Social Welfare Appeal GO108

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.

Social Welfare Appeal G0107

The Applicant moved to Ireland from her country of origin in September 2018 with her four children. She was separated from her husband and father of the children. Her applications for Supplementary Welfare Allowance (‘SWA’) and Child Benefit were refused in November 2018. At the time of the said applications, the Applicant had a right to reside in the State pursuant to a Stamp 4 permit and had previously reside in the State for a short period in 2003.

 

The Child Benefit and SWA applications were both refused on the basis that she had failed to satisfy the habitual residence condition, as required by section 246 of the Social Welfare Consolidation Act 2005 (the ‘Act of 2005’). While she was found to have a right to reside in Ireland, the Community Welfare Officer was not satisfied that it had been established that she was habitually resident in Ireland.

 

Section 246 of the 2005 Act provides that it is a requirement for those applying for SWA and Child Benefit to be habitually resident in the State. Per section 246(4), a deciding officer or a designated person when determining whether a person is habitually resident in the State shall take into consideration all the circumstances of the case including, in particular, the following:

 

(a) the length and continuity of residence in the State or in any other particular country,

(b) the length and purpose of any absence from the State,

(c) the nature and pattern of the person’s employment,

(d) the person’s main centre of interest, and

(e) the future intentions of the person concerned as they appear from all the circumstances.

 

The Applicant appealed the refusal and submitted evidence to the effect that she had left her country with the intention of settling in Ireland permanently, including evidence that she had travelled on a one-way ticket and that she had sold all her belongings and closed her bank account. This evidence notwithstanding, the refusal decision was upheld by an Appeals Officer in May 2019 on the basis that the Applicant had not secured employment or childcare.

 

The Applicant sought a further review before the Chief Appeals Officer, who under section 318 of the Act of 2005 may revise any decision of an Appeals Officer where it appears that the decision was erroneous by reason of some mistake having been made in relation to the law or the facts.

Meanwhile, in July 2019, the Applicant applied for One Parent Family Payment. In September 2019 she was found to be habitually resident for the purposes of receiving the One Parent Family Payment, with the award backdated.

 

In her appeal to the Chief Appeals Officer, the Applicant submitted that the Appeals Officer had had sufficient evidence to conclude that she was habitually resident in the State, that it had been tacitly accepted that she had a settled intention to remain in Ireland, and that this evidence had been disregarded. It was also noted that the Applicant had been found to be habitually resident for the purposes of the One Parent Family Payment in September 2019, and it was submitted that the adverse finding in relation to her Child Benefit and SWA application was contrary to the Department of Social Welfare’s policy on consistency in decision-making on the basis that had been no significant change of circumstances in her case since that negative decision was taken.

 

In December 2019, the Chief Appeals Officer found that the Appeals Officer gave disproportionate weight to the challenges the Applicant faced in relation to childcare and housing inasmuch as it related to her stated intention to remain in Ireland. She found that the Appeals Officer did not duly consider the other factors which supported the claim. She also noted the finding of habitual residence in relation to the Applicant’s application for One Parent Family Payment. For these reasons, the Applicant’s appeal was allowed and the decision of the Appeals Officer was revised.

 

Social Welfare Appeal G0101

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.

Social Welfare Appeal G0066

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.

Social Welfare Appeal G0105

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.

Social Welfare Appeal G0100

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

Social Welfare Appeal G0097

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.

High Court Appeal G0102

DN (a minor) and AS v. Chief Appeals Officer and Others [2017] IEHC  52, White J, 13 February 2017

In 2006, Ms S came to Ireland and applied for asylum seeking refugee status. Her application was refused in March 2007. In December of that year her son DN was born. There was litigation around the refugee status refusal until 2010, when she made an application for subsidiary protection under the EC (Eligibility for Protection) Regulations 2006. Ultimately, she was granted subsidiary protection on 1 May 2012.

While waiting for it to be processed, Ms S and her family lived in Direct Provision. She made several applications for child benefit in respect of DN. These applications were refused by the Department of Employment Affairs and Social Protection on the basis that as an applicant for subsidiary protection, she was not habitually resident in Ireland. Eventually she was granted subsidiary protection and awarded child benefit, but the award took effect only from 1 May 2012, the date on which the subsidiary protection declaration was made. The award was appealed but the appeals officer found that the definition of habitual residence in section 246 of the Social Welfare Consolidation Act 2005 expressly excluded applicants for subsidiary protection, and that section 246(8)(c) expressly precluded back-dating benefits for persons granted subsidiary protection beyond the date of the declaration.

Ms S and DN challenged the appeals officer’s decision not to backdate the award on the basis that the exclusions in section 246 post-dated the date of Ms S’ first application for child benefit and that the said exclusions were unconstitutional.

The High Court (White J) found that the constitutionality of the exclusions had already been upheld in earlier cases and that they were not applied retrospectively as her most recent application for child benefit was made after their enactment. The Court held that while Ms S was an applicant for subsidiary protection she was ineligible for child benefit, but found that the delay on the part of the Minister for Justice and Equality in determining her application for subsidiary protection violated her rights and those of D under EU law and the Constitution.

Social Welfare Appeal G0084

This case relates to a review of the Appellant’s entitlement to Child Benefit payable in respect of her daughter, aged 17.  The Appellant had been in receipt of Child Benefit since 1999. In January 2016, following an application for Child Benefit by another family member, the Appellant’s entitlement was reviewed.

On 20.1.2016 the Appellant was informed by letter that “Child Benefit Section has been advised that your child ****** left your household and no longer resides with you”. The Appellant was further advised that if this was the case, she was no longer entitled to be in receipt of Child Benefit in respect of her daughter. The Appellant was provided with an opportunity to comment on the Department of Social Protection’s (DSP) assertion, and submit  “any facts or circumstances ”relevant to the matter at issue before a decision was made.

Social Welfare Appeal G0096

This  case relates to a decision of the Chief Appeals Officer (CAO) pursuant to a review under Section 318 of the Social Welfare Consolidation Act 2005 as amended (the 2005 Act) to uphold the decision of the Appeals Officer. The CAO determined that the Appeals Officer by way of decision dated 22nd  January 2014 had not erred in law or in relation to the facts in determining the effective date of award of Child Benefit to the Appellant payable in respect of her three children.