Keywords: Carer’s allowance; free movement of EU citizens; worker; engaged in economic activity; right to reside
Organisationwho represented the Claimant: N/A
Casebase No. Case G0158
Background
The applicant was a Romanian national who came to Ireland in September 2021 to reside with her daughter and son-in-law as a carer for her two grandsons who have serious special needs. The applicant applied for carer’s allowance and was refused on the basis that she was not habitually resident in the State when she made the application in January 2022. The applicant alleged that as a national of an EU Member State she has the right to travel to another Member State and reside there if she is a worker. She alleged that she was a worker, and as such was entitled to the carer’s allowance. The decision against the applicant was not overturned on appeal, following which she left Ireland and returned to Romania in May 2024, and obtained leave to bring judicial review proceedings in October 2024.
The applicant brought forward two issues before the High Court in the judicial review proceedings:
Whether she had a right to reside in the State, which depended on whether she was within the definition of ‘worker’ by providing 35 hours of care per week for her grandsons; and
Whether Ireland had properly transposed Directive 2004/38/EC into Irish law by the European Communities (Free Movement of Persons) Regulations 2015 (SI 548/2015)
Relevant Legislation
Citizens’ Rights Directive 2004/38/EC (the “Directive”)
European Communities (Free Movement of Persons) Regulations 2015 (SI 548/2015) (the “2015 Regulations”)
Social Welfare Consolidation Act 2005
Regulation (EC) 883/2004 on the coordination of social security systems.
Regulation (EU) 492/2011 on the freedom of movement for workers within the Union.
By way of background, carer’s allowance is the main scheme by which the Minister for Social Protection provides income support to carers in the community. It is a means tested social welfare payment which is awarded to carers who are caring for certain people who require full-time care and attention. It is not related to the individual care requirements of the person receiving the care.
It provides an income replacement support to those whose ability to earn a sufficient income is substantially reduced because of their care obligations. The carer must provide at least 35 hours care in a seven-day period; the recipient of care must reach a threshold of disability; the carer must pass a means test; and the carer must be habitually resident in Ireland.
Key Arguments:
The applicant argued that:
The definition of a worker for the purposes of the Directive is wider that what may be considered the usual employment relationship in Irish law.
Regulation 6(3)(a)(i) of the Irish Regulations had impermissibly narrowed the scope of those who would be regarded as workers by making reference to a person who is “in employment or in self-employment”.
When she came to Ireland to care for her grandsons and was in return given board, lodging and expenses, this was sufficient to constitute remuneration for her work in looking after the children.
Even if she was not a worker, she came within the provisions of regulation 6(3)(a)(ii) of the 2015 Regulations for economically inactive people.
The respondent argued:
While there is a difference in the wording between the Directive and 2015 Regulations, the latter did no more than reflect how the term ‘worker’ had been interpreted by Court of Justice of the European Union (‘CJEU’) jurisprudence.
The rules on free movement of workers cover only those in the pursuit of effective and genuine activities.
The applicant’s assistance in caring for her grandchildren in return for board, lodging and expenses was not sufficient to constitute her as being engaged in an economic or commercial activity which is necessary to make the person.
Decision of the High Court:
The High Court held that the appeals officer was correct in holding that the applicant did not have a right to reside in Ireland as she was not a ‘worker’ under EU law. She was not engaged in an economic activity whereby she would provide services in return for remuneration. Her caring services for her grandchildren were entirely voluntary.
Regarding the issue of whether the Directive was properly transposed into Irish law, the High Court held that the 2015 Regulations captured the meaning of ‘worker’ as defined under EU law.
Key Conclusions:
Based on its analysis of EU and Irish law, the High Court noted that the requirements to be a worker are that the applicant would need to be engaged in work as part of an economic activity. There was no suggestion that the applicant was engaged in any economic activity on her own behalf or as part of any economic activity carried out by her daughter. Additionally, there was no evidence that she was in an employment relationship with her daughter and son-in-law as she provided care for her grandchildren on an entirely voluntary basis. The board, lodging and expenses she was provided with were within the context of her offering care voluntarily.
Counsel for the applicant suggested that the case should be referred to the CJEU to consider whether her work would constitute her a ‘worker’ for EU law. The High Court held that it was not necessary as the CJEU has given clear guidance to determining whether a person is a worker, and the request would amount to asking the CJEU to apply its tests to the facts of the case.
The test for economically inactive people requires them to establish that they have sufficient means to not become an unreasonable burden on the social assistance system and that they have comprehensive sickness insurance. The High Court held that carer’s allowance was social assistance as it is a payment designed to compensate those who are unable to access the labour market as a result of providing care. Additionally, her resources had been assessed at zero by the inspector, therefore she did not have sufficient resources to not become a burden on the social assistance system
Seeing as the applicant was not a worker within the context of EU law, the High Court also held that she did not have a right of residence as a result of not being a worker. Therefore, as she did not have a right of residence, she could not satisfy the requirement to be habitually resident in Ireland which is part of the eligibility criteria for receiving carer’s allowance.
The Court also held that there was no failure to properly transpose the provisions of the Directive into Irish law. While the wording in the 2015 Regulations differs from the wording in article 7 of the Directive, it was not relevant because the CJEU has held that the concept of ‘worker’ is confined to those engaged in economic activity.
Date of Final Decision: 22 August 2025
Observations:
The High Court noted that there was some unfairness in the practical reality of the decision. If the applicant had been an Irish citizen travelling from another part of the country to care for her grandchildren, she would have been eligible for the carer’s allowance. Yet as an EU citizen travelling from Romania to Ireland to do the same thing, she could be denied the payment because she unluckily fell foul of EU and Irish law on the right of residence.
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Keywords: Carer’s Allowance; medical evidence; full time care and attention for twelve months; medical evidence; eligibility as at time of application; duty to give reasons for the decision; alternative remedies
Organisation who represented the Claimant: N/A. Applicant represented by senior counsel.
Casebase no: G0153
Case Summary:
The case related to an application for judicial review to the High Court of a decision (the “Decision”) ofthe Department of Social Protection and the Social Welfare Appeals Office (the “SWAO”) to refuse to award carer’s allowance to the applicant (the “Applicant”).
The Applicant applied for carer’s allowance in 2018 in relation to the care he provides to his partner. The Applicant’s partner had a number of health conditions including back pain, pernicious anaemia, depression, anxiety, uterine prolapse and severe stress incontinence.
This application was refused by way of letter dated 23 January 2013, with the Deciding Officer noting that they had assessed means of “€0.00 per week from 19/01/2019”, and that the requirements of Section 179 (4) of the Social Welfare Act 2005 (the “2005 Act”) (which defines a carer and provides the circumstances under which carer’s allowance may be awarded) were not met. The decision letter informed the client that he may apply for the decision to be reviewed, and that it may be helpful toprovide “any further evidence relevant to the reason for refusal of your claim”
The Applicant submitted an unsuccessful review and thereafter submitted an appeal to the SWAO. The SWAO issued its decision on 27 September 2019 and found that the Applicant had not met the eligibility criteria, in so far as the medical evidence submitted by the Applicant did not establish the necessity for full time care and attention for twelve months.
The Applicant submitted a number of requests for review under section 317 of the 2005 Act, all of which were unsuccessful, with the latest one dates 4 February 2022. The Applicant sought to challenge this decision by way of judicial review.
Key conclusions
The High Court found that the Decision contained an error of law and that inadequate reasons were given. In particular, the Court found that the current needs of the relevant person had formed the basis for the Decision, as opposed to the needs of the relevant person as at the time of the decision. Furthermore, correspondence from the SWAO was found to contradict the Decision itself, in contravention of the principle laid out in City of Waterford VEC (see below).
The High Court re-emphasised the duty to give reasons, and held that in the circumstances, it was not satisfied that the reader could “…know if the decision maker has directed its mind adequately to the issues which it has considered or is obliged to consider” (see Kelly J. (as he then was) in Mulholland v An Bord Pleanála (No. 2) [2006] 1 I.R. 453)
Relevant Legislation:
Social Welfare (Consolidation) Act 2005
S.I. No. 108/1998, Social Welfare (Appeals) Regulations 1998
Key Arguments:
The Applicant argued that the Decision should be quashed as it is erroneous for a number of reasons, including:
The Decision flies in the face of fundamental reason and lacks fundamental reason and common sense, and has resulted in a manifest error of law and fact, and should be quashed for lack of proportionality;
The decision making process was flawed as a matter of law in that the Respondent took an erroneous view of the applicable test;
The Respondent failed to take into account and/or give adequate weight to the medical evidence and facts outlined in the Applicant’s application;
The Respondent failed to explain why the evidence submitted supporting his application was not accepted, in particular, when a report from a medical consultant in pain management, dated 21 September 2021, asserted that the applicant met the statutory requirements for carer’s allowance; and
The Decision fails to disclose any adequate reasons so that it is not possible to fully determine if the said decision is vitiated by an error.
The Respondent argued:
The actions by the Appeals Officer for refusing the appeals to the Decision were correct, and the correct test had been applied;
The foregoing grounds are ‘thin’ on detail (and a similar suggestion was made in relation to the grounding affidavit sworn by the Applicant); and
The Applicant failed to exhaust alternative remedies via Section 318 or Section 327 of the 2005 Act.
Decision of the High Court
The High Court granted an order quashing the Decision.
Reviewing the appeals to the Decision
The High Court found that the Decision was based on an error of law and that the inadequate reasons were given.
In particular, the Court found as follows:
A decision maker is required to make decisions with respect to the relevant person’s care needs at the time the application was made.
In the correspondence refusing appeals to the Decision, the Appeals Officer did not address the relevant person’s care needs as of 2018, but instead referred to their current needs as of the dates of the various letters in 2019-2022;
In relation to the duty to give reasons, it relied on an earlier judgment of City of Waterford VEC v. Department of Education and Science [2011] IEHC 278, which found that “When giving reasons for a decision, the reasons are to be stated there and then, and not added later upon challenge. Where reasons stated within a written decision are shown to be manifestly flawed, these cannot be supplemented by better reasons, or correct reasons, at any stage after the decision is made.”. The Court found that in this case, the statements made by the SWAO after the Decision went beyond confirmation of the reasons and were closer to an alteration of the Decision.
The Court further relied on a principle established by Phelan J in MD v Minister for Social Protection [2023] IEHC 88, that “There is not an obligation on the Department to explain its decisions in detail but rather to inform applicants of the grounds for the decision so that the appeal is not impaired”. The High Court found that this principle had been breached in the decision-making process.
On the basis of the above, the High Court found that the Applicant had made out its claim that inadequate reasons were given for the Decision.
Alternative Remedies
The High Court found that judicial review had been appropriately sought by the Applicant and relief should not be denied on the basis of any failure to exhaust alternative remedies.
In this regard, the High Court noted that:
When the refusal of the appeal to the Decision was communicated to the Applicant by letter dated 15 February 2022, the Applicant was not informed that there was any further right of appeal, be that pursuant to Section 318, or otherwise.
The exercise of the Chief Appeals Officer’s Section 318 power does not depend on a dissatisfied person seeking to have that power invoked.
In relation to Section 327, had the Applicant invoked Section 327 as opposed to seeking judicial review, the ‘net’ position for all parties would appear to be the same, namely: (i) both routes involve the seeking of a public law remedy; (ii) both routes are to the High Court; and (iii) the evidence discloses no prejudice whatsoever by reason of judicial review being pursued.
Date of final Decision: 21 December 2023
Observations
This decision reinforces a number of fundamental points, including:
The decision maker is required to make decisions with respect to the relevant person’s care needs at the time the application was made;
The decision maker shouldn’t supplement or replace reasons in a decision, with better and/or correct reasons after the decision is made; and
There is no absolute obligation to exhaust all potential avenues in all circumstances, including an appeal under Section 318 and/or Section 327, before seeking relief by way of judicial review. Each case should be assessed on its own merits.
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The Court of Appeal in this case was tasked with considering an appeal of the decision of Hyland J in the High Court not to quash a decision of the Chief Appeals Officer (the “CAO”) to determine the Appellant’s social welfare appeal on a summary basis.
Background:
The Appellant appealed a decision of a Deciding Officer which required her to repay €54,184.10 in Carer’s Allowance, on the basis that the Appellant was only entitled to a lower rate of Carer’s Allowance from 2014-2018 and had not been entitled to any Carer’s Allowance from 2018-2019. This decision was made due to the changed financial circumstances of the Appellant from the start date of payment of the Carer’s Allowance of which she had been in receipt. The Deciding Officer stated that its decision was based on sections 179, 181 and 302(b) of the Social Welfare (Consolidation) Act 2005 (the “2005 Act”). The Deciding Officer informed the Appellant she had a right to request a review of this decision by a Deciding Officer or to appeal to the CAO. The Appellant subsequently appealed to the CAO.
Regulation 13 of the SI 108/1998, Social Welfare (Appeals) Regulations 1998 (the “1998 Regulations”) allows the CAO to determine an appeal summarily if they are of the opinion that the case is of such a nature that it can be properly determined without an oral hearing.
The CAO considered the Appellant’s appeal on a summary basis and upheld the decision of the Deciding Officer.
The Applicant issued judicial review proceedings, arguing that in making a decision on a summary basis, the CAO had acted without due regard to fair procedures, natural and constitutional justice and contrary to the provisions of the 2005 Act and the Social Welfare (Appeals) Regulations, 1998 (as amended) (the “1998 Regulations”).
Decision of the High Court
The High Court determined that the fundamental question was whether an oral hearing was necessary to fairly dispose of the appeal. The High Court ultimately rejected the submission that an oral hearing was necessary in the circumstances.
Furthermore, the High Court determined that the Applicant could not succeed in the judicial review in circumstances where there was an alternative remedy available in the form of seeking a revision under section 317 of the 2005 Act.
Substantive issues to be determined
The Court of Appeal noted that the two substantive matters to be determined were as follows:
Did the High Court err in relation to its finding that there existed an alternative appeal remedy, namely s. 317 of the 2005 Act?; and,
If necessary, did the High Court err in holding that an oral hearing was not required?
Key Conclusions:
The Court of Appeal determined that the remedy of revision of an appeal decision of the CAO under s. 317 of the 2005 Act was a “…remedy [that] was suited to [the Appellant’s] concerns; it could have addressed her entitlement to an oral hearing, and it could have provided her with such an oral hearing if deemed necessary.”.
Section 317(1)(a) of the 2005 Act provides that: “An appeals officer may at any time revise any decision of an appeals officer where (a) it appears to him or her that the decision was erroneous in the light of new evidence or new facts which have been brought to his or her notice since the date on which it was given.”
The Court of Appeal concluded that the CAO was obliged to assess each case brought before it for revision on its own merits and therefore, to decide the Applicant’s application for a revision (if such was made) on the strength of such case, under s. 317 of the 2005 Act.
The Court of Appeal did not consider whether the High Court had erred in holding that an oral hearing was not required, as this was rendered moot by its finding that there was an alternative remedy available to the Applicant.
Relevant Legislation:
Social Welfare (Consolidation) Act 2005
SI 108/1998, Social Welfare (Appeals) Regulations, 1998
SI 505/2011, Social Welfare (Appeals) (Amendment) Regulations 2011.
Key Arguments:
The Applicant argued:
That there was a distinction between a revision under s. 317 of the 2005 Act and an appeal, relying upon the decision of the High Court in LD v Chief Appeals Officer [2014] IEHC 641;
That the revision procedure cannot cure the failure of the Chief Appeals Officer not to hold an oral hearing of the Appellant’s appeal;
That an absence of fair procedures at an initial stage may mean that an appeal cannot suffice as an alternative remedy because it does not restore an applicant to the same position that they would have been in had the matter been decided fairly in the first place. The Applicant sought to relying upon Koczanv Financial Services Ombudsman [2010] IEHC 407 and EMI Records (Ireland) Ltd v The Data Protection Commissioner [2014] 1 ILRM 225; and
That an application for revision would not put her in the same position she would have been in had the matter been decided correctly in the first instance, because she had lost her original right to a fair appeal of the decision of the Deciding Officer.
The Respondents argued:
That the Applicant ought not to have proceeded by way of judicial review where she had an alternative appeal mechanism open to her under s.317 of the 2005 Act;
That following the appeal decision, the Appellant could and should have sought a revision during which she could have and should have brought new evidence, relying on the decision of the High Court in LD v Chief Appeals Officer and the decision of the Supreme Court in Petecel v Minister for Social Protection [2020] IESC 25;
That a revision could amount, in an appropriate case, to a full rehearing per LD v Chief Appeals Officer; and,
That the Applicant had failed to exhaust the alternative remedy of seeking a revision under the scheme of appeals/revision set out in the 2005 Act.
Decision of the Court of Appeal:
The Court of Appeal upheld the decision of the High Court.
It found that the Applicant had the ability to request a “revision” of the decision of the CAO, enabling her to have an oral hearing; which constituted an alternative remedy to which she ought to have had recourse; and which alternative remedy she “failed to exhaust” such that she was disentitled to the relief she sought by way of judicial review.
The Court of Appeal also rejected the argument that there would be unfairness in the “revision” (i.e., bad faith), concluding there was no evidence that the Applicant would have been prejudiced in her revision application due to the CAO having previously decided her appeal against her.
The Court of Appeal ruled that it must consider “the underlying grounds upon which the substantive claim for relief is made” (i.e., the decision of the Appeals Officer to decide the Applicant’s claim summarily), which would enable it to decide if there was a fundamental denial of fair procedures or a lack of jurisdiction, such that the availability of an alternative remedy would be irrelevant. If that were the case, then the discretion to refuse jurisdiction (i.e., to refuse an application for judicial review) may not be exercised by the court hearing the application.
The Court of Appeal further pointed to s. 318 of 2005 Act which empowers the CAO to revise an appeal decision not only on new evidence which has been brought to its attention, but also on a point of law. In this regard, the Court of Appeal further confirmed that the power of revision includes the power to hold an oral hearing and the right to review a decision not to grant an oral hearing.
On the basis of the foregoing, the Court of Appeal determined that there was a suitable alternative remedy available to the Applicant which she had failed to exhaust and her judicial review application was denied.
Date of final Decision: 24 May 2023
Observations: This case highlights the importance of considering whether there are alternative remedies available within the social welfare appeals framework which can be exhausted before considering an application for judicial review to the High Court. There is no “one size fits all” approach to all exercises of discretion as to relief by way of judicial review, so each case should be assessed on its own merits. Whether an adequate alternative remedy is available will depend on the nature of the applicants complaint regarding the underlying decision. Furthermore, the case also highlights the broad and wide-ranging power of revision. For example, the revision process can, where appropriate, permit a decision not to provide for an oral hearing to be reversed and it can accommodate an oral hearing itself.
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Keywords: Carer’s Allowance; means test; reduced rate; classes of carers; constitutional challenge; Article 41.2 and the role of mothers in the home
Organisation who represented the Claimant: N/A
Casebase No. G0151
Case Summary:
This case concerned judicial review proceedings, where BM and JM (the “Applicants”) challenged the payment of Carer’s Allowance to BM at a reduced rate, pursuant to the Social Welfare Consolidation Act 2005 (the “2005 Act”).
BM is the mother and carer of JM and has been a recipient the Carer’s Allowance since 2007. BM began to reside as a couple with JM’s father, which meant that her weekly means are assessed by reference to her own means and JM’s father’s means, so as to reduce the rate of Carer’s Allowance payable to her. The Applicants challenged the payment of Carer’s Allowance to BM at a reduced rate and asserted an entitlement to its payment at the full scheduled rate. BM asserted that having regard to JM’s profound dependence on her, and the corresponding commitment that being his full-time carer demands of her, it was highly unjust that she should receive anything less than the full rate of Carer’s Allowance. In particular, the allowance payable to her has been reduced by reference to her own means and not the means of her partner.
The High Court dismissed the Applicants’ application and Hyland J held that the provisions of section 186(2) of the 2005 Act were permissive and conferred a power on the Minister rather than a duty to make regulations increasing the level of allowance payable.
The High Court granted leave to appeal directly to the Supreme Court in respect of the following two issues:
Whether the Minister for Social Protection (the “Minister”) is under any obligation under section 186(1) and section 186(2) of the 2005 Act to make regulations which would dispense with the means-tested calculation of carer’s payment?
The extent (if any) to which Article 41.2 of the Constitution has any bearing on the proceedings and whether Hyland J was correct to state that Article 41.2 of the Constitution cannot be regarded as dictating the level at which the State must provide a carer’s allowance or otherwise mandating the making of regulations by the Minister under section 186(1) of the 2005 Act.
Key Conclusions:
The entitlement to Carer’s Allowance is subject to reduction (or exclusion) on the basis of a uniformly applicable prescribed means test.
The Minister has a power but is not under any duty to make regulations to provide for two classes of Carer for the purposes of means testing of Carer’s Allowance under Chapter 8 of the 2005 Act.
With respect of Article 41.2 of the Constitution, significant financial support is already being provided to BM and JM. The payment of a reduced rate of Carer’s Allowance to BM does not engage Article 41.2 which does not preclude the application of a generally applicable means test to carers such as BM, i.e. mothers providing full-time, long-term care to a profoundly dependent child in the home. It does not require that a sub-set of carers be treated preferentially or be subject to more favourable rules than other carers.
Relevant Legislation:
The Social Welfare (Consolidation) Act 2005, namely Chapter 8 of the 2005 Act; section 186(1) and section 186 (2)
Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (SI 142/2007)
Article 41.2.2 of the Constitution
Key Arguments:
The Applicant argued:
The Minister acted unlawfully in failing to make regulations under section 186(2) of the 2005 Act, which would (or might) provide for payment of Carer’s Allowance at the scheduled rate to BM and other similarly situated persons.
Section 186(2) clearly contemplates that there might be a category of recipients who ought to receive payment of Carer’s Allowance at the full rate, irrespective of means, and provides the Minister with power to make regulations to that effect. The ‘class of classes of person’ are carers whose caring commitment significantly exceeds 35 hours per week, who face a life-long care commitment and who, as a result, have no prospect of ever being in the position to take up employment.
Payment of a reduced rate of Carer’s Allowance to BM is inconsistent with the State’s obligations under Article 41.2 of the Constitution. Article 41.2 provides that “mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home”
The Respondents argued that what is now section 186(2)(b) of the 2005 Act was enacted so as to enable the Minister to make regulations addressing any difficulties that may arise in the transition from the previous regime, the Prescribed Relatives Allowance (PRA), which was not means tested.
Decision of the Supreme Court:
Issue 1
The Supreme Court held that the Applicants’ contention that section 186(2) of the 2005 Act requires the Minister to make regulations the effect of which would be to provide for two classes of carer was unpersuasive. On the face of section 186(2), the Minister had been given a broad and largely unbounded power to dispense with and/or modify the application of statutory rules relating to the means test for Carer’s Allowance, for the benefit of an unspecified class or classes of carer. The Court held that the Minister has a power, but is not under any duty, to make regulations providing for the matters in section 186(2).
The Supreme Court acknowledged the remedial nature of the 2005 Act, so as to encourage and support the provision of essential care, in a residential setting, to persons having such a disability as to require full-time care and attention. However, it was held that recognition of the 2005 Act as a remedial statute does not alter the interpretative exercise that the Court must undertake.
It was noted that the use of the word “may” in section 186(2) of the 2005 Act could indicate that the power is truly discretionary rather than mandatory in character. The Court held that the wider statutory context does not provide any support for the Applicants’ contention that section 186(2) should impose a mandatory obligation on the Minister. It was noted that the Oireachtas has in Chapter 8 set out a detailed scheme for the payment of Carer’s Allowance, and that it would not appear to make any sense for the Oireachtas simultaneously to legislate to impose a duty on the Minster to make regulations departing from that carefully delineated statutory scheme by dispensing with or relaxing the application of the rules relating to means. The Court agreed with Hyland J’s conclusion that the reference to “may” in section 186(2) is “truly permissive and confers a power on the Minister rather than imposing a duty”.
Issue 2
It was held that nothing in Article 41.2 of the Constitution precludes the application of a generally applicable means test to carers such as BM, i.e. mothers providing full-time, long term care to a profoundly dependent child in the home, or requires that sub-set of carers be treated preferentially or to be subject to more favourable rules than other carers (as would be the case if the general means testing regime did not apply, or apply in the same way, to them.
Collins J held that it appears that Article 41.2 has generally been understood to apply to the marital family only, which Woulfe J expressed the view in his concurring judgement. It was held that no court has ever held that Article 41.2 of the Constitution extends to a legally enforceable duty to provide financial support to mothers in respect of their work in the home. It was held that BM has not been obliged to work outside the home and instead she has been and is being supported in staying at home to care for JM.
Date of final Decision: 12 November 2024
Observations:
The judgement provides clarity on the entitlement to Carer’s Allowance under the 2005 Act. The rate of Carer’s Allowance payable will continue to be calculated using a uniformly applied means test, as prescribed by statute (and set out 2005 Act and the related regulations). The Minister is not permitted to derogate from the Carer’s Allowance rates prescribed by statute despite the full-time demands that carers may face.
The effect of Article 41.2.2 of the Constitution simply requires that the State through its policies and laws seeks to support the rights of mothers, as a class, not to be obliged to work outside the home. It does not commit the State to the provision of any particular form or level of support or giving individual mothers any legally enforceable right to support from the State.
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Keywords: Carer’s Benefit; Maternity Benefit; Concurrent Payments; Duration of Benefit; Eligibility; Overpayment; Full-time Care; Social Welfare Consolidation Act 2005
Casebase No. Case G0140
Summary of the relevant law:
What is the relevant legislation?
The Social Welfare Consolidation Act 2005 (as amended) (the “Act”) caters for various types of benefits, to include but not limited to, (i) illness benefit, (ii) disability allowance , (iii) child benefit, (iv) maternity benefit, (v) jobseeker’s benefit/allowance, (vi) state pension and early retirement, (vii) widow’s, widower’s or surviving civil partner’s pension and (vii) carer’s allowance/benefit. Chapter 14 of the Act deals with carer’s benefit which this note will focus on.
What is carer’s benefit?
This benefit is paid to people who leave work or reduce their hours to care for another person.
Who does the law consider to be a ‘carer’ for the purpose of receiving carer’s benefit?
A “carer” is a person aged 16 or over who resides with or, subject to certain conditions does not reside with, and provides full-time care and attention to a “relevant person”. A “relevant person” is a person who has such a disability that he/she requires full-time care and attention. A person is considered to require “full-time care and attention” if that person has such a disability that he/she requires from another person either (a) continuous supervision and frequent help throughout the day in relation to normal bodily functions, or (b) continuous supervision to avoid danger to themselves.
When is a carer entitled to carer’s benefit?
In addition to the above, a carer is entitled to carer’s benefit if he/she meets three criteria:
The carer has worked in paid full-time employment for a minimum of 16 hours per week for any eight weeks, whether consecutive or not, in the 26 week period immediately before commencing carer’s leave or 32 hours a fortnight;
The carer is not employed, self-employed, or attending any course of education or training for more than 18.5 hours a week; and
The carer satisfies certain PRSI contribution conditions. For a first claim the carer must have 156 PRSI contributions paid since starting work and either (i) 39 contributions paid in the second last complete tax year before the beginning of the benefit year (for example, for claims made in 2024, the relevant tax year is 2022); (ii) 39 contributions paid in the 12 months immediately before the start of the carer’s benefit claim; or (iii) 26 contributions paid in the second and third last complete tax year before the beginning of the benefit year (for example, for claims made in 2024, the relevant tax years are 2021 and 2022).
The maximum period in which a carer is entitled to carer’s benefit is 104 weeks, whether consecutive or not, in respect of full-time care and attention to the same relevant person.
What type of decisions relating to carer’s benefit have been challenged in recent years?
The Annual Reports of the Social Welfare Appeals Office (the “SWAO”) during the period of 2009 to 2022 highlight ten appeals in respect of carer’s benefit:
one appeal related to concurrent benefit payments;
one appeal related to the duration of the payment of carer’s benefit;
two appeals related to employment in the 26 week period before commencing carer’s leave; and
the remaining appeals related to whether the relevant person met the care required criteria.
These are a sample of the types of appeals the SWAO receives, which are hereinafter referred to as the “Case Studies”.
Key grounds of appeals by appellants:
Receipt of 2 payments and overpayment of benefit
In 2015 an appeal came before the SWAO in circumstances where a Deciding Officer held that the appellant was not entitled to carer’s benefit with effect from the date on which maternity benefit had been paid. There was therefore an overpayment. The appeal failed and it was found that the appellant was not entitled to receive carer’s benefit for the period that she had been paid maternity benefit.
The solicitors for the appellant sought a review of the Appeals Officer’s decision and two arguments were put forward (i) maternity benefit was not included in the Department of Social Protection’s (the “Department’s”) list of matters that would affect her entitlement to carer’s benefit and (ii) in her application for maternity benefit the appellant provided details of the carer’s benefit payment and therefore discharged any duty she had to notify the Department of her carer’s benefit payment.
The Chief Appeals Officer was satisfied that the appellant provided the Department with full details of her carer’s benefit payment when she applied for the maternity benefit. The Chief Appeals Officer concluded that in doing so, the appellant had fully discharged her duty to notify the Department of a change in circumstances that might affect her entitlement to carer’s benefit and it was noted that such information had been submitted to the Department in plenty of time to allow for the concurrent payment of carer’s benefit and maternity benefit to be avoided. The Chief Appeals Officer revised the decision of the Appeals Officer and no overpayment was due.
Duration of payment of carer’s benefit
In Case Study 2017/33, the appellant’s application for carer’s benefit was rejected on the basis that she had previously received carer’s benefit for a period of 64 weeks and 40 weeks respectively (104 weeks in total) and had therefore already claimed her full entitlement and not entitled to claim for any further periods. The appellant argued that she had worked for three years since she last applied for carer’s benefit and should therefore be allowed to re-qualify. The appeal did not succeed on the basis that she had been in receipt of carer’s benefit for 104 weeks, whether consecutive or not, in respect of full-time care and attention to the same relevant person.
Paid Full-Time Employment
In Case Study 2017/32, the appellant had reduced her hours to 15 hours per week and was therefore unsuccessful in her appeal as she did not satisfy the requirement to work a minimum of 16 hours per week for any eight weeks of the 26 week period before the start of the carer’s leave.
In Case Study 2020/28, the appellant could not provide sufficient detail in order to satisfy the required minimum number of hours for any eight weeks of the 26 week period before the start of the carer’s leave.
Eligibility – Relevant Person Requiring Full-Time Care and Attention
Of the seven Case Studies dealing with whether or not a person classified as a ‘relevant person’ and indeed required full-time care and attention, all but one of the appeals were allowed. In each case, the Appeals Officer considered both the appellant’s report on the level of care required, and the medical evidence put before the SWAO evidencing the level of care required. In all cases, whether the appeal was allowed or not boiled down to whether the evidence satisfied the legislative criteria (i.e. whether: (a) the person has such a disability that he/she requires from another person (i) continual supervision and frequent assistance throughout the day in connection with normal bodily functions, or (ii) continual supervision in order to avoid danger to himself or herself; and (b) the nature and extent of his/her disability has been certified in the prescribed manner by a medical practitioner.)
Observations on appeal outcomes:
Each Case Study demonstrates the SWAO’s adherence to the criteria set out in the Act in respect of carer’s benefit. The SWAO will look at the factual information (i.e. hours worked in the 26 weeks prior to the start of carer’s leave, PRSI contributions etc) and medical reports (where applicable).
As discussed above in relation to concurrent payment of maternity benefit and carer’s benefit, there may be circumstances where other social welfare payments may affect the entitlement to carer’s benefit. It is therefore important to carefully review the carer’s benefit application for any such restrictions or obligations to notify the Department of circumstances that might affect entitlement to carer’s benefit payment.
The Case Studies demonstrate that the SWAO’s approach to matters concerning carer’s benefit are consistent with the requirements of the Act taking into account the specific circumstances of each appeal.
Relevant Case Studies of the SWAO Annual Reports 2009-2022
A.
2009
N/A
2010
N/A
2011
N/A
2012
N/A
2013
N/A
2014
N/A
2015
1.
2015/15 Carer’s Benefit & Maternity Benefit
Question at issue: Concurrent Payments
2016
N/A
2017
1.
2017/32 Carer’s Benefit
Question at issue: Employment in the 26 weeks prior to commencement of benefit
2.
2017/33 Carer’s Benefit
Question at issue: Duration of Payment
2018
1.
2018/30 Carer’s Benefit
Question at issue: Eligibility (Care Required)
2019
1.
2019/32 Carer’s Benefit
Question at issue: Eligibility (Care Required)
2020
1.
2020/28 Carer’s Benefit
Question at issue: Eligibility (Employment Condition)
2.
2020/29 Carer’s Benefit
Question at issue: Eligibility (Care Required)
2021
N/A
2022
1.
2022/32 Carer’s Benefit
Question at issue: Eligibility
2.
2022/33 Carer’s Benefit
Question at issue: Eligibility (Care Required)
3.
2022/34 Carer’s Benefit
Question at issue: Eligibility (Care Required & Care Provided)
2015:
2015/15 Carer’s Benefit & Maternity Benefit
Question at issue: Concurrent payment of benefits
Background: The appellant had been in full-time employment prior to the birth of her first child. When her child was diagnosed as having a disability, she made a claim for Carer’s Benefit and returned to work on a part-time basis. The claim was awarded with effect from a date in 2012 for the maximum period (104 weeks) for which Carer’s Benefit may be paid. The appellant applied for and was awarded Maternity Benefit in 2013. In connection with that claim, she had provided details of her Carer’s Benefit payment. Subsequently, however, she was advised that Carer’s Benefit is not payable with other social welfare payments such as Maternity Benefit and a Deciding Officer held that she was not entitled to Carer’s Benefit with effect from the date on which Maternity Benefit had been paid. The effect of the decision was to create an overpayment of some €5,000.
Oral hearing: The appellant outlined the background to her claim for Carer’s Benefit and her decision to make the claim. She stated that, on the application form, there had been a list of circumstances outlined that may affect Carer’s Benefit and a statement indicating that there was a requirement to notify the Department in the event of such circumstances occurring. She pointed out that payment of Maternity Benefits was not included on the list. In addition, she stated that when she completed the application form for Maternity Benefit she had declared that she was in receipt of Carer’s Benefit. She said that she did not consider that she was liable for the overpayment which had been assessed.
The appellant acknowledged that she had signed a declaration on the Carer’s Benefit claim form, indicating that she would notify the Department of any change in income or circumstances. She advised that she had been aware that her combined income was quite high but that she had considered that this was something to which she had an entitlement in view of her circumstances. She advised that her second child had also been diagnosed with the same disability and that she was in receipt of Carer’s Allowance and Domiciliary Care Allowance in respect of both children.
Consideration: Having regard to the provisions of the legislation, the Appeals Officer concluded that the appellant was not entitled to receive Carer’s Benefit for the period that she had paid been Maternity Benefit. Accordingly, the appeal was held not to succeed. Following further submissions, the Appeals Officer revised his decision and determined that it should take effect from a specified date only, with the effect that the amount of the overpayment was reduced.
Request for review: Solicitors acting for the appellant sought a review of the Appeals Officer’s decision in accordance with Section 318 of the Social Welfare Consolidation Act, 2005. The Chief Appeals Officer carried out a review, advising that her role under the terms of the legislation was a revising one rather than another avenue of appeal.
Grounds for Review: In support of the request, two points were put forward: that when the Department notified the appellant of the award of Carer’s Benefit, the receipt of Maternity Benefit was not listed as one of the circumstances that would affect her entitlement, and in her application for Maternity Benefit she had provided details of the Carer’s Benefit payment. It was asserted that the Appeals Officer did not exercise his discretion properly in relation to the reduction in the overpayment assessed against the appellant.
The Chief Appeals Officer examined the background to the case and the details of the appellant’s claim. She noted that the appellant’s attention had been drawn to the circumstances and events which might affect her Carer’s Benefit and of the necessity to notify the Department if any of these occurred. She observed that only one of the twelve events related to receipt of a payment (Domiciliary Care Allowance) and that the others related to circumstances such as change in care arrangements, change of address, bank details or marital status. Maternity Benefit was not mentioned.
Having reviewed all the material that was before the Appeals Officer, the Chief Appeals Officer was satisfied that the appellant had provided full details of her Carer’s Benefit payment when she applied for Maternity Benefit. She concluded that, in doing so, she had fully discharged her obligation to notify the Department of a change of circumstances that might affect her entitlement to Carer’s Benefit – albeit that the payment of Maternity Benefit was not listed as a payment that might affect her continued entitlement to Carer’s Benefit. She noted that the information had been submitted to the Department in ample time to allow payment of Carer’s Benefit to be discontinued and to avoid the concurrent payment of Carer’s Benefit and Maternity Benefit. She concluded, therefore, that the decision of the Appeals Officer was erroneous in that appropriate consideration was not given to all the facts of the case and that discretion had not been appropriately applied by the Appeals Officer. In the circumstances, the Chief Appeals Officer determined that the revised decision should have taken effect from a current date and no overpayment raised.
Outcome: Appeal allowed.
2017:
2017/32 Carer’s Benefit
Question at issue:
Employment in the 26 weeks prior to the commencement of benefit
Background: The appellant applied for Carer’s Benefit in July 2016 in respect of her mother. Her application was refused as she did not satisfy the employment conditions for the 26 week period immediately prior to the date of her application. The evidence was that from February 2016 the appellant had reduced the number of hours she worked to 15 hours per week. In her letter of appeal the appellant referred to the Carer’s Leave Act 2001 and the condition that you must not work outside of the home for more than 15 hours per week while on carer’s leave. She also stated that if she had the information regarding having to work a minimum of 16 hours per week for any eight weeks of the 26 week period immediately prior to the date that carer’s leave would commence, she could have arranged with her boss to work 16 hours per week.
Consideration: Section 100 of the Social Welfare Consolidation Act 2005 states that it is a condition for eligibility for Carer’s Benefit that a person must work a minimum of 16 hours per week for any eight weeks in the 26 week period immediately prior to the date that carer’s leave would commence. The Appeals Officer concluded that the statutory conditions were not fulfilled in this case; the appellant had not established that she worked a minimum of 16 hours per week for at least eight weeks in the 26 week period immediately prior to her application, and regrettably the appeal could not succeed. The appellant was advised that it was open to her to apply for a means tested Carer’s Allowance instead of Carer’s Benefit, where this work condition rule did not apply.
Outcome: Appeal disallowed.
2017/33 Carer’s Benefit
Question at issue: Duration of Payment
Background: The appellant applied for Carer’s Benefit In August 2016 in respect of care provided to her son. This application was disallowed as she had previously received Carer’s Benefit for a period of 64 weeks in 2010/2011 and for 40 weeks in 2012/2013, a total of 104 weeks. The Department pointed out in the decision letter that she had already claimed her full entitlement to Carer’s Benefit in respect of her son and consequently she was not eligible to claim Carer’s Benefit for any further periods. The appellant contended that as she had worked for three years since she last applied for Carer’s Benefit, she should be allowed to re-qualify.
Consideration: The Appeals Officer referred to Section 103 of the Social Welfare Consolidation Act 2005 which states that “a carer who has been in receipt of carer’s benefit for 104 weeks, whether consecutive or not, in respect of full-time care and attention being provided to a relevant person, shall not thereafter be entitled to that benefit in respect of full-time care and attention being provided to the same relevant person”. The Appeals Officer concluded the appeal could not succeed.
Outcome: Appeal disallowed.
2018:
2018/30 Carer’s Benefit
Question at issue: Eligibility (medical-care required)
Background: The appellant applied for Carer’s Benefit in respect of the care provided to his mother who was 80 years of age and had a diagnosis of back pain. His claim was disallowed on the grounds that the care recipient was not so invalided or disabled as to require full time care and attention as laid down in Section 99 of the Social Welfare Consolidation Act 2005. The ability/disability profile indicated that the care recipient’s ability was affected in the following areas: severe in relation to lifting/carrying; moderate in relation to bending/ kneeling/squatting and climbing stairs and mild in relation to reaching, manual dexterity, sitting/rising, standing and walking. The letter of appeal outlined that the care recipient required care in all areas of daily living including getting up, showering, getting dressed and being helped to the bathroom. The care recipient had a bell beside her bed to call the appellant during the night if she needed assistance. The appellant stated that on several occasions he had found his mother on the floor where she had fallen and could not get up.
Consideration: The Appeals Officer noting the care recipient’s age, diagnosis, the medical report and the appellant’s evidence concluded that the care recipient required full-time care and attention as laid down in the governing legislation.
Outcome: Appeal allowed.
2019:
2019/32 Carer’s Benefit
Question under appeal: Eligibility (care required)
Background: The appellant applied for Carer’s Benefit in respect of care provided to her father. The application was refused on the grounds that the caree did not require continual supervision and frequent assistance throughout the day with normal bodily functions or continual supervision in order to avoid danger to himself. The caree was diagnosed with paranoid schizophrenia, deafness and psycho-organic syndrome. The GP stated in the application form that the conditions were expected to last indefinitely. In the ability/disability profile, the caree was deemed to be affected to a profound degree in most categories, moderately affected in one and severely affected in three. The appellant stated that her father was confined to bed for the past four years, used incontinence pads, could not eat or drink independently, could not walk or sit, had problems sleeping and could spend nights shouting. Her mother was elderly and could no longer take care of her husband.
Consideration: The relevant legislation in this case is Section 99(2) of the 2005 Act which provides that a person shall not be regarded as requiring full-time care and attention unless the person has such a disability that he or she requires from another person –
a. continual supervision and frequent assistance throughout the day in connection with
normal bodily functions , or
b. continual supervision in order to avoid danger to himself or herself.
From the evidence presented, the Appeals Officer was satisfied that the appellant had established that the caree required full-time care as defined in the relevant legislation.
Outcome: Appeal allowed
2020:
2020/28 Carer’s Benefit
Question at issue: Eligibility (employment condition)
Background: The appellant’s application for Carer’s Benefit was initially refused by the Department on two grounds: (i) that she was not providing full-time care and attention, and (ii) that she had not been working for the required minimum number of hours for at least eight weeks within a 26 week period prior to her application for Carer’s Benefit. Following a review by the Department it was decided that the appellant was providing full-time care and attention but the disallowance on the grounds of not meeting the required number of hours over eight weeks within a 26 week period remained unchanged.
Consideration: The Appeals Officer outlined that in accordance with Section 100 of the 2005 Act in order to be entitled to Carer’s Benefit a person must, among other things, have been working for at least 16 hours per week for not less than eight weeks within a 26 week period prior to the date of application for Carer’s Benefit.
The evidence originally provided at the time of application showed that the applicant did not meet this requirement. The appellant provided additional general information in relation to her employment but did not provide specific details in relation to the period in question.
The Appeals Officer concluded that it had not been established that the appellant had been working for the required minimum number of hours for at least eight weeks within a 26 week period prior to her application for Carer’s Benefit.
Outcome: Appeal disallowed
2020/29 Carer’s Benefit
Question at issue: Eligibility (care required)
Background: The appellant was in receipt of Carer’s Benefit from December 2018 to March 2019. She was re-awarded from March 2019 to September 2019. She subsequently applied for another extension up until March 2020. By decision dated in November 2019, the Department stated that following medical review, the appellant was not entitled to any further period of Carer’s Benefit beyond September 2019 on the grounds that the care recipient did not require full-time care and attention as laid down in the governing legislation.
Oral Hearing: At the time of appeal, the care recipient was two-years-old. The appellant explained that when the care recipient was born in October 2017 she was diagnosed with extreme prematurity and chronic lung disease. She said this is a lifelong disease and can lead to serious complications. The care recipient was treated in the maternity hospital from birth. For the first two winters of her life, the care recipient received immunotherapy to protect her against viruses. She was then discharged into community care. By the time of the oral hearing, she had been commenced on an inhaler. The care recipient had been admitted to hospital in December 2019 with suspected pneumonia.
The appellant said as the main carer, she was required to restrict all outdoor activities and avoid crowded areas in an effort to prevent further trauma and damage to the care recipient’s lungs. Even a simple head cold massively impacted the care recipient and her ability to breathe. The appellant had to limit the care recipient’s interactions with everyone, even close family. She said they could not have a childminder as this would put her at risk. She said placing the care recipient in the care of others would have put her in danger of picking up harmful viruses, damaging her lungs further and suppressing her already weakened immune system. The appellant said due to her occupation in the medical profession she recognised the early signs of any respiratory illnesses and acted immediately by performing nasal flushes and aspirations and also steamed her in the shower a few times a day. She said it was these actions that prevented the care recipient being admitted to hospital regularly. Subsequent to the oral hearing, the appellant provided a letter of support from the consultant neonatologist in the maternity hospital.
Consideration: Section 99 (2) of the 2005 Act provides that a person shall not be regarded as requiring full-time care and attention unless the person has such a disability that he or she requires from another person continual supervision and frequent assistance throughout the day in connection with normal bodily functions or continual supervision in order to avoid danger to himself or herself.
Having examined the medical evidence, and having had regard to the appellant’s grounds of appeal and information adduced at oral hearing which served to clarify the support required by the care recipient in the context of her diagnosis, the Appeals Officer concluded that the care recipient required full-time care and attention in line with the provisions of the governing legislation.
Outcome: Appeal allowed
2022:
2022/32 Carer’s Benefit
Question at Issue: Eligibility – care required
Background: The appellant was disallowed Carer’s Benefit on the ground that the care recipient, her spouse, did not require full-time care and attention for the purposes of the legislation.
The medical report stated that the care recipient had generalised anxiety disorder, depression, hypertension and morbid obesity. The report indicated that mental health/behaviour was affected to a “severe” degree and four physical abilities were affected to a severe, moderate or mild degree.
A letter from the GP reported that the care recipient had been medically unwell for years and developed severe phobic anxiety and depression several years ago. She was fully dependant on her husband for her likely long-term care. A letter from the consultant psychiatrist reported that at one point the care recipient did not leave her house for several months. The appellant reported that his wife dealt with severe anxiety and depression. She could not leave the house alone and needed constant help in the house, for example using the stairs. He had to physically get her up most days and put her in the shower.
Consideration: The Appeals Officer noted the appellant’s report of the assistance required with showering and mobility and his specific concerns for his wife’s mental health. She also noted that the GP reported that the care recipient was “fully dependant on her husband for her likely long-term care”. On balance, the Appeals Officer was satisfied that the particular combination of the care recipient’s conditions meant that she required full-time care and attention for the purposes of the legislation.
Outcome: Appeal allowed
2022/33 Carer’s Benefit
Question at Issue: Eligibility – care required
Background: The appellant was refused an extension of his Carer’s Benefit for 2022 on the ground that the care recipient did not require full-time care and attention for the purposes of the legislation.
The medical evidence comprised a medical report, two letters of support from the GP and a letter of support from the psychiatrist. The medical report indicated that the care recipient’s mental health was affected to a “severe” degree (the 2020 report indicated a “moderate” effect) and six physical abilities were affected to a “moderate – severe” degree.
The GP reported that the care recipient was in remission from Lymphoma, was in constant pain and needed help washing, walking and with housework. The psychiatrist reported that the care recipient had a longstanding history of anxiety and depression and remained very anxious despite her medications. The appellant reported that his partner needed help getting out of bed and showering and forgot things constantly, for example locking doors and putting up the fire guard.
Consideration: Section 99(2) of the 2005 Act provides that a person shall not be regarded as requiring full-time care and attention unless the person has such a disability that he or she requires from another person continual supervision and frequent assistance throughout the day in connection with normal bodily functions, or continual supervision in order to avoid danger to himself or herself.
The Appeals Officer found that the medical evidence in 2022 did not indicate an improvement in the care recipient’s needs and if anything disclosed more complex needs as a result of both her physical and mental health. She was satisfied that the care recipient continued to require full-time care and attention for the purpose of the legislation.
Outcome: Appeal allowed
2022/34 Carer’s Benefit
Question at issue: Eligibility – care required and care provided
Background: The appellant’s application for a Carer’s Benefit in respect of the provision of care and attention to their father, aged 81, was disallowed on the grounds that the care recipient did not require full-time care and attention as required by the governing legislation. When completing the medical report the caree’s GP stated that the caree was normal in terms of nine abilities of daily living but was impaired in terms of lifting/carrying, mental health/behaviour, continence, bending/kneeling/squatting, sitting/rising, climbing stairs/ladders. In the appeal submission, the appellant elaborated on the supports and care which included managing medication, making and attending medical appointments, support with finances, household duties and strenuous work, and ensuring self-care with diet and checks for diabetes. The Department was not satisfied that full-time care and attention was required.
Consideration: The Appeals Officer outlined that Section 99 of the 2005 Act provides that in order to be considered a carer for the purposes of Carer’s Benefit the person must be providing full-time care and attention to a person who requires continual supervision and frequent assistance throughout the day in connection with normal bodily functions, or continual supervision in order to avoid danger to himself or herself.
The evidence submitted indicated that the appellant did not need continual supervision and frequent assistance with normal bodily functions throughout the day or that he was danger to himself. While the GP stated that the caree attends a cardiologist, no reports or additional information was submitted to substantiate a related care requirement. The Appeals Officer concluded, that while the care recipient required a level of care and support which the appellant provided, it had not been established that the caree required full-time care and attention within the meaning of the governing legislation.
Outcome: Appeal disallowed
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Keywords: Full-Time Care; Means Test; Care Required; Oral Hearing; Evidence
Casebase No. Case G0141
Summary of the relevant law:
What is the relevant legislation?
The Social Welfare Consolidation Act 2005 (as amended) (the “Act”) caters for various types of benefits, to include but not limited to, (i) illness benefit, (ii) disability allowance, (iii) child benefit, (iv) maternity benefit, (v) jobseeker’s benefit/allowance, (vi) state pension and early retirement, (vii) widow’s, widower’s or surviving civil partner’s pension and (vii) carer’s allowance/benefit. Chapter 8 of Part 3 (Social Assistance) of the Act deals with carer’s allowance which this note will focus on.
Chapter 4 of Part 3 (Social Assistance Payments) of the Social Welfare (Consolidated Claims, Payments and Controls) Regulations 2007 (the “2007 Regulations”) provides further guidance for assisting carer’s allowance applications.
The Act deals with the entitlement to the carer’s allowance. The 2007 Regulations is supplemental to the Act and deals with conditions to be satisfied by a carer.
What is carer’s allowance?
This is a weekly payment to people who care for another person because of age, disability or illness (including mental illness). The carer’s income is means tested and must be below a certain threshold in order to qualify for the payment.
Who does the law consider to be a ‘carer’ for the purpose of receiving carer’s allowance?
A “carer” is a person who resides with or, subject to certain conditions does not reside with, and provides full-time care and attention to a “relevant person”.
A “relevant person” is a person (other than a person in receipt of an increase of disablement pension under section 78 of the Act in respect of constant attendance) who has such a disability that he/she requires full-time care and attention who is either 16 years or over; or is under 16 and is in receipt of an allowance for domiciliary care of children under section 61 of the Health Act 1970.
A person is considered to require “full-time care and attention” if that person has such a disability that he/she –
(i) requires from another person either
(a) continuous supervision and frequent help throughout the day in relation to normal bodily functions, or
(b) continuous supervision to avoid danger to themselves; and
(ii) is likely to need such full-time care and attention for at least 12 consecutive months.
When is a carer entitled to carer’s allowance?
In addition to the above, a carer is entitled to carer’s allowance if he/she meets the following criteria:
is a person aged 18 or over and satisfies a means test;
is a person habitually resident in the State;
is not living in a hospital, convalescent home or other similar institution;
for a non-resident carer, (a) there must be a direct system of communication between the carer’s residence and that of the relevant person (to include a telephone or alarm system) and (b) the relevant person is not already receiving full-time care and attention within his/her own residence from a person other than the applicant; and
the care must be for at least 35 hours per week, over 5 to 7 days.
A carer can continue to receive carer’s allowance:
for up to 13 weeks, if the carer or the relevant person is receiving medical or other treatment of a temporary nature in a hospital (or other institution);
for up to 12 weeks, where the carer would qualify for the allowance but for the fact that the relevant person has been permanently admitted to a hospital (or other institution);
where the relevant person is attending either (i) a non-residential course of rehabilitation training provided by a recognised organisation or (ii) a non-residential place of day care approved by the Minister for Health;
where provision has been made for the care of the relevant person and the carer is employed, self-employed or attending any course of education or training for not more than 18.5 hours a week;
where the number of hours providing such care is not less than 35 hours in a period of 7 consecutive days, and care is provided on any 5 days, whether consecutive or not, within a period of 7 consecutive days; or
for up to 26 weeks, if (i) the relevant person is under 16 years of age, (ii) that relevant person meets the criteria for the domiciliary care allowance and (iii) the relevant carer would otherwise qualify for the allowance but for the fact that the relevant person is undergoing medical or other treatment of a temporary nature in a hospital (or other institution).
What type of decisions relating to carer’s allowance have been challenged in recent years?
The Annual Reports of the Social Welfare Appeals Office (the “SWAO”) during the period of 2009 to 2022 highlight forty-five appeals relating to carer’s allowance. These are a sample of the types of appeals the SWAO receives, which are hereinafter referred to as the “Case Studies”. The majority related to the care required and/or care provided (i.e. whether full-time care and attention was required and whether such care was being provided in line with the eligibility criteria), and a few Case Studies related to the means test.
Key grounds of appeals by appellants:
Assessment of Means
Four Case Studies address the assessment of means. To qualify for carer’s allowance, the applicant’s means must fall below a certain figure which is reviewed by the Department of Social Protection (the “Department”). The Department looks at all sources of the applicant’s and/or their spouse/civil partner/cohabitant’s income and then deducts some costs as set out in the legislation.
Where there is a change in the applicant’s income, this may affect their entitlement to the payment. It is important to note that a recipient of social welfare has an obligation to inform the Department o of a change in their circumstances, including an increase or decrease in their means or income.
In an appeal, the Appeals Officer may take into account any evidence relating to a change of income. For example, in Case Study 2016/19, the applicant’s yearly income was affected by a drop in milk prices, reducing projected milk income by some 23%, while overheads remained largely the same. The Appeals Officer took this into account to the extent that it affected the applicant’s gross income and projected net profit.
In other Case Studies relating to means, it has been noted that an applicant can seek a review of their entitlement at any time where there is a decrease in means.
Overpayment of carer’s allowance
One of the Case Studies concerned overpayment of carer’s allowance (2016/318/34). For more details on Overpayment, see Thematic Note on Overpayments on Casebase.
In this Case Study, it was determined that a mother was no longer entitled to carer’s allowance as her son was admitted to a children’s residential unit and therefore, she was no longer considered to be providing full-time care and attention. The issue then arose that she had been overpaid carer’s allowance for a period in which she was no longer entitled to the carer’s allowance. The overpayment had been appealed and refused so a further appeal to the Chief Appeals Officer was made under section 318 of the Act.
The appellant challenged the decision of the Appeals Officer in an effort to reduce the overpayment due, however the Chief Appeals Officer upheld the Appeal Officer’s decision on all three grounds of appeal:
the appellant argued the overpayment due should be reduced due to an error or failure on the part of the Department. The Chief Appeals Officer upheld the decision of the Appeals Officer and would not reduce the overpayment due as the Deciding Officer had written to the appellant advising her that her change in circumstances would affect her entitlement to carer’s allowance.
the appellant argued her case fell within the exemption of section 136 of the 2007 Regulations which provide that a carer may be considered to continue to be providing full-time care and attention in circumstances where the caree is living in an institution, and not with the carer, for a period not longer than 13 weeks. The Chief Appeals Officer determined on the facts that the care arrangements were not temporary and therefore did not fall within the scope of this exemption; and
the Chief Appeals Officer affirmed the appeal officer’s stance on recovery of overpayment; this is a matter for the Department and not the SWAO.
Full-time care and attention required – SWAO considerations & evidence
There have been many appeals in this area that assess whether a person has such a disability that he/she (i) requires from another person either (a) continuous supervision and frequent help throughout the day in relation to normal bodily functions, or (b) continuous supervision to avoid danger to themselves; and (ii) is likely to need such full-time care and attention for at least 12 consecutive months.
The appeals in this area, while strict in the application of the legislation, have taken into account the following evidence:
medical practitioner reports,
Garda reports and/or
a social welfare officer reports.
Oral and documentary evidence has also proven helpful in supporting medical evidence and can provide background to that relevant person’s specific circumstances.
Such evidence can be particularly important where, for example, a carer is not resident with the relevant person on a full-time basis, other family members assist with carer or where the medical condition has deteriorated sufficiently since the initial assessment.
Distinctions have been made in such appeals between requiring ongoing care and attention as opposed to full-time care and attention. In Case Study 2015/11, medical evidence provided in respect of the appellant’s parents indicated that there was a moderate effect of mental health, balance/co-ordination, vision and hearing and a mild to moderate effect on their ability to undertake the activities of daily living. There was no concern in relation to the parent’s safety. While the Appeals Officer acknowledged that the appellant undertook domestic tasks (e.g. preparing meals, cleaning and washing clothes) and attended to some of her parent’s personal needs, the evidence indicated that the parent’s were able, without support to mobilise and for the most part attend to their own normal bodily functions. The level of care required in this case was not considered full-time care and attention within the meaning of the legislation.
Case Study 2016/218/33 was a review of an appeal which was disallowed on the basis that full-time care and attention was not required. In this Case Study, the reviewing officer considered a medical report and letter from a psychiatrist and whether or not such evidence supported the appellant’s argument that the person being cared for required full-time care and attention. It was specifically examined whether the caree required continual supervision in order to avoid being a danger to herself as it was accepted that she did not require supervision and assistance with normal bodily functions. It was held that the medical evidence provided did not provide definitive proof that the caree required full-time care and attention but was sufficient to indicate that full-time care and attention was probable. This conclusion along with oral testimony established a likelihood that she could not function safely without continual supervisions by the appellant. The decision was revised and the appeal was allowed on the basis that evidence presented supported the appellant’s argument that the caree required continual supervision to avoid danger to herself and the extent of the care provided by the appellant was full-time care and attention.
This case highlights the importance of requesting an oral hearing in appeals of this nature, especially where factual evidence is in dispute.
In Case Study 202/318/63, a decision was revised on the basis that the written and oral testimony established that the caree required continual supervision and frequent assistance throughout the day in connection with normal bodily functions and that the Appeals Officer gave disproportionate weight to the evidence that the caree tried to do some light housework. The evidence however did not support that the caree required continual supervision in order to avoid danger to herself.
Case Study 207/29 assessed whether the caree met the medical criteria for the scheme and whether the appellant was working/studying for more than 15 hours per week outside the home. The Appeals Officer was satisfied that the nature of the caree’s medical conditions and the severity of these conditions, as certified by a GP, were such that he required continual supervision and frequent assistance throughout the day in connection with normal bodily functions and continual supervision to avoid danger to himself. The Appeals Officer was also satisfied that, based on evidence from the appellant’s place of study, that the aggregate duration of the appellant’s course of study did not exceed 15 hours per week.
Full-Time Care Provided
There have been many appeals in this area that assess whether the care being provided by the carer is full-time care and attention.
In Case Study 2015/12, the appellant applied for carer’s allowance in connection with care being provided to her grandfather, who resided with his daughter. The claim was refused on the grounds that the appellant was held not to be providing full-time care and attention as she was not resident with the caree on a full-time basis and that the care was shared with her aunt who was living with the caree. At an oral hearing, the carer provided background on the arrangement and outlined the daily routine. The appellant undertook a carer’s training course with the intention of caring for the caree. It was noted that the appellant was unemployed and in receipt of jobseeker’s allowance. The appeal was allowed on the basis of the evidence put forward to include that the appellant lived with the caree for the majority of the time and was his sole carer.
Where care is shared among parties, a claim depends on how much care the appellant is providing within the context of a number of parties providing care in order to assess whether the care being provided by the appellant constitutes full-time care and attention (Case Study 2017/318/63).
In Case Study 2018/25, the appeal was disallowed on the basis that there is no provision in the legislation for a payment to be made in respect of part time care. In this Case Study, the appellant provided care to the caree for 4.5 hours per day, 7 days a week and requested a part payment of the carer’s allowance. On-call periods are also not considered as part of the overall provision of care based on the outcome of Case Study 2018/318/66.
In Case Study 2019/28 an appeal was disallowed on the basis that the appellant was working more than 15 hours per week (which was supported by documentary evidence from the appellant’s employer) outside the home and was therefore not providing full-time care and attention. The appellant was advised that should her circumstances change, it was open for her to re-apply for carer’s allowance.
In Case Study 2020/23, the Appeals Officer noted that, while full-time care is not defined in the legislation, the Department’s guidance considers 35 hours per week to be necessary to meet the full-time care and attention requirement set out in the legislation. In the circumstances of this Case Study, the Appeals Officer was satisfied that the appellant had not included the hours of care provided to the caree in the carer’s home. In those circumstances the Appeals Officer was satisfied that the appellant was providing full-time care and that the level of care provided was in excess of the guidelines. In contrast, the Appeals Officer dismissed the appeals in Case Study 2021/39 and 2022/30 that, based on the appellant’s evidence, the appellants did not satisfy the minimum 35 hours of care per week requirement and was therefore not considered to be full-time care and attention within the meaning of the legislation.
Appeals have been dismissed based on lack of information to support the claim that the carer is providing full-time care and attention. For example, in Case Study 2020/22 the appellant had informed the Appeals Officer that he provided care seven days a week but did not state for how many hours each day.
It is also necessary that an applicant meets the criteria of providing full-time care at the time of making the application for carer’s allowance. The Appeals Officer explained in Case Study 2019/27, that in circumstances where the level of care provided by the applicant has increased since the making of the application, it is advisable that the applicant re-applies rather than appealing the Deciding Officer’s decision, as the Appeals Officer will only consider the facts at the time of the making of the application. It is worth noting that there is inconsistency between Case Studies as additional medical evidence was submitted at the appeals stage to assist in corroborating a claim as seen in Case Study 2021/36 and 2018/26.
Observations on appeal outcomes:
Each Case Study demonstrates the SWAO’s adherence to the criteria set out in the Act in respect of carer’s allowance. The SWAO will look at the totality of the evidence presented in a case (e.g. medical reports, documentary evidence, oral testimony etc.) in order to assess the requirement for full-time care and attention and whether it is being provided.
It is clear from the Case Studies that only one limb of the care test (i.e. that the relevant person requires from another person either (a) continuous supervision and frequent help throughout the day in relation to normal bodily functions or (b) continuous supervision to avoid danger to themselves) needs to be satisfied in order to establish whether full-time care and attention is required.
If making an application for carer’s allowance it is advisable to provide the Department with an, as detailed as possible, account of the level of care provided. It is clear from the Case Studies that there is a high evidentiary threshold to satisfy for the level of care to be deemed as ‘full-time’.
There may be circumstances where other social welfare payments (such as illness benefit) may affect the full rate entitlement to carer’s allowance. It is important to notify the Department in any change of circumstance which may affect the carer’s entitlement to carer’s allowance.
The Case Studies demonstrate that the SWAO’s approach to matters concerning carer’s allowance are consistent with the requirements of the Act and the 2007 Regulations taking into account the specific circumstances of each appeal.
Relevant Case Studies of the SWAO Annual Reports 2009-2022
A.
2009
N/A
2010
N/A
2011
N/A
2012
1.
2012/01 Carer’s Allowance
Question at issue: Eligibility (Care Required)
2.
2012/02 Carer’s Allowance
Question at issue: Eligibility (Care Required)
2013
N/A
2014
N/A
2015
1.
2015/11 Carer’s Allowance
Question at issue: Eligibility (Care Required)
2.
2015/12 Carer’s Allowance
Question at issue: Eligibility (Care Provided)
2016
1.
2016/18 Carer’s Allowance
Question at issue: Eligibility (Provision of Full-Time Care)
2.
2016/19 Carer’s Allowance
Question at issue: Eligibility (Means)
3.
2016/318/33 Carer’s Allowance
Question at issue: Full-Time Care and Attention Required
4.
2016/318/34 Carer’s Allowance
Question at issue: Overpayment Assessed
2017
1.
2017/28 Carer’s Allowance
Question at issue: Means & Overlap of Entitlement between Schemes
2.
2017/29 Carer’s Allowance
Question at issue: Full-Time Care Required & Working/Studying more than 15 hours per week
3.
2017/30 Carer’s Allowance
Question at issue: Eligibility (Care Required)
4.
2017/31 Carer’s Allowance
Question at issue: Eligibility (Full-Time Care)
5.
2017/318/63 Carer’s Allowance
Question at issue: Full-Time Care
6.
2017/318/64 Carer’s Allowance
Question at issue: Full-Time Care Required
2018
1.
2018/25 Carer’s Allowance
Question at issue: Eligibility (Care Provided)
2.
2018/26 Carer’s Allowance
Question at issue: Eligibility (Care Provided)
3.
2018/27 Carer’s Allowance
Question at issue: Eligibility (Care Required)
4.
2018/28 Carer’s Allowance
Question at issue: Eligibility (Care Required)
5.
2018/29 Carer’s Allowance
Question at issue: Eligibility (Care Provided)
6.
2018/318/65 Carer’s Allowance
Question at issue: Eligibility (Care Required)
7.
2018/318/66 Carer’s Allowance
Question at issue: Eligibility (Care Provided)
2019
1.
2019/27 Carer’s Allowance
Question at issue: Eligibility (Care Provided)
2.
2019/28 Carer’s Allowance
Question at issue: Eligibility (Care Required & Care Provided)
3.
2019/29 Carer’s Allowance
Question at issue: Eligibility (Care Required)
4.
2019/30 Carer’s Allowance
Question at issue: Eligibility (Care Required)
5.
2019/318/63 Carer’s Allowance
Question at issue: Eligibility (Care Required)
2020
1.
2020/22 Carer’s Allowance
Question at issue: Eligibility (Care Provided)
2.
2020/23 Carer’s Allowance
Question at issue: Eligibility (Care Provided)
3.
2020/24 Carer’s Allowance
Question at issue: Eligibility (Care Required)
4.
2020/25 Carer’s Allowance
Question at issue: Eligibility (Care Required)
5.
2020/26 Carer’s Allowance
Question at issue: Eligibility (Care Required & Care Provided)
6.
2020/27 Carer’s Allowance
Question at issue: Eligibility (Means)
7.
2020/318/63 Carer’s Allowance
Question at issue: Eligibility (Care Required)
8.
2020/318/64 Carer’s Allowance
Question at issue: Eligibility (Care Required)
2021
1.
2021/36 Carer’s Allowance
Question at issue: Eligibility (Care Required)
2.
2021/37 Carer’s Allowance
Question at issue: Eligibility (Care Required)
3.
2021/38 Carer’s Allowance
Question at issue: Eligibility (Care Provided)
4.
2021/39 Carer’s Allowance
Question at issue: Eligibility (Care Required & Care Provided)
5.
2021/40 Carer’s Allowance
Question at issue: Eligibility (Care Provided)
5.
2021/77 Carer’s Allowance
Question at issue: Eligibility
2022
1.
2022/27 Carer’s Allowance
Question at issue: Eligibility (Care Required)
2.
2022/28 Carer’s Allowance
Question at issue: Eligibility (Care Required)
3.
2022/29 Carer’s Allowance
Question at issue: Eligibility (Care Required)
4.
2022/30 Carer’s Allowance
Question at issue: Eligibility (Care Required)
5.
2022/31 Carer’s Allowance
Question at issue: Eligibility (Means)
2012:
2012/01 Carer’s Allowance
Decision under appeal: claim rejected – reason(s) stated:
The Chief Medical Advisor having examined the medical evidence has decided that, in his opinion, the person being cared for is not so invalided or disabled as to require full-time care and attention as laid down in the Carer’s Allowance legislation.
Background: In 2007, Carer’s Allowance was awarded in respect of the appellant’s son. Following a review in 2011, payment was terminated in line with the decision outlined above. It was the opinion of the Department’s Medical Advisor that while available medical evidence indicated a level of dependence, it did not indicate the need for full-time care and attention. Her son’s GP advised that he expected the condition diagnosed to continue indefinitely; in completing an ability/disability profile, he indicated that her son’s condition was severe under a number of headings, including mental health/behaviour; learning/intelligence and consciousness/seizures.
Diagnosis: Epilepsy, depression and ADHD Hyperkinetic disorder
At oral hearing: the appellant referred to her son’s diagnosis. She said that he is 17 years old and cannot be left alone at any time. She provided an outline of a typical day, which included getting up at 9-10 a.m. and then sitting in the living room wrapped in a duvet. She said that he does not go out alone, but sometimes goes to the shops with her. She reported that this can be difficult as he has temper tantrums and is easily provoked. She went on to say that he gets more agitated in the evenings and can lash out. He goes to bed at about 10 p.m. but can still be awake at 2-3 a.m. The appellant said that they had removed a television from his bedroom as a precaution when he began throwing things out the window.
The appellant spoke about her son’s depression and said that he also experiences frustration. He had attended counselling for three sessions but then refused to go back. She advised that the Gardaí had been called to the house on a number of occasions, the last being three weeks earlier, because of her son’s aggression within the household. In terms of his epilepsy, he attends Beaumont Hospital every six months. The appellant said that he takes ‘petit mal’ seizures every two to three days; he drools, gets headaches and generally has to go to bed until the episode passes. Previously, he had suffered from ‘grand mal’ seizures, but these had been controlled since he was hospitalised with one during 2011. He also attends the Child and Adolescent Mental Health Services every two to three months, and is under the guidance of the child psychologist there. In addition, he attends his GP every two months or so. The GP talks to him, checks his medication and observes him. In conclusion, the appellant submitted a number of letters and reports in respect of her son’s condition.
Comments/Conclusions: In determining the appeal, the Appeals Officer took into consideration the testimony of appellant at the hearing, and an assessment of the relevant documentation on file and the additional documentary evidence submitted at the oral hearing. In the circumstances set out by the appellant, and supported by the medical evidence to hand, he concluded that the appeal should succeed.
Decision of the Appeals Officer: The appeal is allowed.
2012/02 Carer’s Allowance
Decision under appeal: claim terminated – reason(s) stated:-
Your Carer’s Allowance claim is terminated with effect from [specified date] on grounds that you are no longer proving full-time care and attention for a relevant person.
Background: The appellant had been in receipt of Carer’s Allowance in respect of his father, who was in his late sixties, and had been diagnosed with alcohol dependency, diabetes and depression. Following a report to the Department of Social Protection from the local Gardaí, the claim was reviewed and subsequently terminated. In his appeal submission, the appellant contended that he provided full-time care for his father. He outlined the nature of that care, including the supervision of medication and being available around the clock. He stated that his father had fallen two months earlier and had broken his hip and arm. He submitted that his father was totally reliant on him.
At oral hearing: the Deciding Officer attended at the request of the Appeals Officer, as did the Garda who was involved in the case. The Deciding Officer confirmed that he had relied upon a Garda report made to the Department of Social Protection, in which it was stated that the appellant appeared not to be carrying out his caring duties and suggested that the appellant’s father be placed in alternative care.
The Garda reported that he had visited the appellant’s address and had found the house in filth. He stated that there was evidence of intravenous drug use and that he had observed the appellant to be in a very unhealthy state. He submitted that the appellant was obviously using heroin and was incapable of looking after himself, not to mention his father. He noted that there were other occupants in the house, living upstairs.
In response, the appellant stated that he was now off drugs and had been on a methadone treatment programme for the previous four months. He reported that he was in receipt of Jobseeker’s Allowance, that he was availing of meals on wheels and that the public health nurse visited once a week. He conceded that he had been incapable of providing full-time care for his father while using heroin.
The Garda accepted that the appellant had cleaned himself up and noted that he had put on weight. He expressed concern that the appellant’s erstwhile friends might resume their residence with the appellant, to his detriment and that of his father. However, he acknowledged that the appellant genuinely wanted to care for his father and said he hoped that the situation could be resolved.
In conclusion, the Appeals Officer advised the appellant that he would require an update from the Department of Social Protection (the local Social Welfare Inspector) to the effect that the qualifying conditions for Carer’s Allowance were satisfied before reinstatement could be considered.
Consideration: The Appeals Officer noted receipt of the Social Welfare Inspector’s report. He considered that it confirmed that the Deciding Officer was correct to withdraw payment of Carer’s Allowance on the grounds that the appellant had not been caring for his father at the time: he had been incapable of providing care. He noted that the Garda involved in the case had accepted that the appellant was now addressing his drug habit, and that the Social Welfare Inspector had noted a significant improvement by comparison with his earlier visit to the appellant. He concluded that it had been established that the appellant once again satisfied the conditions for payment of Carer’s Allowance. In the absence of an alternative date, he determined that Carer’s Allowance should be reinstated with effect from [specified date], when the appellant attended the oral hearing and the indications were that he was in a position to care for his father.
The Appeals Officer observed that this case had had an encouraging outcome and that the role of the Gardaí was appreciated. As the Gardaí would not always be in a position to attend oral hearings, he suggested that future reports should be directed through Social Welfare Inspectors who could then present the evidence of their investigations.
Decision of the Appeals Officer: The appeal is allowed from [specified date] only.
Note on reason(s) for decision: In the absence of an alternative date, I am prepared to re-instate the Carer’s Allowance from [specified date], when the appellant attended the oral hearing and the indications were that he was in a position to care for his father.
2015:
2015/11 Carer’s Allowance
Question at issue: Eligibility (Care Required)
Background: The appellant made a claim for Carer’s Allowance in respect of care being provided for her parents, both of whom were in their seventies. Her father had been diagnosed with Ischaemic Heart Disease, Diabetes Mellitus and Chronic Obstructive Pulmonary Disease (COPD), while her mother had a diagnosis of Diabetes Mellitus, Anaemia, Hypertension, High Cholesterol, COPD and Chronic Kidney Disease. The claim was refused on grounds that neither person was held to require full-time care and attention as provided for in the governing legislation.
Oral hearing: The appellant attended the hearing in the company of one of her parents. The Appeals Officer sought to clarify the provisions of the legislation, making reference to the circumstances in which a person may be considered to have a need for full-time care and attention. He outlined the medical evidence which was available.
In outlining her parents’ care needs, the appellant provided some background to her circumstances and an account of a typical day, with specific attention to her caring role. In this she submitted:
o Her parents live close by and she would generally call into them at around 9.30 a.m. By that time, they have usually mobilised, dressed and groomed. They do not need regular assistance with dressing or matters of hygiene, including washing/showering. She assists her mother with showering occasionally and also does physiotherapy to relieve joint discomfort associated with Arthritis.
o The appellant attends to making the breakfast and housekeeping, which includes making beds, cleaning and washing clothes.
o Her parents are reluctant to go out and usually stay indoors, watching television or listening to the radio. She usually accompanies her mother to collect her pension and do a little shopping. Her father takes short walks for exercise.
o The appellant prepares the dinner for 1 p.m. and all the family, including the appellant’s own family, have their dinner in her parents’ house. Her parents usually stay around the house in the afternoon. They have a light tea in the evening.
o The appellant does not usually call on her parents in the evening but is available, if needed. Her parents retire to bed, unassisted.
o The appellant pointed out that she monitors her mother’s bloods daily as she is unable to do it herself. She understands the readings and notifies the relevant service when bloods are high. He mother self-injects her insulin.
o The appellant’s brother brings both parents to their various hospital and G.P. appointments. He also looks in daily on his parents and looks after the fire, fetching turf and so on.
Consideration: The governing legislation, Section 179 of the Social Welfare (Consolidation) Act, 2005 prescribes that for the purposes of Carer’s Allowance a relevant person is regarded as requiring full-time care and attention where –
(a) The person has such a disability that he or she requires from another person –
(i) Continual supervision and frequent assistance throughout the day in
connection with normal bodily functions, or
(ii) Continual supervision in order to avoid danger to himself or herself, and
(b) The nature and extent of his or her disability has been certified in the prescribed
manner by a medical practitioner
The Appeals Officer noted the medical evidence provided in respect of each of the appellant’s parents, and the fact that the family G.P. had suggested that they both required ongoing care and attention. He noted also that no issues of concern were raised in relation to their safety. In relation to the appellant’s father, he noted that his medical condition was considered to have a moderate effect on his mental health, balance/co-ordination, vision and hearing, a mild effect on his continence and a mild to moderate effect on his ability to undertake the activities of daily living.
The Appeals Officer noted that the medical evidence provided in relation to the appellant’s mother indicated that her condition had a moderate effect on her mental health, balance/co-ordination and vision and a mild to moderate effect on her ability to undertake the activities of daily living.
The Appeals Officer noted that the appellant’s evidence had indicated that her parents were able, without support, to mobilise in the morning and attend to their own grooming, including hygiene. She had advised that her parents spend most of their time indoors, being reluctant to going out particularly because of mobility challenges associated with their medical conditions. He noted that for the most part, the appellant does the domestic tasks, including preparing all meals, making beds, cleaning and washing clothes. He noted that the appellant attended to some of her parents’ personal needs, including assisting her mother with bathing, monitoring her blood sugar levels, and providing some physiotherapy. After a careful assessment, he concluded that whilst the evidence established that the appellant’s parents required a level of care, it had not been established that they required full-time care and attention within the meaning of the provisions of social welfare legislation.
Outcome: Appeal disallowed.
2015/12 Carer’s Allowance
Question at issue: Eligibility (Care Provided)
Background: The appellant applied for Carer’s Allowance in respect of care being provided for her grandfather, who resides with his daughter and her family. He is in his late sixties and had been deemed to require full-time care. The appellant lived with her parents and went to a rural area to care for her grandfather on a Monday to Friday basis. This was confirmed in the report of a Social Welfare Inspector. The claim was refused on grounds that the appellant was held not to be providing full-time care and attention as she was not resident with her grandfather on a full-time basis and the care was shared with her aunt who was living with him. In her appeal, the appellant stated that she provides full-time care from Sunday to Friday and that her aunt looks after her grandfather on Saturdays only.
Oral hearing: The appellant advised that she was in receipt of Jobseeker’s Allowance and that she continued to live at her parents’ home. She outlined the background to the current arrangement in which she provides care for her grandfather. The appellant’s aunt continued to live with her parents after she married. She has three children and is in full-time employment. When the appellant’s grandmother became ill some years ago, the appellant went to live with and care for her. She continued to visit her grandfather for a few days a week after her grandmother’s death in 2012, initially just to keep him company. As his health declined, however, she began and has continued to care for him. She referred to her grandfather’s diagnosis of Parkinson’s disease, together with Angina and renal problems.
The appellant stated that she used to stay with her grandfather from Monday to Friday, going home each Saturday and returning on Sunday and, more recently, going home on Sunday and returning around mid-day on Monday. She advised that she travels by train and she submitted receipts for some of the weeks involved (a total of 19 return tickets), stating that she had not kept them all.
The appellant reported that she gets her grandfather up in the morning, helps him to wash and dress and then gets his breakfast. She advised that his Parkinson’s has deteriorated and that he is almost fully incontinent. She administers his medications, collecting them and putting them in order. Her aunt collects his pension and assists him in paying the bills and she has no knowledge or input to this. She advised that she had completed a carer’s training course, which had helped her to cope, especially in relation to protecting her back, which had been taking a lot of strain. She went on to say that she cooks for all the family, does her grandfather’s laundry and, while she does not drive, she accompanies him to all medical appointments, usually getting a lift from a neighbour or another family member, who lives nearby.
Consideration: The Appeals Officer noted that the appellant was fully unemployed and in receipt of Jobseeker’s Allowance, whilst her aunt and family were working. She noted the circumstances in which the current arrangements had arisen and the fact that the appellant had undertaken a carer’s training course, with the intention of caring for her grandfather. She had regard also to the fact that the other household members were absent during the day, returning only in the evening, and that the appellant was providing personal care on a daily basis. She observed that the appellant’s account, given at the oral hearing, was genuine and credible and she noted that the provision of care now extends to part of each weekend. On the basis of the evidence available, including the fact that appellant lives with her grandfather for the majority of the time and is his sole carer, the Appeals Officer was satisfied that she was providing full-time care and attention, despite travelling home at weekends.
Outcome: Appeal allowed
2016:
2016/18 Carer’s Allowance
Question at issue: Eligibility (Provision of Full-Time Care)
Background: The appellant’s claim for Carer’s Allowance was disallowed on grounds that she was not providing full-time care and attention for her husband, who was in his late 70s. He had a diagnosis of severe chronic obstructive pulmonary disease (COPD), cerebral vascular accident (CVA) and coronary artery disease (CAD). The claim had been referred to a Social Welfare Inspector, who interviewed the appellant. At that time, her husband was in hospital. The Inspector reported that while there was a level of personal care being provided, he considered that the care the appellant was providing was not full-time care and attention within the meaning of legislation. This had been accepted by the Deciding Officer in his determination. In her appeal, the appellant asserted that she provides care around the clock.
Oral hearing: The appellant attended the hearing alone, while the Social Welfare Inspector attended at the request of the Appeals Officer. He outlined the details of his report and stated that he was satisfied that it reflected accurately the information which had been provided by the appellant during the course of their meeting. He stated that the appellant had advised that her husband was able, for the most part, to attend to his own personal care needs, independent of her support. He reported that while it was clear that she was providing some support, it appeared that the major part of the time she spent with her husband was in situations where companionship was required rather than care. In response, the appellant contended that her husband requires full-time care and attention and, given the circumstances, that she is his carer. She reported that her husband had experienced three stokes which had a significant impact on his independence and his ability to undertake daily activities without continual support and supervision. She made reference to a significant history of COPD and advised that he was using home oxygen at all times.
The appellant advised that her husband receives Home Help, for one hour a day, two days a week. She said that at such times he is assisted with showering and at all other times she is his only carer. She advised that he is susceptible to losing his balance and falling, that he uses crutches when getting around the house and has a wheelchair for outdoor use. She reported that his sleep can be disturbed significantly and that she is on constant alert for any difficulties arising, particularly any problems with oxygen intake or supply. The Social Welfare Inspector confirmed that the appellant’s husband had been in hospital at the time he interviewed her and conceded that it might have been more helpful if he had observed him at home.
Consideration: The Appeals Officer noted that the question of the appellant’s husband requiring full-time care and attention was not at issue and accepted, based on this fact and having regard to the medical evidence available, that full-time care and attention was required. He noted also that the appellant was the main care provider, albeit her husband had the benefit of two hours a week by way of Home Help. He made reference to the significant difficulties her husband was experiencing as a consequence of the medical conditions diagnosed and noted that the appellant was in constant attendance, to ensure his safety. He concluded that the appellant must be held to be providing full-time care within the meaning of the governing social welfare legislation.
Outcome: Appeal allowed.
2016/19 Carer’s Allowance
Question at issue: Eligibility (Means)
Background: In 2015, the appellant made a claim for Carer’s Allowance in respect of care being provided for her son. This was rejected on grounds that her weekly means, derived from her husband’s income from self- employment as a farmer, were in excess of the statutory limit. In assessing means, the Deciding Officer referred to farm income of the order of €67,000 per annum, recorded as drawings in the accounts for 2013.
The appellant accepted that all other current income and expenditure was broadly in line with 2014 returns, which had formed the basis of the assessment, and she undertook to provide details. She also submitted evidence of an operating loan issued by the bank in 2016, with details of interest applied and repayments being made. She undertook to provide details of milk supply in 2015 and 2016 for comparison purposes and to illustrate why projected income was expected to fall sharply. She provided farm accounts for 2014 which recorded a net profit of some €70,000. (Further documentary evidence, as outlined, was submitted following the oral hearing.)
Consideration: The Appeals Officer noted that the profit from the holding had not been assessed and, instead, personal drawings recorded in the accounts were used. He observed that, in the assessment of means, drawings were not to be assessed without qualification. He noted that a decision maker must be satisfied that the drawings are sustainable on an ongoing basis before being assessed as means and, in addition, that the source of the funds from which the drawings are made must be examined. In this case, he noted that the drawings at issue were made up of farm income, rental income, a Revenue refund, a Value Added Tax (VAT) refund, a dividend and an insurance settlement. He observed that, of these, only the farm income was assessable as means derived from cash income as the rental income had already been considered as capital. By assessing the drawings as income, he suggested that the decision maker was attempting to assess the same source of means as both capital and as income, and he pointed out that this was not appropriate.
Question at issue: Full-Time Care and Attention Required
Grounds for review: It was asserted that the Appeals Officer had provided little if any information with respect to the evidential weight attributed to the evidence in the case and that his reasoning and findings were not compatible with the facts and the law. It was submitted, essentially, that the evidence pointed to a finding that full-time care and attention was required although the Appeals Officer’s decision was to disallow the appeal.
Background: The claim in this case was made in respect of the care of a person, in their late 50s, who had a diagnosis of recurrent psychotic depression. It was reported that she had been attending a psychiatrist since 2009, when she presented with a severe depressive episode with associated psychotic symptoms and severe anxiety. Her psychiatrist provided an account of her responses to treatment and subsequent relapses, as well as an account of what were described as three different powerful medications which she had been prescribed. The appellant made a claim for Carer’s Allowance in 2015 in respect of care he was providing and this was refused as the Deciding Officer considered that the person being cared for was not so invalided or disabled as to require full-time care and attention, in line with the provisions of the relevant legislation. The Appeals Officer held an oral hearing and concluded subsequently that while it had been shown that support was required, it had not been established that there was a need for full-time care and attention as defined in social welfare legislation.
Review: The relevant legislation is Section 179(4) of the Social Welfare Consolidation Act 2005, which provides that a relevant person shall be regarded as requiring full-time care and attention where –
(a) the person has such a disability that he or she requires from another person—
(i) continual supervision and frequent assistance throughout the day in
connection with normal bodily functions, or
(ii) continual supervision in order to avoid danger to himself or herself,
(b) the person has such a disability that he or she is likely to require full-time care and
attention for at least 12 consecutive months, and
(c) the nature and extent of the person’s disability has been certified in the prescribed
manner by a registered medical practitioner.
In the course of my review, I considered all of the evidence which was before the Appeals Officer including the following medical evidence:
• Medical report which formed part of the Carer’s Allowance claim form – completed by a nominated psychiatrist,
• Letter (specified date in 2015), from the same psychiatrist.
The question at issue was whether or not the evidence which was before the Appeals Officer supported the appellant’s contention that the person being cared for required full- time care and attention within the meaning of the governing social welfare legislation. In considering this matter, I examined the question as to whether she might be held to require continual supervision in order to avoid danger to herself, in line with Section 179(4)(a)(ii) of the Social Welfare Consolidation Act 2005. It was accepted that she did not require supervision and assistance with normal bodily functions, as outlined in Section 179(4)(a)(i).
I noted that the evidence which was before the Appeals Officer comprised the medical evidence outlined above, as well as the appellant’s written submission and his testimony at oral hearing. The salient points made in relation to the care requirements of the person in question were as follows:
• She is unable to do any cooking as she forgets she is cooking and lets food burn.
• She falls asleep most days and has fallen on to the floor on a number of occasions.
• She puts items away and becomes distressed thinking they are lost.
• She often thinks other people are talking about her and can get distressed.
• She will not go anywhere unaccompanied.
• She will not answer the phone or open post.
• She does not really manage any tasks independently.
• When the appellant must be away, he arranges for someone to stay in the house as
she would not be safe left on her own.
In the request for a review of the Appeals Officer’s decision, it was submitted that while the medical evidence did not provide definitive proof that the person being cared for required full-time care and attention, it included sufficient information to indicate that the need for full-time care was quite probable. It was asserted that when this was examined together with the appellant’s testimony, it established the likelihood that she could not function safely without continual supervision by the appellant.
Having reviewed the evidence in the case, I took the view that the Appeals Officer did not give sufficient consideration or weight to the question as to the level of supervision required in order that the person being cared for would avoid danger to herself, in the context of her diagnosis and having due regard to the appellant’s account of the difficulties she encountered in relation to the activities of daily living. I considered that the evidence presented supported the contention that she required continual supervision in order to avoid danger to herself in accordance with Section 179(4)(a)(ii) and that the extent of the care which the appellant had outlined was, therefore, consistent with full-time care and attention as defined in the legislation. For that reason I decided to revise the Appeals Officer’s decision and to allow the appeal.
Outcome: Decision revised and appeal allowed.
2016/318/34 Carer’s Allowance
Question at issue Overpayment Assessment
Grounds for Review: A review was sought on the basis that the Appeals Officer had not given sufficient weight to certain facts relating to the appeal, as follows:
• The appellant had relied on an opinion of a social worker engaged with Tusla
regarding her continued entitlement,
• No consideration had been given to the exemption of 13 weeks provided for in the
Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (No.
142 of 2007),
• In relation to the recovery of any amounts due, the appellant was prepared to make
repayments as specified.
Background: The appellant was awarded Carer’s Allowance in September 2009 in respect of care she was providing for her son. In 2015, a Social Welfare Inspector called to her home and it emerged at this meeting that her son was no longer residing there having been admitted to a children’s residential unit at the end of 2013. As a result, a Deciding Officer, relying on Section 302(b) of the Social Welfare Consolidation Act 2005, decided that the appellant was not entitled to Carer’s Allowance with effect from the relevant date. In addition, she was held not to have had an entitlement to a Respite Care Grant paid in 2014. (This was re-named Carer’s Support Grant in 2016.) Following an oral hearing, an Appeals Officer disallowed the appeal.
Review: I examined each of the three grounds separately.
Information provided in error by Tusla: The contention here is essentially that the appellant’s reliance on information provided by Tusla should be equated to the provisions of Article 246(1) of the of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142 of 2007) which provides that:
The amount of an overpayment to be repaid may be reduced or cancelled where the
overpayment arose because of –
(a) 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
(b) an error by the Department,
and the person concerned could not reasonably have been expected to be aware that
a failure or error had occurred.
It cannot be said that the Department acted in error in this case and I can find no grounds on which I can equate the provisions of Article 246(1) to the provision of information provided by Tusla. There is an onus on all recipients of social welfare payments to notify the Department of any change in their circumstances that may impact on their entitlement or continued entitlement. It was open to the appellant to contact the Department if she had any enquiries relating to her payment or her continued entitlement to Carer’s Allowance. The onus was not on Tusla to contact the Department.
From my review of the evidence, I note that some weeks before the appellant’s son was admitted to the residential unit, a Deciding Officer of the Carer’s Allowance section had written to her and advised that a review of her entitlement had been undertaken. This letter outlined in some detail the events which may affect entitlement to Carer’s Allowance, including circumstances where full-time care and attention is no longer being provided or where the carer or the person being cared for is admitted to hospital or to residential care. For the reasons outlined I found no grounds to revise the decision of the Appeals Officer on the basis of this contention.
Consideration of exemption for 13 weeks: It was submitted that the report of the oral hearing indicated that the Appeals Office did not consider if the exemption provided for by Article 136(a) of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142 of 2007) applied in the appellant’s case. Article 136(a) provides that a carer may continue to be regarded as providing full-time care and attention to a relevant person where –
(a) he or she would qualify for payment of an allowance but for the fact that either
the carer or the relevant person is undergoing medical or other treatment of a
temporary nature in an institution for a period of not longer than 13 weeks, or …
I noted that the Appeals Officer’s report of the oral hearing made reference to the appellant’s account of the arrangements put in place for her son, stating that it had been intended initially that he would return home on 3 to 4 days per week. However, his behaviour had become increasingly violent and it was agreed that he would remain in the residential unit from late in 2013. From my review of the evidence, it was clear that the care arrangement was voluntary and that both the appellant and her husband were actively involved in a shared parenting plan and visited their son on a daily basis. However, I am satisfied that the care arrangement, while voluntary, was not temporary in the sense provided for by Article 136(a). I therefore found no grounds to revise the decision of the Appeals Officer on the basis of this contention.
Recovery of Overpayment: As outlined by the Appeals Officer, the recovery of the overpayment does not come within the remit of the Social Welfare Appeals Office and is a matter between the Department of Social Protection and the appellant. For the reasons outlined above, I was satisfied that the Appeals Officer did not err in fact or law and consequently I declined to revise the decision in this case.
Outcome: Request for revision denied.
2017:
2017/28 Carer’s Allowance
Question at issue: Means & overlap of entitlement between schemes
Background: The appellant’s entitlement to Carer’s Allowance was reviewed based on her means from her husband’s insurable employment. She was informed her payment would cease from 14 April 2017 as she was assessed with means of €261.23 per week which exceeded the statutory limit appropriate to her family circumstances. This assessment was based on her husband’s income details for the full year of 2016. She appealed this decision and provided recent pay slips for her husband’s income. The Department reviewed her entitlement on the basis of these new income details for her husband and decided that she should be assessed with means of €181.26 per week. These means were assessed from a backdated date of 5 January 2017.
Consideration: The Appeals Officer reviewed the means calculation and was satisfied that the revised means were correct and calculated in accordance with the legislation. However, he also noted that the appellant was in receipt of Illness Benefit until 31 March 2017 which meant that she was getting half rate Carer’s Allowance. He pointed out that while she was receiving Illness Benefit payment, she had not been entitled to an increase in her Carer’s Allowance in respect of her children. However, when the Illness Benefit ended on 31 March 2017, and she was entitled to Carer’s Allowance at the full rate appropriate to the means assessable, she would also be entitled to an increase for her two dependent children and would therefore be on a higher rate of payment from 1 April 2017. The Appeals Officer also noted that, as with all means tested payments, the appellant was entitled to seek a review of her entitlement at any time if her means decreased. Equally, she was required to inform the Department if her means increased.
Outcome: Appeal partially allowed.
2017/29 Carer’s Allowance
Question at issue: Full-time care requirement and working/studying more than 15 hours per week
Background: The appellant applied for Carer’s Allowance in respect of his father in January 2016 and was refused by the Department on two grounds: that the caree did not meet the medical criteria for the scheme and the appellant was working/studying for more than 15 hours per week outside the home. The medical evidence showed that the caree suffered from multiple significant medical conditions. The GP indicated that the conditions would continue indefinitely, that he was attending a number of specialists on an ongoing basis, that he was severely affected in manual dexterity, standing and walking, and profoundly affected in lifting/carrying and climbing stairs/ladders. The appellant was attending a part- time course in legal studies.
Consideration: In order to meet the medical eligibility criteria for Carer’s Allowance, the person being cared for must have such a disability that he/she requires full time care and attention from another person. The Appeals Officer was satisfied that the nature of the caree’s multiple medical conditions and the severity of these conditions, as certified by the GP, was such that he required continual supervision and frequent assistance throughout the day in connection with normal bodily functions, as well as continual supervision in order to avoid danger to himself. In accordance with Section 179(4) of the Social Welfare Consolidation Act 2005, the Appeals Officer was satisfied that full time care and attention was required.
Section 136 of Social Welfare (Consolidated Claims Payments and Control) Regulations, 2007 (S.I. No. 142 of 2007) states that a carer may, subject to adequate provision being made for the care of the relevant person, engage in employment/self-employment/training for a maximum of 15 hours per week. The evidence presented by the appellant’s place of study confirmed that he was a student and attended tuition on average every 2nd weekend over a 16 hour period for 14 weekends. The appellant clarified that the average number of hours that he attended classes was 8.75 hours per week and that he was able to care for his father as well as continue with his studies. The Appeals Officer was satisfied that the aggregate duration of the appellant’s course of study did not exceed 15 hours per week and therefore the appellant satisfied this condition in respect of his Carer’s Allowance application.
Outcome: Appeal allowed.
2017/30 Carer’s Allowance
Question at issue: Eligibility (Care Required)
Background: The appellant’s claim for Carer’s Allowance was disallowed on the grounds that her partner who was in her early 30s was not so invalided or disabled as to require full time care and attention. Her partner had a diagnosis of fibromyalgia, IBS and severe lower back pain. The GP had assessed her abilities as severely affected in lifting/carrying and moderately affected in mental health/behaviour, reaching, manual dexterity, bending/kneeling/squatting, sitting/rising, standing, climbing stairs/ladders and walking. He stated that she required assistance with basic activities of daily living such as dressing, sitting and standing, and with using the toilet and personal hygiene. She could not do any housework or lift her child.
Oral Hearing: The appellant attended the hearing accompanied by her partner for whom she had applied for Carer’s Allowance. As well as the fibromyalgia, IBS and back pain she had been diagnosed 6 months ago with pubis symphysis and was awaiting a review with a gynaecologist in relation to this. She had been reviewed by an orthopaedic specialist with regard to her back problem but they were prevented from doing anything until the pelvic problem was further investigated. She outlined her medications. She was due to start physiotherapy for her back and pelvis. She required a wheelchair or rollator for mobility when outside the home.
The appellant outlined the care she provided for her partner. She assisted her getting in and out of bed, dressing, bathing, washing hair, and toileting. She also helped her with mobility and assisted her when arising and when sitting. She did all of the housework and cooking. She had to do all physical activities with their child as her partner was not able to do these.
Consideration: The Appeals Officer noted that in order to qualify for Carer’s Allowance, the legislation requires that the person receiving care must be so impacted by an illness/ disability as to require continual supervision and frequent assistance throughout the day in connection with normal bodily functions, or continual supervision in order to avoid danger to himself or herself. She noted the medical evidence submitted which outlined the extent of the appellant’s partner’s symptoms which were on-going and severe and were markedly limiting in terms of basic activities of daily living. She also noted the appellant’s testimony provided at oral hearing as to the nature of the care that she provides on a daily basis. The Appeals Officer concluded that the appellant’s partner required full-time care and attention and that the need for such care was likely to last for at least 12 months.
Outcome: Appeal allowed.
2017/31 Carer’s Allowance
Question at issue: Eligibility (Full-Time Care)
Background: The appellant’s claim for Carer’s Allowance was disallowed on the grounds that she was not providing full-time care and attention to the caree. She did not reside with the caree but called to his home every day. The caree was 73 years of age and had a diagnosis of emphysema, cognitive impairment, low back pain, heart disease and anxiety. His GP provided a letter of support for the Carer’s Allowance application, listing his medical conditions and noting that the caree was very dependent on the appellant on a daily basis.
Oral hearing: The appellant explained that she called to the caree’s home every morning to physically help him out of bed. She explained that he would not get up or take his medications if she was not there. She would bring him to the bathroom, wash him, assist him to dress, and give him his medications in the morning, afternoon and night-time. She explained that, if left alone, he would not take his medications. She encouraged him to get out of the house and brought him for a walk each day. She helped him to undress again at night-time, into bed and then returned to her own home. He would stay in bed until she returned the following day. She brought him to all medical appointments, and helped to calm him when he was feeling anxious or having a panic attack.
Consideration: The Appeals Officer noted that the available medical evidence supported the appellant’s contention that, as a result of restrictions in the caree’s abilities, he required assistance with washing, dressing and mobilising. He also noted that the caree had poor memory and that, despite strong medical recommendations that he was at high risk of stroke and should take warfarin to thin his bloods, he refused to do so. This evidence supported the appellant’s contention that, if she did not administer his medications to him at the appropriate times he would not take them and would be a danger to himself. The Appeals Officer was satisfied that the caree required full-time care and attention as legislatively prescribed, and so the remaining question to be answered was whether this care was being provided. The appellant’s evidence was that she called to the caree’s home every day, seven days per week at about 12 noon and remained with him to provide this care on a continuous basis from mid-day until he went to bed at night. The Appeals Officer decided that this evidence established the appellant provides full-time care and attention, as legislatively prescribed.
Outcome: Appeal allowed.
2017/318/63 Carer’s Allowance
Question at issue: Provision of Full-Time Care
Grounds for review: The appellant requested a review of an Appeals Officer’s decision on the grounds that the Appeals Officer erred in fact and/or law in concluding that the care the appellant was providing to another person could not be regarded as full-time care and attention within the meaning of social welfare legislation.
Background: The appellant applied for Carer’s Allowance, but this was rejected by the Department, including on review, on the grounds that he was not providing full-time care and attention. Following an oral hearing, the appeal was also disallowed on the same grounds.
Review: The relevant legislation in this case is Chapter 8 of Part 3 of the Social Welfare Consolidation Act 2005 and Chapter 4 of Part 3 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142 of 2007).
The key legislative provisions in this case are:
Section 179(1) of the Act of 2005, which provides for a definition of “carer” as follows:
““carer” means—
a. person who resides with and provides full-time care and attention to a relevant person, or
b. person who, subject to the conditions and in the circumstances that may be prescribed, does not
reside with but who provides full-time care and attention to a relevant person.” and
Section 179(4) of the Act of 2005, which provides as follows:
“(4) For the purposes of the definition of ‘relevant person’ in this Chapter, a person shall not be
regarded as requiring full-time care and attention unless the person has such a disability that he or
she—
a. requires from another person—
i. continual supervision and frequent assistance throughout the day in connection with normal
bodily functions, or
ii. continual supervision in order to avoid danger to himself or herself, and
b. is likely to require such full-time care and attention for at least 12 consecutive months.”
Article 57(1)-(3) of S.I. No.142 of 2007 also provides that where it is shown to the satisfaction of a Deciding Officer or an Appeals Officer that adequate provision has been made for the care of the relevant person, a carer may engage in employment where the aggregate duration of the activities outside the home shall not exceed 15 hours per week and the earnings derived from employment outside the home shall not exceed €332.50 per week.
The issue before the Appeals Officer was to determine if the appellant was providing full time care and attention within the meaning of the legislation. In reviewing the Appeals Officer’s decision I didn’t concern myself with a large number of written comments submitted by the appellant in relation to the Appeals Officer’s report and instead focussed on the evidence relating to the core issue that was before the Appeals Officer.
I reached a number of conclusions in this review. Firstly, I concluded that the inclusion of certain, arguably extraneous, information by the Appeals Officer did not of itself render the decision erroneous by reason of a mistake of fact or law. It was simply an attempt by the Appeals Officer to grapple with detailed comments made and information provided by the appellant. Secondly, I found no evidence that the Appeals Officer had drawn certain inferences that the appellant had alleged were tainted with sexism in the context of male carers. Thirdly, I agreed with the appellant’s contention that there is no requirement that a carer must or should know what social welfare payments a caree is receiving.
Of more central relevance, however, was my finding that the Appeals Officer had correctly identified the relevance of the fact that there were a number of parties providing care in this case. That several people were providing care was relevant to the question of whether full time care and attention was being provided specifically by the appellant. That is not to say that other family members are not permitted to help with the caring role, but I found that the Appeals Officer was correct to identify how much care the appellant was providing within that context in order to assess whether it constituted full-time care and attention.
In conclusion, I found that the contentions advanced by the appellant did not identify any error of fact or law which rendered the decision of the Appeals Officer erroneous.
Outcome: Decision not revised.
2017/318/64 Carer’s Allowance
Question at issue: Full-Time Care Requirement
Grounds for review: It was submitted that an Appeals Officer erred both in law and in fact in his consideration of an appeal in relation to whether full-time care and attention was required by a person who was already in receipt of Disability Allowance. In summary, it was contended that the Appeals Officer failed to fully assess the application in a manner compatible with natural and constitutional justice, fair procedures and the relevant Departmental guidelines; that the Appeals Officer overlooked or afforded insufficient weight to significant medical evidence, including evidence of mental ill health; and that the Appeals Officer appeared to discriminate against mental health disabilities in favour of physical disabilities.
Background: The appellant submitted a claim for Carer’s Allowance in respect of the care of her husband but this was rejected, including on review, by the Department on the basis that the person being cared for did not meet the care requirements as set out in Section 179(4) of the Social Welfare Consolidation Act 2005. That decision was appealed and was again rejected, including on review, by an Appeals Officer.
Review: The relevant legislation in this case is Chapter 8 of Part 3 of the Social Welfare Consolidation Act 2005 and Chapter 4 of Part 3 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142 of 2007).
The key legislative provisions in this case were:
Section 179(1) of the Act of 2005, which provides for a definition of “carer” as follows:
““carer” means—
a. person who resides with and provides full-time care and attention to a relevant person, or
b. person who, subject to the conditions and in the circumstances that may be prescribed, does not
reside with but who provides full-time care and attention to a relevant person.”
And section 179(4) of the Act of 2005, which provides as follows:
“(4) For the purposes of the definition of ‘relevant person’ in this Chapter, a person shall not be
regarded as requiring full-time care and attention unless the person has such a disability that he or
she—
a. requires from another person—
i. continual supervision and frequent assistance throughout the day in connection with normal
bodily functions, or
ii. continual supervision in order to avoid danger to himself or herself, and
b. is likely to require such full-time care and attention for at least 12 consecutive months.”
There are therefore, two main requirements to be met in order to be entitled to Carer’s Allowance: that the carer must be providing full-time care and the caree must require that full-time care. It was clear from the Deciding Officer’s decision that the claim was disallowed on the basis that it was considered that the care required did not meet the statutory requirements, but the question of the care being provided was not at issue. While the question of the care provided is an important element to be considered, I did not agree with the appellant’s contention that the primary focus of the appeal should have been on the care provided by her.
With regard to the legislative requirements, I noted that the Appeals Officer had incorrectly paraphrased the applicable legislation in that he set out that the legislation in relation to the care required must be “on a continuous and continual basis for period of at least 12 months”. This is incorrect as the legislation does not specify that the care required must be continuous (as in all of the time), but rather that the caree requires from another person:
continual supervision (as in frequently or on a regular basis) and frequent assistance throughout the day in connection with normal bodily functions, OR continual supervision in order to avoid danger to himself or herself.
This error appeared to have been central to the Appeals Officer’s overall consideration of the appeal and in this respect I found that the Appeals Officer misdirected himself as to the level of care required as set out in the governing legislation.
In the course of my review I also reviewed all of the evidence which was before the Appeals Officer, including the medical evidence which indicated the caree was severely affected in relation to his mental health (there was a diagnosis of depression) and in relation to several aspect of his physical mobility and well-being (there was a diagnosis of epilepsy and ongoing repercussions from a past spinal fracture).
The Department’s guidelines on Carer’s Allowance, which are provided to facilitate medical assessors in determining eligibility for Carer’s Allowance, were referred to in the grounds for review wherein ‘Mental Health and Suicidal Intent’ is listed as a condition for which Carer’s Allowance would automatically be granted. The guidelines specify that the condition must be recent and medically confirmed.
Having reviewed the evidence, I formed the view that the Appeals Officer had factually erred in his account of the caree’s medical history and had overlooked significant details relating to those medical conditions and resulting care needs. I found that the Appeals Officer did not have due regard to the medical evidence relating to the appellant’s mental health in that he had incorrectly noted that the caree had not been attending psychiatry services when the evidence on file showed that he was attending a Consultant Psychiatrist. For that reason alone, I was satisfied that the Appeals Officer had erred and the decision should be revised.
It appeared to me that the Appeals Officer had also discounted significant medical and oral evidence in favour of his own observations during the limited period of time available for the oral hearing and that the medical evidence indicated that the caree required continual supervision in order to avoid danger to himself, in line with Section 179(4)(a)(ii) of the Social Welfare Consolidation Act 2005.
I also concluded that in incorrectly paraphrasing the governing legislation, the Appeals Officer misdirected himself and applied an incorrect legal standard.
Outcome: Decision revised and appeal allowed.
2018
2018/25 Carer’s Allowance
Question at issue: Eligibility (full time care provided)
Background: The appellant’s claim was disallowed on the grounds that he was not providing full time care and attention to the caree, as set out in the governing legislation. The information provided on the Carer’s Allowance application form was that the caree was residing in a property adjacent to the appellant. The appellant stated that he provided care to the caree 4.5 hours per day, 7 days per week. He stated that there was a communications link between the residences. The appellant outlined that the daily duties he performed for the caree included administrating medicine, shopping, taking the caree to hospital and GP appointments, and looking after her house. In his appeal, the appellant stated that although he did not provide full time care, his application was based on the hours for which he provided care. He requested a part payment of a Carer’s Allowance.
Consideration: The Appeals Officer considered all of the information provided by the appellant, with his application and on appeal. The legislation governing Carer’s Allowance is specific in that a person acting as a carer must be providing full time care, as set out in Section 179 (1)(b) of the Social Welfare Consolidation Act 2005. There is no provision in the legislation for a payment to be made in respect of part time care, as was set out in the appellant’s appeal. Noting the level of care provided by the appellant as stated on the application form, and his statement on appeal the appellant recognised that he was not providing full time care to the caree, the Appeals Officer concluded that the appellant did not meet the definition of “carer” as set out in the governing legislation.
Outcome: Appeal disallowed.
2018/26 Carer’s Allowance
Question at issue: Eligibility (full time care provided)
Background: The appellant applied for Carer’s Allowance in respect of the care provided to his father. The appellant’s claim was disallowed by the Department on the basis that he was not providing full time care and attention. A review under Section 317 of the Social Welfare Consolidation Act 2005 by way of oral hearing was recommended following further evidence being submitted by the appellant. Section 317 provides that an Appeals Officer may at any time revise any decision of an Appeals Officer, where it appears to the Appeals Officer that the decision was erroneous in light of new evidence or new facts brought to his or her notice since the date on which it was given.
Oral Hearing: The appellant stated when he made his application he provided care for 4 hours per day for 6 or 7 days per week. His father was admitted to hospital in January 2018 for approximately two weeks and was waiting for two surgical procedures. The appellant outlined that his father’s health had deteriorated since his hospital admission and he had lost two stone in weight. All his meals needed to be supervised. The appellant had to provide personal care to his father such as helping him out of bed, dressing, washing and toileting.
His father needed help with mobility and medication due to failing sight. The appellant also continued to bring his father to appointments and anywhere he needed to go. The appellant outlined that his hours of caring had increased since his father’s hospitalisation and he went over to his house at 8.30 a.m. most days and spent the whole day there. Other family members stayed with his father if the appellant needed to go anywhere. The appellant outlined that his mother had her own health issues and was unable to physically look after his father.
Consideration: Having examined all the evidence, including that adduced at oral hearing, the Appeals Officer concluded that while the appellant was providing care and assistance to his father at the time of his application, the amount of care he was providing at that time could not be considered to be full time care and attention as required under the legislation.
However, taking account of his evidence at oral hearing and the fact that his father’s health had deteriorated necessitating more personal care since his discharge from hospital, the Appeals Officer concluded that from the date his father was discharged from hospital, the appellant could be regarded as providing full-time care and attention within the meaning of the social welfare legislation from that date.
Outcome: Appeal partially allowed.
2018/27 Carer’s Allowance
Question at issue: Eligibility (medical – care required)
Background: The appellant’s application for Carer’s Allowance in respect of the care provided to his wife was disallowed by the Department on the grounds that full time care and attention was not required by the person being cared for. The appellant’s wife, in her early 50s, had a diagnosis of arthritis in her hands, shoulders and knees, spondylitis of the spine and gastritis. She was in receipt of Disability Allowance. The medical evidence consisted of the medical report completed by her GP. The appellant stated on the application form that her husband provided full time care 7 days a week. No detail was given in relation to daily duties. In appealing the decision, the appellant expressed his dissatisfaction with the disallowance and stated that his wife needed help.
Consideration: The question under appeal was whether the appellant’s wife required full time care and attention as defined in the legislation. The Appeals Officer noted the medical report completed by the caree’s GP which indicated diagnoses of arthritis in her hands, shoulders and knees, spondylitis of the spine and gastritis. The caree was awaiting a rheumatology appointment, was on medication and was getting hydrotherapy. The GP indicated that the caree had restricted movement due to pain in wrists, shoulders and knees. On the ability/disability profile, the GP had indicated that the caree was ‘moderately’ affected. The appellant noted that his wife got dizzy spells and her knees could go from underneath her. Though it had not yet happened, he was concerned about her falling and felt she needed to be supervised at all times.
Having considered the evidence including that adduced at oral hearing, the Appeals Officer concluded that while it was clear that the appellant’s wife had a number of medical conditions that had an impact on her daily functioning and that necessitated some assistance with daily activities, the Appeals Officer did not consider that the level required constituted either continual supervision and frequent assistance throughout the day in connection with normal bodily functions, or continual supervision in order to avoid danger to herself, as required in the governing legislation.
Outcome: Appeal disallowed.
2018/28 Carer’s Allowance
Question at issue: Eligibility (medical – care required)
Background: The appellant’s application for Carer’s Allowance in respect of the care provided to her mother was disallowed by the Department on the grounds that full time care and attention was not required by the person being cared for. The medical evidence showed that the caree had severe asthma, COPD and a history of hypertension and diverticulitis. On the disability/ability profile the GP indicated that the caree was severely affected in 5 areas: lifting/carrying, bending/kneeling/squatting, sitting/rising, climbing stairs, walking and the remaining 11 areas were normal. The GP indicated that the condition was likely to continue indefinitely. Subsequent to the Department’s decision, additional medical evidence was submitted from a consultant respiratory physician to the effect that the caree had end stage lung disease.
Oral Hearing: At the oral hearing the appellant outlined that her mother’s condition had deteriorated dramatically, that her medication was no longer effective and that surgery was not an option as she was too frail. The appellant outlined the daily care she provided including assistance with dressing, toileting, showering, cooking, cleaning/housework, administration of medication, transport to appointments. She said that she was the youngest of a large family and other family members were not in a position to care for their mother. She said that she would have liked to work part-time for the permitted 15 hours per week but could not countenance that as she was caring for both her son and her mother. The appellant stated that she would care for her mother even if her appeal were not successful.
Consideration: To qualify for Carer’s Allowance the caree must be so disabled that they require from another person continual supervision and frequent assistance throughout the day in connection with normal bodily functions, or continual supervision in order to avoid danger to themselves. The caree must be likely to require full-time care and attention for at least 12 consecutive months. The Appeals Officer noted the medical evidence submitted and the appellant’s oral evidence, in particular, the evidence that the caree needed ongoing assistance with the activities of daily living. The Appeals Officer concluded that it was shown that the caree met the medical criteria for the award of Carer’s Allowance.
Outcome: Appeal allowed.
2018/29 Carer’s Allowance
Question at issue: Eligibility (provision of full-time care)
Background: The appellant applied for Carer’s Allowance in respect of the care provided to his grandson. The application was refused by the Department on two grounds: (1) that there was no system of communication between the appellant’s household and the caree’s household and (2) that the appellant was not providing full-time care and attention to his grandson as the child was already receiving full-time care and attention within his own home from his mother.
Consideration: In relation to there being no system of communication between the appellant’s household and the caree’s household, the Appeals Officer found that this did not stand up in relation to the unchallenged evidence that the appellant spent most of his time, including most overnights, in his grandson’s home. The question in relation to the existence of a mobile phone was unanswered by the appellant on the application form and the ‘no’ box was ticked by the Social Welfare Inspector in relation to whether there was a panic button or other form of direct communication between the two households. The Appeals Officer found that this ground for refusal was weak in the overall context of an appellant who was mostly physically present with the child.
In relation to the appellant not providing full-time care and attention, the medical evidence before the Appeals Officer was clear that the caree had very complex care needs requiring round-the-clock interventions. Special training in how to care for the child was given to the appellant and his daughter (as the two principal carers) as attested to by Crumlin Children’s Hospital. The evidence on file provided by the appellant and his daughter and the medics who were personally known to them was that the child required and received from his grandfather, an extraordinary amount of care and attention, well in excess of the Department’s 35 hours per week guidelines as to what constituted ‘full-time care’. The Appeals Officer was of the view that if it was considered that a full week consisted of 168 hours and the child needed care for all of them, the caree’s mother could not possibly do that, or even half of that, alone, in the context of having two other young children and, at the time of application, expecting another child. The Appeals Officer concluded that the uncontested evidence was that the appellant provided care to the caree for well in excess of 60 hours per week. The Appeals Officer was of the view that to describe the appellant as being in a ‘secondary’ caring role was an unfair representation of the care arrangements. The Appeals Officer outlined that the term ‘full-time care and attention’ could mean radically different things in different contexts and in the context of this child it meant multiples of the Department’s 35 hours per week guideline. The Appeals Officer, based on the evidence presented, formed the view that it would not be humanly possible for the child’s mother to provide full-time care and attention in the context of the child’s complex care needs and the evidence supported a conclusion that the appellant was certainly providing ‘full-time care and attention’ in the context of the legislation and the guidelines.
Outcome: Appeal allowed.
2018/318/65 Carer’s Allowance
Question at issue: Eligibility (Care Required)
Background: The appellant submitted a claim for Carer’s Allowance in respect of the care provided to her husband. The application was refused on the basis that the Deciding Officer and an Appeals Officer on appeal considered that the person being cared for did not meet the care requirements as set out in Section 179(4) of the 2005 Act.
Grounds for review: The primary contention submitted by the appellant was that the Appeals Officer either overlooked, or awarded insufficient weight to a number of significant facts outlined by the appellant in the course of her appeal and that the Appeals Officer failed to give proper consideration to the level of supervision required by the appellant’s husband in order to avoid danger to himself.
Review: The conditions for receipt of Carer’s Allowance are contained in Chapter 8 of Part 3 of the Social Welfare Consolidation Act 2005 and Regulations made thereunder.
Section 179 (1) provides that a “carer” means:
(a) a person who resides with and provides full-time care and attention to a relevant person,
or
(b) a person who, subject to the conditions and in the circumstances that may be prescribed,
does not reside with but who provides full-time care and attention to a relevant person.
“relevant person” means a person (other than a person in receipt of an increase of disablement
pension under section 78 in respect of constant attendance) who has such a disability that he or she
requires full-time care and attention, and who—
(a) has attained the age of 16 years, or
(b) is under the age of 16 years and is a person in respect of whom an allowance is paid for
domiciliary care of children under section 61 of the Health Act 1970;
(2) The Minister may make regulations specifying the circumstances and conditions under which a
person is to be regarded as providing full-time care and attention to a relevant person.”
The circumstances and conditions under which a person is to be regarded as providing full- time care and attention to a relevant person are set out in Chapter 4 of Part 3 of the Social Welfare (Consolidated Claims Payments and Control) Regulations, 2007 (S.I. No. 142 of 2007).
The circumstances in which a person shall be regarded as requiring full-time care and attention are set out in Section 179 (4) of the Social Welfare Consolidation Act 2005 (as amended) which provides that “a relevant person shall be regarded as requiring full-time care and attention where –
“(a) the person has such a disability that he or she requires from another person—
(i) continual supervision and frequent assistance throughout the day in connection with
normal bodily functions, or
(ii) continual supervision in order to avoid danger to himself or herself,
(b) the person has such a disability that he or she is likely to require full-time care and
attention for at least 12 consecutive months, and
(c) the nature and extent of the person’s disability has been certified in the prescribed manner
by a registered medical practitioner.”
There are therefore, two requirements to be met in order to be entitled to Carer’s Allowance: the carer must be providing full-time care and the caree must require care. With regard to these legislative requirements, I noted that the Appeals Officer has correctly set out the applicable legislation.
It was clear from the Deciding Officer’s decision that the appellant’s claim was disallowed on the basis that it was considered that the care required by the caree did not meet the statutory requirements. The question of care being provided was not at issue. While the question of care provided is an important element to be considered, the focus of this appeal was on the care required and not on the care provided by the appellant. In this respect, I noted that many of the points submitted by the appellant related to the care being provided.
The appellant’s submission was to the effect that the Appeals Officer erred in overlooking significant details relating to the care needs of the caree, and, in particular that the Appeals Officer failed to properly consider the caree’s mental health issues and the level of supervision he required as a result of those issues in order to avoid danger to himself.
In the course of my review, I considered the evidence which was before the Appeals Officer which included medical evidence with a particular focus on the appellant’s contention that her husband required full time care and attention within the meaning of the governing social welfare legislation.
In considering this matter, I examined each aspect of the ‘care test’ set out in Section 179(4) of the 2005 Act:
Whether the caree required continual supervision and frequent assistance throughout the day in connection with normal bodily functions
In light of the appellant’s testimony and the medical evidence, it was clear that the appellant assisted her husband to a considerable extent with some of the activities of daily living e.g. preparation of meals, taking his medication, accompanying him to medical appointments etc.
However, in my view, the evidence did not show that the caree required continual supervision and frequent assistance throughout the day in connection with normal bodily functions (such as dressing, going to the toilet, bathing etc.) as required in the governing legislation.
Whether the caree required continual supervision in order to avoid danger to himself The evidence which was before the Appeals Officer regarding this aspect of the legislative care test included the documentary and oral evidence adduced by the appellant. The medical evidence made no specific references to the question of danger, so I did not consider the medical evidence relevant in considering this aspect of the care test. I noted however, that the medical evidence outlined that the caree was taking anti-depressants.
The evidence also showed that the caree had regular falls and on occasion in the past this had resulted in significant injury.
Notwithstanding that my review of the Appeals Officer’s decision, his subsequent review of that decision and having regard to the medical evidence and the direct evidence of the appellant at the oral hearing, I was satisfied that the Appeals Officer gave full consideration to all of the evidence and has not overlooked any of the evidence presented. While it was clear that the appellant was understandably concerned about her husband’s general health issues and their effects on him, on balance, I did not consider that the totality of the evidence presented pointed to a need for continual supervision to be provided to the caree in order to avoid danger to himself.
Outcome: Decision not revised.
2018/318/66 Carer’s Allowance
Question at issue: Eligibility (Care Provided)
Grounds for Review: The appellant’s solicitors requested a review, under Section 318 of the Social Welfare Consolidation Act 2005, of the Appeals Officer decision on the grounds that the Appeals Officer erred in fact and law in concluding that the care which the appellant provided to her uncle could not be regarded as full-time care and attention within the meaning of the social welfare legislation.
It was contended that the Appeals Officer failed to take account of the fact that the appellant was effectively on-call 24 hours a day and it was submitted that the on-call periods must be considered as part of the overall provision of care. It was further contended that there is no legislative basis for the requirement that a carer must be providing 35 hours per week in care. In this respect it was submitted by the appellant’s solicitors that arguably such a requirement would be contrary to law, or at least morally indefensible, as it would create an effective pay rate of €5.97 per hour, which is substantially below the minimum pay rate.
Background: The appellant was awarded Carer’s Allowance in respect of the care she provided to her uncle. Following an investigation by the Department, a Deciding Officer relying on Section 302(b) of the Social Welfare Consolidation Act 2005 determined that the appellant was not entitled to Carer’s Allowance for a two month period as she was not providing full-time care and attention in line with the eligibility criteria for Carer’s Allowance. The effect of this decision was the raising of an overpayment. An Appeals Officer disallowed the appeal on the same grounds as the Deciding Officer.
Review: The conditions for receipt of Carer’s Allowance are contained in Chapter 8 of Part 3 of the Social Welfare Consolidation Act 2005 and Regulations made thereunder.
Section 179 (1) provides that a “carer” means:
“(a) a person who resides with and provides full-time care and attention to a relevant person,
or
(b) a person who, subject to the conditions and in the circumstances that may be prescribed,
does not reside with but who provides full-time care and attention to a relevant person.
“relevant person” means a person (other than a person in receipt of an increase of disablement pension under section 78 in respect of constant attendance) who has such a disability that he or she requires full-time care and attention, and who—
(a) has attained the age of 16 years, or
(b) is under the age of 16 years and is a person in respect of whom an allowance is paid for
domiciliary care of children under section 61 of the Health Act 1970;
(2) The Minister may make regulations specifying the circumstances and conditions under which a person is to be regarded as providing full-time care and attention to a relevant person.”
The circumstances and conditions under which a person is to be regarded as providing full-time care and attention to a relevant person are set out in Chapter 4 of Part 3 of the Social Welfare (Consolidated Claims Payments and Control) Regulations, 2007 (S.I. No. 142
of 2007).
Article 136 provides:
“136. A carer may, for the purposes of Chapter 8 of Part 3 and this Chapter, continue to be regarded
as providing full time care and attention to a relevant person where –
(a) he or she would qualify for payment of an allowance but for the fact that either the carer or the relevant person is undergoing medical or other treatment of a temporary nature in an institution for a period of not longer than 13 weeks,
or
(b) the relevant person is attending –
(i) a non residential course of rehabilitation training provided by an organisation (being an organisation recognised by the Minister for Health and Children for the purposes of the 4.6 Case Studies: Section 318 Reviews135 provision of such training), or
(ii) a non residential place of day care approved by the Minister for Health and Children, or
(c) subject to paragraph (d), where it is shown to the satisfaction of a deciding officer or an appeals officer that adequate provision has been made for the care of the relevant person, a carer may –
(i) engage in employment, or
(ii) engage in self-employment, or
(iii) undertake such training or courses of education as the Minister may from time to time determine.
(d) the aggregate duration of the activities outside the home referred to in sub-paragraphs (i), (ii) and (iii) shall not exceed 15 hours per week.”
My conclusion, on review, was that the legislation as outlined above envisages the actual provision of care and attention and does not make any reference to the taking account of on- call periods. In this respect, I did not consider that the Appeals Officer had erred in law or in fact.
In relation to the contention that there is no legislative basis for the requirement that a carer must be providing 35 hours per week in care, I agreed that it is the case that the legislation does not set out the number of hours of care that constitutes full time care and attention. In the absence of a legal definition, full time care is considered to be 35 hours per week by the Department. I formed the view that it is open to the Department to provide such guidance in order to ensure a consistent approach by all decision makers in their consideration of whether full time care and attention is being provided. The report of the Social Welfare Inspector outlined that the appellant spends approximately 17 hours per week caring for her uncle. The Appeals Officer noted in his report of the oral hearing of the appellant’s appeal, that the evidence adduced was very much in line with what the appellant told the Social Welfare Inspector albeit that at the oral hearing the appellant outlined some additional hours in the afternoons. Notwithstanding that, the number of hours of care provided by the appellant per week fell significantly short of the 35 hours per week considered by the Department to be the required number of hours of care in order to be considered to be providing full time care and attention. I did not consider that the decision of the Appeals Officer was rendered erroneous by his adherence to this guidance.
In relation to the contention that the requirement to be providing care for 35 hours per week is contrary to law or as contended morally indefensible, I outlined that the rates of payment of all social welfare payments are set out in social welfare legislation as passed by the Oireachtas. Social welfare payments provide income support to people meeting certain contingencies such as unemployment, illness or, as in this case, the provision of care and are also subject to scheme specific eligibility conditions. I outlined that social welfare payments are not ‘pay’ in the sense of being subject to employment law legislation and/or national minimum wage legislation and as such I found that this contention was misplaced.
Outcome: Decision not revised.
2019:
2019/27 Carer’s Allowance
Question at issue: Eligibility (care provided)
Background: The appellant’s application for Carer’s Allowance was refused on the basis that she was not providing full-time care and attention as required by the governing legislation. On the application form, the appellant stated that she assisted the caree in bathing and showering, dressing and toileting. The caree also needed assistance with mobility. The appellant completed a full-time care and attention form, issued by the Department, in which she stated that she resided a short distance from the caree. She stated that she provided care to the caree 7 hours per day, 3 days per week, and set out the type of assistance she provided. The caree resided alone. In her appeal, the appellant provided additional medical information and a schedule of care which she provided for the caree, in which she stated that she had increased the hours during which she provided care.
Oral Hearing: At the oral appeal hearing the appellant stated that the caree’s medical condition had worsened and she was now prone to falls. The appellant stated that she increased the number of hours that she provided care, since the original decision was made, to 5 hours on three days and 9 hours on another three days. Further letters were provided relating to the caree’s medical condition.
Consideration: The Appeals Officer noted the level of care which the appellant stated that she was providing prior to the Deciding Officer’s decision being made on her application. He also noted that the level of care, which she submitted with her appeal, commenced some months after that decision had been made, as confirmed by the appellant at the oral hearing.
The Appeals Officer was restricted to taking account of evidence which existed at, or prior to, the date of the application. As the caree’s circumstances had changed since the date of the original decision, and the level of care provided as set out in the appeal was based on those changed circumstances, the Appeals Officer was restricted to assessing the evidence on the basis of the level of care that was being provided at the date of claim.
The Appeals Officer concluded that at the date of claim the appellant was not providing full- time care and attention to the caree as required by the governing legislation. The appellant was advised that it was open to her to re-apply for Carer’s Allowance and have her current eligibility assessed on the basis of any change in circumstances.
Outcome: Appeal disallowed
2019/28 Carer’s Allowance
Question at issue: Eligibility (care required and care provided)
Background: The appellant applied for Carer’s Allowance and was refused on the basis that she was not providing full-time care and attention to the caree and that the caree was not in need of full-time care and attention as required by the governing legislation.
The appellant stated on the application form that she provided care to the caree 13 hours per day, 7 days per week and she outlined the daily duties that she performed for the caree. The appellant stated that she was working up to 15 hours per week and planned to remain working for up to 15 hours per week. The appellant’s employer completed a form confirming the number of hours that the appellant worked each week for a set period. The employer stated that she worked not less than 24 hours for each week during the period in question.
In her appeal the appellant stated that she had to work full-time in order to pay off her mortgage. She stated that if she was unsuccessful in her application she would reduce her working hours.
The medical report in respect of the caree, completed by his GP, stated that he had severe depression for a number of years. He had a medical history of severe and chronic depression, hypertension and mild coronary artery disease. He had multiple admissions to hospital as a result of his medical conditions and had attended specialists and was prescribed multiple medications. The manner in which his medical condition affected his ability to perform certain activities was stated to be severe to profound in the case of mental health/behaviour and normal in the case of all other listed activities. In her appeal, the appellant stated that the caree had been an in-patient in two hospitals on several occasions. She stated that on his last visit he was deemed not to be fit to live on his own and she elaborated further on the care requirements of the caree.
Consideration: The questions to be considered by the Appeals Officer were whether the caree was in need of full-time care and if the appellant was providing full-time care as set out in the governing legislation.
The Appeals Officer noted the caree’s medical condition, the treatment that he was receiving and the degree to which it affected his activities of daily living, as certified by his GP. The Appeals Officer also noted the description of his medical condition and his care needs, as set out by the appellant in her appeal. On the basis of the information available to him the Appeals Officer determined that the caree was in need of full-time care and attention within the meaning of the governing legislation.
The Appeals Officer noted the documentation provided by the appellant’s employer stating that she continually worked more than 15 hours per week for the period from July 2018 to March 2019. The relevant regulations provide that a person who is working outside the home for more than 15 hours per week cannot be considered to be providing full-time care to a caree. On the basis of the information available to the Appeals Officer, he determined that the appellant was working more hours outside the home than those permitted by the regulations and that the appellant could not be considered to be providing full-time care. The appellant was advised that should her circumstances change it was open for her to re- apply for a Carer’s Allowance and have her eligibility assessed on the basis of any change in her circumstances.
Outcome: Appeal disallowed
2019/29 Carer’s Allowance
Question at issue: Eligibility (care required)
Background: The appellant’s application for Carer’s Allowance in respect of the care of his wife was disallowed by the Department on the grounds that it had not been established that the caree required full-time care and attention. The appellant’s wife, who was in her late 30’s, had diagnoses of fibromyalgia, chronic fatigue, chronic back pain and depression. She was in receipt of Disability Allowance. The appellant indicated on his application form that the daily duties he carried out for his wife included: household chores, looking after their child, school runs, grocery shopping, cooking, laundry, and caring for his wife’s daily needs.
Oral hearing: At the oral hearing, the appellant provided a detailed account of his wife’s medical conditions and how they affected her daily functioning. The appellant explained how his wife needed assistance in getting out of bed, going up and down stairs, getting in and out of the car, and putting on socks. He described how she could not manage ordinary household chores or to look after their two young children without assistance.
He stated that she managed her own medication, and used the toilet, bathed/showered and dressed herself, apart from putting on her socks, independently. The appellant stated that he was not employed himself and had never been employed. His wife had worked full-time prior to becoming ill.
Consideration: The Appeals Officer noted that from the detailed account provided by the appellant in his written evidence and at oral hearing, it was evident that he took responsibility for all household tasks. It was noted that the appellant looked after the couple’s two children as well as providing practical assistance to his wife with whatever she needed in addition to giving her emotional support.
Full-time care and attention is defined in Section 179 (4) of the 2005 Act as “continual supervision and frequent assistance throughout the day in connection with normal bodily functions”, or “continual supervision in order to avoid danger to himself or herself”. While the Appeals Officer accepted that the appellant’s wife required assistance and was restricted in many of her otherwise normal daily activities, she was not satisfied that it reached the level where it could be considered that she required full-time care and attention as defined in the governing legislation.
Outcome: Appeal disallowed
2019/30 Carer’s Allowance
Question at issue: Eligibility (care required)
Background: The appellant applied for Carer’s Allowance in May 2018 in respect of the care she provided to her husband. The application was disallowed on the grounds that the caree was not in need of full-time care and attention as prescribed in the governing legislation. The caree was in his early 60s and was diagnosed with Ischaemic Heart Disease (IHD) with recent coronary artery bypass surgery, Chronic Obstructive Pulmonary Disease (COPD) and peripheral vascular disease for which he was awaiting surgery. He was deemed to be severely affected in terms of his manual dexterity, ability to reach, to lift/carry, to bend/ kneel/squat to sit/rise, to stand, to climb stairs and to walk. The appellant explained that her husband had been advised that he was facing more cardiac surgery. She stated that due to COPD, he could not go anywhere without assistance. She stated that he would become very faint and lethargic which left him with a very poor quality of life and she stated that his independence was gone. She explained that her husband needed her assistance on a daily basis and at night time, it could be difficult for him given that he could wake up feeling breathless.
In support of her appeal, the appellant submitted additional medical evidence which included report from her husband’s doctor. It stated that the caree had a quadruple bypass in April 2018 and he had shortness of breath on minimal exertion and got cramps in both legs when walking. It stated that his shortness of breath may be caused from mild COPD and IHD.
Consideration: The appellant’s husband was suffering from serious illnesses and had quadruple by-pass surgery in April 2018. The appellant’s GP had certified that the caree was severely affected in all aspects of his agility and mobility.
It was noted that the caree would require further surgery which was complicated by the fact that he was suffering with COPD. As per her letter of appeal, the appellant had clearly outlined her husband’s ill health.
It was accepted that the caree was likely to recover from his surgery; however, he remained severely affected by his condition and the Appeals Officer took due consideration for the requirement for further surgery as confirmed by the caree’s GP.
Having therefore, considered all of the evidence on file and noting that the caree was severely affected in terms of agility and mobility, the Appeals Officer concluded the evidence confirmed that the caree was severely compromised in terms of his ability to manage basic tasks of daily life without significant care and attention. In such circumstances, the Appeals Officer was satisfied that the caree required full-time care and attention. The evidence also indicated the requirement for supervision given that the caree was severely affected with mobility and suffered with shortness of breath on movement. The evidence also indicated that the caree was likely to require full-time care and attention for at least 12 consecutive months, as provided for in the governing legislation.
Outcome: Appeal allowed.
2019/318/63 Carer’s Allowance
Question at issue: Eligibility (Care Required)
Grounds for review: An advocate acting on behalf of the appellant requested a review of the Appeals Officer’s decision on the basis that the Appeals Officer erred in fact and in law. The question at issue was whether the appellant’s son required care within the meaning of the governing social welfare legislation. Specifically, it was contended that the Appeals Officer failed to:
• fully assess the appellant’s application and subsequent oral hearing in a manner compatible with natural and constitutional justice and fair procedures – in this respect it was asserted that the Appeals Officer did not fully consider the factors given at the oral hearing;
• give appropriate weight to the evidence presented;
• assess the risk factor in relation to the child’s safety; and
• fully recognise the additional care needs carried out by the appellant for her son.
Background: The appellant’s claim for Carer’s Allowance in respect of the care of her son was refused on the basis that the Deciding Officer of the Department considered that the person being cared for did not meet the care requirements as set out in Section 179(4) of the 2005 Act. The subsequent appeal was disallowed and the position remained unchanged following a review conducted by the Appeals Officer under the provisions of Section 317 of the 2005 Act in light of additional evidence provided by the appellant.
Review: The conditions for receipt of Carer’s Allowance are contained in Chapter 8 of Part 3 of the 2005 Act and Regulations made thereunder. In accordance with Section 179 (1) there are two requirements to be met in order to be entitled to Carer’s Allowance: the carer must be providing full-time care and the caree must require care.
The circumstances and conditions under which a person is to be regarded as providing full- time care and attention to a relevant person are set out in Chapter 4 of Part 3 of the Social Welfare (Consolidated Claims Payments and Control) Regulations, 2007 (S.I. No. 142 of 2007).
The circumstances in which a person shall be regarded as requiring full-time care and attention are set out in Section 179 (4) of the 2005 Act which provides that “a relevant person shall be regarded as requiring full-time care and attention where –
(a) the person has such a disability that he or she requires from another person—
(i) continual supervision and frequent assistance throughout the day in connection with
normal bodily functions, or
(ii) continual supervision in order to avoid danger to himself or herself,
(b) the person has such a disability that he or she is likely to require full-time care and
attention for at least 12 consecutive months, and
(c) the nature and extent of the person’s disability has been certified in the prescribed manner
by a registered medical practitioner.”
In my review of the Appeals Officer’s decision, I found no grounds to support the contention that the Appeals Officer had failed to consider all of the evidence presented by the appellant. The remaining contentions related by and large to the weight the Appeals Officer afforded to the evidence submitted by the appellant and the medical evidence.
I noted that the Appeals Officer formed the view that there was no doubt but that the appellant’s son required a level of care, but it had not been established that he required continual supervision and frequent assistance throughout the day in connection with normal bodily functions or continual supervision in order to avoid danger to himself.
It was also asserted that the Appeals Officer erred in refusing to obtain photographic evidence on the grounds that it was not medical evidence and therefore irrelevant. From my review it was unclear what specific evidence was being referred to but the appellant was afforded an opportunity to submit this evidence which could then be reviewed under the provisions of Section 317 of the 2005 Act.
Insofar as it was contended that the Appeals Officer erred in failing to access the risk factor in relation to the safety of the appellant’s son, it seemed to me that this assertion was related to the contention that if the appellant did not provide constant care and attention her son’s health would deteriorate rapidly and this would ultimately result in him being admitted to ICU. From my review of the file, I was satisfied that this assertion was not supported by the evidence. The Appeals Officer reported that the appellant’s son’s last admission to hospital was some years previous and the medical evidence before the Appeals Officer indicated that the appellant’s son was moderately affected by his conditions in some areas. While the caree needed assistance with diet and sugar monitoring, insulin calculation and administration, all other activities were indicted as normal. The evidence also indicated that the caree could manage many functions of daily living independently but required supervision with bathing and showering. However, the evidence did not, in my opinion, support a conclusion that the caree required ‘continual supervision in order to avoid danger to himself’ as required by Section 179 (4) of the 2005 Act.
The evidence which was before the Appeals Officer regarding this latter aspect of the legislative care test included the documentary and oral evidence adduced at the oral hearing. The medical evidence made no specific references to the question of danger. Having regard to the totality of the evidence that was before the Appeals Officer, I did not consider that the evidence supported a conclusion of a need for continual supervision to be provided to the caree in order to avoid danger to himself.
It was clear from the Deciding Officer’s decision that the appellant’s claim was disallowed on the basis that it was considered that the care required by the appellant’s son did not meet the statutory requirements. The question of care being provided was not at issue. I noted however that many of the points submitted by the appellant’s advocate related to the care provided by the appellant. While the question of care provided is an important element to be considered, the focus of the appeal in this case had to be on the care required by the caree and not on the care provided by the carer.
Outcome: Decision not revised
2020:
2020/22 Carer’s Allowance
Question at issue: Eligibility (care provided)
Background: The appellant’s application for Carer’s Allowance was refused on the grounds that he was not providing full-time care and attention as required by the governing legislation. In his application form, the appellant stated that he resided 10 kilometres from the care recipient’s address, he worked during the week and sometimes at weekends and that he intended to remain at work for up to 15 hours per week. He stated that he provided care seven days a week but did not state how many hours per day he provided this care. He outlined that there was a communication link between the residences. He described the daily duties that he performed for the care recipient as reminding him to eat sometimes and to take medication. He stated that he brought the care recipient to collect his pension and also helped with personal hygiene and housework. He stated that the care recipient resided alone.
In his appeal, the appellant stated that he was providing full-time care to the care recipient who had substantial medical needs. A letter from a public representative was provided which stated that the appellant was of the view that he had been providing quite substantial care to the care recipient. At the time of the appeal the appellant informed the Appeals Officer that he had ceased caring for the care recipient and stated that he had been available and looking for full-time employment.
Consideration: The Appeals Officer noted the information provided by the appellant in his application form. He noted that the appellant stated that he was in employment and that he intended to work less than 15 hours per week. He noted that while the appellant stated that he was providing care to the care recipient seven days a week, he did not state how many hours care he provided each day. The Appeals Officer concluded that while the appellant set out in general terms the duties he had been performing for the care recipient, he had not provided sufficient information in either his application or in his appeal to demonstrate that he was providing care to a level or for a sufficient time period that could be considered to be full-time in nature within the meaning of the governing legislation.
Outcome: Appeal disallowed
2020/23 Carer’s Allowance
Question at issue: Eligibility (care provided)
Background: The appellant’s application for Carer’s Allowance was refused on the grounds that she was not providing full-time care to the care recipient as required by the governing legislation.
The appellant lived three kilometers from the care recipient and stated in her application form that she provided 28 hours care over seven days every week. The medical report showed that the care recipient was diagnosed with anxiety, panic disorder and depression and the conditions were expected to last indefinitely. In the ability/disability profile the care recipient was assessed as severely affected in relation to mental health and had hospital admissions in connection with psychiatric issues. He was on high doses of medication to treat his conditions. The medical evidence also outlined that the care recipient’s mental health had deteriorated dramatically in the previous year and he could not function or look after himself. A social worker was visiting weekly and a new plan was being put in place for homecare.
Consideration: At the oral hearing the appellant provided a detailed account of the care provided to the care recipient. She outlined that on a typical day she went to the care recipient’s house and, in addition to attending to household chores, assisted with getting the care recipient out of bed, washing, dressing and preparing food. The care recipient was prescribed some 20 tablets per day and the appellant dispensed this medication. At lunchtime the appellant brought the care recipient to her home until late evening when he returned to his own home. The appellant also informed that since the date of the Department’s decision the care recipient had been diagnosed with vertigo and prescribed additional medication in connection with that diagnosis.
The Appeals Officer noted that while full-time care is not defined in legislation, the Department considers 35 hours of care per week to be necessary to meet the full-time care standard set out in the governing legislation. The Appeals Officer also noted that the Department was not satisfied that the appellant’s provision of care met this threshold. However, having regard to the evidence adduced at the oral hearing the Appeals Officer was satisfied that the appellant had not included the hours of care provided to the care recipient in her own home. In those circumstances, the Appeals Officer was satisfied that the appellant was providing full-time care and that the level of care provided was well in excess of the guidelines set out by the Department.
Outcome: Appeal allowed
2020/24 Carer’s Allowance
Question at issue: Eligibility (care required)
Background: The appellant’s application for Carer’s Allowance was disallowed on the grounds that it was considered that it had not been demonstrated that the care recipient was in need of full-time care and attention as required by the governing legislation.
The medical report stated that the care recipient, aged in his early 40s, suffered from lower back pain arising from an accident several years previously. He had no history of surgery or recent hospital admissions. At the time of application, he was waiting to see a specialist and was prescribed medication for his condition which was stated to affect his mental health. The medical evidence stated that the care recipient was independent in terms of feeding, continence, and bathing/showering, and dependent in dressing. He was independent in terms of mobility but had some difficulty with walking due to pain. His GP stated that he sustained a deficit in his activities of daily living of at least 25% to 30% since his accident. Letters from a specialist were provided which stated that the care recipient was walking/moving independently. Following the results of an MRI the care recipient was advised to continue with physiotherapy and was encouraged to do
core strengthening exercises and pool-based exercises.
In his appeal, the appellant stated that he did everything for the care recipient and referred to the content of the report completed by the care recipient’s GP.
Consideration: The Appeals Officer noted that the care recipient’s GP indicated that he was independent in most functions with the exception of mental health and dressing. Based on the GP’s report that the care recipient “can need help” with dressing the Appeals Officer concluded that the need for help was occasional and not continuous or frequent. The Appeals Officer also noted that the GP stated that the care recipient had some difficulty with mobility, despite indicating that he was independent in relation to this activity.
Section 179(4) of the 2005 Act provides that a person shall not be regarded as requiring full-time care and attention unless the person has such a disability that requires “continual supervision and frequent assistance throughout the day in connection with normal bodily functions”, or “continual supervision in order to avoid danger to himself or herself”.
Having regard to the totality of the evidence presented in this case, the Appeals Officer concluded that the need for continuous supervision or frequent assistance in connection with normal bodily functions had not been demonstrated or supported by the evidence. Consideration of the need for supervision in order to avoid danger to himself did not arise.
Outcome: Appeal disallowed
2020/25 Carer’s Allowance
Question at issue: Eligibility (care required)
Background: The appellant’s application for Carer’s Allowance was disallowed on the grounds that the care recipient did not require full-time care and attention as required by the governing legislation. The care recipient, in her late 40s, had diagnoses of abdominal wall defect and mental health issues. The care recipient’s GP certified that the care recipient suffered from bipolar disorder and her physical ailments had an adverse effect on her mental health. It was stated that she required someone with her at all times, required assistance getting in and out of the bath and was dependent due to restricted mobility caused by abdominal pain. It was stated that the care recipient was expected to require on-going care for a period of 12 to 24 months.
In support of his claim the appellant submitted an additional GP report where it was certified that the care recipient had a long history of mental health issues and required numerous medications. She was diagnosed with a stage 1B melanoma which had been excised and required on-going treatment. It was stated that she had suffered severely with abdominal wall issues over the last number of years which required surgery. Following complications arising from surgery the care recipient was on a waiting list for combined plastic surgery and gastrointestinal surgeons to coordinate a repair. It was stated that she had an open wound which needed repair and had been in constant pain related to this issue. The GP outlined that the care recipient had been suffering from unusual seizure like episodes and had been diagnosed with a functional neurological disorder. It was stated that the combined issues had a significant debilitating effect on her day to day quality of life.
In appealing the decision, the appellant outlined that the care recipient had a long history of poor health for which she had been heavily medicated for the past number of years. He explained that due to abdominal issues she had been in constant pain and unable to walk or complete basic tasks and required strong doses of morphine. He outlined that arising from the certified neurological condition the care recipient was prone to collapse and therefore he had to be with her at all times.
Consideration: Section 179(4) of the 2005 Act provides that a person shall not be regarded as requiring full-time care and attention unless the person has such a disability that requires “continual supervision and frequent assistance throughout the day in connection with normal bodily functions”, or “continual supervision in order to avoid danger to himself or herself”.
The Appeals Officer noted that the care recipient had been diagnosed with multiple chronic conditions and had significant mobility issues for which she required assistance. Having regard to the care report the Appeals Officer noted that due to mental health issues and other diagnoses the care recipient required someone with her at all times. The Appeals Officer was satisfied that the evidence confirmed that the care recipient required continual supervision and frequent assistance throughout the day and that this requirement was likely to continue for a period in excess of at least one year.
Outcome: Appeal allowed
2020/26 Carer’s Allowance
Question at issue: Eligibility (care required and care provided)
Background: The appellant’s application for Carer’s Allowance in respect of the care of her mother was disallowed on the grounds that full-time care and attention was not required by the person being cared for and that, although the appellant was providing a certain level of care, the time involved was not considered to be full-time.
The care recipient, in her early 70s, had diagnoses of anaemia and chronic obstructive pulmonary disease. She lived across the road from the appellant, with the appellant’s sibling who was in full- time employment. The appellant indicated that she provided four hours of care each weekday and five hours of care each day at the weekend.
In appealing the decision, the appellant stated that she lived one minute from her mother’s house and was available during the day whenever the need arose. She stated that she prepared breakfast as otherwise the care recipient would not eat. She assisted with washing/showering in the morning and helped with changes of clothes which were sometimes wet due to incontinence. She prepared lunch and dinner, arranged GP visits, brought the care recipient to medical appointments, collected prescriptions, supervised the taking of medication, collected her pension, paid household bills, did the shopping and assisted with cleaning. A GP letter was submitted with the appeal which summarised what the appellant had informed the GP of in terms of her mother’s care needs. The GP stated that he would further review the care recipient regarding
these concerns.
Consideration: The Appeals Officer considered the medical evidence which consisted only of the GP medical report and which noted diagnoses of COPD and anaemia. It indicated that the care recipient was on two inhalers and no other medication. The care recipient was noted to have become forgetful and was due to attend for assessment of same. She was also awaiting assessment by a gynaecologist in relation to continence. Mild anxiety was reported. No impairment or care needs were reported in relation to consciousness/seizures, speech/hearing, vision or dressing. The GP noted the appellant prepared meals, but the care recipient was able to feed herself. She needed some assistance to shower. She was independent in her mobility but needed inhalers for any walks. The appellant estimated that she provided approximately 30 hours of care per week.
The Appeals Officer accepted from the evidence that the appellant provided considerable supports to her mother on a daily basis, both in terms of practical household support (cooking, cleaning, shopping, collecting pension) and some support with her mother’s personal care (assistance with showering, changing/dressing and taking medication). However, on the basis of the evidence, the Appeals Officer was not satisfied that it had been established that the extent and nature of the care that was required, and that was being provided by the appellant, was at a level where it could be considered either continual supervision and frequent assistance throughout the day in connection with normal bodily functions, or continual supervision to avoid danger to herself.
Outcome: Appeal disallowed
2020/27 Carer’s Allowance
Question under appeal: Eligibility (means)
Background: The appellant’s claim for Carer’s Allowance was disallowed on the basis that his means, assessed as being over €2,000 per week, were in excess of the statutory limit applicable in his case. The means derived from property, investments and an occupational pension.
In appealing the decision, the appellant submitted that he had no family support and was not receiving any state support to reflect the reality of their situation. He stated that he wanted to care for his wife at home for as long as possible and that the Carer’s Allowance would make a great difference. The appellant acknowledged that his income exceeded the means test limit and he did not contest the assessment of means but stated that he has been advised by many to make the application.
The Appeals Officer was satisfied that the appellant’s means were assessed correctly in accordance with the legislative provisions and that there was no discretion to deviate from these provisions.
Outcome: Appeal disallowed
2020/318/63 Carer’s Allowance
Question at issue: Eligibility (care required)
Grounds for Review: The appellant requested a review of the Appeals Officer’s decision on the basis that he considered that the evidence submitted supported a conclusion that the qualifying conditions for the receipt of Carer’s Allowance were met.
Background: The appellant’s claim for Carer’s Allowance in respect of the care of his wife was refused on the basis that the Deciding Officer considered that the person being cared for did not meet the care requirements set out in Section 179(4) of the 2005 Act. The subsequent appeal was disallowed and the position remained unchanged following a review by the Appeals Officer under the provisions of Section 317 of the 2005 Act in light of additional evidence provided by the appellant. The appellant provided further correspondence stating that his wife’s condition had deteriorated and provided details of modifications being undertaken to the family home in recognition of his wife’s difficulties climbing stairs.
Review: The conditions for receipt of Carer’s Allowance are contained in Chapter 8 of Part 3 of the 2005 Act and Regulations made thereunder. In accordance with Section 179(1) there are two requirements to be met in order to be entitled to Carer’s Allowance: the carer must be providing full-time care and the caree must require full-time care. It was the second of these conditions that was at issue in this appeal.
The circumstances in which a person is to be regarded as requiring full-time care and attention are set out in Section 179 (4) of the 2005 Act which provides that a person shall not be regarded as requiring full-time care and attention unless the person has such a disability that he or she:
(a) requires from another person—
(i) continual supervision and frequent assistance throughout the day in connection with normal bodily functions, or
(ii) continual supervision in order to avoid danger to himself or herself,
(b) the person has such a disability that he or she is likely to require full-time care and attention for at least 12 consecutive months, and
(c) the nature and extent of the person’s disability has been certified in the prescribed manner by a registered medical practitioner.
In the course of my review I considered all of the evidence which was before the Appeals Officer including the medical evidence. In considering this matter I examined each aspect of the ‘care test’ set out in Section 179(4) of the 2005 Act separately.
The first question to be considered was whether the caree required continual supervision and frequent assistance throughout the day in connection with normal bodily functions.
The evidence before the Appeals Officer clearly established that the caree required considerable assistance throughout the day with cooking, cleaning, washing and dressing. It was also clear that the caree was primarily housebound and needed assistance with other household work, shopping and caring for the couple’s children. The Appeals Officer also noted that the caree tried to do some light housework but was only able to sustain this for short periods of time. The caree’s GP outlined that the caree had suffered from low back pain with sciatica for a number of years, which had gradually got worse. The GP outlined that the pain affected the caree’s sleep, she had trouble dressing, was on long-term pain relief and was attending a pain clinic. The GP also stated that he advised the caree regarding her safety in climbing stairs and also getting in/out of a bath as she was at risk of falling.
In light of the appellant’s written and oral testimony and the evidence from the caree’s treating doctor, it was clear that the caree required considerable assistance with all activities of daily living. I concluded that the evidence established that the caree required continual supervision and frequent assistance throughout the day in connection with normal bodily functions as required in the governing legislation and I considered that the Appeals Officer gave disproportionate weight to the evidence that the caree tried to do some light chores.
In light of the above conclusion and while it was not then necessary to examine if the caree met the requirements of Section 179(4)(a)(ii), I also examined this aspect of the care test.
The medical evidence which was before the Appeals Officer regarding this aspect of the legislative care test certified that the caree was at risk of falling when using stairs and also getting in/out of a bath. Evidence was also provided that work was underway to install a stair lift and construct a bedroom and shower downstairs as the caree could no longer use the stairs.
While I formed the view that the evidence may not have supported a conclusion that the caree required continual supervision in order to avoid danger to herself the evidence strongly supported the conclusion that the caree required continual supervision and frequent assistance throughout the day in connection with normal bodily functions.
Outcome: Decision revised
2020/318/64 Carer’s Allowance
Question at issue: Eligibility (care required)
Grounds for Review: The appellant in this case requested a review of the Appeals Officer’s decision on the basis that she considered that the decision was unfair and that the evidence submitted supported a conclusion that the qualifying conditions were met. The appellant also asserted that she and her husband were discriminated against on grounds of ethnic origin.
Background: The appellant’s claim for Carer’s Allowance in respect of the care of her husband was refused on the basis that the Deciding Officer of the Department considered that the person being cared for did not meet the care requirements as set out in Section 179(4) of the 2005 Act. The subsequent appeal was disallowed and the position remained unchanged following two further reviews by the Appeals Officer under the provisions of Section 317 of the 2005 Act in light of further correspondence from the appellant which included additional medical evidence.
Review: The appellant asserted that the Appeals Officer had failed in his duty by not taking account of the caree’s health problems and the evidence provided. It was also asserted that the Appeals Officer failed to take into consideration the caree’s mental health conditions. It was clear the Appeals Officer accepted that the appellant’s husband suffered from a number of medical conditions including mental health conditions and required a level of care that was provided by the appellant. However, the question before the Appeals Officer was whether the evidence supported a conclusion that the caree had a disability that required Continual supervision and frequent assistance throughout the day in connection with normal bodily functions. In this respect the Appeals Officer outlined that the caree’s GP certified that the caree’s incapacities included diaphragmatic hernia, depression, sleep apnea, knee and lower back pain. The GP also certified the caree as being normal in cognition and consciousness /seizures and as being independent in speech, hearing, vision, feeding, bathing/showering, dressing, continence and toileting. The GP also certified that the caree was dependent with regards to mobility and that knee and back pain were having an impact. The GP outlined that the caree’s mental health was affected.
From my review of the decision I was satisfied that the Appeals Officer had considered all of the medical evidence. I was satisfied from my review that the evidence provided by the appellant and the evidence from the caree’s GP and consultant psychiatrist did not support a conclusion that the caree required full-time care and attention within the meaning of Section 179(4) of the 2005 Act.
In addition, I found no evidence or reference in the Appeals Officer’s decision or in his consideration of the appellant’s requests to review his decision that he discriminated against the couple on grounds of ethnic origin.
Outcome: Decision not revised
2021:
2021/36 Carer’s Allowance
Question at issue: Eligibility – care required.
Background: The appellant’s application for Carer’s Allowance was disallowed by the Department on the grounds that the care recipient did not require full-time care and attention as required by the governing legislation.
The care recipient had diagnoses of depression/anxiety, borderline personality disorder with a history of addiction, self-harm, OCD and fractures.
The Department’s Medical Assessor who provided an opinion reported that there were no safety concerns and constant supervision was not required by the care recipient.
The medical report confirmed that the care recipient had impaired mental health with polysubstance addiction and history of overdoses. The medical reports also confirmed that the care recipient had up to 20 admissions to a mental health unit. The care recipient’s doctor confirmed that the care recipient had attended him on 17 occasions in the previous 5 months. The medical evidence also recorded a suicide attempt some years prior to the claim for Carer’s Allowance.
In the appeal submission, the appellant provided additional significant updates from the GP and she elaborated on the supports and care which included looking after his finances, doing shopping, preparation of food, administering medication, ensuring self-care and responding to self-harm ideation.
Consideration: The Appeals Officer noted that the Department’s Medical Assessor did not have the benefit of the additional report from care recipient’s GP.
The Appeals Officer outlined that in accordance with Section 179(4) of the Act, a person shall not be regarded as requiring full-time care and attention unless the person has such a disability that requires continual supervision and frequent assistance throughout the day in connection with normal bodily functions, or continual supervision in order to avoid danger to himself or herself.
The Appeals Officer took account of the hospital admissions, frequent medical support and medication management/supervision. He found that the appellant had made a convincing submission which was corroborated by additional medical evidence and concluded that the evidence confirmed that the care recipient required constant supervision in order to avoid being a danger to himself.
Outcome: Appeal allowed.
2021/37: Carer’s Allowance
Question at issue: Eligibility – care required.
Background: The appellant’s application for Carer’s Allowance was disallowed by the Department on the grounds that the care recipient did not require full-time care and attention as required by the governing legislation.
The care recipient had diagnoses of ischaemic heart disease, moderate COPD and hypercholesterolemia. In the ability/disability profile the care recipient was assessed as normal in relation to cognition, mental health, speech/hearing and consciousness/seizures, and independent/age appropriate in relation to bathing/showering, feeding, dressing, continence/toileting, and mobility. It was outlined that the care recipient wore glasses and had recent cataract surgery. In support of her claim the appellant submitted an additional GP report indicating that the care recipient had weakness and fatigue with breathlessness on minimal effort. She couldn’t do household duties and required assistance with personal tasks. The appellant submitted that the care recipient’s conditions were permanent and progressive and complicated by deafness which was leading to increasing isolation and she needed assistance at home.
In her appeal submission the appellant stated that she looked after her mother from early in the morning until late in the evening. She stated that her mother was in very bad health, had poor hearing, could not walk for more than a few feet and could not talk for more than a few minutes without getting breathless and coughing. The appellant stated that she did everything for her mother including shopping, cleaning, household duties, cooking, lighting fires and bringing her to appointments and that her mother totally depended on her care for any quality of life.
Consideration: The Appeals Officer outlined that Section 179 of the Act provides that a person shall not be regarded as requiring full-time care and attention unless the person has such a disability that requires from another person continual supervision and frequent assistance throughout the day in connection with normal bodily functions or continual supervision in order to avoid danger to himself or herself.
The Appeals Officer concluded that while the medical evidence outlined the care recipient’s conditions, the degree to which it affected her ability in certain areas, it did not indicate the need for assistance with normal bodily functions throughout the day or that the care recipient required continual supervision in order to avoid danger to herself. The Appeals Officer concluded, that while the care recipient required a level of care and support which the appellant provided, it had not been established that she required full-time care and attention within the meaning of the governing legislation.
Outcome: Appeal disallowed
2021/38: Carer’s Allowance
Question at issue: Eligibility – care provided.
Background: The appellant’s application for Carer’s Allowance was disallowed by the Department on the grounds that she was not providing full-time care and attention to the care recipient as required by the governing legislation.
In her application form the appellant stated that she provided a total of 21 hours care per week over 7 days. The appellant described the daily duties that she carried out which included giving the care recipient his medication, preparing breakfast and spending at least 1.5 hours with the care recipient in the mornings. The appellant spent a further 3-4 hours preparing meals, doing housework and helping the care recipient to shower. In her appeal submission, the appellant stated that she forgot to mention in her application that she also went to his home every night for 2 hours to sort his medications and to help him get ready for bed. In addition, she accompanied the care recipient to all his medical appointments. She stated that she may need to reduce her working hours in order to continue to provide the care required.
Oral Hearing: During the oral hearing the appellant provided a more detailed account of the care she provided to the care recipient. She stated that she worked 15 hours per week over three evenings. She confirmed that she went to the care recipient’s home each morning. In the afternoon she went back to his house for a number of hours to do housework if she was not in work. On the three evenings that she worked the appellant called to the care recipient for an hour before going to work. She accompanied him on the train to all his medical appointments.
Consideration: The Appeals Officer outlined that Section 179 of the Act provides that in order to be considered a carer for the purposes of Carer’s Allowance the person must be providing full-time care and attention to a person who requires continual supervision and frequent assistance throughout the day in connection with normal bodily functions, or continual supervision in order to avoid danger to himself or herself.
Article 136(1)(e) of the 2007 Regulations provides that a carer may be regarded as providing full-time care and attention, where the number of hours of care provided is not less than 35 hours in a period of 7 consecutive days, and care is provided on any 5 days, whether consecutive or not, within a period of 7 consecutive days. The Appeals Officer determined that both the hours of care provided and the nature of the care provided fell to be considered.
The Appeals Officer concluded that while the evidence demonstrated that the appellant provided support to the care recipient, the care related mainly to household duties and general assistance rather than personal care aligned with continual supervision and frequent assistance throughout the day in connection with normal bodily functions, or continual supervision in order to avoid danger to the care recipient.
The Appeals Officer concluded that the evidence provided by the appellant did not support a conclusion that she provided care to a level or for a sufficient time period that could be considered to be full-time within the meaning of the governing legislation.
Outcome: Appeal disallowed.
2021/39: Carer’s Allowance
Question at issue: Eligibility – care required and care provided.
Background: The appellant’s application for Carer’s Allowance was disallowed by the Department on the grounds that he was not providing full-time care and attention to the care recipient and that the care recipient did not require full-time care and attention within the meaning of the governing legislation.
The care recipient, in her 60s, was the appellant’s father’s partner and had diagnoses of arthritis, back pain and depression. In the medical report submitted with the application form the care recipient was assessed as having chronic anxiety and low mood and experienced significant pain while walking, shopping or doing
household chores.
The appellant reported that the care recipient had chronic pain and arthritis and required support with cooking, cleaning, household duties, shopping, attending appointments and general assistance due to reduced mobility.
Consideration: The Appeals Officer noted that the medical report was consistent with the appellant’s account that the care recipient had back pain/arthritis and mobility needs. The Appeals Officer acknowledged that the appellant provided practical supports to the care recipient, such as housework and shopping. However, the Appeals Officer concluded that the need for continual supervision and frequent assistance throughout the day in connection with normal bodily functions had not been demonstrated or supported by the evidence. The Appeals Officer also concluded that it had not been demonstrated that the care recipient required continual supervision in order to avoid danger to herself.
The Appeals Officer also noted that the appellant’s evidence was that he provided 28 hours of care and attention per week. In those circumstances the Appeals Officer concluded that as the appellant did not provide a minimum of 35 hours of care per week he could not be considered to be providing full-time care and attention.
Outcome: Appeal disallowed.
2021/40: Carer’s Allowance
Question at issue: Eligibility – care provided.
Background: The appellant’s application for Carer’s Allowance was refused by the Department on the grounds that he was not providing full-time care and attention as required by the governing legislation. In his application form, the appellant stated that he resided next door to the care recipient and provided care for 17 hours per week over 7 days. He described the daily duties that he performed for the care recipient as shopping, doing laundry and other household duties, preparing meals, collecting medication and bringing the care recipient to medical appointments. The appellant also brought the care recipient to and from day care service two mornings per fortnight. The appellant also stated that he provided emotional support and companionship to the care recipient.
In his appeal, the appellant stated the care recipient had complex medical and physical needs, had extremely limited mobility and was in the early stages of memory loss. The care recipient was reported to be independent in terms of personal care.
Consideration: The Appeals Officer outlined that Section 179 of the Act provides that in order to be considered a carer for the purposes of Carer’s Allowance the person must be providing full-time care and attention to a person who requires continual supervision and frequent assistance throughout the day in connection with normal bodily functions, or continual supervision in order to avoid danger to himself or herself.
Article 136(1)(e) of the 2007 Regulations provides that a carer may be regarded as providing full-time care and attention, where the number of hours of care provided is not less than 35 hours in a period of 7 consecutive days, and care is provided on any 5 days, whether consecutive or not, within a period of 7 consecutive days.
The Appeals Officer concluded that while the appellant provided support to the care recipient it had not been established that the appellant provided care to a level or for a sufficient time period that could be considered to be full-time within the meaning of the governing legislation.
Outcome: Appeal disallowed
2021/77 Carer’s Allowance
Question at issue: Carer’s Allowance eligibility – care required
Grounds for Review: The medical evidence in this case was that the care recipient, in his mid-20s, had diagnoses of oppositional defiant disorder, obsessive compulsive disorder and attention deficit disorder. It was submitted that he was vulnerable to suggestion and recently served a term of youth detention in relation to a drugs offence. It was outlined that the evidence presented demonstrated that the care recipient remained vulnerable in his local area. The carer submitted that the care recipient’s behaviour was erratic, and she was concerned that the care recipient was vulnerable to gangs in the area in which he lived and he had become a prisoner in his own home. The carer was concerned as to the level of naivety demonstrated by the care recipient and submitted that the care recipient presented a danger to himself and was easily taken advantage of by others. It was submitted that the carer’s sole purpose was to protect the care recipient against these risks.
Background: The appellant’s claim for Carer’s Allowance, in respect of care which she was providing was disallowed by the Department on the grounds that the care recipient was not in need of full-time care and attention as required by the governing legislation.
The Appeals Officer noted historical medical evidence from the appellant’s previous application but concluded that the evidence was of limited relevance to a current claim.
In considering the question of care required in the context of Section 179(4)(a)(i) of the Act, the Appeals Officer outlined that the medical evidence was to the effect that the care recipient was largely independent in terms of normal bodily functions and that the appellant had not demonstrated that the care recipient required continual supervision and frequent assistance throughout the day in connection with these functions.
In considering the question of care required in the context of Section 179(4)(a)(ii) of the Act, the Appeals Officer noted the content of the GP’s report and referral for counselling but there was no medical evidence that the care recipient was a danger to himself. The Appeals Officer noted the appellant’s evidence adduced at the oral appeal hearing in relation to the care recipient’s activities and behaviour and the associated dangers that they posed to him. However, the Appeals Officer was not satisfied from the information provided that the appellant had demonstrated that the care recipient required continual supervision in order to avoid danger to himself.
In those circumstances the Appeals Officer concluded that the appellant was not a “relevant person ” as defined by Section 179(1) of the Act.
Consideration: In reviewing the Appeals Officer’s decision, I set out the legislation that applied to the claim. It was clear from the Department’s decision that the appellant’s claim was disallowed on the basis that it was considered that the care required by the care recipient did not meet the statutory requirements. I outlined that the question of care being provided, while important, was not at issue and the focus of the appeal must therefore be on the care required by the care recipient and not on the care provided by the appellant.
The evidence that was before the Appeals Officer in relation to whether the care recipient required continual supervision in order to avoid danger to himself was to the effect that the care recipient presented a danger to himself and was easily taken advantage of by others, required protection against risks outside of the home and the appellant protected him against these risks. However, the Appeals Officer was not satisfied from the information provided that it had been demonstrated that this aspect of the legislative care test had been satisfied. In reviewing the Appeals Officer’s decision I found no error of fact or law such that the decision should be revised.
I found that the evidence presented did not contain the degree of detail in relation to the specific risks that the care recipient encountered such that he required continual supervision in order to avoid danger to himself as is envisaged by Section 179(4)(a)(ii) of the Act.
Outcome: Decision not revised.
2022:
2022/27 Carer’s Allowance
Question at Issue: Eligibility – care required
Background: The appellant was disallowed Carers Allowance on the grounds that the care recipient did not require full-time care and attention as required by the governing legislation.
The care recipient, her husband, had been diagnosed with insulin dependent diabetes and ischaemic heart disease. His medical report indicated that the care recipient was independent in terms of his personal care, and assessed as normal in terms of mental health, speech and hearing, vision, feeding, bathing/showering, dressing, continence/toileting, and mobility. He attended a diabetes clinic and had not been referred to a specialist for assessment/investigation.
The appellant has stated that she provides 58 hours of care per week for the care recipient and has been providing care for over two years.
Consideration: The Appeals Officer outlined that in accordance with Section 179(4) of the 2005 Act, a person shall not be regarded as requiring full-time care and attention unless the person has such a disability that requires continual supervision and frequent assistance throughout the day in connection with normal bodily functions, or continual supervision in order to avoid danger to himself or herself.
The care recipient’s medical condition as identified in the medical report, was acknowledged. The Appeals Officer noted that that the care recipient did not require any assistance in connection with normal bodily functions. The Appeals Officer was not satisfied that the medical evidence established that he required continual supervision in order to avoid danger to himself.
Having examined the evidence in this appeal, the Appeals Officer concluded that the care recipient did not meet the definition of ‘relevant person’ as specified in Section 179(4) of the 2005 Act.
Outcome: Appeal disallowed
2022/28 Carer’s Allowance
Question at Issue: Eligibility – care required and care provided
Background: The appellant was disallowed Carer’s Allowance in respect of his father on the grounds that he was not providing full-time care and attention as within the meaning of the governing legislation. Although he was seen as providing a certain level of care, the time involved was not considered to be full time by the Department. The appellant had stated on the application form that he provided 30 hours care per week care to the care recipient.
In his grounds of appeal, the appellant submitted that the decision was unfair because, as it stood, he already cared for his father by helping him with showering, dressing, cleaning, shopping etc He provided a letter from his father’s GP that indicated that his patient was a frail gentleman with a complex medical history.
Consideration: The Appeals Officer determined that both the hours of care being provided and the nature of that care fell to be considered under the governing legislation. Section 179 of the 2005 Act defines the nature of full-time care as providing the care recipient with frequent assistance throughout the day in connection with normal bodily functions and/or continual supervision in order to avoid danger. Article 136(1)(e) of the 2007 Regulations defines the measure of full-time care as being not less than 35 hours in a period of 7 consecutive days, where the care is provided on any 5 days of that 7.
In this particular case the appellant declared on the application form for Carer’s Allowance that he cared for his father for 30 hours per week. Whilst he did not specifically address the number of hours of care that he provided in his appeal correspondence, he did outline the nature of that care. The Appeals Officer noted that this included a very significant level of personal care and supervision. Given the nature of his father’s medical diagnosis and the most recent medical evidence, the Appeals Officer was satisfied that the evidence demonstrated that he was providing frequent assistance throughout the day to his father in connection with normal bodily functions and also continual supervision to avoid danger to him.
Therefore, having considered all the evidence available, the Appeals Officer was satisfied that the appellant was providing full-time care and attention for the purposes of Carer’s Allowance under the governing legislation.
Outcome: Appeal allowed
2022/29 Carer’s Allowance
Question at issue: Eligibility – care required
Background: The appellant, aged 73 applied for a Carer’s Allowance in respect of the provision of care and attention to her friend, aged 79. When completing the medical report the caree’s GP stated that she was normal in terms of cognition, mental health, consciousness/seizures, speech, and hearing – independent in terms of feeding, bathing/showering, dressing, continence/toileting and mobility – and was impaired in terms of her vision, corrected with glasses. The Department was not satisfied that full-time care and attention was required.
Consideration: The Appeals Officer outlined that Section 179 of the 2005 Act provides that a person shall not be regarded as requiring full-time care and attention unless the person has such a disability that requires from another person continual supervision and frequent assistance throughout the day with normal bodily functions or continual supervision to avoid being a danger to themselves. The evidence submitted indicated that the appellant did not need assistance with normal bodily functions or that she was danger to herself. While the GP states that the caree attends Psychotherapy and Counselling – no reports or additional information was submitted as to same. The Appeals Officer was not satisfied that the appellant had demonstrated that her friend required full-time care and attention as detailed in the governing legislation.
Outcome: Appeal disallowed
2022/30 Carers Allowance
Question at Issue: Eligibility – care required
Background: The appellant was disallowed Carer’s Allowance on the grounds that she was not providing full time care and attention as required. The appellant had stated on the application form that she provided care to her father for 19 hours per week.
In her appeal letter, the appellant stated that due to the nature of her father’s care needs, she may need to call to him multiple times throughout the day. She assisted with daily living activities, transport, and supervised his medication. The appellant also disputed the means assessment carried out in relation to her claim.
Consideration: The relevant legislation in this case is Section 179 (1), Section 179 (3) in accordance with the Rules contained in Part 5 of Schedule 3 and Section 179 (4) of the 2005 Act.
The appellant declared on application that she cared for her father 19 hours per week (3 hours per day Monday to Friday and 2 hours per day on Saturday and Sunday). The Appeals Officer determined that the duration of care provided did not constitute full time care and attention as prescribed in the legislation. This is generally accepted to mean at least 35 hours per week.
Having regard to the evidence, the Appeals Officer did not consider that the care recipient had such a disability that he required full-time care and attention, Further, the Appeals Officer was not satisfied that the appellant had established that she was providing a type and level of care that is deemed to constitute full-time care and attention, within the legislatively defined care needs of the person being cared for. The appellant had not addressed this contention in her appeal letter or given any reasoning as to why there was an increase in the care provision subsequent to her application.
Having examined all the evidence in this case at the time of application, the Appeals Officer concluded that the care provided did not constitute full-time care and attention within the meaning of the social welfare legislation.
The Appeals Officer clarified that the total net weekly means of €116.00 assessed related to the spouse’s employment. The disputed capital assessment of her Credit Unit balance and loan recorded a ‘nil’ means amount.
Outcome: Appeal disallowed
2022/31 Carer’s Allowance
Question at issue: Calculation of Means
Background: The appellant’s weekly payment of Carer’s Allowance was reduced in a revised decision based on means from her and her spouse’s income from employment. Means were calculated from gross earnings per provided payslips. The Department allowed legislative disregards, plus administrative deductions for PRSI, Union subscriptions and weekly travel expenses and halved the means for a couple. The appellant’s grounds for appeal were that the payment reduction was unjust in light of the severe care needs of both children and rising medical costs.
The Appeals Officer reviewed the Department’s calculations of the appellant’s means and found, based on the information available, that the means were assessed correctly in line with legislation with all legislative disregards applied. The Appeals Officer advised that ongoing entitlement to Carer’s Allowance is dependent on a recipient continuing to meet the qualifying conditions, including having means below a certain threshold, with the amount of entitlement reduced by any means assessed. It was noted the means calculations were not disputed by the appellant.
Outcome: Appeal disallowed
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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.
The Appellant had been in receipt of One Parent Family Payment and half rate Carer’s Allowance (CA) in respect of her son, for whom Domiciliary Care Allowance (DCA) was in payment.
On 7 January 2016, the Department of Social Protection (the Department) commenced a review of the Appellant’s entitlement to Carer’s Allowance in respect of the full time care needs of her son, the Caree. The Appellant submitted, as requested, a completed Medical Report (CR1) on which the Caree’s GP certified that he was moderately affected in relation to his mental health and behaviour. The Appellant also submitted a school report and further medical evidence, including a medical report from a Consultant Child and Adolescent Consultant.
Following receipt of the papers the Department issued multiple decisions whereby it was asserted that the Caree did not require full time care and attention within the meaning of section 179(4) of the Social Welfare Consolidation Act 2005 (as amended) (the 2005 Act). Despite decisions having been made that the Caree did not require full time care and attention the Department did not revoke the Appellant’s claim.
In April 2016, the Appellant’s son reached age 16 and therefore entitlement to DCA ceased. By letter, dated 15 June 2016, the Deciding Officer stopped the Appellant’s Carer’s Allowance with effect from 30 June 2016.
This case relates to the decision by a Deciding Officer in November 2015 to stop payment of the Appellant’s Carer’s Allowance for the reason that he was no longer providing full time care for his wife, ‘the Caree’. The Deciding Officer’s decision was grounded in a report submitted by the Social Welfare Inspector (SWI), and a written statement submitted by the Appellant in which he advised that he was unable to care for his wife. The Appellant had been in receipt of Carers Allowance from April 2010 – November 2015. There was no dispute with respect to the Caree’s on-going need for full time care; she was in receipt of Invalidity Pension, and suffered from multiple sclerosis and was prone to epileptic seizures.
This case relates to an application by the Appellant for Carer’s Allowance (half rate) in order to care for his wife. The Appellant’s wife was 57 years of age and had a diagnosis of Recurrent Psychotic Depression.
The Appellant applied for Carer’s Allowance in 2015. The Appellant’s application was refused. On Part 10 of the application form, the Doctor certified that the Appellant’s wife was moderately affected by her condition. The Deciding Officer (DO) considered that the Appellant’s wife was not so invalided or disabled as to require full time care and attention. The Appellant appealed the DO’s decision to the Social Welfare Appeals Office (SWAO). The Appeals Officer denied the appeal, following an oral hearing; on the basis that it had not been shown that the Appellant’s wife required full-time care and attention.
The Appellant sought assistance from MABS. In May/June 2016 MABS requested a review of the Appeal Officer’s decision pursuant to section 318 of the Social Welfare Consolidation Act 2005 (the 2005 Act). In submitting grounds for review, MABS asserted that the Appeals Officer had not demonstrated that appropriate evidential weight had been attributed to the Appellant’s written and oral testimony as to facts of his wife’s care needs. As a consequence it was asserted that the Appeals Officer’s reasoning was flawed to the extent that he had erred in fact and law.
