Social Welfare Type: Guardian's Payment Contributory

Case Report G0156 – Thematic Note on Guardian’s Payment

Theme: Guardian’s Payment

Period of Analysis: 2009-2023

Keywords: Guardian’s Payment; Guardian; Orphan; Abandonment; Financial Support; Contributory; Non-Contributory; Department Guidelines.

Casebase No. Case G0156

Summary of the relevant law: 

The law on Guardian’s Payment is provided for in both the Social Welfare (Consolidation) Act, 2005 and in the Department of Social Protection’s Operational Guidelines on Guardian’s Payment.

An applicant will be eligible for Guardian’s Payment if an orphan resides with them and they are responsible for the orphan’s care. The payment given must be used for the benefit of the orphan.

Section 2 of the Social Welfare (Consolidation) Act 2005 defines an “orphan” as:

“a qualified child—

(a) both of whose parents are dead, or

(b) one of whose parents is dead or unknown or has abandoned and failed to provide for the child, as the case may be, and whose other parent—

(i) is unknown, or

 (ii) has abandoned and failed to provide for the child, where that child is not residing with a parent, adoptive parent or step-parent.”

A “qualified child” is regarded as a child up to the age of 18, or, if they are in full-time education, up to the end of the academic year in which the qualified child reaches the age of 22. Therefore, to be considered an orphan under Irish law, a child must be under 18 or under 22 years of age in full-time education, with neither parent capable of providing for them.

There are two types of Guardian’s Payment which can be claimed:

  1. Contributory: an orphan will be entitled to claim this type of Guardian Payment (paid at a standard rate of €227 per week) if their parent(s) or step-parent(s) had previously worked and made PRSI payments for 26 weeks, or
  2. Non-Contributory: if an orphan is not entitled to claim the Contributory payment, they will be eligible for the Non-Contributory payment, which is based on means test and at a maximum of €227 per week.

Deciding Officers, appointed by the Minister for Social Protection, take certain considerations into account when determining a claim for Guardian Payment. Certain case studies have noted that these factors include (but are not limited to) the following:

  • Likely duration of the existing circumstances;
  • Level of parent’s contact and involvement with the child; and
  • Evidence of conflict between the parent and child.

Additionally, the Department Guidelines outline a range of circumstances which might affect continuing entitlement to Guardian Payment, which guardians should keep the Department of Social Welfare informed of, such as the following:

  • An orphan no longer residing with the guardian;
  • An orphan reaching the age threshold;
  • Imprisonment or detention of the guardian or orphan;
  • An orphan or guardian becoming entitled to a different social welfare payment which cannot be claimed alongside Guardian Payment (i.e. foster care allowance);
  • An orphan becoming a foster child or becoming adopted; and
  • The parent providing financial support towards the child or residing at the same address as the child.

Key grounds of appeal by appellants:

The case studies of the SWAO Annual Reports from 2009-2023 have been reviewed. The majority of appeals are grounded on eligibility issue. There are also a number of cases resting on issues related to payment (i.e. concurrent payment, back payment and overpayment).

Read the Report in full here:

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Social Welfare Appeal G0087

This case relates to the appeal of a decision, dated 21/09/2016, to refuse the Appellant Guardian’s Payment (Contributory) in order to care for her grandson (“the Child”).

The Appellant applied for Guardian’s Payment (Contributory) in respect of her grandson on 15 August 2016. By letter, dated 21st September 2016, the Appellant was notified that her clam was refused for the reason that the facts with respect to her grandson’s contact with his father, and the support provided by the Child’s father, were not consistent with the statutory definition of an “orphan” for the purpose of receiving the Guardian’s Payment (Contributory).

When submitting her application for the Guardian’s Payment, the Appellant completed a questionnaire in which she stated that her son, the father, provided support through the provision of uniform, books and clothing.  The Appellant further stated that the father had overnight access to his son at the weekends.  In view of this information, the Deciding Officer found the Child could not be regarded as an orphan within the meaning of the relevant statutory provision.

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Social Welfare Appeal G0050

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 5th of January, 2011 to 7th of March, 2013.

The Appellant had been in receipt of Guardian’s Payment (Contributory), hereafter GPC, since 13th September 2002. Following a review, a letter was issued by a Deciding Officer [DO] on 25th 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 1st 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 21st of May 2013 to reinstate the claim with effect from 8th 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 5th January 2011 to 7th 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 3rd 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 7th 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 20th of August 2013.

On 17Th 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.”

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Social Welfare Appeal G0045

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.

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