Disability Allowance Archives

Thematic Note G0120: Disability Allowance

Title of Payment: Disability Allowance

Date of Final Decision: SWAO Annual Reports 2009-2020

Keywords: Disability Allowance, Means Test, Habitual Residence, Substantially Restricted, Suitable Employment

Casebase no: G0120

Summary of the relevant law:

The criteria that a person (aged 16-66 years) must meet in order to qualify for receipt of Disability Allowance are that they are:

suffering from an injury, disease, congenital deformity or physical or mental illness or defect which has continued or may reasonably be expected to continue for a period of at least a year and substantially restricted because of your disability from doing work that would be suitable for a person of your age, experience and qualifications;
Of insufficient financial means; and
Habitually resident in Ireland.

Disability

Section 210 (1) (b) of The Social Welfare (Consolidation) Act 2005 (as amended) (“2005 Act”) states that in order to obtain Disability Allowance, a person must by reason of a specified disability be substantially restricted in undertaking employment of a kind which, if the person was not suffering from that disability, would be suited to that person’s age, experience and qualifications.

Means

Section 210 (1)(c) of the 2005 Act states that in order for a person to meet the means test for Disability Allowance, their weekly means cannot exceed the amount of Disability Allowance (including any increases of that allowance) which would be payable to the person.

Habitual Residence

While habitual residence is not defined in Irish law, Section 246 of the 2005 Act provides guidance. Accordingly, determination of whether an individual is habitual resident is a two-stage process in Irish law. The first step involves establishing whether a person has the right to reside in accordance with EU law. The second step is a determination of whether a person is habitually resident with reference to the specific circumstances of their case, with a particular focus on the five factors outlined in Section 246 (4) of the 2005 Act, which are as follows:

length and continuity of residence in the State or in any other particular country;
length and purpose of any absence from the State;
nature and pattern of the person’s employment;
person’s main centre of interest; and
future intentions of the person concerned as they appear from all the circumstances.

Key grounds of appeals by appellants:

Key examples of thematic areas that individuals appealed decisions of the Appeals Officers under are as follows:

The interpretation of mental health issues, social issues and behavioural disorders with regards to meeting the threshold of causing an individual be “substantially restricted” from employment;
The interpretation of “suitable employment” should be a subjective assessment, based on the skills, experience and issues presently being faced by the particular appellant;
How minors/young adults are assessed, and the differing considerations that are required when assessing this demographic;
Overlapping conditions that are not sufficient on their own to substantially restrict an individual from employment, but the ability of the combined impact of the multiple issues to create a larger problem that prevents an individual from obtaining/retaining employment;
Change of medical circumstance or availability of medical evidence to support Disability Allowance claim;
The method by which means are calculated (E.g. consideration of household income, awards of damages, saving accounts with access limitations, inheritance, community employment scheme income, welfare payments from other countries etc.); and
Appealing decisions on habitual residence on a subjective and case-by-case fact-driven basis.

Observations on appeal outcomes:

At the outset, a key observation is that the increase in variety and intersectionality of the disabilities, illnesses and diseases that are being raised by appellants as meeting the threshold for substantially restrictions to employment. In recent years, issues such as gender dysphoria, eating disorders, alcoholism, social withdrawal etc. are being considered as having the potential to substantially restrict employment opportunities. Concerning intersectionality, most appeals involved individuals who were suffering from both physical and mental issues, which are often interlinked and correlative. The SWAO has shown a willingness to expand what is classified as a disability, and to consider the compounding impacts of different issues faced by an individual.

It is evident from the determinations that how an appellant presents themselves during the course of the appeal is extremely influential; their interactions, attitude, behaviours, communication, demeanour and movements during the hearing are often cited by the SWAO when justifying a decision reached.

Alongside the considerations we would expect the SWAO to discuss when assessing an individual’s ability to work (E.g. qualifications, experience, home-life, language proficiency etc.), they also considered factors such as hobbies, interests, caring responsibilities, volunteering, friendships, participation in community life etc. when considering an appellant’s capability.

When considering what constituted “suitable employment” it appeared that for those with more serious disabilities, more difficult circumstances or who were older, the definition of “suitable employment” was narrower and more closely linked to their previous experience and training. Otherwise, the term “suitable employment” has been defined as “[applicable] to a wide variety of employment types and not just to the person’s usual or preferred type of work.”

With regards to the medical evidence cited in the Appeals, it was extremely rare that the opinion of the medical expert would not be key in the assessment of the severity of a disability, especially when activities were profiled and ranked by a GP/medical expert. Appellants that were unable to show a medical diagnosis/medical support letter to demonstrate the severity of their disability found it difficult to succeed.

The assessment of the disabilities of minors and young adults tended to be based on the individual’s need for supervision, behaviour at home/school and, most importantly, their forecasted ability to cope with entering third-level education/work place. It was also clarified that minors do not need to show an employment record with reference to the requirements for habitual residence.

With regards to habitual residence, determining whether an appellant’s centre of interest was in Ireland seemed to be largely based on the factual matrix of the appellant’s circumstances (i.e. a tailored application of the five factors listed in 246 (4) of the 2005 Act to the precise circumstances).

It was also shown that an appellant being on a residency permission that specifically precludes their right to obtain employment in Ireland (E.g. Stamp 2A permission) should not be the precluding factor for an individual seeking Disability Allowance.

With regards to the right to reside, several appeals were made by individuals who were dependent direct relatives of an EU worker. For example, 2019/318/62 Disability Allowance – Section 318 Review below. The relative in this case was refused Disability Allowance as not deemed to have a right to reside if to become an unreasonable burden on the social assistance system of the State. Nevertheless see the High Court decision in Voican and Casebase Case Report G0113.

With regards to means, several appeals were made by individuals that were having their means assessed on a household basis, who were seeking to be assessed on an individual basis. The determinative factor here was whether the couple were in fact living as spouses (as opposed to a separated couple living at the same address).

The appeals on means-related grounds also clarified that income received from the awarding of damages, saving accounts with access limitations, inheritance and community employment schemes should all be considered when calculating an individual’s income. A recent case confirmed that, with regards to social security payments, benefits received from other Member State that are equivalent to Irish welfare payments should be excluded when assessing the appellant’s means.

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Social Welfare Appeal G0113

Title of Payment: Disability Allowance

Date of Final Decision: 29 May 2020

Keywords: Disability Allowance; EU Citizenship Directive; Right to Reside; Dependant; Family Member; Habitual Residence Condition

Organisation who represented the Claimant: KOD Lyons

Casebase No. G0113

Case Summary

This case concerned judicial review proceedings brought following a decision of a Chief Appeals Officer refusing an application for disability allowance – Georgeta Voican v. Chief Appeals Officer, Social Welfare Appeals Office, Minister for Employment Affairs and Social Protection, Ireland and the Attorney General [2019] No.748 J.R.

The applicant was a Romanian national, Ms. Voican, who had been living in Ireland since 2017. Ms. Voican lived with her daughter, a dual Irish and Romanian citizen. Ms. Voican had the right to live in Ireland under the EU Citizenship Directive (the “Directive”) as she was a dependant relative of an EU worker (her daughter). Ms. Voican applied for disability allowance and her application was refused on the basis that her right to reside in the State was predicated on her continued dependence upon her daughter. This decision was subsequently upheld on appeal and Ms. Voican brought judicial review proceedings before the High Court.

The State argued that Ms. Voican had established her right to reside in Ireland on the basis of her dependence on her daughter. Further, the State argued that this dependence needed to be continuing in order for this right of residence to continue. The State sought to make the case that if Ms. Voican received disability allowance, she would no longer be dependent upon her daughter and as a result she would no longer fulfil the requirements of the Directive. The State noted that the domestic legislation provided that the right of residence afforded to EU citizens under the Directive was conditional on the relevant person not becoming an “unreasonable burden on the social assistance system of the State” and contended that Ms. Voican being granted disability allowance would represent such a burden.

Ms. Voican argued that the European Communities (Free Movement of Persons) Regulations 2015[1] (the “Domestic Regulations”), which transposed the Directive into Irish law, were inconsistent with the Directive on the basis that it did not impose a condition that a family member of a migrant worker be self-sufficient. As such, Ms. Voican argued that the domestic regulations were an unlawful transposition of the Directive. Ms. Voican also argued that the refusal of her claim for disability allowance was inconsistent with the equal treatment imperatives under the Irish Constitution and the European Convention on Human Rights as the decision to refuse her claim for disability allowance discriminates against her on the basis of her nationality.

The Court rejected the State’s arguments and quashed the decision of the Chief Appeals Officer to refuse Ms. Voican’s claim for disability allowance.

The Court ordered the Chief Appeals Officer to reconsider Ms. Voican’s claim which was to be carried out within 6 weeks of the perfection of the High Court Order. The Court made its decision based solely on interpretation of the Directive and did not need to consider Ms. Voican’s additional argument in relation to the principles of equal treatment contained in the Irish Constitution and the European Convention on Human Rights. The Court’s reasoning largely turned on the definition of “family member” under Article 2(2)(d) of the Directive and whether this article required that “ongoing and continuing dependency”.

Key Conclusions

There is no self-sufficiency requirement under the Directive in respect of a dependent family member of a migrant worker who is lawfully resident in the State for a period of more than three months to reside in an EU Member State. Under the Directive the person claiming social assistance has an entitlement to equal treatment in their own right.

[1] S.I. 548 of 2015

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Social Welfare Appeal G0111

Title of Payment: Disability Allowance

Date of Final Decision: 2020

Keywords: Disability Allowance; Means Test; Non-Cash Benefit; Mortgage Repayments; Legislative Interpretation; Equal Treatment of Similar Applicants; Precedent Decisions; Judicial Review; Regulation 142; Regulation 143

Organisation who represented the Claimant: Citizen’s Information

Casebase No. G0111

Case Summary:

This case is that of Margaret Bracken v. Minister of Employment Affairs and Social Protection [2018] No.165 J.R (2020 IEHC 394). It was heard with the case of Deirdre Brennan v Minister for Employment Affairs and Social Protection [2018] No.76 J.R. Casebase Report No. G0112 details the latter decision.

This case concerned an application to quash the respondent’s (the Minister for Employment Affairs and Social Protection’s) decision to take into account the applicant’s ex-partner’s mortgage repayments on the house in which the applicant resides when assessing the applicant’s means in the context of her application for disability allowance.

The applicant resides in a house which is in the sole name of her ex-partner, and on which her ex-partner pays a mortgage repayment in the amount of €647 each month. The applicant lives in the house with her son, who is also the child of her ex-partner. She pays no rent and her residency is not the subject of a tenancy agreement.

The applicant was granted disability allowance in August 2017, but in determining her means as part of this application, the respondent took into account the monthly mortgage repayment made by the applicant’s ex-partner. The applicant appealed this decision to the Social Welfare Appeals Office and in doing so relied in part on a previous decision of the Chief Appeals Officer in 2015, in which an applicant in similar circumstances had only 50% of the relevant mortgage repayment taken into account (the “Precedent Decision”). The Social Welfare Appeals Office refused the appeal in November 2017, which decision the applicant then sought to have reviewed by the Chief Appeals Officer. The Chief Appeals Officer subsequently refused to revise the decision of the Social Welfare Appeals Office, by way of a written decision issued on 21 December 2017. The applicant then sought to judicially review this refusal in the High Court.

Before the High Court, the applicant argued that she was not challenging the legislation but instead the respondent’s interpretation of the legislation, which she said was irrational and arbitrary. She argued that the respondent failed to treat similar applicants equally and this is demonstrative of a fixed and inflexible policy. Additionally, no adequate interpretation was provided by the respondent in relation to the difference between ‘housing costs’ and ‘net cash value’. The core issue was the proper interpretation of the phrase “the net cash value to the (applicant) of her annual housing costs actually incurred and paid by a liable relative insofar as the cash value exceeds €4,952 per annum” contained in Regulation 142 of the 2007 Regulations, and monthly mortgage payments do not come within the meaning of non-cash benefit.

The respondent argued that the statutory provisions allow both cash income and any non-cash benefits which a claimant may reasonably be expected to receive during the year, whether as contributions to the expenses of the household or otherwise to be taken into account. Non-cash benefits include the net cash value to the relevant claimant of his or her annual housing costs actually incurred and paid by a liable relative. Mortgage repayments do come within the meaning of non-cash benefit.

The Court’s decision focused on the question of statutory interpretation and ultimately found that giving the contentious words their ordinary meaning, the respondent had correctly interpreted the legislation and mortgage repayments come within the definition of housing costs and the meaning of non-cash benefits. The Court further found that adequate and understandable reasons had been provided by the Respondent.

The Court therefore refused the applicant’s application to quash the respondent’s decision.

Key conclusions:

Mortgage repayments come within definition of ‘housing costs’ and within the meaning of a non-cash benefit, and will be taken into account when determining a claimant’s means.

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Social Welfare Appeal G0110

This is one of two judgments delivered by the Supreme Court in the case of Petecel concerning the refusal of an application for Disability Allowance under the Social Welfare Consolidation Act 2005. This particular judgment deals with the substantive issue of the legal classification of Disability Allowance, as opposed to the appellant’s entitlement to seek judicial review. The procedural issue is addressed in the earlier judgment and is detailed in Casebase Report No. G0109.

The appellant was Catalin Petecel, a Romanian national who lawfully lived and worked in Ireland from 2008-11. He was diagnosed with MS (multiple sclerosis) in 2011 and travelled to Romania for treatment. He returned to the State briefly from February to April 2012 but otherwise has remained in Romania ever since. While there, his condition deteriorated to the point that he was physically unresponsive and being cared for full-time by his mother.

In 2016, Mr. Petecel applied through his legal guardian for Disability Allowance pursuant to section 210(1) of the 2005 Act. The deciding officer refused his application on the basis that he was not resident in the State. The appellant’s solicitors sought a review of that decision pursuant to section 301 submitting that Mr. Petecel was still habitually resident in the State, as his absences were for the purpose of receiving medical care. Furthermore, it was argued that Disability Allowance was a “sickness benefit” for the purpose of Article 3(1)(a) of EU Regulation 883/2004 and therefore “exportable”. The request for a revision was refused by a second deciding officer on 9^th June 2017.

Mr. Petecel sought to challenge the said refusal by way of judicial review seeking to quash the relevant decisions and obtain additional declaratory relief. The appellant grounded his leave application on two points. First, he submitted that the deciding officer had erred in finding the appellant was not habitually resident in Ireland. Second, he contended that the State had incorrectly categorised Disability Benefit as a non-exportable “special non-contributory benefit” and sought a preliminary reference to the Court of Justice of the European Union on that basis.

When the matter came before the Supreme Court, and having determined the procedural issue, O’Malley J. invited the parties to make further written submissions on the classification issue. She was particularly interested in two issues, namely the “rehabilitative work” aspect of the earnings disregard that applied in the means test for Disability Allowance and the relevant disqualification criteria. O’Malley J. was of the view that there were elements of sections 210 and 212 of the 2005 Act that possibly indicated there may have been a medical purpose to the overall conditions of eligibility attached to Disability Allowance at the time of Mr. Petecel’s claim and sought supplemental submissions on that basis. The Supreme Court concluded that Disability Allowance was a form of social assistance payment properly classified as a non-exportable “special non-contributory cash payment” within the meaning of Article 70(2) of Regulation 883/2004. The payment was not linked to any medical purpose. Accordingly, Mr. Petecel was not entitled to Disability Allowance and his appeal was dismissed.

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Social Welfare Appeal G0109

This is one of two judgments delivered by the Supreme Court in the case of Petecel concerning the refusal of an application for Disability Allowance under the Social Welfare Consolidation Act 2005. This particular decision deals with the procedural issue as to the appellant’s entitlement to seek judicial review in the absence of having exhausted the statutory appeals process. The substantive issue of the legal classification of Disability Allowance is dealt with in a later judgment as detailed in Casebase Report No. G0110.

Despite all aspects of the case being fully argued in the High Court, Barrett J. declined to consider the substantive issue raised in circumstances where Mr. Petecel has failed to exhaust the statutory appeals process. He found that the 2005 Act contained adequate remedies in the form of a de novo appeal to an appeals officer (section 311), a revision by the Chief Appeals Officer (section 318), and an appeal on a point of the law to the High Court (section 327). Even if it was inevitable that the case would end up in the High Court in some shape or form, Barrett J. was of the opinion that it should do so at the end of the appeals process.

The Court of Appeal was prepared to accept that judicial review was not preconditioned on engaging in a futile or pointless appeals process. Costello J. was of the view, however, that the issues of EU law raised by Mr. Petecel could be dealt by way of a reference to the High Court by the Chief Appeals Officer pursuant to section 306 of the 2005 Act or an ordinary appeal on a point of law. The Court was influenced by the fact that the High Court would have a broader jurisdiction in the context of a statutory appeal than in judicial review to find that the appellant was entitled to Disability Allowance.

Ultimately, the Supreme Court determined that the appellant was entitled to bring judicial review proceedings in circumstances where the question of the classification of Disability Allowance was not one which could be properly ventilated through the statutory appeals process. Further, it would not have been appropriate to bring an appeal on a point of law as the High Court’s jurisdiction in such matters is confined to the interpretation of statute. Acknowledging that the habitual residence might have been more appropriately addressed within the Departmental process, O’Malley J. held that this did not act as a barrier to judicial review.

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Social Welfare Appeal G0055

This case relates to the Appellant’s Disability Allowance (DA) claim. The Appellant encountered a number of difficulties at various stages in relation to this claim, and each one will be looked at in turn.

Appeal
Review and decision to suspend DA claim
Arrears and Overpayment Calculation

The Appellant represented himself at the Appeal, and CLM represented the claimant for the two latter issues. However, the Appellant’s original application, subsequent refusal, review and appeal, informs the background to the two latter issues and so will be discussed first.

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Social Welfare Appeal G0020

The Appellant’s application for Disability Allowance (DA) was initially refused on two grounds; that is, failure to satisfy the medical criteria and the assertion by the Department of Social Protection that the applicant’s marriage tie had not been broken and that her estranged husband’s income should therefore be assessed against her claim. The decision was appealed. A revised decision was made in favour of the appellant with regard to the medical grounds but the matter of the marriage tie remained to be determined at oral hearing.

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