Keywords: child benefit; right to be paid child benefit directly; EU free movement rights; qualified person; application for judicial review; arrears of child benefit
Organisation who represented the Claimant: N/A
Casebase No. G0150
Case Summary:
This case relates to the Applicant’s claim for judicial review, in which she sought to challenge the Department of Social Protection’s (the “DSP’s”) refusal of her application for arrears of unpaid child benefit. The Applicant also sought a declaration that section 220(1) of the Social Welfare (Consolidation) Act 2005 (the “2005 Act”) should be disapplied as it is contrary to EU law in not permitting the family member of a migrant worker exercising their free movement rights to apply for child benefit.
The Applicant , a 30-year-old woman from Romania, resided in Ireland since childhood with her parents and sibling. Her parents had unsuccessfully applied for child benefit on a number of occasions.
In or around June 2012, the Applicant’s father made an application for arrears of child benefit. This application was refused on the basis that it should have been made by the Applicant’s mother. Thereafter, the Applicant’s solicitor applied on behalf of the Applicant. In a decision dated 1 February 2022, this application was refused on the basis that the Applicant was not a qualified person to apply. The Applicant subsequently brought judicial review proceedings, challenging this decision.
The Law
Section 220 (1) of the 2005 Act provides that a person qualified for child benefit is “a person with whom a qualified child normally resides”. This was further confirmed in the Supreme Court decision of Michael (a minor) & ors v. Minister for Social Protection [2021], in which the Court stated that “[t]he child is not entitled to receive the payment of child benefit”.
The Applicant submitted that this provision should be disapplied or the matter referred to the Court of Justice of the European Union (“CJEU”), as it was contrary to EU law in so far as it restricted her, as a child of migrant workers who have exercised their rights of free movement within the EU, from claiming child benefit in her own right.
The High Court determined that the ultimate question was whether the Applicant has a right in EU law to be paid child benefit directly.
Key Conclusions:
The High Court decided that no such right in EU law existed. It further decided that the granting of family benefits is primary a matter of national law. It found that the Applicant was refused on the basis that she did not meet the criteria as a qualifying person set out in Irish law, and that the restrictions in Irish law as to who was a qualified person for the purposes of child benefit were not in contravention of EU law.
Relevant Legislation:
Social Welfare Consolidation Act 2005
Regulation (EEC) 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (up to 31 April 2010)
Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (from 1 May 2010)
Key Arguments:
The Applicant argued:
Article 68a of the Regulations: Regulation 1408/71 and Regulation 883/2004 (the “Regulations”) cover child benefit as a family benefit that is paid by a Member State. The Regulations provide that migrating workers exercising their right to free movement should not lose social security advantages guaranteed to them as this would discourage free movement.
The limitations in Irish law on the persons to whom child benefit is payable contravenes Article 68a of the Regulations which refers to family benefit being provided to “the natural or legal person in fact maintaining the members of family”.
Humer, Case C-255/99: The decision of the CJEU in Humer entitles the child of a migrant worker to directly invoke the entitlement to a family benefit such as Irish child benefit and to apply for the benefit themselves, without the intervention of the migrant worker.
Decision of the High Court
The High Court ultimately refused the application.
The High Court found no reason to disapply s220 of the 2005 Act, in circumstances where the restrictions contained therein do not contravene the Applicant’s EU rights.
It found that it did not have decide on any contradiction between Article 68a and Section 220 of the 2005 as the Applicant had not claimed that the person qualified in Irish law to claim child benefit had failed in their duty to support and maintain her. It further found that the Regulations do not create an EU entitlement to child benefit above or different to the entitlements created by national law; nor do they create an entitlement of the child of a migrant worker to a benefit different to or in addition to those conferred by national law.
In relation to the application of Humer, the Court found that the decision does not confer a right in EU law on the applicant as the child of a migrant worker who has exercised their right of free movement, to apply for Irish child benefit in their own capacity. The Court further noted that case law of the CJEU has consistently found that conditions for granting a family benefit were a matter for national law.
Furthermore, the Court noted that in Humer, the CJEU found that the requirement to qualify for the benefit under national legislation was a precondition to the application of the Regulations. In the circumstances at hand, the Applicant did not qualify for child benefit under national legislation.
The Court found that the Applicant’s application for arrears was refused on the basis that she was not a qualified person pursuant to section 220(1) of the 2005 Act. It had nothing to do with her status as a migrant worker, nor did the decision amount to discrimination on grounds of her parents’ exercise of their right of free movement. It held that the basis of the DSP’s refusal of her application for arrears was created and is permitted by Irish law, and it was not in contravention of her rights under EU law.
Date of final Decision: 27 June 2024
Observations:
This decision highlights the fact that the granting of family benefits is primary of national law.
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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: Child Benefit, Qualified Child, Qualified Person, Full-time Education, Normal Place of Residence, Ordinarily Resides, Habitual Residence Condition
Casebase No. Case G0123
Summary of the relevant law:
Child Benefit is a monthly payment that is made to a qualified person for a qualified child. It is not means tested or taxable and there are no PRSI conditions.
Qualified Child
Section 219 of the Social Welfare Consolidation Act 2005 (as amended)(the “2005 Act”) defines a “qualified child” as the child is (i) under 16 years of age or (ii) between 16 and under 18 years of age if the child is in full-time education or full-time training or has a disability and cannot support themselves.
In accordance with Section 14(2) of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (the “2007 Regulations”), full-time education and training does not include courses (i) which form part of an employment or apprenticeship or work experience programme; (ii) which arise from employment; (iii) where the period of paid work experience exceeds the time spent in the classroom; and (iv) where the period of work experience in a course run by Teagasc exceeds the time spent in the classroom in the academic year.
Section 219(1)(b) provides that a child between the age of 16 and 18 shall be eligible where, by reason of physical or mental infirmity, the child is incapable of self-support and is likely to remain incapable for a prolonged period. A Deciding Officer will seek the advice of the Chief Medical Officer as to the acceptability of the relevant medical certification.
Child benefit is not paid on behalf of children 18 or older, even if they are in education or training.
The child must be ordinarily resident in the State. There is no statutory definition of ordinarily resident for these purposes. This requirement can be satisfied, pursuant to Section 2019(2) of the 2005 Act, in cases where the qualified person or that person’s spouse, civil partner or cohabitant is: (i) a member of the Defence Forces or the Irish Civil Service serving abroad, (ii) a volunteer development worker or (ii) persons temporarily employed abroad by an Irish employer and paying Irish social insurance contributions.
In addition, pursuant to Section 219(1)(d) a child will not qualify for Child Benefit if they are currently detained in a child detention school or imprisoned or detained in legal custody.
Qualified Person
Section 220(1) of the 2005 Act defines a qualified person as “[a] person with whom the qualified child normally resides.” Section 220(2)(a) of the 2005 Act provides that the Minister may make rules for determining with whom a qualified child shall be regarded as normally residing. Those rules are contained in Article 159 of the 2007 Regulations. An example of those rules includes the following Rule 4, which has been applied by Appeals Officers in cases:
Subject to Rule 8, a qualified child, who is resident elsewhere than with a parent or a step-parent and whose mother is alive, shall, where his or her mother is entitled to his or her custody whether solely or jointly with any other person, be regarded as normally residing with his or her mother and with no other person.
Additionally, Section 220(3) provides the applicant must satisfy the Habitual Residence Condition, which applies to all applicants regardless of nationality.
The Habitual Residence Condition consists of two parts. Firstly, a person must have an established right of residence in the State, pursuant to Section 246(5) of the 2005 Act and in accordance with S.I. No. 548/2015 – European Communities (Free Movement of Persons) Regulations 2015. This right of residence must be unconditional in that it does not preclude the person from accessing social welfare payments. Secondly, pursuant to Section 246(4) of the 2005 Act, a person’s situation and intentions will be taken into consideration by a Deciding Officer or Designated Person, in particular: (i) the length and continuity of residence in the State or any other country; (ii) the length and purpose of any absence from the State; (iii) the nature and pattern of the person’s employment; (iv) the person’s main centre of interest, and (v) the future intentions of the person concerned. This list is non-exhaustive and other information may be considered relevant in arriving at a decision. Also see Thematic Note on Right to Reside and Habitual Residence Condition (Thematic Note G0116).
It is worth noting that Child Benefit is classified as a Family Benefit under EU law. Accordingly, employed and self-employed EEA Nationals, whose entitlement derives from the application of EEC Regulation 883/04 on the coordination of social security systems and have become subject to Irish PRSI, do not have to satisfy the Habitual Residence Condition. This entitlement continues even if they become unemployed and receive Irish Unemployment Benefits.
Key grounds of appeals by appellants:
Qualified child ordinarily resident in the State
There were four appeals relating to whether a child was ordinarily resident in the State. The majority of appeals dealt with whether a period of absence meant that the appellant was no longer entitled to the benefit. For example, in Case 2019/03 it was held that the child was no longer qualified following an absence of 6 months from the State. Another deciding factor in these decisions was whether the appellant had custody of the child at the time of claiming the payments.
Qualified child’s normal place of residence
There were four appeals relating to a qualifying child’s normal place of residence which mainly dealt with who was considered the qualified person in accordance with Article 159 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142 of 2007). The various grounds for disagreement included: making educational and medical payments (Case 2016/01); providing payments from employment in the State to the qualified child’s mother in another state (Case 2018/02); being in regular contact, visiting and providing food, shelter and clothing during their child’s time in shared and full-time care (Case 2020/01); and having legally shared custody but arguing the amount of time actually spent in one parent’s home over another should be taken into account (Case 2021/01).
Qualified child attending full-time education between age of 16 and 18 years
There were two appeals where the appellant challenged whether sufficient evidence was provided to demonstrate that the child was either attending full-time education or was incapable of self-support by reason of mental infirmity. In both cases, the appeal was allowed on the basis that the appellants had met the threshold under the 2005 Act and the 2007 Regulations.
Backdating: See Thematic Notes on Backdating Claims (Thematic Note G0114)
Observations on appeal outcomes:
As there is no definition or test for qualifying as ordinarily resident, clear evidence establishing when a qualified person or child was resident in the State greatly impacted the success of appeals. The majority of ordinarily resident appeals were rejected due to the lack of the appellants’ ability to establish when the child left and/or returned to the State. Out of four cases, the appeal in Case 2012/03 was the exception, as the appellant successfully demonstrated the child was ordinarily resident in the state by way of an Irish Court Order in 2010, which granted the appellant full custodial rights in 2010. The loose assessment of 183 days in a year, or six months, was applied by Appeal Officers to determine those ordinarily resident in the state, with Case 2019/03 being disallowed as a 6 month absence meant that it could not be said that the children were ordinarily resident. Appeals Officers tended to be particularly strict in this regard, as appeals where explanations such as holidays or visiting family were used for absences from the State were disallowed.
Decisions in appeals of normal place of residence included a Section 318 review, Case 2020/318/57. Section 220(2)(a) states that Ministers may make rules to determine with whom a qualified child is normally residing. Despite the child residing with a guardian in the State rather than their parents outside of the State, Rule 4 of the Ministerial Rules provides that that the mother’s legal custody of the child overrode guardianship. The review concluded that this Rule 4 applied notwithstanding that the child’s mother was resident outside of Ireland.
Finally, these reports indicate that Appeals Officers were willing to allow appeals when evidence could be provided that a child between the ages of 16 and 18 years was being home-schooled or is incapable of continuing in an institution of full time education due to severe mental health issues. Evidence was also key in these cases.
Relevant Case Studies of the SWAO Annual Reports 2009-2020
A.
2009
N/A
B.
2010
1.
2010/01 Child Benefit – oral hearing
Question at issue: Habitual Residence Condition
C.
2011
2011/04 Child Benefit – summary Decision
Question at issue: Habitual Residence Condition
2011/06 Child Benefit – summary decision
Question at issue: Habitual Residence Condition
2011/10 Child Benefit – oral hearing
Question at issue: Habitual Residence Condition
2011/12 Child Benefit – oral hearing
Question at issue: Habitual Residence Condition
2011/13 Child Benefit – oral hearing
Question at issue: Habitual Residence Condition
2011/15Child Benefit – oral hearing
Question at issue: Habitual Residence Condition
2011/16 Child Benefit – oral hearing
Question at issue: Habitual Residence Condition
D.
2012
2012/03 – Child Benefit – oral hearing
Question at issue: Date of Award / Qualified Child – ordinarily resident
2012/04 – Child Benefit – summary decision
Question at issue: Qualified Child – ordinarily resident
E-F.
2013-2014
N/A
G.
2015
2015/01 Child Benefit – oral hearing
Question at issue: Habitual Residence Condition
H.
2016
2016/01 Child Benefit – oral hearing
Question at issue: Normal residence of qualified child
2016/02 Child Benefit – summary decision
Question at issue: Habitual residence
I.
2017
2017/01 Child Benefit – oral hearing
Question at issue: Habitual residence condition
2017/02 Child Benefit – summary decision
Question at issue: Backdating of payment
2017/03 Child Benefit – oral hearing
Question at issue: Extended payment of Child Benefit / Whether the child is in full-time education
2017/04 Child Benefit – summary decision
Question at issue: Extended payment of Child Benefit / Whether the child is in full-time education
2017/318/59 Child Benefit – Section 318 Review
Question at issue: Habitual residence
2017/318/60 Child Benefit – Section 318 Review
Question at issue: Right to reside in the State
J.
2018
2018/01 Child Benefit – summary decision
Question at issue: Eligibility (habitual residence condition)
2.
2018/02 Child Benefit summary decision
Question at issue: Normal residence of qualified child
K.
2019
1.
2019/01 Child Benefit – summary decision
Question at issue: Backdating
2.
2019/02 Child Benefit – summary decision
Question at issue: Backdating (Habitual Residence Condition)
3.
2019/03 Child Benefit – summary decision
Question at issue: Qualified Child – ordinarily resident
L.
2020
2020/01 Child Benefit – summary decision
Question at issue: Qualified Person – normal residence
2020/02 Child Benefit – summary decision
Question at issue: Eligibility (habitual residence condition)
2020/318/57 Child Benefit – Section 318 Review
Question at issue: Eligibility (qualified child and resident in the State)
This is a joint decision in respect of two cases that both address the question of when a parent of as of yet undetermined immigration status is entitled to a child benefit payment in respect of a child who either is an Irish citizen or holds refugee status.
Ms. Agha and Osagie each applied for child benefit while living in Direct Provision as they awaited the outcome of their respective requests for permission to remain in the State, The said applications were refused on the basis that absent a legal right to reside in the State they were not considered “habitually resident” for the purposes of s.220 of the Social Welfare Consolidation Act 2005. Following the regularisation of their immigration status, further applications for child benefit were made by both applicants which the Department of Social Protection acceded to and backdated to the date they were granted permission to remain. They then sought to have child benefit further backdated to the date that the relevant child became a “qualified child” under s.219 of the 2005 Act. The Department refused to do so.
The applicants, on behalf of their children, challenged the decision not to backdate the child benefit on the basis that it breached the equality provisions under Article 40.1 of the Constitution and EU Law.
In the High Court, both cases were unsuccessful with White J. holding that the restricting of child benefit to parents who were habitually resident in the State was not unconstitutional or contrary to EU law because it applies equally to Irish citizens and non-Irish citizens and the equality guarantee in the Constitution does not require identical treatment for all persons without recognition of difference of circumstances. Although for the benefit of children, child benefit was paid to parents, and the distinction between people lawfully in the State and people without permission to be here was a valid one that the Oireachtas was entitled to make.
The decision at first instance was overturned in the Court of Appeal. Hogan J. found that the State had not provided objective justification for withholding child benefit in respect of an Irish citizen regardless of Ms. Osagie’s immigration status and that constitutional equality was breached in the refusal to backdate payments. Insofar Ms. Agha’s application related to a child who was granted refugee status, child benefit entitlements accrued from the date that the relevant child became entitled to reside in the State. There could be no basis for withholding child benefit in respect of a qualified child simply because the person applying for the benefit on the child’s behalf did not have a regularised immigration status. To do so would be to disproportionately deny parents a payment designed for the benefit of children.
The State was ultimately successful in its appeal before the Supreme Court. Dunne J. held that the Court of Appeal had fallen into error by focusing on the children rather than considering the positions of their respective parents as the claimants of child benefit. The Court held that there was no requirement in EU law to backdate child benefit payments in the manner claimed and that the equality provisions were not breached in circumstances where the habitual residency requirements applied to all prospective applicants equally.
The Applicant moved to Ireland from her country of origin in September 2018 with her four children. She was separated from her husband and father of the children. Her applications for Supplementary Welfare Allowance (‘SWA’) and Child Benefit were refused in November 2018. At the time of the said applications, the Applicant had a right to reside in the State pursuant to a Stamp 4 permit and had previously reside in the State for a short period in 2003.
The Child Benefit and SWA applications were both refused on the basis that she had failed to satisfy the habitual residence condition, as required by section 246 of the Social Welfare Consolidation Act 2005 (the ‘Act of 2005’). While she was found to have a right to reside in Ireland, the Community Welfare Officer was not satisfied that it had been established that she was habitually resident in Ireland.
Section 246 of the 2005 Act provides that it is a requirement for those applying for SWA and Child Benefit to be habitually resident in the State. Per section 246(4), a deciding officer or a designated person when determining whether a person is habitually resident in the State shall take into consideration all the circumstances of the case including, in particular, the following:
(a) the length and continuity of residence in the State or in any other particular country,
(b) the length and purpose of any absence from the State,
(c) the nature and pattern of the person’s employment,
(d) the person’s main centre of interest, and
(e) the future intentions of the person concerned as they appear from all the circumstances.
The Applicant appealed the refusal and submitted evidence to the effect that she had left her country with the intention of settling in Ireland permanently, including evidence that she had travelled on a one-way ticket and that she had sold all her belongings and closed her bank account. This evidence notwithstanding, the refusal decision was upheld by an Appeals Officer in May 2019 on the basis that the Applicant had not secured employment or childcare.
The Applicant sought a further review before the Chief Appeals Officer, who under section 318 of the Act of 2005 may revise any decision of an Appeals Officer where it appears that the decision was erroneous by reason of some mistake having been made in relation to the law or the facts.
Meanwhile, in July 2019, the Applicant applied for One Parent Family Payment. In September 2019 she was found to be habitually resident for the purposes of receiving the One Parent Family Payment, with the award backdated.
In her appeal to the Chief Appeals Officer, the Applicant submitted that the Appeals Officer had had sufficient evidence to conclude that she was habitually resident in the State, that it had been tacitly accepted that she had a settled intention to remain in Ireland, and that this evidence had been disregarded. It was also noted that the Applicant had been found to be habitually resident for the purposes of the One Parent Family Payment in September 2019, and it was submitted that the adverse finding in relation to her Child Benefit and SWA application was contrary to the Department of Social Welfare’s policy on consistency in decision-making on the basis that had been no significant change of circumstances in her case since that negative decision was taken.
In December 2019, the Chief Appeals Officer found that the Appeals Officer gave disproportionate weight to the challenges the Applicant faced in relation to childcare and housing inasmuch as it related to her stated intention to remain in Ireland. She found that the Appeals Officer did not duly consider the other factors which supported the claim. She also noted the finding of habitual residence in relation to the Applicant’s application for One Parent Family Payment. For these reasons, the Applicant’s appeal was allowed and the decision of the Appeals Officer was revised.
This case concerns a challenge to a decision made by a Deciding Officer (DO) whereby it was asserted that the Appellant was not entitled to Child Benefit (CB) prior to the 1st May 2012. It was determined that the Appellant could not satisfy the habitual residence condition (HRC) prior to this date as she had no legal right of residence in the State. Reference is made in the case summary to the Appellant’s legal status only as applies to the question of her entitlement to Child Benefit.
The Appellant and her husband arrived in Ireland in January 2006 and claimed asylum. The application was refused and in March 2007 the Refugee Appeals Tribunal confirmed this decision. On 22nd of May 2007 the Appellant sought to challenge the decision of the Refugee Appeals Tribunal by way of Judicial Review proceedings. These proceedings were subsequently struck out by consent in February 2009. The Appellant applied for readmission to the asylum process and this was refused on 11th December 2009.
In 2007 a separate application was made for leave to remain on humanitarian grounds and subsidiary protection. Subsidiary protection was granted by way of letter from the Irish Naturalisation and Immigration Service (INIS) on the 1st of May 2012.
Throughout the period the Appellant, her husband, and her child (born in 2007) lived in direct provision accommodation.
The Appellant’s son was born on the 31st of December 2007. The Appellant applied for Child Benefit in February 2008. The claim was refused by a DO on the 17th of May 2008 on the grounds that the Appellant’s legal right of residence had not been determined and therefore she could not be found to be habitually resident in the State. A second application for Child Benefit was made in October 2008. This was also refused by letter in February 2009. The Appellant appealed this decision to the Social Welfare Appeals Office. By way of decision dated 7th September 2009 the AO disallowed the appeal on the grounds that the Appellant’s application to be declared a refugee had been refused, and therefore “the appellant may not be deemed to be habitually resident for the purpose of her Child Benefit claim at [that] time.
In 2012 the Appellant made representations to the Social Welfare Appeals Office requesting that the AO decision be reviewed by the Chief Appeal Officer pursuant to s 318 of the Social Welfare Consolidation Act 2005 (as amended) – (“the Principal Act”). It was the Appellant’s position that the Appeals Officer has erred in law. This request was refused on the grounds of delay, some two and a half years had lapsed since the date of the Appeals Officer’s decision. The Appellant was invited to make a new application for Child Benefit.
In February 2013 the Appellant made her third application for Child Benefit. This application was granted with effect from 1st of May 2012, the date the Appellant was granted leave to remain.
The Appellant is a mother of one child and has power of attorney over her niece who lives with and is cared for by the Appellant. The Appellant is in receipt of Child Benefit in respect of her own child and she applied for Child Benefit in respect of her niece on 26 September 2012.
On 7 November 2012 the Department of Social Protection disallowed her claim for Child Benefit on the grounds that her niece was “not ordinarily resident” in the State and was here for educational purposes only.
The Appellant appealed the decision of the Deciding Officer with assistance from Citizens Information Service Northside. The Appeal was disallowed by way of summary decision (no oral hearing) on 13 June 2013. The Appeals Officer found that the Appellant was not entitled to Child Benefit in respect of her niece on the grounds that her niece was in Ireland for educational purposes only, and that the child was not therefore “ordinarily resident” in Ireland.
CLM Northside made written submissions on behalf of the Appellant on 13 September 2013 and on 25 August 2014, requesting that the Chief Appeals Officer review the decision of the Appeals Officer in accordance with sections 317 and 318 of the Social Welfare (Consolidation) Act 2005.
On 17 October 2014 the Appeals Officer issued a revised decision, allowing the appeal in light of the submission made on behalf of the Appellant.
The Applicant moved to Ireland from the UK in 2015 with her husband, a British citizen, and their eight children. She applied for Child Benefit from September 2015.
She was awarded Child Benefit for six of her children from September 2015 to November 2015. This was reviewed on the basis of an allegation that her husband’s self-employment was fake, that he was not therefore exercising EU free movement rights, and that, as a consequence, she was did not satisfy the habitual residence condition in section 246 of the Social Welfare Consolidation Act 2005 because she was not lawfully in the State as the family member of an EU worker. This decision was upheld on appeal.
Child Benefit was reinstated in November 2016 when her husband entered employment, but again, this was reviewed in March 2018 on the basis that his employment between June 2017 and March 2018 was not genuine. In April 2018, her husband was granted Jobseekers’ Allowance, and it was accepted that he was habitually resident at that time. Her claim for Child Benefit was reinstated from April 2018 onwards, but the Department sought repayment of the Child Benefit which, it said, had been overpaid between June 2017 and March 2018. The Applicant appealed the overpayment decision on the basis that she had, in fact, been habitually resident and that, in any event, her husband’s employment had actually been genuine.
This case concerns an appeal regarding a decision by a Decision Officer (DO) to terminate the Appellant’s entitlement to Child Benefit (CB) for the period that her spouse, a Romanian citizen, was considered not to have a lawful right to reside in the State. It was determined by a DO that the Appellant was not entitled to CB payments after her husband’s self-employment ceased in November 2008 on the basis that she was not habitually resident in the State.
The Appellant sought a review of the decision of the DO. In making this request the Appellant submitted evidence to support the issuing of a revised decision. This included documentary evidence of her children’s school attendance and a statement confirming that she and her spouse intended to purchase a house in Ireland. On 25 May 2009 the DO refused to overturn the earlier decision asserting that no new evidence had been provided to warrant making a revised decision.
The Appellant lodged an appeal with Social Welfare Appeals Office (SWAO). An oral hearing date was scheduled for September 2010 but this was subsequently adjourned. The Appellant’s spouse first attended CLM in June 2010. The Appellant attended CLM sometime after June 2010. CLM came on record for the Appellant and requested her file under the Freedom of Information Acts.
Child Benefit – Habitual Residence Condition – Right to Reside – Judicial Review
This case relates to a decision of the Office of the Ombudsman regarding a complaint concerning a review by the Chief Appeals Officer (CAO) under Section 318 of the Social Welfare Consolidation Act 2005 as amended (the 2005 Act). The CAO determined by way of decision dated 3 November 2015 that the Appeals Officer had not erred in law or in relation to the facts in determining the effective date of award of Child Benefit to the Appellant. While the Ombudsman requested that the Department of Employment Affairs and Social Protection (the Department) backdate payment to January 2012 in view of the decision in DN and Anor v Chief Appeals Officer and Ors, the complaint ultimately was not upheld. It is clear from the decision of the Ombudsman that upon receiving the request from the Ombudsman to backdate the payment the Department refused to do so on the basis that s 246 (8) of the 2005 Act removes any discretion to backdate a claim for Child Benefit for periods where a claimant’s right of residence has not been declared or permitted.