Social Welfare Type: Guardian's Payment Contributory

This case concerns the Appellant’s entitlement to Guardian’s Payment (Contributory), formerly Orphan’s (Contributory) Allowance, in respect of her two grand children, for the period 5^th of January, 2011 to 7^th of March, 2013.

The Appellant had been in receipt of Guardian’s Payment (Contributory), hereafter GPC, since 13^th September 2002. Following a review, a letter was issued by a Deciding Officer [DO] on 25^th of February, 2013 advising the Appellant of the factors which indicated that she was not eligible for the payment of the GPC between January 2011 – March 2013, and that she had incurred an overpayment. The Appellant was afforded the opportunity to bring any relevant matters to the notice of the DO before a final decision was issued. The Appellant duly submitted evidence at this time in support of her claim.

The Appellant’s claim was suspended on 1^st of March 2013 for the reason that the children’s mother was “resident at same address and has not abandoned and failed to provide for her children”. However, on review of the evidence submitted by the Appellant, a decision was made on 21^st of May 2013 to reinstate the claim with effect from 8^th March 2013. This decision was made on the basis that this was the date when the children’s mother allegedly ceased residing at the Appellant’s address.

The DO affirmed the position that for the period 5^th January 2011 to 7^th March 2013 the Appellant was not eligible for the GPC for the reason that “it could not be considered that the [children’s mother] had abandoned her [children].”

On the 3^rd July 2013, the DO confirming her findings with regard to the period January 2011 – March 2013 made a revised decision as follows:

According to the records of the Department, the children’s mother stayed with them two or three nights a week and had regular contact with the children during the period 5 January 2-11 to 7 March 2013, therefore, the children’s mother could not have been considered to have abandoned and failed to provide for them.

The decision was retrospective in effect; that is, the DO found that that Appellant was not eligible for GPC for the period 5th January 2011 to 7^th March 2013. As a consequence, the Appellant was assessed with a liability for an overpayment of GPC amounting to €32,522.

On the same date, an officer, authorised by the Department of Social Protection [the Department] to recover debts owed to the Department, issued a letter seeking the recovery of the overpayment.

On behalf of the Appellant, NCL&MC submitted notice of appeal to the Social Welfare Appeals Office on the 20^th of August 2013.

On 17^Th December 2013, the Appeals Officer allowed the appeal. The Appeals Officer found that “the children were orphans for the purposes of social welfare legislation in the period 7/1/11 to 7/3/13.”

The Appellant applied for Guardians Payment (Contributory) in respect of her grandson after his mother left the State. This was refused on the basis that the mother’s absence was only temporary and therefore the child could not be considered an “orphan” for the purpose of the legislation. An Appeals Officer disallowed the appeal by way of summary decision. NCL&MC sought a review of the decision under Section 318 of the Social Welfare Consolidation Act 2005.