Social Welfare Type: Guardian's Payment Non-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 G0075

The case concerns the Appellant’s claim for Guardian’s Payment (Non-Contributory), formerly Orphan’s (Non-Contributory) Allowance, in respect of her grandchild.

According to the Appellant’s instructions, she first applied for Guardian’s Payment in or around October 2012. In September 2013 she reapplied, and this claim was refused on 8 January 2014. The Appellant applied for the third time in May 2014. This application was rejected on 1st July 2014. The Appellant sought a review of the refusal.  The Appellant attended CLM in or around August 2014 and was provided with advice and representation with respect to the review of the Deciding Officer’s decision.

On 20 March 2015 the Deciding Officer issued a decision with respect to the review.  The Deciding Officer confirmed her earlier decision, asserting that the Appellant was not eligible for a Guardian’s Payment as her grandson did not satisfy the definition of an orphan. The Deciding Officer found that the evidence did not demonstrate abandonment of the child by his father as required under the legislation, noting that, while incarceration limited the father’s ability to provide day-to-day care for his son it did not constitute abandonment.

On 30 March 2015 CLM on behalf of the Appellant submitted a Notice of Appeal in respect of the Deciding Officer’s decision.

On 21 April 2015, the Deciding Officer revised her decision (the Appeal’s Office having forwarded the Appellant’s grounds of Appeal to the Deciding Officer), and determined that the Appellant was entitled to Guardian’s Payment with effect from 19 December 2014 on the basis that the Appellant’s son was not residing at the Appellant’s address from this date.  According to the record, this decision is consistent with a December report by a Social Welfare Inspector (SWI); the SWI being satisfied that the Appellant was looking after her grandson and would continue to do so indefinitely.

The Appellant was awarded €2,910 in arrears (from 19 December 2014 until 30 April 2015). The Deciding Officer further advised that an investigation into whether the Appellant was eligible for arrears of the payment from an earlier date would be undertaken, and that the Social Welfare Appeals Office would be notified of this decision in due course.

On 18 August 2015 CLM wrote to the Deciding Officer seeking an update as regards the Appellant’s entitlement to payment from an earlier date. On 16 October 2015 the Deciding Officer wrote to the Appellant confirming her entitlement to payment from September 2014.  This decision resulted in a further € 1,972.25 arrears being issued.

As the Appellant was in receipt of the One Parent Family Payment, Guardian’s Payment was awarded at half rate.  Guardian’s payment and the One Parent Family Payment may be paid concurrently.

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