Theme: Cohabitation

Period of Analysis: SWAO Annual Reports 2009-2022

Keywords: Cohabitation; Cohabitant; Intimate relationship; Operational Guidelines; Evidence; Burden of Proof

Casebase No. Case G0143

Summary of the relevant law:

The status of an individual as a cohabitant may affect whether or not they qualify for certain social welfare payments, as well as what level of payments an individual could be awarded.

For the purposes of the social welfare code, the term “cohabitant” is defined in Section 172(1) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (the “2010 Act”)as one of 2 adults (of the same or opposite sex) living together as a couple in an intimate and committed relationship, who are not related to each other within the prohibited degrees of relationship or married to each other or civil partners of each other.

Under the 2010 Act, the following factors will be considered when determining whether 2 adults are cohabitants:

1. the duration of the relationship;
2. the reason for the couple living together;
3. the degree of financial dependence of either adult on the other and any agreements regarding their finances;
4. the degree and nature of financial arrangements between the adults, including any joint purchase of land/property or joint acquisition of personal property;
5. whether there are any dependent children of either adult;
6. whether one of the adults cares for and supports the children of the other adult; and
7. the degree to which the adults present themselves as a couple.

According to operational guidelines on cohabitation (the “Operational Guidelines”), there are two central aspects that are examined when considering whether a couple are cohabiting:

1. Are the couple in a relationship?
2. Are the couple living together?

The Operational Guidelines provides helpful detail as to the way in which each of the criteria listed at a) to g) above are assessed. For example, it notes that in relation to the duration of the relationship, regard should be had to the stability of the relationship which may be reflected either in simply duration but also the level of commitment to one another.

For further information, the Operational Guidelines can be accessed at the following link: gov – Cohabitation (www.gov.ie)

B. Key grounds of appeals by appellants:

Below we look at the appeals brought together in the SWAO Annual Reports of 2009 to 2022.

• Lack of intimate relationship

Two appeals were brought on the basis of a lack of an intimate relationship. In Case 2012/12 the appeal was brought on the basis that the individuals were cousins as opposed to being in an intimate relationship, and this appeal was allowed. Cases 2015/22 and 2015/23 concerned two appellants who were suspected of cohabitating with each other, however the appeal was allowed on the basis that there was no intimate sexual relationship between them, with such intimacy being prevented by medical circumstances.

• Not living together

There were four appeals relating to whether the appellant was in fact living together with the person suspected to be their cohabitant. For example, in Case 2010/16, it was held that the appellant was cohabiting with her partner as they had converted adjoining houses into one property. Cases 2015/06, involved appeals in which the appellant produced documentation, including utility bills and bank statements, to attempt to prove that they weren’t living together.

• Lack of financial links

In Case 2015/06 the appellant sought to show through the presentation of utility bills, bank statements, P60 forms and other such documentation that there were no financial links with their suspected partner, and the appeal was allowed on the strength of such evidence, among other factors.

• Incorrect interpretation of evidence/circumstances

In two cases, the appellants claimed that inspectors had incorrectly interpreted evidence or circumstances when making their assessment regarding cohabitation. In Case 2016/08 the appellant argued that there was no concrete proof of cohabitation, and it was held that the evidence presented did not establish a basis for determining that the couple were living in a ‘committed and intimate’ relationship. In Case 2016/318/36 the appellant similarly alleged errors of fact by inspectors and claimed that there was either no evidence of the inspector’s assertions, or merely circumstantial evidence and this was upheld and the appeal allowed.

C. Observations on appeal outcomes:

The appeals decisions indicate that Appeals Officers routinely look to the application of the assessment criteria laid down in the Operational Guidelines to inform their examination of a case. In Cases 2016/318/36, 2016/08 and 2010/16 the decision referenced these guidelines explicitly and stepped through the criteria as they apply to the facts of the relevant case. It is clear that regard to Operational Guidelines is considered an important factor in such determinations and it is therefore key that potential appellants review the Operational Guidelines in detail as they relate to their particular circumstances. The joint decision on Cases 2015/22 and 2015/23 notes additionally that the Operational Guidelines indicate that “no single criterion can necessarily support a decision”.

The burden of proof as between the appellant and inspectors/appeals officers regarding cohabitation is considered in multiple appeal decisions. It is noted in Case 2016/318/36 that the Operational Guidelines provide that ‘where an entitlement may be disallowed, limited or withdrawn, the onus is on the Department to establish that cohabitation exists’.  The decision in this case notes that the Appeals Officer had placed an unreasonable burden of proof on the appellant and by not giving sufficient weight to the appellant’s evidence, the Appeals Officer had erred in law.

Another useful observation from the outcome of the appeals is the clarification of what is meant by “intimate” relationship provided in Cases 2015/22 and 2015/23. In these cases the appellants claimed that they were not cohabiting with each other due to a lack of an intimate relationship, and, in particular, that they had not been engaged in a sexual relationship at any time. The decision makes reference to the High Court ruling of In the matter of Section 194 of the Civil Partnership and Certain Rights and Obligations Cohabitants Act 2010 [2015] IEHC 309 in which Baker J found that in order to be a cohabitant, the relationship must be more than merely friendship and must be or must have been at some point sexually intimate.

Relevant Case Studies of the SWAO Annual Reports 2009-2022

A.	2009
	N/A
	2010
1.	2010/16 One-Parent Family Payment	Question at issue: One-parent family payment (co-habitation)
	2011
	N/A
	2012
1.	2012/12 Jobseeker’s Allowance & Co-habitation	Question at issue: Means & Co-habitation
2.	2012/22 Survivor’s (Contributory) Pension & Co-habitation	Question at issue: Non-disclosure of co-habitation
	2013
	N/A
	2014
	N/A
	2015
1.	2015/06 One Parent Family Payment	Question at issue: Co-habitation
2.	2015/22 Unspecified Payment	Question at issue: Co-habitation
3.	2015/23 Unspecified Payment	Question at issue: Co-habitation
	2016
1.	2016/08 One-Parent Family Payment	Question at issue: Co-habitation
2.	2016/318/36 One-Parent Family Payment	Question at issue: Means and Co-habitation
	2017
1.	2017/09 One-Parent Family Payment	Question at issue: Means and Co-habitation
	2018
	N/A
	2019
	N/A
	2020
1.	2020/06 One-Parent Family Payment	Question at issue: Co-habitation
	2021
	N/A
	2022
	N/A

2010:

2010/16 One Parent Family

Question at issue: co-habitation – whether the decision to disqualify the appellant for receipt of One Parent Family Payment, with effect from a specified date in 2008, was correct.

Background: The appellant was awarded One Parent Family Payment (formerly One Parent Family Allowance) in 1991. It came to light that she may have married in 1999. Following several investigations by the Department of Social Protection, it had been concluded that while the marriage had taken place, it had only lasted a month and the parties were estranged by June 2000.

The appellant participated in a Community Employment Scheme and was paid in respect of four qualified children, whereas her One Parent Family Payment included only two. The case was referred to a Social Welfare Inspector for investigation and it was confirmed that the appellant had four children. It emerged that her husband (J) had an address next door to the appellant’s home.

Oral hearing: The appellant was accompanied by a Family Support project leader. The Social Welfare Inspector attended at the request of the Appeals Officer.

The Inspector outlined the details of his investigation in the case. He reported that when he had interviewed the appellant initially, she told him that she did not know the identity of the father of her two youngest children. However, when he put it to her that their father was her husband, J, she acknowledged that this was the case. She told him that her husband had stayed over the odd night after family funerals and a chance meeting; she denied that he was living with her. She advised that he resided with his mother. After a number of failed attempts to contact him there, however, his mother had advised the Inspector that he lived at the address adjacent to the appellant’s. The owner of that property had advised that she had allowed J and the appellant to have the tenancy for €4,000 as she was going away. On her return, however, she reported that she found that both houses had been converted into one unit. She asserted that the appellant and J had resisted her attempts to regain possession of the property. The Inspector established that a car was registered to J at the appellant’s address and he reported that he had observed the car there on a number of occasions.

The Inspector referred to the appellant’s failure to notify the Department of Social Protection of significant changes in her circumstances: her marriage in 1999 and the birth of her third and fourth children for whom she did not claim an increase in payment. He referred also to her statement to an Inspector in 2003 that she had had no contact with J since their short and failed marriage, despite being pregnant at that time. He stated also that the fourth child’s birth certificate indicated that the father was J, and the appellant’s address had been stated as his address also. In response, the appellant referred to each aspect of the evidence outlined by the Inspector. She said that her marriage in 1999 to J did not last a week; she was embarrassed about this and did not mention it initially when approached by the Inspector. She said, however, that she later accompanied J to the Inspector’s office and handed in a marriage certificate. She said that in 2003 she had been unaware of her pregnancy at the time when she was interviewed by the Inspector; it was a difficult pregnancy, during which she had been in hospital for an extended period, and she acknowledged that J took care of the children during that time. She said that when the child’s birth was registered, J’s mother had moved address and she did not know the new address and so she gave the father’s address as her own. She denied any knowledge of a car registered to J at her address. She asserted that a lot of cars parked on the corner near her house but said that this did not indicate that the owners were resident in the house.

The appellant presented a motor vehicle registration certificate in the name of J, using the address adjacent to hers, and a letter from the local authority indicating that he had applied to be placed on the housing list.

The Family Support project worker said she was aware of the appellant’s domestic situation and the ups and downs she had experienced over the years. She said that she considered the couple to be very responsible and good parents and had observed that J was always good to the children. She asked if he should be present at the hearing to give evidence. The Appeals Officer advised that he did not consider it necessary to summon J to the hearing but said that if the appellant required his presence, she could invite him to attend.

Further evidence: Following the hearing, the appellant submitted a letter from the local authority stating that J had been found eligible for social housing (medical category).

Consideration of the Appeals Officer: The Appeals Officer noted the history of the case and the appellant’s apparent reluctance to be open and candid with Social Welfare Inspectors in relation to her marriage to J, his address, and their children. She had indicated that their marriage was very brief. He observed that this would appear to indicate that an obvious and significant incompatibility had quickly emerged. He considered that such a scenario was difficult to reconcile with the evidence of an ongoing close relationship between the parties in subsequent years.

The Appeals Officer referred to the Guidelines of the Department of Social Protection in relation to co-habitation, including the five factors which are taken to point to a couple residing together as husband and wife, and he noted as follows:

• Co- residence: The evidence indicates that adjoining houses were converted so as to make one unit where the couple resides with their children. The assessment of housing need relates to J’s future needs and cannot be taken as evidence that he is not now resident with the appellant. In addition, he was recorded as living at the appellant’s address on his child’s birth certificate and for vehicle registration purposes.

• Household Relationship Finances or Duties shared: There is evidence of sharing of duties in relation to their children. There is no evidence in relation to financial arrangements.

• Stability: The history of the case points to a long-standing relationship.

• Social: There is no evidence in relation to the couple being regarded as a couple locally or of sharing a social life.

• Sexual: The couple had children in 2001 and 2003 at a time when the appellant presented herself to the Department of Social Protection as a single parent.

Taking account of all the evidence in the case, the Appeals Officer concluded that the appellant and J were in a relationship which had all the appearances of a couple living together as husband and wife.

Outcome: Appeal disallowed

2012:

2012/12 Jobseeker’s Allowance & Co-habitation

Decision under appeal: claim awarded at reduced rate – reason(s) stated:-

You are entitled to Jobseeker’s Allowance from [specified date] at the rate shown – half the rate for a couple less means of €41.00 per week. As your spouse/civil partner/cohabitant is also getting a social welfare payment, your weekly rate of payment is limited to this amount.

Issue: Co-habitation.

Background: The appellant was assessed with means of €41.00 based on his partner’s income from part-time employment. The Deciding Officer concluded that he was co-habiting with a person [named] who, having made a claim for Jobseeker’s Allowance in her own right, had named the appellant as her partner. The appellant denied that they were partners and said she had made a mistake. He said they were cousins.

At oral hearing: the Appeals Officer explained to the appellant how his rate of payment of €115 had been calculated. He advised him that the Deciding Officer considered that the person [named] was his partner as she had completed a form stating this to be the case. The Appeals Officer had called the person [named] to the oral hearing but she had failed to attend.

The appellant said that when the claim form was being completed, the person named had been asked who was living in the house with her and she said the appellant. When the Appeals Officer asked how she had known his PPS number, he said that she had phoned him and asked for it. He was adamant that the person named was not his partner. He said he had moved out of his parent’s house as it was too crowded. He advised that his brother had a disability and needed a room of his own, and he had medical evidence confirming his brother’s disability. The appellant said that he paid his rent separately and he had a letter from the Private Residential Tenancies Board (PRTB), addressed to him only, stating that he had been registered as a tenant. He said that if he lost the appeal he would move back home and his sister would move into the house with the person named. He went on to say that he owed his mother about €2,500.

Comment/Conclusion: In this case, the appellant had been awarded Jobseeker’s Allowance from a date [specified] in 2012 at half the rate for a couple less means of €41.00 per week. The Deciding Officer concluded that he was co-habiting with a person named as she had earlier signed a Jobseeker’s Allowance repeat claim form stating that the appellant was her partner. The file was sent subsequently to the Social Welfare Inspector to review his means. The Appeals Officer noted that the Inspector did not proceed with the means review as the decision was under appeal. However, she had interviewed the appellant twice and on both occasions he had denied being in a relationship. The Inspector had taken the view that he was in a relationship based on the form signed by the person named.

The Appeals Officer noted the appellant’s statement that when the person named was making her claim, she had been asked who was living in the house with her and she had said the appellant and phoned him for his PPS number. He observed that this may or may not have been the case but in the circumstances that it was a somewhat plausible explanation. He examined the claim form at issue and noted that it had been completed by the local social welfare Branch Office Manager, and then signed by the person named. He observed that she may or may not have realized what she was signing as her signature was not on the same page as that on which the appellant had been listed as her partner. The Appeals Officer noted that there was no other evidence of co-habitation, nor was co-habitation investigated as set out in Operational Guidelines issued by the Department of Social Protection to its staff (www.welfare.ie/en/Pages/Cohabitation.aspx). In the absence of such an investigation, he concluded that the evidence of co-habitation was very limited and open to question. In the circumstances, he considered that he had no option but to conclude that co-habitation had not been proved.

Decision of the Appeals Officer: The appeal is allowed

2012/22 Survivor’s (Contributory) Pension & Co-habitation

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

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

Overpayment assessed: €73,300.

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

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

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

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

The appellant outlined the background to her relationship with the person named. She accepted that they had been living together in the period at issue. She advised that when she was interviewed by the Social Welfare Inspector in 2001, in connection with her Widow’s (Non- Contributory) Pension claim, she told the Inspector that she was co-habiting and that this was the reason for her withdrawing the claim subsequently. She said that at the time of her application she was in receipt of Unemployment Assistance and when she got the pension book from the Department, she stopped that claim. She went on to say that she had accepted the payment in good faith on the basis that she had withdrawn her non-contributory claim and had not applied for a contributory pension.

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

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

Comment/Conclusion: In reviewing the documentary evidence, the Appeals Officer noted that on her Widow’s Pension application form, the appellant had declared her Unemployment Assistance payment and had indicated that she had been separated from her husband for some years prior to his death. He noted also that while an exact reason was not given by the Social Welfare Inspector at the time in relation to withdrawal of the claim, there was a notation on the file which stated the name and age of the person named as cohabiting with the appellant.

The Appeals Officer noted that the appellant had claimed a Widow’s (Non-Contributory) Pension and, following an interview with the Social Welfare Inspector, she withdrew that claim on the basis of cohabitation with the person named. While this was not specifically mentioned in the notice of withdrawal which had been written by the Inspector and signed by the appellant, he was satisfied nonetheless from her testimony at the oral hearing and the notation on the file as written by the Inspector that this is the case. He noted also that it was clear that the appellant had never applied for a Widow’s (Contributory) Pension and that there is no option to do so on the Widow’s (Non-Contributory) Pension claim form.

While he accepted that, in the circumstances, the appellant had no entitlement to a Widow’s (Contributory) Pension based on cohabitation with the person named, he considered that the decision to revise the original decision by using Section 302 (a) of the Social Welfare Consolidation Act, 2005 – in effect wilful concealment of a material fact – was unsafe given that she had never applied for the payment in the first place and that it would not stand up under scrutiny. He made a decision with reference to Section 302 (c) of the Act, determining that the decision to disallow the Widow’s Contributory Pension should take effect from a different [specified] date, which was the date of the appellant’s 66th birthday as after that date she had been awarded a State (Non- contributory Pension).

Decision of the Appeals Officer: The appeal is allowed.

Note on reason(s) for decision: Having considered all of the evidence on file and that adduced at the oral hearing I am satisfied that no wilful concealment of the facts has occurred in this case. In the circumstances I am allowing the appeal under Section 302 (c) of the Social Welfare Consolidation Act, 2005 and that the decision to disallow the payment of her Widow’s Contributory Pension should take effect from [specified date] which is the date of her 66^th birthday as after this date she has now been awarded a State Non-Contributory Pension. The appeal therefore succeeds.

2015:

2015/06 One Parent Family Payment

Question at issue: Cohabitation in relation to a claim in payment

Background: The appellant had been in receipt of One Parent Family Payment since 2010 and in 2014, her claim was reviewed. A Social Welfare Inspector’s report noted that a car which was registered to a (named) person had been observed outside her home, along with a pair of men’s work boots. She interviewed the appellant, who denied that the person concerned lived there. She acknowledged that she had been on holiday with her children and partner (the person named) but said that he did not live with her. Details of the appellant’s means were reviewed also. The Inspector confirmed subsequently that the appellant’s partner owned another house which had been let. She contacted him and he confirmed that he owned the house and said that he lived there occasionally, while also living with his elderly parents. Images taken from the social media website, Facebook, showing the appellant and her children with the person named, on a date in 2012, were included in the Inspector’s report. The Deciding Officer wrote to the appellant, informing her of the Inspector’s report and inviting her comments prior to making a decision, in line with the requirements of natural justice. In her reply, the appellant stated that when she attended an interview with the Inspector, she panicked on learning that her claim was being investigated and gave incorrect information regarding the duration of her relationship. She said that her partner stayed at her house on occasion but that they had only recently come to view their relationship as more permanent. She stated that he had not contributed in any way to her mortgage or the upkeep of her home, and that she had to rely on an insurance protection policy to help pay her mortgage when she lost her job. She stated that her G.P. could confirm that she and her children attended as a family unit. Ultimately, the claim was terminated on grounds that she was cohabiting and therefore disqualified for receipt of One Parent Family Payment.

In a letter of appeal, the appellant stated that she lives at a specified address, while her partner owns and lives in his own home at another address. She said that she was finding it very difficult to cope since her payments ceased. In support of her appeal she submitted: copies of her partner’s P60 forms, his insurance, motor tax, and NCT details, bank statements and documents from Irish Water, the Revenue Commissioners and the local sports club – all indicating his stated address. In addition, she submitted bank statements, phone and electricity bills, as well as other correspondence in her own name, at her home address.

Oral hearing: The appellant was accompanied by a family member. The Inspector attended at the Appeals Officer’s request, and outlined the details of her report. She stated that while her investigation confirmed that his car was registered at his stated address, she was of the opinion that the appellant’s partner did not reside there and that this had been confirmed by the tenant who was currently renting the property. She said that the appellant had misinformed her as to the duration of the relationship and she noted that when she called the person named on the phone, he told her that he was at home, in the appellant’s house.

The appellant stated that she and her partner did not live together as a couple, and never had. She acknowledged that she may have been untruthful regarding the duration of their relationship, saying that they had been dating since 2012, but that it was only in recent months that they realised it was serious and only then that she introduced him to her children as her partner. She added that he had stayed overnight on occasions when her children were away and, referring to the nature of his work, said that he was away from home quite a lot. She said that he does not provide any care/maintenance for her children and that her siblings do so when required. She reiterated that the mortgage on her home and all utility and household bills are met solely by her. She added that while they were on holiday, he had parked his car at her house for security reasons.

The Inspector stated that, based on her investigation, she considered that it had been established that the appellant was cohabiting with the person named although she acknowledged that she had seen his car only once parked at the appellant’s home.

Conclusions: The Appeals Officer noted that when a person applies for a social welfare payment, the burden of proof lies with them to show that they meet the conditions of entitlement. However, once a claim is in payment, if consideration is to be given to withdrawing the payment, the burden of proof shifts and rests with the Department to establish that a change/withdrawal is appropriate.

He noted the provisions of the governing legislation, as follows: Section 175 of the Social Welfare (Consolidation) Act, 2005 prescribes that a ‘qualified parent shall not, if and so long as that parent and any person are cohabiting as husband wife, be entitled to and shall be disqualified for receiving payment of one-parent family payment. Section 15 of the Social Welfare and Pensions Act, 2010 inserted the following definition into Section 2 (1) of the Act of 2005 – ’cohabitant’ means a cohabitant within the meaning of section 172(1) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010.

Section 172 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010 prescribes –‘for the purposes of this Part, a cohabitant is one of 2 adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship and who are not related to each other within the prohibited degrees of relationship or married to each other or civil partners of each other’. It goes on to providethat all the circumstances of the relationship must be considered and, in particular, the following:

(a) the duration of the relationship;

(b) the basis on which the couple live together;

(c) the degree of financial dependence of either adult on the other and any agreements in respect of their finances;

(d) the degree and nature of any financial arrangements between the adults including any joint purchase of an estate or interest in land or joint acquisition of personal property;

(e) whether there are one or more dependent children;

(f) whether one of the adults cares for and supports the children of the other; and

(g) the degree to which the adults present themselves to others as a couple.

The Appeals Officer noted that the evidence submitted in support of the decision to terminate the appellant’s claim on grounds of cohabitation included reference to her partner’s car and a pair of men’s boots having been observed outside her home, her partner’s house being rented out to a long-term tenant, his other stated residence at his parent’s home not having been confirmed, and the appellant having misinformed the Inspector as to the duration of their relationship.

The Appeals Officer noted that while the appellant and her partner may present themselves as a couple within their community, there were no obvious financial links with each other, no children from the relationship, and the care and support of her children was provided by the appellant and her family. He considered that whilst an issue of credibility may arise in the case, he was not satisfied that the Department had proven cohabitation and, in the circumstances, concluded that it would be unreasonable and unfair to uphold the decision.

Outcome: Appeal allowed.

2015/22 & 2015/23 Unspecified Payment in Respect of Two Appellants

Question at issue: Cohabitation

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

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

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

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

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

Consideration: The Appeals Officer made reference to the provisions of the governing social welfare legislation. In particular reference was made to the definition of ‘Cohabitant’ which is defined in section 2(1) of the Social Welfare (Consolidation) Act, 2005, to mean a cohabitant within the meaning of section 172(1) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010, which provides:

– …a cohabitant is one of 2 adults (whether of the same or opposite sex) who live

together in an intimate and committed relationship and who are not related to each

other within the prohibited degrees of relationship or married to each other or civil

partners of each other.

The Appeals Officer observed that, prior to 2010, the relevant section of the Act provided for disqualification where two people were cohabiting ‘as husband and wife’. In the cases at issue, the Appeals Officer noted that if cohabitation in an intimate and committed relationship was not established, it could not be contended that the appellants concealed a material fact and, accordingly, that each would retain an entitlement to the named payments and no overpayment would arise. In this regard, he considered that the Judgment of Baker J, IEHC 309, was critical in assessing the evidence in the cases at issue. He made reference to paragraphs 21, 77, 78, 79, 86 and 95 of the Judgment as being of particular relevance, one of which states:

Para 86 – “The Act offers no assistance as to what is meant by an intimate

relationship, but having regard to s. 172(3) it is clear that the relationship must have

been at some point in time a sexual relationship for intimacy to be found. The

intimacy that is intended is a sexual intimacy and not merely the intimacy of a close

friendship”.

The Appeals Officer noted from the evidence presented by the Department in the context of its review, which pre-dated the Court Judgment cited, that many of the interconnected elements to which Baker J had made reference were considered to be in place in this case. In Paragraph 95, for example, it is stated that:

The basis of a relationship involves a number of interconnected elements such as the

degree of shared activities that persons enjoy, such as shared meals, especially

evening meals and breakfast, shared activities, shared division of household chores

and shared holidays…”

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

Outcome: Appeal allowed.

2016:

2016/08 One Parent Family Payment

Question at issue: Co-habitation

Background: The appellant’s baby was born in 2015 when she and her partner were living together. Subsequently, she made a claim for One-Parent Family Payment, stating that they had separated and that she was parenting alone. The claim was rejected on grounds that she and her partner were living together as cohabitants.

Oral hearing: The appellant was unaccompanied and the Social Welfare Inspector attended by request. The Appeals Officer referred to the Deciding Officer’s statement that he had relied on the Inspector’s report in determining that the qualifying criteria were not met and he asked for an outline of the details.

The Social Welfare Inspector reported that he had made an un-notified call to the appellant’s home and interviewed her in connection with her claim. He stated that he had also interviewed her some eight months previously in connection with a Jobseeker’s Allowance claim. That payment had been awarded at a reduced rate, based on an assessment of means derived from her partner’s income from employment. The Inspector stated that, at the time, the appellant had sought a review of the assessment on the basis that her partner had to pay maintenance in respect of a child from an earlier relationship and that this should have been taken into account in determining means. He advised, however, that no adjustment had been made to the assessment and he noted that the appellant had made a claim for One-Parent Family Payment some months later. In his report to the Deciding Officer, he opined that the appellant and her partner had decided to separate after she received an unfavourable decision in connection with her Jobseeker’s Allowance claim. He noted that the appellant had stated that she was receiving maintenance of €100.00 per week.

In response, the appellant stated that her former partner had been paying maintenance in respect of two children from a former relationship, and not one as the Inspector had stated. She contended that there was no concrete proof of cohabitation and asserted that there had been a lot of speculation. She went on to say that she considered this to have been a defamation of her character.

The appellant submitted that she and her partner had personal issues following the birth of their child in 2015. She stated that he had not been a good parent and had not helped out at home. She said that she had relied on the support of her parents, including the provision of financial assistance. She insisted that the separation had not been just for financial reasons and asserted that she was only guilty of not having had a perfect relationship.

Consideration: The Appeals Officer sought to determine whether the appellant could be held to meet the relevant qualifying condition for receipt of One-Parent Family Payment, having been disqualified on grounds of cohabitation. He noted the provisions of the governing legislation relating to cohabitation, outlined in Section 2(1) of the Social Welfare Consolidation Act 2005:

‘cohabitant’ means a cohabitant within the meaning of section 172(1) of the Civil

Partnership and Certain Rights and Obligations of Cohabitants Act 2010;

and the disqualification at Section 175 in relation One-Parent Family Payment:

A person referred to in section 173(1) shall not, if and so long as that person is a

cohabitant, be entitled to and shall be disqualified for receiving payment of One-

Parent Family Payment.

The Appeals Officer made reference also to Guidelines on Cohabitation which the Department of Social Protection has issued for the information of Deciding Officers. He noted that this outlines the criteria by which cohabitation might be assessed and indicates that no single criterion can necessarily support a decision. He examined the evidence in the case by reference to the criteria set out in the Guidelines, including the following: the duration of the relationship, the basis on which the couple lives together, and the degree of financial inter-dependence. He noted that the appellant was emphatic in her assertion that she was not cohabiting with effect from the date specified. He noted also that the evidence submitted by the Department was circumstantial, relating to the appellant and her partner having separated after an unfavourable decision in relation to Jobseeker’s Allowance, while the appellant had outlined a number of reasons for their separation. He concluded that the evidence did not establish a basis for determining that the appellant and the person named were a couple living in a ‘committed and intimate’ relationship at the time of her claim for One-Parent Family Payment.

Outcome: Appeal allowed.

2016/318/36 One Parent Family Payment

Question at issue: Co-habitation

Grounds for review: The appellant denied being in a relationship with the nominated person while receiving One-Parent Family Payment and she alleged errors of fact, as follows:

• The information provided by the Social Welfare Inspector was incorrect,

• The Appeals Officer did not conduct the appeal hearing in a fair manner.

Background: The appellant had been awarded One-Parent Family Payment in 2002 when she had one qualified child. In the context of a review, it emerged that she had another child for whom she had not sought payment. An investigation indicated that she was registered as the joint owner of a property since 2001. Ultimately, it was held that she had failed to show that her means did not exceed the statutory qualifying limit and that she had been in a cohabiting relationship with a nominated person who was the joint owner of the property at issue. Accordingly, payment was terminated. A revised decision was applied with effect from the date of claim and an overpayment of some €135,000 was assessed.

The Appeal: The Appeals Officer indicated that she considered the evidence advanced by the Department to be more convincing and concluded that the appellant had not been eligible for receipt of One-Parent Family Payment from the date of claim on grounds that she had failed to show that her weekly means were below the appropriate limit as she had failed to declare her joint ownership of a property with a nominated person. In addition, the Appeals Officer held that the appellant had failed to show that she was not cohabiting with that person. Accordingly, the appeal was disallowed.

Review: I examined the means and cohabitation aspects of the decision separately.

Means: I noted the appellant’s assertion that she had not been asked to show that her means were below the specified limit and could see no evidence to suggest that such a request had been made but not complied with. It was not clear to me what the import of her interest in the property was in relation to her claim for One-Parent Family Payment and this was not detailed at all by the decision-makers. There was no exploration as to what legal and practical control the appellant could exercise such that she could sell or derive a profit from the property. It is clear that if she lived at the property and was cohabiting with the nominated person, as upheld by the Appeals Officer, then the question as to means did not arise as she would have been disqualified for One-Parent Family Payment in such circumstances.

Cohabitation: In a situation where an existing payment is being reviewed, the onus is on the Department to make a satisfactory case for a disallowance. In this particular case, given the lengthy period at issue and the significant financial consequences of a revised decision for the appellant, an evidence-based case was required, indicating that it was highly probable that the appellant was residing with the nominated person during the entire period in question in ‘an intimate and committed relationship’, as provided for in the governing legislation. In putting together such a case, the Department must, at a minimum, have followed its own Guidelines on Investigating Cohabitation. Those Guidelines list the criteria by which cohabitation may be assessed and I examined the evidence in this case with reference to each of those criteria, as follows:

Duration of the relationship: The appellant was clear in her contention that she had not cohabited with the nominated person in the period at issue. The only evidence to the contrary was circumstantial.

Basis on which the couple live together: The appellant jointly owned a property since 2001 and her car, registered at her parents’ address, had been observed outside that property on five occasions in 2014. The Appeals Officer noted that there was no other evidence and that the appellant had stated that she allowed the nominated person to take her car as it had a baby seat.

Degree of financial interdependence: The nominated person paid some maintenance in respect of the children. Apart from this, there was no evidence pointing to any degree of financial interdependence.

Degree and nature of any financial arrangements between the adults: The appellant and the nominated person were joint owners of a house. There was no evidence of any other financial arrangements between them.

Dependent children: There were two dependent children.

Care and support for children of the other adult: This did not arise.

Degree to which the adults present themselves as a couple: There was no evidence.

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

Revised decisions and overpayments: I addressed the legislative provisions relating to revised decisions outlined in Chapter 1 of Part 10 of the Social Welfare Consolidation Act 2005. The ‘effect of revised decisions by Deciding Officers’ is clearly laid out in Section 302 and prescribes in mandatory terms when and in what circumstances a revised decision is to take effect. There are potentially significant consequences flowing from these provisions, such as in the appellant’s case where an overpayment of some €135,000 had been raised. The Department’s Guidelines on Revised Decisions and Their Date of Effect state that a Decision should include reference to:

• The relevant provision in the legislation under which payment is being

allowed, disallowed, or reduced;

• The sub-section of Section 302 of the Social Welfare Consolidation Act 2005

being applied in determining the effective date of the revised decision.

The Department’s Guidelines on Overpayment Recovery state that:

An overpayment is created where a Deciding Officer or a Designated Person makes a

revised decision under Section 302 or Section 325 of the Social Welfare Consolidation

Act 2005 and the effect of the decision is to reduce a person’s entitlement

retrospectively.

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

Outcome: Decision revised and appeal allowed

2017:

2017/09 One-Parent Family

Question at issue: Eligibility (Co-habitation & Means)

Background: The Department disallowed the appellant’s claim for One Parent Family

Payment (OFP) payment on the grounds that the appellant had failed to show that she was not

cohabiting or that her means were below the maximum rate of €217.80 weekly.

Oral Hearing: The appellant attended the hearing with a representative. The Social Welfare

Inspector (SWI) was also in attendance, at the request of the Appeals Officer. The SWI read

out her report which concluded that the appellant did not reside at her parents’ address as

she had claimed. This contention followed from a visit to her parents’ address by the SWI

in relation to the appellant’s sister’s claim for Jobseeker’s Allowance. The appellant was

not listed as residing at the address on the appellant’s sister’s claim at that time. The SWI

submitted that the appellant had moved to a large rented house and must have been in a

position to pay the costs of living there and on that basis must have been receiving financial

assistance from her son’s father in this regard. The SWI submitted that the appellant was

asked to provide details of her son’s father’s income as she was benefitting from this income

and that these details had not been provided.

The appellant submitted that she was resident at her parent’s address having moved out of

the rented accommodation following the breakdown of the relationship with her son’s father.

She submitted that she had no means and was being financially assisted by her parents. She

was receiving weekly maintenance of €30 from her son’s father who she stated now lived with

his parents. The appellant’s representative at the hearing confirmed that to his knowledge the

appellant’s son’s father resided at his parents’ address. The appellant submitted that she had

been unable to meet her loan repayment to the Credit Union and that at times she had needed

to get food parcels from a local food bank. This was confirmed by her representative.

Consideration: The Appeals Officer considered the evidence available. The Department was

of the view that the appellant did not reside in her parents’ address and was being supported

by the father of her son. The evidence available did not however support this conclusion. From

the evidence available the Appeals Officer concluded that the appellant resides at her parents’

address and is not living in a cohabiting relationship and that her means are well below

€217.80 weekly.

Outcome: Appeal allowed

2020:

2020/06 One-Parent Family Payment

Question at issue: Eligibility (cohabitation)

Background: The appellant’s application for One-Parent Family Payment was refused by the

Department on the basis that she had failed to show that she was not cohabiting with another

person. In her application the appellant included the liable relative of her child as part of her

household profile. She attached a personal statement in which she said their relationship had

ended but they were still living at the same address for financial reasons. She said they shared

the bills and rent, and she stated he paid a specified amount of maintenance.

The Social Welfare Inspector reported that the appellant and the father of her son had been

living at the address since August 2016. The report stated that he was in receipt of Family

Income Supplement (now known as Working Family Payment) from November 2016 to November

2019 when the appellant commenced employment. It said based on the household expenditure

form completed by the appellant they had shared the cost of all household bills 50/50 except the

grocery bill. It said they both cooked their own meals. It said they each had minded their son

when the other was working and there were childcare arrangements if both worked at the same

time.

In appealing the decision, the appellant stated that she considered herself a lone parent as while

she had physically lived with her ex-partner it was for financial reasons and particularly the issue

around availability and affordability of housing. She outlined that it was the best situation for

their son’s health and welfare. She stated her ex-partner had lived in a different room and

shopped and cooked for himself.

Consideration: In order to qualify for One-Parent Family Payment, a person must be a ‘qualified

parent’ and must not be a cohabitant.

The Appeals Officer noted that when a person makes a claim for a social welfare payment, the

onus is on the person to show that they meet the conditions of the scheme. The Appeals Officer

concluded that the evidence pointed to a cohabiting relationship and was not satisfied that the

appellant met the conditions of the scheme.

Outcome: Appeal disallowed

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