social Welfare (consolidation) Act 2005 as amended is as follows:

s. 300 – Deciding Officer makes decision on social welfare application.

s. 301 – Applicant can request that a Deciding Officer reviews a refusal.

s. 311 – Applicant can appeal to the Social Welfare Appeals Office (SWAO) and an Appeals Officer makes a decision.

s. 317 – Appellant can request a review of the Appeals Officer’s decision.

s. 318 – Appellant can request a review by the Chief Appeals Officer.

s. 327 – Appellant can make a statutory appeal to the High Court.

The appellant took the following actions to challenge the Deciding Officer’s decision.

On 1 July 2015, the client initially responded to the Deciding Officer of the DSP stating that they genuinely believed they were entitled to the payment during this period as they were still providing care.  They also explained that they were already in a difficult financial situation.

On 19 April 2021, Money Advice and Budgeting Service (MABS) sent a letter on behalf of the appellant

submitting that there had been no offset and that the appellant would have been entitled to Supplementary Welfare Allowance (SWA) during that period.  This was an unsuccessful argument for the following reasons. 

Firstly, the Carer’s Allowance overpayment could not be offset as  the SWA was an allowance or social assistance payment. An overpayment can only be offset if the payment the appellant would have been eligible for was a benefit or social insurance payment.  The difference being that an allowance is means tested whereas a benefit is a PRSI benefit from having worked previously.

Secondly, the appellant could only be held eligible if they had applied for SWA.  They could then apply in 2021, however it could only be backdated by six months and so this would not apply to the period of concern.  The Social Welfare Services Office decided to not revise the Deciding Officer’s decision.

The appellant then appealed the decision to the Social Welfare Appeals Office (SWAO).  The SWAO upheld the decision, dismissing the appeal, and held that discussion concerning the recovery of overpayment should be with the Debt Recovery Unit of the DSP.  The SWAO also held that only the issue of the entitlement of the appellant to Carer’s Allowance was under review.  Issues such as other potential entitles, off sets and the appellant’s financial situation was held to be outside the scope of the SWAO.

Therefore, on the 29 August 2022, the final decision was made by the SWAO that the appeal remained disallowed.

Thematic Note G0132: Overpayment of social welfare

Theme: Overpayment of Social Welfare – General Issues

Period of Analysis: SWAO Annual Reports 2009-2021  

Keywords: Overpayments; Fraud; Appeals; Oral Hearing; Burden of Proof; Cohabitation; Reviews

Casebase No. Case G0123

Summary of the relevant law:

Overpayments of social welfare occur where a person gets a payment of an allowance, pension or any other benefit from the Department of Social Protection (the “Department”) that they are not entitled to. The Social Welfare (Consolidation) Act 2005 sets out the circumstances where an overpayment may arise and the liability of a person to repay an overpayment. 

An overpayment can arise where a person has been granted a payment but subsequently a revised decision is made by the Department under Section 302 or 325 of the Social Welfare (Consolidation) Act 2005 (the “Act”) to reduce a person’s entitlement to a social welfare payment retrospectively. In such circumstances, the Department will issue a letter informing the person of the revised decision.

A key question with overpayments is whether the Department allege fraud on the part of the recipient. Fraud occurs where the Department is told or led to believe something that the person receiving the payment knew was false or misleading or a key piece of information is withheld from the Department.

A revised decision that there has been an overpayment based on fraud is made under Section 302(a)/325(a)) of the Act. If the overpayment arose as a result of fraud, the person may be criminally prosecuted even if the overpayment is repaid. See G0133 for further details.

Where no fraud is alleged by the Department, they have some discretion to take into account the facts and circumstances that gave rise to the overpayment and this will be relevant in an appeal against such an overpayment. It is also possible to appeal the date when the overpayment is deemed to have arisen, which may result in the amount of the overpayment being reduced. A revised decision with no allegation of fraud is made under section 302(b).

It is therefore very important to know if fraud is alleged (ie, the decision was made based on section 302(a)) or no fraud is alleged (ie the decision is based on section 302(b).)

The other circumstances where an overpayment may arise are covered by sections 336, 336(a) and 336(b) of the Social Welfare Consolidation Act 2005 (as amended).

Examples of this category of overpayment are:

  • double cashing, for example a person reports that she or he did not receive a payment due, a duplicate is issued and both payments are cashed by the person;
  • impersonation, for example a person makes a claim assuming the identity of another person;
  • cashing after death, for example a relative continues to cash a pension or allowance after the death of the person entitled to it.

Finally, the rules relating to the how the Department can recover an overpayment of social welfare are in Statutory Instrument No. 349/2005 Social Welfare (Recovery of Overpayments) Regulations, the Department’s Operational Guidelines on Management of Customer Overpayments and Recovery of Customer Debt.  and more information is available through Citizen’s Information.

Observations on appeal outcomes in SWAO Case Studies:

An appeal against an overpayment can be made to the Social Welfare Appeals Office (SWAO). A person has 21 days to appeal and details on appeals are available on the SWAO website.

To assist with appeals, we have drawn together the case studies relating to overpayments in the SWAO Annual Reports below and have made some observations based on our review of the case studies in Annual Reports dating from 2009 to 2021.

Below we set out observations under the following headings –

  • Initial Observations
  • Error by the Department

We have separate Thematic Reports on Casebase relating to the following: –

  • Fraud (Section 302(a)) (G0133)
  • Cohabitation (G0134)
  • Recovery of overpayment from the Estate of the Deceased (G0135)

Initial Observations –

  • Alleged ignorance of the requirements or criteria of a social welfare payment is generally disregarded, in particular where a claimant was explicitly made aware of the requirements. (See Case Study J5 2018/54 State Pension Non-Contributory Oral Hearing below)
  • The SWAO will have access to information from electoral registers, vehicle registrations, tenancies, births register and Social Welfare Inspectors in assessing the facts pertaining to the case.
  • There is a strict obligation to inform the Department of changes to your circumstances where in receipt of social welfare. This includes changes to your financial circumstances, living arrangements, absence of the State, periods where a child or caree is not residing in the home etc.  
  • If a change in circumstances has been notified to the Department, or the Department has made a clear error, an Appeals Officer may reduce or cancel an overpayment. This discretion arises under Article 246(1) of Part 9 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 – S.I. 142 of 2007 (as amended) which provides that the amount of an overpayment to be repaid may be reduced or cancelled where the overpayment arose because of: (i) a failure by the Department to act within a reasonable period on information which was provided by or on behalf of the person concerned; or (ii) an error by the Department. 
  • Other than in cases of fraud, an Appeals Officer can change the effective date when an overpayment is deemed to have arisen, having regard to all the circumstances of the case. This may result in no overpayment arising.
  • Decisions involving the assessment of means are very fact-dependent and will be governed by all circumstances relating to the individual case.

The Section 318 reviews of decisions of Appeal Officers by the Chief Appeals Officer are of particular note and show the following:

  • The obligation to notify the Department of a change of circumstances may be discharged if the relevant facts are disclosed in an application for a separate benefit.
  • A notification of relevant information to another Government body (e.g. Tusla) does not equate to the disclosure of that information to the Department.
  • Where an entitlement is disallowed, limited or withdrawn on the basis of cohabitation, the onus is on the Department to establish that cohabitation (i.e. in an intimate and committed relationship) exists and not the appellant to show they are not cohabiting with the nominated person. In putting together its case, the Department must follow its own Guidelines on Investigating Cohabitation and consider a range of evidence of cohabitation to make such a finding. See Cohabitation below.
  • In a revised decision, a Deciding Officer much set out the relevant provision in the legislation under which the decision is made and the amount of the overpayment amounts in order to respect an appellant’s right to natural justice and fair procedures.  
  • A lack of a review by the Department may be taken into account in circumstances where they failed to act on information (e.g. a clear instruction of a Social Welfare Inspector’s report) but not generally in other circumstances.

Error by the Department

Whether an error by the Department will result of the overpayment being reduced or set aside will depend on the circumstances of the case. See Case Study I2 2017/40 Jobseeker’s Allowance Summary Decision for an example of where the level of engagement with Department by the Appellants and circumstances surrounding the error were sufficient to reduce overpayment to nil. It states:-

“The couple had numerous interactions with the Intreo Centre over the course of their claims and always went there together when issues or queries arose. Their ongoing engagement with various activation measures was also mentioned. The appellant also got statements of payments received on four occasions for submission to the university where she studied in the UK. The letter of appeal also states that the couple had never claimed separately before, and they were not aware of the level of payment each would receive. Given their ongoing engagement with the Intreo Centre, they assumed they were receiving their correct entitlement.”

Also level of communication over the course of the relevant period with Department in  I3 2017/46 Supplementary Welfare Allowance Summary Decision was such that error of Department and overpayment effectively reduced to nil.

In Case Study J1 2018/35 Working Family Payment Oral Hearing, the Appeals Officer concluded that:-

“as there had been no change in the appellant’s circumstances as set out in the governing legislation, the appellant continued to be entitled to Working Family Payment for 52 weeks from the commencement of that claim. The Appeals Officer considered the retrospective examination of the hours worked from January 2015 to June 2015 as erroneous and unfair. With regard to the continuing entitlement from June 2015 to June 2016, the Appeals Officer concluded that the same principle applied. In the absence of any evidence to the contrary on the file, the Appeals Officer had to assume that at the time of renewal of Working Family Payment in June 2015, the appellant was found to be in compliance with the conditions for award, that this was likely to continue for 3 months and was payable for 52 weeks to June 2016.”

In Case Study J3 2018/49 Supplementary Welfare Allowance Summary Decision, the Appellant failed to tell the Department that she had taken up a training course while on SWA. It was on the recommendation of her GP as part of medical and psychological treatment and increased her employment possibilities.  The Appeals Officer noted that “under Section 190 (3) of the 2005 Act the Department has discretion to grant Supplementary Welfare Allowance to persons attending a course of study “in a case where there are exceptional circumstances.” This concession did not appear to have been considered by the Department in this instance. The Appeals Officer considered that the evidence submitted by the appellant in support of her appeal could be regarded as constituting “exceptional circumstances” and the appeal was allowed.”

Relevant Case Studies of the SWAO Annual Reports 2009-2021

A.2009 
B.2010 
1.2010/15 Disability AllowanceQuestion at issue: Over payment
C.2011 
D.2012 
1.2012/15 One Parent Family PaymentQuestion at issue: Overpayment
2.2012/22 Survivor’s (Contributory) PensionQuestion at issue: Overpayment
E.2013 
F.2014 
G.2015 
1.2015/15 Carer’s benefit & Maternity BenefitQuestion at issue: Concurrent payment of benefits
2.2015/21 State Pension (Non-Contributory)Question at issue: means and overpayment assessed following review
3.2015/22 & 2015/23 Unspecified payment in respect of two appellantsQuestion at issue: Cohabitation
4.2015/24 State Pension Non-contributoryQuestion at issue: Claim against the deceased pensioner’s estate
5.2015/25 State Pension (Non-contributory)Question at issue: Claim against the deceased pensioner’s estate
H2016 
1.2016/17 Disability AllowanceQuestion at issue: Eligibility (medical)
2.2016/23 Job Seeker’s AllowanceQuestion at issue: Eligibility (retrospective assessment of needs)
3.2016/28 State Pension (Non-contributory)Question at issue: Eligibility (revised decision as to means)
4.2016/318/34 Carer’s allowanceQuestion at issue: Overpayment assessed
5.2016/318/36 One parent family paymentQuestion at issue: Means and cohabitation
I2017 
12017/10 One-Parent Family Payment Oral hearingQuestion at issue: Overpayment whilst child in care
22017/40 Jobseeker’s Allowance Summary DecisionQuestion at issue: Overpayment (department error)
3.2017/46 Supplementary Welfare Allowance Summary DecisionQuestion at issue: Eligibility (rent supplement and overpayment)
4.2017/49 State Pension (Non-Contributory) Oral hearingQuestion at issue: Claim against the State
5.2017/51 State Pension (Contributory) Summary DecisionQuestion at issue: Overpayment (qualified adult)
6.2017/318/62 Jobseeker’s AllowanceQuestion at issue: Whether an Appeals Officer had erred when partially allowing an appeal in relation to an overpayment
7.2017/318/65 Disability Allowance (DA) and One Parent Family (OPF)Question at issue: whether the appellants were cohabiting
8.2017/318/68 State Pension (Non-Contributory)Question at issue: overpayment assessed (means)
9.2017/318/69 State Pension (Non-Contributory)Question at issue: overpayment assessed (means)
J2018 
1.2018/35 Working Family Payment Oral HearingQuestion at issue: Eligibility (hours worked)
2.2018/39 Jobseeker’s Allowance Summary DecisionQuestion at issue: eligibility (whether the person was unemployed)
3.2018/49 Supplementary Welfare Allowance Summary DecisionQuestion at issue: Eligibility and overpayment
4.2018/53 State Pension (Non-Contributory) Summary DecisionQuestion at issue: Eligibility (means and overpayment)
5.2018/54 State Pension Non-Contributory Oral HearingQuestion at issue: Eligibility (means and overpayment)
6.2018/318/66 Carer’s AllowanceQuestion at issue: Eligibility (care provided)
7.2018/318/67 State Pension (Non-Contributory)Question at issue: Absence from state
K.2019 
1.2019/03 Child Benefit Summary Decision  Question at issue: Qualified child- ordinarily resident
2.2019/44 Jobseeker’s Allowance Summary DecisionQuestion at issue: Eligibility (full-time education)
3.2019/50 Farm Assist Summary DecisionQuestion at issue: Overpayment
4.2019/57 Widower’s (Non-Contributory) Pension Oral HearingQuestion at issue: Entitlement-co-habiting
L.2020 
1.2020/01 Child Benefit – Qualified Person  Question at issue Qualified person
22020/49 State Pension (Contributory) 
M.2021 
1.2021/01 Child Benefit – Qualified Child  Question at issue Qualified child

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.

Thematic Note G0124: Back to Work Family Dividend

Theme: Back to Work Family Dividend

Period of Analysis: SWAO Annual Reports 2009-2021  

Keywords: Back to Work Family Dividend, Qualified Child, Employment, Self-employment, Habitual Residence Condition

Casebase No. Case G0124

Summary of the relevant law: 

The Back to Work Family Dividend (BTWFD)  is a weekly payment that is made to an individual who is a parent or guardian of a “qualified child” that ceases to claim or ceases to be entitled to claim a “qualifying payment” or a “relevant payment” from a “qualifying scheme” as they have commenced “employment” or “self-employment”.

Definitions:

A qualified child is:

(a) A child that is under 18 years of age

(b) A child aged 18 to 22 if they are in full-time education

(c) The child must live with the individual receiving the BTWFD

(d) The child must be resident in the State

(e) The child must not be in legal custody:

Section 219(1) (d) of the 2005 Act states that a child will not be a qualified child if they are detained in a children’s detention school, undergoing imprisonment or in detention in legal custody.

Section 238(A) of the Social Welfare Consolidation Act 2005 (as amended) (“2005 Act”) defines a qualifying payment as:

(a) Jobseeker’s benefit,

(b) Jobseeker’s benefit (self-employed),

(c) Jobseeker’s allowance, other than jobseeker’s allowance payable per section 148A of the 2005 Act

Section 238(A) of the 2005 Act defines a relevant payment as an allowance payable to an individual participating in a qualifying scheme where the person was in receipt of—

(a) One-parent family payment,

(b) Jobseeker’s allowance payable per section 148A

Section 238(A) of the 2005 Act defines a qualifying scheme as:

(a) A scheme administered by the Minister and known as—

(i) Community Employment,

(ii) Tús,

(iii) Rural Social Scheme,

(iv) Gateway, or

(v) The national internship scheme,

(b) An approved course of training, or

(c) Any other prescribed—

(i) Scheme or programme of employment or work experience, or

(ii) Course of education, training or development

Section 238(A) of the 2005 Act defines employment as employment that is liable for PRSI contributions (Insurable) but does not include participation in a qualifying scheme.

Section 238(A) of the 2005 Act defines self-employment as insurable self-employment.

Entitlement to Dividend

According to Section 238(B) of the 2005 Act, a person who has not yet attained pensionable age shall be entitled to the BTWFD where this person ceases to claim or receive the aforementioned payments or exited a qualified scheme where immediately before this person ceases to claim or exit a scheme was in receipt of a qualifying/relevant payment.

Section 238(B)(a) of the 2005 Act states that an individual will be entitled to BTWFD if:

(a) On or the 5th of January 2015 a person ceases to claim or be entitled to

(1) Jobseeker’s benefit, jobseeker’s benefit (self-employed), jobseeker’s allowance, a qualifying payment or a relevant payment, by reason of that person or, where appropriate, that person’s spouse, civil partner or cohabitant

(A) Being in employment or self-employment

(B) Commencing employment or self-employment within 4 weeks of the date on which that person ceased to claim or ceased to be entitled to the payment concerned

(2) One-parent family payment by reason of

(A) That person being in employment or self-employment,

(B) That person commencing employment or self-employment within 4 weeks of the date on which he or she ceased to claim or ceased to be entitled to that payment

(C) The youngest child having attained the relevant age under section 172(1) and the claimant being in employment or self-employment at the date on which they ceased to claim or ceased to be entitled to that payment

Section 238(B)(b) of the 2005 Act states thatan individual will be entitled to BTWFD if:

(b) Immediately before the date on which the person ceased to claim or ceased to be entitled to a benefit, allowance or payment specified in paragraph (a), the person was in receipt of

(1) An increase in jobseeker’s benefit, jobseeker’s benefit (self-employed), jobseeker’s allowance or one-parent family payment in respect of at least one qualified child who normally resides with that person, or

(2) An increase in a qualifying payment or a relevant payment in respect of a child

Section 238(B)(c) of the 2005 Act states thatan individual will be entitled to BTWFD if:

(c) In the case of—

(1) Jobseeker’s benefit, jobseeker’s benefit (self-employed), jobseeker’s allowance, other than jobseeker’s allowance payable in accordance with section 148A, or a qualifying payment,

(2) The person has, immediately before the date on which they ceased to claim or ceased to be entitled to the relevant payment, in any continuous period of unemployment been in receipt of such benefit, allowance or payment in respect of—

(A) Not less than 312 days of unemployment, of which not less than 156 days of unemployment have occurred in the 12 month period commencing immediately before that date

(B) A number of days such that when combined with days spent in receipt of the Covid-19 pandemic unemployment payment the total shall not be less than 312 days, of which not less than 156 days of unemployment have occurred in the 12 month period commencing immediately before that date.

Limitations

(a) Not more than one BTWFD shall be paid in respect of a couple

(b) A person shall not be entitled to the BTWFD if their partner is in receipt of any benefit or assistance other than those specified in Section 238(B)(3)

(c) A person must be habitually resident in the state

(d) A person or person’s partner receiving injury or illness benefit will only be paid the BTWFD for 36 days. The BTWFD payment will be suspended on the 36th day of the injury or illness benefit claim.

Duration and Rate of Dividend

Section 238(C) of the 2005 Act states that the BTWFD is paid for a maximum period of 104 weeks.

Section 238(D) of the 2005 Act states that for the first 52 weeks of this period, the individual shall receive the following:

(a) €42 per week per child (up to a maximum of 4 children) for children under 12.

(b) €50 per week per child (up to a maximum of 4 children) for children over 12.

Section 238(D) further states that for the second 52 weeks of this period, the individual shall receive half of what was initially paid to them during the previous year:

(a) €21 per week per child (up to a maximum of 4 children) for children under 12.

(b) €25 per week per child (up to a maximum of 4 children) for children over 12.

Limitations

Section 238(D)(2) of the 2005 Act states that:

(A) The weekly rate of back to work family dividend payable shall not include an amount in respect of a child to for any period during which that child

 (1) Is treated as a qualified child/adult for the purposes of an increase in any benefit, an increase in any assistance or a continued payment for qualified children.

(2) Is treated as a child/adult for the purposes of an increase in any qualifying payment or any relevant payment which corresponds to an increase in benefit or assistance.

(3) Is in receipt of any benefit to or any assistance in their own right, or participates in a qualifying scheme

Increase for a Qualified Child (or adult) (IQC)

An IQC is an extra amount payable to an individual on certain existing social welfare payments that have a dependent child. To get an IQC your child must be a qualified child/adult. You may get full or half-rate IQC if your spouse has an income between €310 and €400 per week.

An individual claiming the BTWFD must have been receiving an IQC on their previous qualifying/relevant payment or benefit in order to be entitled to the BTWFD. The BTWFD is paid at the same rate as the IQC on the claimant’s prior benefit.

Rates of IQC

(a) €42 (full rate) and €21 (half rate) per week per child for children under 12.

(b) €50 (full rate) and €26 (half rate) per week per child (up to a maximum of 4 children) for children over 12.

Key grounds of appeals by appellants: 

There have been two case studies in the Social Welfare Appeals Office (SWAO) Annual Reports regarding the BTWFD. Both of these concern the individual’s eligibility to the dividend.  The appeals were both disallowed based upon the SWAO lacking the ability to waive statutory requirements provided for in the 2005 Act.

This has been displayed in the outcome of Case 2015/17. The SWAO disallowed this appeal on the basis that the individual was not habitually resident in the State and was providing employment contributions to another EU State. The SWAO cannot consider any social contributions paid to another State, whether in the EU or not. The SWAO cannot interpret the legislation in a way that could be received as not in its plain meaning. Currently there are a minimal number of exceptions to the habitually resident condition in the current legislation.

The requirement for the person claiming BTWFD to have been receiving an IQC on their entitlement before receiving the dividend was appealed in Case 2021/09. The appeal was disallowed on the basis that the SWAO cannot interpret the legislation in a manner contrary to its basic meaning. Appeals based upon this argument are likely not to succeed. The SWAO will not accept that a child that would qualify for an IQC, but has not been claimed for by the parent or guardian of this child on their prior benefits as being a qualified child. Therefore, the SWAO deems that this individual does not meet the criteria for the BTWFD.

Observations on appeal outcomes: 

There is yet to be a successful appeal presented to the SWAO Annual Report case studies. The legislation surrounding this benefit is extensive.

According to S238(B)(5), a person not habitually resident in the State shall not be entitled to the BTWFD. The requirement of the individual claiming the BTWFD to be habitually resident in the state is enshrined in the majority of entitlements allowed for by the 2005 Act, with the exceptions of particular groups of people. Therefore, an appeal on this ground is likely to be unsuccessful. The SWAO has stated, in Case 2015/17, that under EU regulations, family benefits may only be claimed in the State in which the individual claiming is employed and to which they pay social insurance contributions.  This case was of particular interest as the appellant was working in Northern Ireland. The appellant had argued that employment in Northern Ireland was not stated to be out of the scope of the scheme as there was no reference to his particular situation in the legislation. The appeal was dismissed on the grounds that although there was no reference to the appellant’s exact situation in the legislation, the appellant was not paying PRSI to the state and therefore did not qualify for the BTWFD.

To be successful in an appeal to the BTWFD, the appellant must have been claiming an IQC on their previous qualifying/relevant payment. The SWAO has stated that as per S238(B)(1)(b), an individual seeking to claim BTWFD must have been receiving an IQC on their benefit immediately before claiming. In Case 2021/09, the appellant had attempted to claim BTWFD but was not receiving IQC on her Jobseeker’s Benefit. The appellant had two dependent children who would qualify under the conditions set in the legislation. Still, as she had not been receiving an IQC before ceasing to claim the benefit, she did not satisfy the conditions to receive BTWFD. To be successful in appealing an entitlement to BTWFD, the appellant must have been in receipt of a benefit or a qualifying scheme with an IQC on their entitlements before appealing. There is no ability to qualify after this payment has ceased.

Relevant Case Studies of the SWAO Annual Reports 2009-2020 

A-F.2009-2014 
N/A
G.2015 
 2015/17 Back to Work Family Dividend – summary decisionQuestion at issue: Eligibility
H-L.2016-2020 
 N/A 
M.2021 
 2021/09 Back to Work Family Dividend – summary decisionQuestion at issue: Eligibility
  1. 2009 – N/A
  • 2010 – N/A
  • 2011 – N/A
  • 2012 – N/A
  • 2013 – N/A
  • 2014 – N/A
  • 2015

Thematic Note G0123: Child Benefit

Theme: Child Benefit

Period of Analysis: SWAO Annual Reports 2009-2021  

Keywords: Child Benefit, Qualified Child, Qualified Person, Full-time Education, Normal Place of Residence, Ordinarily Resides, Habitual Residence Condition

Casebase No. Case G0123

Summary of the relevant law: 

Child Benefit is a monthly payment that is made to a qualified person for a qualified child. It is not means tested or taxable and there are no PRSI conditions.

  • Qualified Child

Section 219 of the Social Welfare Consolidation Act 2005 (as amended)(the “2005 Act”) defines a “qualified child” as the child is (i) under 16 years of age or (ii) between 16 and under 18 years of age if the child is in full-time education or full-time training or has a disability and cannot support themselves.

In accordance with Section 14(2) of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (the “2007 Regulations”), full-time education and training does not include courses (i) which form part of an employment or apprenticeship or work experience programme; (ii) which arise from employment; (iii) where the period of paid work experience exceeds the time spent in the classroom; and (iv) where the period of work experience in a course run by Teagasc exceeds the time spent in the classroom in the academic year.

Section 219(1)(b) provides that a child between the age of 16 and 18 shall be eligible where, by reason of physical or mental infirmity, the child is incapable of self-support and is likely to remain incapable for a prolonged period. A Deciding Officer will seek the advice of the Chief Medical Officer as to the acceptability of the relevant medical certification.

Child benefit is not paid on behalf of children 18 or older, even if they are in education or training.

The child must be ordinarily resident in the State. There is no statutory definition of ordinarily resident for these purposes.  This requirement can be satisfied, pursuant to Section 2019(2) of the 2005 Act, in cases where the qualified person or that person’s spouse, civil partner or cohabitant is: (i) a member of the Defence Forces or the Irish Civil Service serving abroad, (ii) a volunteer development worker or (ii) persons temporarily employed abroad by an Irish employer and paying Irish social insurance contributions.

In addition, pursuant to Section 219(1)(d) a child will not qualify for Child Benefit if they are currently detained in a child detention school or imprisoned or detained in legal custody.

  • Qualified Person

Section 220(1) of the 2005 Act defines a qualified person as “[a] person with whom the qualified child normally resides.” Section 220(2)(a) of the 2005 Act provides that the Minister may make rules for determining with whom a qualified child shall be regarded as normally residing. Those rules are contained in Article 159 of the 2007 Regulations. An example of those rules includes the following Rule 4, which has been applied by Appeals Officers in cases:

Subject to Rule 8, a qualified child, who is resident elsewhere than with a parent or a step-parent and whose mother is alive, shall, where his or her mother is entitled to his or her custody whether solely or jointly with any other person, be regarded as normally residing with his or her mother and with no other person.

Additionally, Section 220(3) provides the applicant must satisfy the Habitual Residence Condition, which applies to all applicants regardless of nationality.

The Habitual Residence Condition consists of two parts. Firstly, a person must have an established right of residence in the State, pursuant to Section 246(5) of the 2005 Act and in accordance with S.I. No. 548/2015 – European Communities (Free Movement of Persons) Regulations 2015. This right of residence must be unconditional in that it does not preclude the person from accessing social welfare payments. Secondly, pursuant to Section 246(4) of the 2005 Act, a person’s situation and intentions will be taken into consideration by a Deciding Officer or Designated Person, in particular: (i) the length and continuity of residence in the State or any other country; (ii) the length and purpose of any absence from the State; (iii) the nature and pattern of the person’s employment; (iv) the person’s main centre of interest, and (v) the future intentions of the person concerned. This list is non-exhaustive and other information may be considered relevant in arriving at a decision.  Also see Thematic Note on Right to Reside and Habitual Residence Condition (Thematic Note G0116).

It is worth noting that Child Benefit is classified as a Family Benefit under EU law. Accordingly, employed and self-employed EEA Nationals, whose entitlement derives from the application of EEC Regulation 883/04 on the coordination of social security systems and have become subject to Irish PRSI, do not have to satisfy the Habitual Residence Condition. This entitlement continues even if they become unemployed and receive Irish Unemployment Benefits. 

Key grounds of appeals by appellants: 

  1. Qualified child ordinarily resident in the State

There were four appeals relating to whether a child was ordinarily resident in the State. The majority of appeals dealt with whether a period of absence meant that the appellant was no longer entitled to the benefit. For example, in Case 2019/03 it was held that the child was no longer qualified following an absence of 6 months from the State. Another deciding factor in these decisions was whether the appellant had custody of the child at the time of claiming the payments.

  • Qualified child’s normal place of residence

There were four appeals relating to a qualifying child’s normal place of residence which mainly dealt with who was considered the qualified person in accordance with Article 159 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142 of 2007). The various grounds for disagreement included: making educational and medical payments (Case 2016/01); providing payments from employment in the State to the qualified child’s mother in another state (Case 2018/02); being in regular contact, visiting and providing food, shelter and clothing during their child’s time in shared and full-time care (Case 2020/01); and having legally shared custody but arguing the amount of time actually spent in one parent’s home over another should be taken into account (Case 2021/01).

  • Qualified child attending full-time education between age of 16 and 18 years

There were two appeals where the appellant challenged whether sufficient evidence was provided to demonstrate that the child was either attending full-time education or was incapable of self-support by reason of mental infirmity. In both cases, the appeal was allowed on the basis that the appellants had met the threshold under the 2005 Act and the 2007 Regulations.   

  • Backdating: See Thematic Notes on Backdating Claims (Thematic Note G0114)

Observations on appeal outcomes: 

As there is no definition or test for qualifying as ordinarily resident, clear evidence establishing when a qualified person or child was resident in the State greatly impacted the success of appeals. The majority of ordinarily resident appeals were rejected due to the lack of the appellants’ ability to establish when the child left and/or returned to the State. Out of four cases, the appeal in Case 2012/03 was the exception, as the appellant successfully demonstrated the child was ordinarily resident in the state by way of an Irish Court Order in 2010, which granted the appellant full custodial rights in 2010. The loose assessment of 183 days in a year, or six months, was applied by Appeal Officers to determine those ordinarily resident in the state, with Case 2019/03 being disallowed as a 6 month absence meant that it could not be said that the children were ordinarily resident. Appeals Officers tended to be particularly strict in this regard, as appeals where explanations such as holidays or visiting family were used for absences from the State were disallowed.

Decisions in appeals of normal place of residence included a Section 318 review, Case 2020/318/57. Section 220(2)(a) states that Ministers may make rules to determine with whom a qualified child is normally residing. Despite the child residing with a guardian in the State rather than their parents outside of the State, Rule 4 of the Ministerial Rules provides that that the mother’s legal custody of the child overrode guardianship.  The review concluded that this Rule 4 applied notwithstanding that the child’s mother was resident outside of Ireland.

Finally, these reports indicate that Appeals Officers were willing to allow appeals when evidence could be provided that a child between the ages of 16 and 18 years was being home-schooled or is incapable of continuing in an institution of full time education due to severe mental health issues. Evidence was also key in these cases.  

Relevant Case Studies of the SWAO Annual Reports 2009-2020 

A. 2009  
N/A
B.  2010  
1.2010/01 Child Benefit – oral hearingQuestion at issue: Habitual Residence Condition
C.2011 
 2011/04 Child Benefit – summary DecisionQuestion at issue: Habitual Residence Condition
 2011/06 Child Benefit – summary decisionQuestion at issue: Habitual Residence Condition
 2011/10 Child Benefit – oral hearingQuestion at issue: Habitual Residence Condition
 2011/12 Child Benefit – oral hearingQuestion at issue: Habitual Residence Condition
 2011/13 Child Benefit – oral hearingQuestion at issue: Habitual Residence Condition
 2011/15Child Benefit – oral hearingQuestion at issue: Habitual Residence Condition
 2011/16 Child Benefit – oral hearingQuestion at issue: Habitual Residence Condition
D.2012 
 2012/03 – Child Benefit – oral hearingQuestion at issue: Date of Award / Qualified Child – ordinarily resident
 2012/04 – Child Benefit – summary decisionQuestion at issue: Qualified Child – ordinarily resident
E-F.2013-2014 
 N/A 
G.2015 
 2015/01 Child Benefit – oral hearingQuestion at issue: Habitual Residence Condition
H.2016 
 2016/01 Child Benefit – oral hearingQuestion at issue: Normal residence of qualified child
 2016/02 Child Benefit – summary decisionQuestion at issue: Habitual residence
I.2017 
 2017/01 Child Benefit – oral hearingQuestion at issue: Habitual residence condition
 2017/02 Child Benefit – summary decisionQuestion at issue: Backdating of payment
 2017/03 Child Benefit – oral hearingQuestion at issue: Extended payment of Child Benefit / Whether the child is in full-time education
 2017/04 Child Benefit – summary decisionQuestion at issue: Extended payment of Child Benefit / Whether the child is in full-time education
 2017/318/59 Child Benefit – Section 318 ReviewQuestion at issue: Habitual residence
 2017/318/60 Child Benefit – Section 318 ReviewQuestion at issue: Right to reside in the State
J.2018 
 2018/01 Child Benefit – summary decisionQuestion at issue: Eligibility (habitual residence condition)
2.2018/02 Child Benefit summary decisionQuestion at issue: Normal residence of qualified child
K.2019 
1.2019/01 Child Benefit – summary decisionQuestion at issue: Backdating
2.2019/02 Child Benefit – summary decisionQuestion at issue: Backdating (Habitual Residence Condition)
3.2019/03 Child Benefit – summary decisionQuestion at issue: Qualified Child – ordinarily resident
L.2020 
 2020/01 Child Benefit – summary decisionQuestion at issue: Qualified Person – normal residence
 2020/02 Child Benefit – summary decisionQuestion at issue: Eligibility (habitual residence condition)
 2020/318/57 Child Benefit – Section 318 ReviewQuestion at issue: Eligibility (qualified child and resident in the State)
M.2021 
 2021/01 Child Benefit – summary decisionQuestion at issue: Qualified child – normal residence
 2021/02 Child Benefit –summary decisionQuestion at issue: Habitual residence; backdating

Thematic Note G0122: One Parent Family Payment

Theme: One Parent Family Payment

Period of Analysis: SWAO Annual Reports 2009-2021  

Keywords: [ One Parent Family Payment; Means Test, Lone Parent, Appeal, Habitual Residence]

Casebase No. Case G0122

Summary of the relevant law: 

The One Parent Family Payment (OFP) is a payment for persons under the age of 66 years old who are bringing children up without the support of a partner. The criteria for assessing the receipt of OFP are outlined below.

To qualify for OFP a person must meet the following criteria:

  1. Aged under 66 years old;
  2. Be the parent, step parent, adoptive parent or legal guardian of a child/children;
  3. Their youngest child must be under the age of 7;

In certain instances, OFP will continue even after the youngest child turns seven. This occurs where the family is in receipt of;

  • Domiciliary Care Allowance (DCA);
    • If the individual claiming the OFP is in receipt of DCA for a child, they can also receive OFP until the child reaches the age of 16 or their entitlement to DCA ceases.
    • The individual will also get an Increase for a Qualified Child (IQC) for any other children in the family until they reach 18 (22 if in full-time education).
    • Blind Pension;
      • If the individual is in receipt of Blind Pension and also qualifies for OFP they are entitled to both payments (and any IQCs) until the child reaches the age of 16.
    • Carer’s Allowance;
      • If an individual in receipt of OFP is providing full-time care to one of their children or an adult, they are entitled to claim half-rate Carer’s Allowance alongside your OFP (and any IQC’s) until their youngest child turns 16.
    • Recent Bereavement.
      • If an individual applies for OFP on the basis that they are parenting alone following the death of their spouse, partner or civil partner, they will be entitled to OFP for 2 years following the date of death regardless of how old their youngest child is. The individual’s youngest child must be under the age of 18 in order to qualify for OFP in these circumstances.
  • Be the main carer of and live with the relevant child;
  • Must pass a means test;

To conduct a means test the Department of Social Protection will assess all sources of income which an individual applying for OFP is in receipt of. OFP will only be given to this person if their income is below a certain designated amount.

The income sources assessed in a means test are;

  • Cash Income

All cash income is taken into account for the means test bar;

  • Any payments made to an individual by the Department of Social Protection (except for Jobseeker’s Allowance);
    • Certain allowances from the HSE or the Department of Education;
    • Payments under certain scholarships or training allowances;
    • Approved by the Minister of Health;
    • Compensation awards provided for by the State.
    • Capital

All capital is taken into account for the means test bar;

  • Selling your home to move to more suitable accommodation while receiving State Pension, Disability Allowance or Blind Pension to the value of €190,500;
    • Sale of your home where an individual has significant maintenance costs – such as nursing home costs to the value of €190,500;
    • Maintenance

Only half of an individual’s income from maintenance will be assessed and deducted from your OFP.  The person in receipt of maintenance can offset their housing costs against their maintenance income to the value of €95.23 per week.

  • Income from Work

The first €165 of an individual’s gross weekly earnings is assessed for the purposes of a OFP means test. Half of the remainder of a person’s gross earnings per week is then  assessed. mSocial Insurance contributions, PRSI contributions or trade union subscriptions are not assessed.

  • Must live in Ireland and meet the habitual residence condition;
  • 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
  • Must not be living with a spouse, civil partner or be cohabitating.

Additional Benefits

  1. A person who receives OFP is entitled to avail of the Household Budget Scheme.
  2. A person who receives OFP may also be entitled to additional benefits such as;
    1. Fuel Allowance;
    1. Working Family payment;
    1. Medical Card; and/or
    1. Rental assistance.

Key grounds of appeals by appellants: 

Where an individual believes they have been erroneously refused OFP or they are unhappy about a decision of a social welfare Deciding Officer they can appeal this decision to the Social Welfare Appeals Office.

  1. Cohabitating

Since 2012 there have been four appeals raised in relation to whether or not the person claiming OFP is actually cohabitating with another person.

As stated above, a person who is in a relationship and living with that person is not eligible for the OFP instead they must be widowed, separated, divorced, unmarried, have dissolved a civil partnership or be a prisoner’s spouse or civil partner. Likewise, they must not be cohabitating or living with a person they are in a relationship with.

In the case of cohabitation, appeals arise where a person portends that they are not in a relationship and living with the relevant person. As in case 2016/318/36 the burden is on the Department is in this instance to establish that it is appropriate to withdraw that payment. In assessing cohabitation, as in case 2016/08 “no single criterion” will necessarily support or disprove a decision.

The burden of proof to prove cohabitation was set at being “highly probable“.

  • Assessment of Means

Four appeals have been made arguing the Assessment of Means test since 2012. A person who has been assessed as having means in excess of €217.80 per week is not entitled to OFP. The individual claiming OFP may avail of certain exemptions to their assessed means.

As per case 2016/318/36 this point will ultimately be decided on whether or not the person claiming OFP has been able to show that their means does not exceed the statutory qualifying limit and this test seems to be applied quite strictly compared to other grounds of appeal which arise.

  • Child not in parent’s care

The person who is claiming OFP must reside with their qualified child on a full-time basis. A child who is in a detention facility, foster care system or share joint equal custody with the child/children’s other parent does not qualify. If an individual’s child is put into foster care or detained for any period of time the person must notify the DSP and cease OFP until they become the main carer that resides with the child again.

In Case 2017/10 however, an individual’s child was taken into foster care for a number of months during which time she continued to receive OFP. During this time she continued to have daily contact, to keep a house ready for the child and to pay for much of her child’s upkeep. While on appeal, it was determined that she did not have any right to the OFP as she was not living with the child for which she was receiving the payment it was held that in these circumstances it would be unjust to charge her overpayment.

  • Habitual Residence Condition: See Thematic Note on Right to Reside and Habitual Residence Condition (Thematic Note G0116)
  • Backdating: See Thematic Notes on Backdating Claims (Thematic Note G0114)

Observations on appeal outcomes: 

Where a decision to refuse or withdraw OFP is being appealed, the Appeals Officer tends to look at the situation of the person as a whole rather than at any isolated criteria when making a decision.

For example, lifestyle evidence was of relevance in determining cohabitation. This includes shared household duties and finances. Similarly, when an appeal is based on habitual residence, the Appeals Officer considers the entirety of the individuals experience and lifestyle, which may prove habitual residence on balance. Future intentions seem to be a key factor in any decision taken by the Appeal Officer in relation to habitual residence.

In the case of a Section 318 review again all elements of the person’s life is taken into account and an evidence based approach was used.

Relevant Case Studies of the SWAO Annual Reports 2009-2020 

A. 2009  
N/A
B.  2010  
 N/A 
C.2011 
 2011/01 One Parent Family Payment – summary decisionQuestion at issue: Habitual Residence Condition
 2011/07 One Parent Family Payment – summary decisionQuestion at issue: Habitual Residence Condition
 2011/08 One Parent Family Payment & Supplementary Welfare Allowance – oral hearingQuestion at issue: Habitual Residence Condition
D.2012 
 2012/15 One Parent Family Payment – oral hearingQuestion at issue: Eligibility (cohabitation)
E-F.2013-2014 
 N/A 
G.2015 
 2015/06 One Parent Family Payment – oral hearingQuestion at issue: Cohabitation
H.2016 
 2016/08 One-Parent Family Payment – oral hearingQuestion at issue: Cohabitation
 2016/09 One-Parent Family Payment – oral hearingQuestion at issue: Assessment of means
 2016/318/36 One-Parent Family Payment – Section 318 reviewQuestion at issue: Means and cohabitation
 2017 
 2017/09 One-Parent Family Payment – oral hearingQuestion at issue: Eligibility (cohabitation and means)
 2017/10 One-Parent Family Payment –  oral hearingQuestion at issue: Overpayment / Child in care
J.2018 
 2018/06 One Parent Family Payment – oral hearingQuestion at issue: Eligibility (means)
K.2019 
 2019/07 One-Parent Family Payment – oral hearingQuestion at issue: Backdating
L.2020 
1.2020/05 One-Parent Family Payment – summary decisionQuestion at issue: Backdating
2.2020/06 One-Parent Family Payment – summary decisionQuestion at issue: Eligibility (cohabitation)
M.2021 
 2021/07 One-Parent Family Payment – summary decisionQuestion at issue: Date of award; backdating

Thematic Note G0119: Illness Benefit

Title of Payment: Illness Benefit

Date of Final Decision: SWAO Annual Reports 2009-2020

Keywords: Illness Benefit; Disability; Incapable of work; PRSI Contributions

Casebase no: G0119

Summary of the relevant law:

Illness benefit is a weekly payment that can be made to an individual who:

a) is incapable of work due to illness;

b) is under 66 years old; and

c) has made the required PRSI contributions (see below).

Under Section 40 of the Social Welfare Consolidation Act 2005 (as amended), illness benefit can be paid for any “day of incapacity for work” which forms part of a “period of interruption of employment”. In this context:

  • a “day of incapacity for work” means a day for which the individual is certified as unable to work (or to look for work) due to illness; and
  • a “period of interruption of employment” means any 3 days (whether consecutive or not) within 6 consecutive days.

Neither weekends nor paid holiday leave are taken into account when counting “days of incapacity for work” or a “period of interruption of employment”.

Section 41 of the Social Welfare Consolidation Act 2005 (as amended) provides that, to be entitled to illness benefit, generally an individual must have:

a) at least 104 PRSI contributions paid since they first started working; and

b) either:

c) 39 weeks of PRSI contributions paid or credited in the relevant tax year, of which 13 must be paid; or

d) 26 weeks of PRSI contributions paid in each of the relevant tax year and the previous tax year.

 

These rules are adjusted in certain circumstances, e.g. where an individual is already in receipt of certain other benefits immediately before applying for illness benefit.

For these purposes, the relevant tax year is the second-last complete tax year before the year in which a claim for illness benefit is made. E.g. where claim is made in 2022, the relevant tax year is 2020.

Social security contributions paid in certain other EEA member states or the UK can be counted for the purposes of qualifying for illness benefit, provided however that the last social security contributions were paid in Ireland. Periods of employment in certain other EEA member states of the UK can also be taken into account.

Key grounds of appeals by appellants: 

The majority of the appeals are in relation to medical eligibility for Illness Benefit, i.e. that the individual is incapable of work due to illness. In the majority of these appeals, the appellant had been examined at least once by a Medical Assessor appointed by the Department of Social Protection but disagreed with their medical assessment. The various grounds for disagreement include: (1) that the medical assessment only focused on physical impairment and not on mental health issues (regardless of whether these mental health issues were separate, related or resultant); (2) that further medical evidence contradicts the medical assessment; (3) that the medical assessment failed to  take into account the severity of the medical condition; or (4) that the appellant’s condition is changeable and was not at its worst on the day when the medical assessment was carried out.

There have only been two appeals where the appellant challenged the requirement to have a certain number of PRSI contributions. In both of these cases, the SWAO rejected the appeals on the basis that the PRSI contributions are a statutory requirement and that it cannot be waived.

Observations on appeal outcomes: 

As an overall observation, appellants are generally successful where they provide plenty of evidence to demonstrate that they are incapable of work. The evidence does not necessarily need to be medical or specifically related to their work duties – the SWAO also takes into account the impact that the illness has on the appellant’s daily life and routine tasks, e.g. ability to look after oneself and to do recreational activities.

While this evidence can be anecdotal and provided personally by the appellant, appellants are generally more successful where they provide letters of evidence from their GP and/or other medical practitioners. Where the GP has a long term relationship with the appellant and is familiar with their medical history, the letter from the GP can sometimes even take precedence over the medical opinion from the Medical Assessor that is appointed by the Department of Social Protection. For example, in one appeal, the SWAO disregarded a medical assessment which was carried out on a day in which the appellant coincidentally wasn’t in much pain. It can also be helpful to provide copies of scans and medical tests.

In addition to physical illness, the SWAO also takes into account an appellant’s mental illness. There is only one case in the Annual Reports where an appellant has been successful in arguing that they were incapable of work due to mental illness alone, in Case 2018/11. . Similar to physical illness, the mental illness must render the appellant incapable of work – generally, moderate mental health issues, general stress or an inability to cope with the demands of a busy job are not considered to render an individual incapable of work for the purposes of Illness Benefit. That said, the SWAO does take mental illness into account where it arises in conjunction with physical illness. For example, the SWAO has considered appellants to be incapable of work for the purposes of Illness Benefit where they had mental illness at the same time as their physical illness and also where they had mental health issues after/as a result of their physical illness.

In order to prove that an appellant is currently incapable of work for the purposes of Illness Benefit, the SWAO pays particular attention to medical treatments received and to be received.

  • In order to be successful, it is generally necessary for an appellant to provide evidence of current medical treatments, for example medication that they are currently taking, doctors that they are seeing regularly, etc. This can demonstrate that the appellant is currently incapable of work. That said, claims for Illness Benefit may be rejected where the medical treatments are so effective that the appellant is actually capable of work as a result.
  • It can also be persuasive for an appellant to provide evidence of upcoming medical appointments and/or treatments. This can support the argument that the appellant is likely to be incapable of work for some time. In this regard, it would appear to be necessary for these appointments and/or treatment to already be scheduled. For example, the SWAO has rejected an appeal in which it was argued that an appellant might need surgery at some point in the future.
  • It is not always necessary that the current medical treatments are specifically related to the original illness. For example, it can be persuasive that the appellant is taking medication for mental health issues that were triggered by the original illness.
  • While evidence of past medical treatments can provide context to a claim for Illness Benefit, it is less persuasive. For example, in one appeal, the appellant was relying on the fact that she had epilepsy, but this was disregarded by the SWAO given that she had been seizure free for 30 years.

Ultimately, the key question is whether the appellant is incapable of work. The SWAO appears to determine the question of whether an individual is incapable of work objectively. The SWAO considers whether the appellant is capable of any kind of work, and not necessarily the type of work that the appellant used to do. The SWAO does not take into account the appellant’s work experience or age etc. For example, Illness Benefit is often refused where the appellant is capable of lighter, more sedentary work.

Please note that the recent decision by the Supreme Court in the Sobhy case (Sobhy v. the Chief Appeals officer, Minister for Employment Affairs and Social Protection, Ireland, and the Attorney General (2021) S:AP:IE:2021:000025). In this case, the Supreme Court held that an immigrant without the right to work, despite meeting the other criteria, including PRSI contributions, does not have the right to access maternity benefits. This may have implications for other social insurance payments.