Habitual Residence Condition Archives

Thematic Note G0144: Jobseeker’s Allowance

Theme: Jobseeker’s Allowance

Period of Analysis: SWAO Annual Reports 2009-2022

Keywords: Habitual Residence Condition, Right of Residence in the State, Means Test, Ownership of Property, Co-habiting Partners, Full-time Education, Capable of Work, Genuinely seeking Work, and Available for Employment/Work.

Casebase No. Case G0144

Summary of the relevant law:

Jobseeker’s Allowance is a weekly means tested payment made by the Department of Social Protection to a person who is (i) unemployed; (ii) who does not qualify for Jobseeker’s Benefit; (iii) whose entitlement to Jobseeker’s Benefit (a payment based on social insurance (PRSI) contributions) has expired; or (iv) who does qualify for Jobseeker’s Benefit but chooses to claim Jobseeker’s Allowance on an optional basis.

Conditions of Eligibility for Jobseeker’s Allowance

The conditions of eligibility for Jobseeker’s Allowance are set out in Sections 140 – 148A of the Social Welfare Consolidation Act 2005 (as amended) (the “2005 Act”) and Articles 14 – 16 and 116 – 121 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (as amended) (the “2007 Regulations”).

In accordance with Section 141 of the 2005 Act, a person is entitled to receive Jobseeker’s Allowance in respect of any week of unemployment (defined as any four days of unemployment within a 7 day period, whether consecutive or not) in circumstances where they meet the following criteria:

Aged between 18 and 66:

Pursuant Section 141 (1)(a) of the 2005 Act the applicant must be over the age of 18 years and under the age of 66 years. In the case of people born after 1 January 1958, they may claim up to the age of 70 provided they have not yet claimed the State Contributory Pension. By virtue of SI/2003/088 of 2021, applicants who have reached the age of 65 do not have to comply with the specific requirements in relation to availability for work, genuinely seeking work, signing-on and activation for the labour market. Persons approaching pensionable age are advised to apply for a State (Contributory or Non-Contributory) Pension 3 months in advance of the relevant age limit.

Unemployed and proves unemployment in the prescribed manner:

The applicant must prove unemployment by signing an electronic declaration as part of their application according to Section 141 (1)(b) of the 2005 Act. Additionally, pursuant to Section 141A(3)(a) of the 2005 Act it is a requirement that a person prove unemployment by attending an Intreo Centre or a Social Welfare Branch Office (or other designated place) on a day and at a time that an officer of the Minister may direct for the purpose of making a written declaration that they have been continuously unemployed since the last signing-on date or that they expect to be unemployed for a future period.

Continuous unemployment refers to any 2 consecutive weeks of unemployment not separated by more than 52 weeks pursuant Section 148 (4) (b) of the 2005 Act.

Penalty payment rates will apply to applicants for refusal or failure to attend activation meetings, pursuant Section 141A, and refusal or failure to participate in prescribed schemes, programmes or courses pursuant Section 141B.

An applicant is entitled to Jobseeker’s Allowance with respect to any week of unemployment, which is defined in Section 141(3) of the 2005 Act as any 4 days of unemployment, whether consecutive or not, within a period of 6 consecutive days out of 7 days. An applicant can work for up to 3 days and still claim Jobseeker’s Allowance.

Pursuant the 2005 Act, a ‘day of unemployment’ occurs where the applicant is:

(i) capable of work (Section 141 (4)(a));

(ii) deemed by regulations to be, or is exempted from being required to be, available for employment (Section 141 (4)(a)); and

(iii) genuinely seeking, but is unable to obtain, employment suitable having regard to their age, physique, education, normal occupation, place of residence and family circumstances (Section 141 (4)(c)).

Additionally, pursuant Article 117 of the 2007 Regulations, a person is not regarded as unemployed in respect of any day on which they are in receipt of wages.

‘Capable of work’ – If a person is unable to work because of illness/disability, they are ineligible for Jobseeker’s Allowance. “Incapable of work” is defined in the 2005 Act as incapable of work by reason of some specific disease or bodily or mental disablement or is deemed, in accordance with regulations, to be so incapable. A person is considered to be capable of work if there is no evidence to the contrary (for example, unless they state otherwise), or where, on request, they fail to produce a final medical certificate following a period of illness. When a person has been disallowed Illness Benefit because they have been found “capable of work” following an examination by the Medical Assessor, it may be accepted that they fulfil the requirement of being capable of work – notwithstanding any statement by the person that they do not consider themselves to be capable of work.

‘Available for employment’ – A person must be available for suitable full-time work in respect of each day for which they declare that they are unemployed. Pursuant Article 15(1) of the 2007 Regulations, a person is regarded as available for employment if they are prepared to accept at once any offers of suitable employment. There must be no legal restriction on the person taking up employment (for example, visa restrictions on taking up employment in the case of non-EEA nationals). The onus is on the applicant to demonstrate that this condition is satisfied.

Article 15 (2) of the 2007 Regulations sets out that a person may be regarded as not being available for work if (i) they impose unreasonable restrictions on the nature of the employment, (ii) the hours of work, (iii) the rate of pay, (iv) the duration of the employment, (v) the location of the employment, or (vi) any other conditions of employment which they are prepared to accept. A person who is not legally entitled to work, e.g. a non-national without a work permit, cannot be regarded as available for employment.

‘Genuinely seeking suitable employment’ –Article 16 of the 2007 Regulations provides that in order to be considered ‘genuinely seeking suitable employment’ it is necessary for the person to demonstrate that they have taken reasonable steps to secure employment during the relevant period of unemployment for which they are claiming and provide examples of such steps. These steps include replying to job advertisements, seeking information on the availability of employment from employers and employment agencies, availing of reasonable opportunities for training, acting on the advice of a departmental or Solas official concerning the availability of employment or taking steps towards becoming self-employed.

A jobseeker who engages in voluntary work within the State may continue to be entitled to a Jobseeker’s Allowance payment provided that, while engaging in the voluntary work, they continue to satisfy the statutory conditions of being available for and genuinely seeking work.

Detailed information on how the Available and Genuinely Seeking conditions are deciding regarding EEA Nationals, Non-EEA Nationals, Asylum seekers, and other miscellaneous categories of person is available at the following link: https://www.gov.ie/en/publication/1a5134-operational-guidelines-jobseekers-allowance/#part-2-qualifying-conditions.

The Habitual Residence Condition

The Habitual Residence Condition consists of two parts – (1) right of residence in the State and (2) the five-factor test relating to the individual which are determined on a case-by-case basis. Firstly, a person must have an established right of residence in the State, pursuant to Section 246(5) of the 2005 Act and in accordance with SI/548/2015 – European Communities (Free Movement of Persons) Regulations 2015 (the “2015 Regulations”). This right of residence must be unconditional in that it does not preclude the person from accessing social welfare payments. Secondly, pursuant to Section 246(4) of the 2005 Act, a person’s situation and intentions will be taken into consideration by a Deciding Officer or Designated Person, in particular: (i) the length and continuity of residence in the State or any other country; (ii) the length and purpose of any absence from the State; (iii) the nature and pattern of the person’s employment; (iv) the person’s main centre of interest, and (v) the future intentions of the person concerned. This list is non-exhaustive and other information may be considered relevant in arriving at a decision. 

Article 6(1) of the 2015 Regulations provides that EU citizens and certain family members have a right of residence for a period of three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport. Article 17(2) of the 2015 Regulations provides that a person to whom Article 6(1) applies is not entitled to receive social assistance under the 2005 Act. Article 6(1) of the 2015 Regulations sets out that an EU citizen who has entered the State seeking employment, and their family members, may continue to reside in the State for a period that is longer than 3 months where the Union citizen concerned can satisfy the Minister that they continue to seek employment and has a realistic prospect of being engaged in employment.

Also see Thematic Note on Right to Reside and Habitual Residence Condition (Thematic Note G0116).

Satisfaction of a Means Test

The means test for Jobseeker’s Allowance is set out in Part 2 of Schedule 3 to the 2005 Act. Detailed information on how means are assessed is available at the following link: https://www.gov.ie/en/publication/11f23e-means-assessment-guidelines/.

It is important to note the assessment of means for Jobseeker’s Allowance includes the assessment of the earnings of an applicant’s spouse/civil partner/cohabitant from both insurable and self-employment. The main provisions relating to the assessment of spouse/partner’s earnings are contained in Rule 1(2), 1(7), of the 2005 Act and Article 153 of the 2007 Regulations as amended by Art 10 of SI 700/07.

‘Cohabitants’ refers to couples who are living together (both the same or opposite sex). The term ‘cohabitant’ is defined in the social welfare code in accordance with Section 172 (1) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010, which states that “… a cohabitant is one of two 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“. Detailed information on how the means of a spouse/civil/partner or cohabitants earning are assessed is available at the following link: https://www.gov.ie/en/publication/812bc6-operational-guidelinesjobseekers-allowancepre-retirement-allowance-a/

When determining if Jobseeker’s Allowance is applicable, consideration is given to each of the following:

property owned by the applicant and their spouse/cohabitant/civil partner, other than property personally used or enjoyed by the applicant. Account would be taken, under this heading, of, for example, a second house, savings, stocks and shares, and the weekly value of property assessed here is calculated in accordance with Table 1 to Schedule 4 of the 2005 Act;

all income that the applicant and their spouse/cohabitant/civil partner may reasonably expect to receive in the coming year, including earned income from employment or self-employment, social security payments from other countries and maintenance. In the case of earnings of a spouse, civil partner or cohabitant from PRSI insurable employment, 60% of the average weekly earnings from that employment is taken into account. Certain forms of income are disregarded, including social welfare payments, money from recognised charities, and certain compensation payments paid by the State. A new statutory rental disregard of up to €269.23 per week (€14,000 per year) has been introduced and applies from the 12 July 2022 in respect of rental income from renting out a room(s) in your home to someone who is not an employee or an immediate family member. This also applies where an increase for a qualified adult is paid;

the value of any advantage accruing to a person and their spouse/cohabitant/civil partner from the use of property (other than a domestic dwelling or farm building, owned and occupied, furniture and personal effects) personally used or enjoyed by the applicant and their spouse/cohabitant/civil partner.;

any property disposed of by the applicant and their spouse/cohabitant/civil partner in order to qualify for Jobseeker’s Allowance; and

the value of any benefit or privilege enjoyed by the applicant and their spouse/cohabitant/civil partner. This is applied to applicants under the age of 25 who are still living at home, and it allows the Department to take account of 34% of the parents’ assessable income. An applicant under the age of 25 who has moved back into the parents’ home with their partner is exempt from this assessment while someone who has moved back home after at least three years’ independent living is assessed at €7 per week.

Disqualification:

Disqualification for attendance on a Course of Study:

Sections 68A and 148 of the 2005 Act provide that a person shall be disqualified from receipt of Jobseeker’s Allowance while attending a full-time day course of study, instruction or training which may take place over more than one academic year (including school/college holiday periods) and for the 3 month period after leaving second level education, except in such circumstances as may be prescribed.

Article 121 of the Regulations 2007 provide for the following exceptions to this disqualification:

a) persons aged between 18 and 20 years inclusive who: have been in receipt of Jobseeker’s Allowance for at least 6 months who are participating in approved courses of education, training or development and have not been enrolled in or attending an institute of education, for the purposes of completing a course of education or a course of instruction, within the 2 years immediately preceding the commencement of the course of study;

b) Youthreach participants who complete their Junior Certificate/ Leaving Certificate or who leave second level education early; and

c) mature students, that is, persons over 23 years of age on or before 1 January in the year in which the course of study commences are exempt from the student disqualification for the period in between academic years only. The student disqualification applies during the academic year.

Persons who wish to pursue part-time courses under the Back to Education – Part-Time Option must demonstrate that their participation does not restrict reasonable availability for work. Availability for/genuinely seeking work opportunities must take precedence over course attendance, should a conflict arise.

ii. Disqualification for loss of employment through misconduct

Section 147(4) of the 2005 Act provides that a person may be disqualified from receipt of Jobseeker’s Allowance for up to 9 weeks where they have lost employment through their own misconduct. In addition, where an employee has been suspended from employment without pay, Jobseeker’s Allowance claims should be examined under the “availability” and “genuinely seeking work” conditions rather than the “not unemployed” condition. Payment may be allowed where all relevant statutory conditions are satisfied.

iii. Residence in State Institution/ Imprisonment

A person in receipt of Jobseeker’s Allowance will be disqualified while they are residing in an institution maintained out of public monies.

Key grounds of appeals by applicants:

From a review of the case studies of the SWAO Annual Reports from 2009 to 2022, the following areas arise in the appeals against refusals of JSA. The case studies of the appeals are included further below.

Satisfaction of a Means Test

There were sixteen appeals relating to the satisfaction of a “means test”. Six appeals related to the evidential burden needed to prove or disprove cohabitation. Other appeals were taken on the grounds of departmental error, and the failure to provide all relevant information when submitting a claim for Jobseeker’s Allowance (Case 2021/75).

Habitual Residence

There were eleven appeals in relation to the requirement of proof of habitual residence as criterion for Jobseekers Allowance. In these cases, applicants appealed decisions that they had not satisfied the five-factor test established to determine habitual residence per Section 246(4) of the 2005 Act. Three cases dealt with the applicant having to prove that their ‘centre of interest’ was in Ireland or to justify long or frequent absences from the State. Other cases dealt with providing evidence of cohabitation (Case 2012/12) and reversal of a departmental error (Case 2016/318/35).

Right to Reside

Of the eleven appeals taken on ground of the Habitual Residence Test, three appeals related to the right to reside as a pre-requisite to the Habitual Residence criterion for Jobseeker’s Allowance. One concerned the 3 months right to reside of EU citizens under Article 6(2) of the 2015 Regulations and another whether the applicant could be considered a jobseeker per the definition provided under Article 6(2) of the same legislation.

Failure to Attend Activation Meetings and to Attend Meetings Requested in order to Prove Unemployment, to Provide Information and Penalty Rates

In the two cases appealing the imposition of penalty payment rates on grounds failure to attend activation meetings, the applicant did not demonstrate good cause for non-attendance at the activation meetings. A third (Case 2018/318/60) dealt with an appeal of a penalty rate imposed due to the applicant’s failure to provide further information regarding their circumstances and to attend a meeting to support their claim for Jobseeker’s Allowance. This appeal was disallowed.

Overpayment & Departmental Error

One case (Case 2017/40) dealt with a decision ordering an applicant to repay a significant overpayment made to them due to departmental error, which the appellant and her partner did not notice had been issued to them. This appeal was allowed. Another case (Case 2018/39) dealt with an appeal of a decision requiring the applicant to repay payments she claimed in error during the first few weeks of her new employment on the grounds that she had been advised she was entitled to claim Jobseeker’s Allowance up until her first paycheck by her local departmental office. This appeal was allowed.

Observations on appeal outcomes:

The most common barrier to claiming Jobseeker’s Allowance which applicants sought to overcome via appeal was failure of the Habitual Residence Test in the case studies selected for the SWAO Annual Reports.

Applicants had to prove they satisfied the five-part test set out in Section 246(4) of the 2005 Act. Most appeals fell to be decided on the ‘centre of interest’ and ‘frequency and length of absences from the State’ legs of this test. In deciding whether Ireland was the applicant’s centre of interest, particularly significant weight was given by Appeals Officers to whether the applicant was in a long-term relationship with an EU or Irish Citizen residing in Ireland long-term. Where this was the case, the Habitual Residence test was considered satisfied unless there is evidence of a significant absence from the state with no good reason. An applicant having a child residing in Ireland, employment in the State, or being enrolled in an educational course in the State were also significant considerations. The Appeals Officers looked to establish a centre of interest and allow the appeal where at all possible. Where the applicant could point to a specific personal or educational reason for long or frequent absences from the State, this leg of the test was satisfied. It is important to note that applicants who did not have the pre-requisite right to reside, or who were EU applicants applying for a payment within their first three months in the State, were unsuccessful in their appeals. These circumstances definitely preclude an applicant from claiming the payment, and a successful appeal outcome will not be reached where these circumstances apply to the applicant.

Applicants who appealed on the grounds of the Means Test appear to have a low success rate. Most commonly the applicant appealed the calculations of the original Deciding Officer. In most appeals of calculations, the original decision was upheld. Appeals on the grounds of departmental error were more commonly allowed. Several applicants appealed their assessment as forming part of a co-habiting couple. In these cases, the applicant was required to disprove evidence of Cohabitation.

The onus is on the Department to establish on the balance of probabilities that the applicant and an induvial with whom they reside meet the statutory definition of a Co-Habiting Couple which requires the individual be in an “intimate and committed relationship”. Where two individuals had resided with one another over a long period of time or across multiple addresses, had previously applied for Departmental resources listing one another as their partner or co-habiting couple, or where the individuals declined to provide requested information to the Department, the Appeal’s Officer tended to disallow appeals.

Appeals on grounds of failure to meet the statutory requirements to attend activation meetings or provide requested information were all unsuccessful. In all three cases on these grounds, the applicant had not demonstrated good cause for non-attendance of the activation meetings. The threshold for proving ‘good cause’ for missing an activation meeting is high, and as noted by one Appeals Officer, will only be satisfied where the good cause was communicated at the time of invitation in a timely manner.

Applicants should be advised to attend all required meetings and provide all information requested by the Department. Applicants should note that these statutory requirements will not be considered as legitimate grounds for an appeal, unless perhaps an extremely exceptional extenuating circumstance which was communicated to the Department at the time of the meeting invitations or could not have been communicated at the time of invitation for a proven reason, although no such case arose in this review. Appeals Officer’s noted that applicants are issued multiple notifications and invitation to meetings before a penalty rate is finally imposed and therefore do view the applicant as having had a fair chance to attend or respond to invitations to reschedule.

Where one applicant claimed they did not receive the correspondence, the Appeals Officer ruled it is applicant’s responsibility to update the Department with an address at which they are contactable each time they move residence, therefore correspondence is considered received once sent from the Department to the registered address. In another case, an applicant claimed he did not attend a meeting due to privacy and data protection concerns. These arguments were considered irrelevant by the Appeal’s Officer, who noted provision of information on personal circumstances is a core element upon which the social welfare system relies and must be respected.

Relevant Case Studies of the SWAO Annual Reports 2009-2022

A.	2009
	N/A
	2010
1.	2010/10 Supplementary Welfare Allowance (Basic Income) & Jobseeker’s Allowance	Question at issue: Eligibility (means assessment)
	2011
1.	2011/09 Jobseeker’s Allowance	Question at issue: Habitual Residence
2.	2011/12 Jobseeker’s Allowance	Question at issue: Habitual Residence
3.	2011/20 Jobseeker’s Allowance	Question at issue: Habitual Residence
	2012
1.	2012/12 Jobseeker’s Allowance & Co-habitation	Question at issue: Means & Co-habitation
	2013
	N/A
	2014
	N/A
	2015
1.	2015/14 Jobseeker’s Allowance	Question at issue: Means Assessment
	2016
1.	2016/23 Jobseeker’s Allowance	Question at issue: Eligibility (Means)
2.	2016/24 Jobseeker’s Allowance	Question at issue: Eligibility (Habitual Residence)
3.	2016/25 Jobseeker’s Allowance	Question at issue: Eligibility (Means)
4.	2016/26 Jobseeker’s Allowance & SWA	Question at issue: Eligibility (Right to Reside)
5.	2016/318/35 Jobseeker’s Allowance	Question at issue: Habitual Residence
	2017
1.	2017/39 Jobseeker’s Allowance	Question at issue: Eligibility (Means)
2.	2017/40 Jobseeker’s Allowance	Question at issue: Overpayment (Departmental Error)
3.	2017/41 Jobseeker’s Allowance	Question at issue: Eligibility (Means)
4.	2017/318/62 Jobseeker’s Allowance	Question at issue: Whether an Appeals Officer had erred when partially allowing an appeal in relation to overpayment
	2018
1.	2018/39 Jobseeker’s Allowance	Question at issue: Eligibility (Whether a Person is Unemployed)
2.	2018/40 Jobseeker’s Allowance	Question at issue: Eligibility (Means)
3.	2018/41 Jobseeker’s Allowance	Question at issue: Eligibility
4.	2018/42 Jobseeker’s Allowance	Question at issue: Eligibility (Habitual Residence)
5.	2018/43 Jobseeker’s Allowance	Question at issue: Eligibility (Habitual Residence)
6.	2018/44 Jobseeker’s Allowance	Question at issue: Eligibility (Failure to Attend Activation Meetings)
7.	2018/318/58 Jobseeker’s Allowance	Question at issue: Assessment of means derived from seasonal employment
8.	2018/318/60 Jobseeker’s Allowance	Question at issue: Information to be given when making a claim
9.	2018/318/64 Jobseeker’s Allowance	Question at issue: Attending a course of study
	2019
1.	2019/38 Jobseeker’s Allowance	Question at issue: Eligibility (Failure to Attend Activation Meetings)
2.	2019/39 Jobseeker’s Allowance	Question at issue: Eligibility (Means)
3.	2019/40 Jobseeker’s Allowance	Question at issue: Eligibility (Failure to Attend Activation Meetings)
4.	2019/44 Jobseeker’s Allowance	Question at issue: Eligibility (Full-Time Education)
5.	2019/318/64 Jobseeker’s Allowance	Question at issue: Entitlement (Pay Rate)
	2020
1.	2020/34 Jobseeker’s Allowance	Question at issue: Eligibility (Available for and Genuinely Seeking Work)
2.	2020/35 Jobseeker’s Allowance	Question at issue: Eligibility (Habitual Residence)
3.	2020/36 Jobseeker’s Allowance	Question at issue: Eligibility (Means)
4.	2020/37 Jobseeker’s Allowance	Question at issue: Eligibility (Means)
5.	2020/318/65 Jobseeker’s Allowance	Question at issue: Entitlement (Penalty Rate)
6.	2020/318/66 Jobseeker’s Allowance	Question at issue: Entitlement (Penalty Rate)
7.	2020/318/67 Jobseeker’s Allowance	Question at issue: Eligibility (Right to Reside in the State)
	2021
1.	2021/49 Jobseeker’s Allowance	Question at issue: Eligibility (Habitual Residence)
2.	2021/50 Jobseeker’s Allowance	Question at issue: Eligibility (Means)
3.	2021/51 Jobseeker’s Allowance	Question at issue: Eligibility (Means)
4.	2021/75 Jobseeker’s Allowance	Question at issue: Eligibility (Means)
	2022
1.	2022/46 Jobseeker’s Allowance	Question at issue: Eligibility
2.	2022/47 Jobseeker’s Allowance	Question at issue: Income Support
3.	2022/48 Jobseeker’s Allowance	Question at issue: Eligibility (Right to Reside & Habitual Residence)
4.	2022/49 Jobseeker’s Allowance	Question at issue: Eligibility (Full-Time Education)

2010:

2010/10 Supplementary Welfare Allowance (Basic Income) & Jobseeker’s Allowance

Question at issue: Eligibility (means assessment)

Question at issue: There were two appeals dealt with in this case – concerning the appellant’s entitlement to Supplementary Welfare Allowance (basic income) and/or to Jobseeker’s Allowance. Her means had been assessed at €210 per week derived from the capital value of property, an amount in excess of the qualifying threshold for both schemes.

Background: The appellant left the family home in 2008, following the breakdown of her marriage. Her husband was retired and in receipt of a private pension. He received a lump sum on retirement which he used to clear the mortgage on the family home; he continued to live there with one of the couple’s adult daughters.

Oral hearing: The appellant was accompanied by a counsellor. The Community Welfare Officer (CWO) who had assessed the appellant’s entitlement to Supplementary Welfare Allowance attended at the request of the Appeals Officer, as did the Social Welfare Inspector who had investigated her claim for Jobseeker’s Allowance.

The appellant reported that she had left the marriage in 2008. She confirmed that the family home was held in the joint names of her husband and herself. She said that she had worked during her marriage, as had her husband, and that they had shared household expenses. Her husband had been responsible mainly for the mortgage while she looked after the daily necessities for the family.

In terms of her current circumstances, the appellant reported that she had lost her job and had claimed Jobseeker’s Benefit. When the period of entitlement ceased, she applied for Jobseeker’s Allowance and her claim was disallowed. She said that she had nothing to live on and was staying at a friend’s apartment. She asserted that it was very unfair to assess her with capital from property based on her family home as the property was still a family home. She said that if she looked for her share, her husband could not afford to buy her out. The other alternative, insisting on the house being sold, would render her husband and son homeless. She advised that she did not intend to seek a judicial separation, and that she would not apply for maintenance as it was she who had walked out on the marriage. The appellant went on to say that the HSE had also refused her a medical card as the property was assessed as means under that scheme also.

The Social Welfare Inspector stated that the property at issue had been valued at some €170,000. Based on her investigation, she advised that the appellant’s interest in the property was deemed to be capital; as she no longer lived there, it was not regarded as her family home in spite of the fact that her husband and daughter continued to reside there. The Inspector said that the appellant was expected to realise her share of the property.

In response, the appellant reiterated that she was the one who left the marriage and said that she felt her husband was entitled to more of the property as he was the one who had paid off the mortgage when he retired.

Consideration of the Appeals Officer: The Appeals Officer observed that the appellant had appeared somewhat overawed by the oral hearing. She considered that she had been very open regarding her current circumstances but reticent to discuss her separation. Having considered all of the evidence, including that presented at the oral hearing, the Appeals Officer concluded that the property in question should not be assessed as means. In making that decision, she referred to the Social Welfare (Consolidation) Act, 2005 (Part 2, section 1), as follows:

In the calculation of means of a person for the purposes of Chapters 2, 3, 10 and 11 of Part 3, account shall be taken of the following –

(1) other than in the circumstances and subject to the conditions and for the periods that may be prescribed, the weekly value of property belonging to the person or to his or her spouse (not being property personally used or enjoyed by the person or his or her spouse or a farm of land leased either by the person or his or her spouse) which is invested or otherwise put to profitable use or is capable of being, but is not, invested or put to profitable use and the weekly value, calculated in accordance with Table 1 to this Schedule, constitutes the weekly means of a person from that property …

The Appeals Officer held that, although the appellant had left the property, it was still functioning as the family home and was being personally used and enjoyed as such by the appellant’s husband and daughter. In accordance with the provisions of social welfare legislation, and the Department of Social Protection’s own Guidelines (‘Assessment of Second or Multiple Properties’), the Appeals Officer concluded that the property was not capable of being sold, let or put to profitable use and should not be assessed as means in this case. Accordingly, the appellant was assessed with nil means and the appeal was successful.

Outcome: Appeal allowed.

2011:

2011/09 Jobseekers Allowance

Question at issue: Whether the appellant may be deemed to meet the Habitual Residence Condition (HRC) for purposes of his claim to Jobseeker’s Allowance.

There were two claims for Jobseeker’s Allowance disallowed on grounds of habitual residence not being satisfied. The initial claim was made in 2009, and the subsequent claim had a date some fourteen months later in 2010.

Background: The appellant, a Polish national, came to this country in 2007. He returned to Poland some three months later and came back to Ireland early in 2008. He took up employment with a construction company and worked there to the end of that year. In his letter of appeal, he stated that he had resided continuously in the State since that time. He asserted that his centre of interest was in Ireland and stated that his closest family lived here.

For his part, the Deciding Officer considered that the appellant’s length and continuity of residence in Ireland did not support habitual residence; he had resided outside Ireland for most of his life; his centre of interest was not in Ireland; he had no established employment record in Ireland; his future intentions of remaining were considered short-term and, from the evidence provided, there was nothing to substantiate that he was habitually resident in the State.

The appellant was in receipt of Supplementary Welfare Allowance (Basic Income and Rent Supplement) for four months in 2010 when payment stopped as he became a student.

Parties attending oral hearing: The appellant attended the hearing alone.

Report of oral hearing: At the outset, the issue was explained and an outline provided of all relevant documentation available to the Appeals Officer. The appellant confirmed the details as to his residence in the State. He reported that he had returned to Poland in 2007 to pursue a training course and to improve his educational achievements with the purpose of enhancing his employment prospects. He stated that he had returned to Ireland subsequently as his father had sourced employment for him with the construction company where he worked. He reported that on his return to Ireland he worked with that company for eight months until he was let go, through a downfall in business

The appellant advised that since returning to Ireland in 2008, he had not left the country. He stated that he had received Supplementary Welfare Allowance, as a former EU worker, for dates specified in 2009. He stated that, thereafter, he lived off some accrued savings and was supported by his parents, with whom he resides. He reported that he found work again in 2010 which lasted for some four months. He advised that he commenced a training course (FETAC Level 5) later that year and was hopeful of finding related employment once he completed his studies.

The appellant referred to his family and advised that his father came to Ireland in 2004 to take up employment and his mother and brother followed some time afterwards. He reported that that both his father and mother were employed and that their intentions were to remain in Ireland indefinitely. He advised that the family had always rented accommodation whilst residing in Poland and that they did not own any property there. He stated that he had two other siblings residing with a relative in Poland whilst they complete their education and said that both were intent on coming to Ireland to join the rest of the family once their studies were complete. In conclusion, he submitted that his centre of interest was in Ireland and that his future intentions were to remain here indefinitely.

Consideration of the Appeals Officer: The Appeals Officer took into account the details of the appellant’s residence in the State and was satisfied that he had been continuously resident since 2008. He considered that the appellant’s return to Poland was for a temporary period, to pursue a course in education as he was unable, at that time, to find work here. He noted that his father and mother had established some permanence in Ireland and that the appellant had made meaningful efforts himself to integrate into the local community and establish a centre of interest in this country. He noted also his current participation on an educational course and his involvement with the local sports club. Having considered all the available evidence, he concluded that the appellant’s centre of interest, at that time, had been established as being in Ireland and that his future intentions were to remain here indefinitely. He concluded that the appellant was habitually resident in the State for social welfare purposes and held that this decision should take effect from the date of the oral hearing, at which time the appellant might be deemed to have established habitual residence.

Outcome: Appeal partially allowed.

2011/12 Jobseekers Allowance

Question at issue: Whether the appellant may be deemed to meet the Habitual Residence Condition (HRC) for purposes of her claim to Jobseeker’s Allowance.

Background: The appellant, a Polish National, came to live in Ireland in 2008. She was issued with a Public Social Services (PPS) number in March 2009. Her social insurance record showed a total of 22 weeks of insurable employment in the State.

Parties attending oral hearing: The appellant and her partner.

Report of the oral hearing: The Appeals Officer read the formal decision and advised the appellant of the information which had been relied on in making that decision. A discussion followed during which it was established that the appellant had lived in Ireland since 2008, despite not obtaining a PPS number until March 2009; that she worked in a number of jobs but only one employer would appear to have been PRSI

compliant; that she was currently in a relationship with an Irish national, and that he was in receipt of a social welfare payment with payment being made for her as a qualified adult on his claim.

The appellant reported that she holds a Polish bank account (but the Appeals Officer observed that in the age of modern technology, this was not unusual). She advised that she has gone back to Poland for holidays, usually at Christmas, but had always returned to Ireland. She indicated that she had spent a slightly longer break in Poland in 2008 when she had undergone surgery. She reported that she was registered with FAS and that she had made numerous efforts to find work. She stated that she had supported herself from savings as most of her jobs had been live in, or she had relied on friends.

Consideration of the Appeals Officer: In reaching a conclusion in this case, the Appeals Officer indicated that she was mindful of the five factors to be considered in deciding on habitual residence, and she examined them separately, as follows:

Length and continuity of residence in the State: She noted that the appellant came to Ireland as an au-pair in 2008 and had lived in the State since then.

Length and frequency of absences from the State: She noted that the appellant had spent ‘a few weeks’ in Poland in 2008 for surgery and had returned to Ireland after this, only returning to Poland for holidays since.

Nature and pattern of employment: She took account of the fact that the appellant had only 22 weeks of insurable employment. She also noted, however, that the evidence presented indicated that the appellant had worked for a number of different employers, some of whom did not comply with PRSI legislation and make returns on her behalf.

Main centre of interest: She noted that the appellant was in a relationship with an Irish national, and had been for some time, and that he was in receipt of a Qualified Adult Increase on his Jobseeker’s Allowance in respect of the appellant.

Future Intentions: She took account of the statement made by the appellant in completing the HRC1 form, indicating that she intended to remain in Ireland for longer than five years and work in the State. She noted also that the appellant was in a relationship and was hopeful that this would continue.

Having considered all of the evidence in this case, including that adduced at oral hearing, the Appeals Officer was satisfied that the appellant could be considered to be habitually resident in the State with effect from the date of her claim.

Outcome: Appeal allowed.

2011/20 Jobseeker’s Allowance

Question at issue: Whether the appellant may be deemed to meet the Habitual Residence Condition (HRC) for purposes of her claim to Jobseeker’s Allowance.

Background: The appellant, a Romanian national, came to Ireland in 2006. He lived here with his partner and their child who was born here in 2010. They have another child, born in 2000, who remains in Romania. The appellant was engaged in part-time employment but did not have a work permit His claim to Jobseeker’s Allowance was disallowed on grounds that he had not established that he was habitually resident in the State for social welfare purposes. The Deciding Officer had concluded that details as to his residence and means of support for the period between his arrival and the date of his claim were unknown, and referred also to the fact that he did not hold a valid work permit. The appellant’s partner was awarded Supplementary Welfare Allowance in 2011, with means assessed at €70 per week.

Parties attending oral hearing: The appellant attended alone.

Report of oral hearing: The appellant opened by saying that he had been working in his home country of Romania until 2006 when his sister was killed tragically in a road traffic accident in Ireland. He reported that he came to Ireland initially to represent his family in legal and other proceedings arising from her death. He said that his sister was buried in Ireland and that her child lives here with her father. In addition, he indicated that all the legal issues of compensation arising from his sister’s death had not been settled and said that he intended to remain until they were.

The appellant referred to his employment here since 2006 and submitted tax certificates as proof. He acknowledged that he did not hold a valid work permit. He said he was unclear as to why his employer had not applied for a work permit on his behalf. He confirmed that his partner and child lived with him. He stated that his partner had been in the State for more than five years, and was currently engaged in some small self-employment, working at home. He submitted evidence of her registration with the Revenue Commissioners and said that business was slow to pick up; she might earn €70 per week on average. He confirmed that she was in receipt of Supplementary Welfare Allowance but not Child Benefit, and he advised that she was pregnant. He said he could not understand that her work history appeared not to have been considered in relation to Child Benefit. In conclusion, the appellant stated that he was looking for work and had registered with FAS.

Consideration of the Appeals Officer: The Appeals Officer noted that the appellant was a Romanian national who did not hold a valid work permit. He considered, therefore, that any employment he had undertaken was illegal and could not be taken as a valid employment record for determining the question as to habitual residence. However, he took account of the fact that the appellant had formed a relationship with an EU national who did not require a work permit, and that the couple had one child and were expecting another. He noted that she had been in the State for more than five years and that she had been in employment, with 84 social insurance contributions paid. In addition, she had commenced self-employment and proof of her registration with Revenue had been submitted. He concluded, therefore, that the appellant’s partner was legally permitted to reside in the State in accordance with the provisions of S.I. 656 of 2006, European

Communities (Free Movement of Persons) (No. 2) Regulations, 2006.

The Appeals Officer noted that the appellant’s partner was in receipt of Supplementary Welfare Allowance which included an increase in respect of the appellant and their child. He observed that the appellant was, therefore, the dependant of a person who was legally resident in the State and as such was himself legally resident. Accordingly, he considered that the question as to habitual residence fell to be considered under the five factors set out in the legislation. He noted that the length and continuity of his residence was substantial. He noted also that his work record indicated that he had paid 101 PRSI contributions and, although the employment was undertaken without a valid work permit it could not be considered to constitute a valid work record, it did indicate his actual presence in the State. He noted also that there was no evidence to suggest that the appellant had been coming and going from Ireland since his arrival and considered that he could not, therefore, be said to have continued to maintain a centre of interest outside Ireland.

The Appeals Officer considered that the appellant had a significant centre of interest in the State as he had a partner and a child. He noted the appellant’s original reason for coming to Ireland, the tragic death of his sister, but considered that his connection with the State had moved beyond that. He noted also that the appellant’s niece continued to reside in the State and that the appellant had indicated that he remained here in the child’s interest. When considered with his own family commitments, the Appeals Officer considered that this added to the assertion that his centre of interest is now here.

The Appeals Officer considered that there was a case to be made for regarding the appellant as habitually resident in relation to four of the five factors outlined in legislation. He concluded that the fact that his employment had been undertaken without a work permit, and that he continued without a work permit, should not determine the issue alone. He observed that he had recourse to obtaining a work permit which would remedy his situation into the future and held that, in all the circumstances, the appeal must succeed.

Outcome: Appeal allowed.

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

2015:

2015/14 Jobseeker’s Allowance

Question at issue: Assessment of means

Background: The appellant’s claim for Jobseeker’s Allowance was referred to a Social Welfare Inspector for an investigation of means. The Inspector reported that the appellant had been renting a house for a year and a half with a [named] person and, prior to that, they had been renting a house together for two years. The Inspector noted that a means assessment for an earlier claim in 2011 had included an assessment of that person’s income and that the appellant had not made an appeal against the decision at that time, although she conceded that the income assessed had been considerably lower at that time. The Inspector noted also that the appellant had received an award following an unfair dismissals action and that he had transferred €12,500 of that award to the other person for what he said were loan repayments. Accordingly, the Inspector considered that they were cohabiting and submitted a report to the Deciding Officer on that basis. Ultimately, the appellant was assessed with means of €522.00 per week derived from his own and his partner’s self-employment, and his claim was disallowed on grounds that his means were in excess of the statutory limit.

Oral hearing: The appellant attended alone, while the Social Welfare Inspector attended at the request of the Appeals Officer. The Inspector outlined the details of her report, making reference to the house that the appellant and his partner had purchased for €235,000 in 2007 – financed by means of the appellant’s contribution of €100,000 from his divorce settlement and a joint mortgage of €165,000. She said that the appellant had reported that he was paying the mortgage while his partner paid utility bills although the accounts were held in his name. She noted that, at interview, the appellant had denied cohabitation.

The Inspector reported that the appellant’s income from self-employment had been assessed on the basis of invoices submitted; these were not complete, and the assessment had been completed with reference to bank statements. She stated that she had reported annual profit at €10,523, or €202.36 per week. She stated that the appellant had claimed the [named] person as a qualified adult when in receipt of a Back to Work Allowance payment between specified dates in 2012 and 2014. In conclusion, she noted that the appellant’s investment in the house appeared to far outweigh that of the other person and she reiterated her assertion that they continued to cohabit.

For his part, the appellant denied cohabitation. He said that he had rented a room from the [named] person at two properties. He advised that, subsequently, he got a job in another county, and he became aware of a further vacancy in the company and advised her as she had lost her job in the meantime. He stated that they had purchased the house together as a commercial transaction intending to refurbish it and sell it on at a profit. However, that had not worked out. He said that currently the [named] person was barely speaking to him as he was making no contribution to the house, and she was paying interest only on the mortgage. He stated that they lead completely separate lives. He said that income details for the [named] person referred to 2012, with income of €20,240 and rent of €3,640 but no other expenses taken into account.

The appellant said also that the [named] person had paid for most of the work done on the house and he believed she contributed more than he had. He made reference to the Inspector’s statement about the claim in 2011 and said he had not made an appeal as he had been paid Jobseeker’s Allowance, albeit at a reduced rate. He said he had never put down on any application form that the person concerned was his partner.

The appellant advised that he had ceased self-employment as he had had to sell his equipment to get money. The Appeals Officer advised that if he wished to submit further evidence, such as accounts in respect of the [named] person which would allow a more accurate assessment of expenses to be taken into account, he would allow a further period of two weeks before determining the appeal; in the absence of any further information, he would proceed to make a decision based on the evidence available.

Consideration: The Appeals Officer noted that the appellant had lived with the [named] person at three different locations over a protracted period and that they had moved together from the northeast to the south of the country. In addition, they had obtained a joint mortgage and bought a house together. He noted that the appellant did not appeal a previous decision in 2011 although he acknowledged that the means assessed at the time were small and he noted also that the appellant had claimed for the person concerned as an adult dependant on his Back to Work Allowance between 2012 and 2014. He considered that the evidence indicated cohabitation. He noted that, following the oral hearing, the appellant had written to advise that the [named] person had declined to give details of her income and that the appellant had reiterated his assertion that he should be treated as an individual for means purposes and not as one of a couple. In the absence of any additional details as to income, the Appeals Officer concluded that the appellant had not established that his weekly means were less than the limit provided for in legislation and he noted that even when the appellant’s own income from self-employment was excluded, his means exceeded that limit.

Outcome: Appeal disallowed.

2016:

2016/23 Jobseeker’s Allowance

Question at issue: Eligibility (Means)

Background: In connection with a claim for Jobseeker’s Allowance made in 2009, the appellant provided details of bank and credit union accounts which he held at the time. His means were assessed, and his claim was awarded. It appears that his file was examined in connection with a claim which his partner made for Carer’s Allowance in 2013. Additional information had been provided, indicating that the appellant had opened a further account in the meantime. When his claim came under review in 2015, however, it emerged that no adjustment had been made to take account of that new information. A revised decision was made and the appellant was held to have been entitled to a lower rate of payment with effect from a date in 2013. Initially, this was applied with reference to the provisions of Section 302(a) of the Social Welfare Consolidation Act 2005, which deals with fraudulent intent. When it came to light that all of the information had been disclosed at the appropriate time but that there had been a failure to revise the means assessment accordingly, the decision was applied with reference to Section 302(c). These are the provisions usually applied where a Deciding Officer has made an error or where information was provided but not acted upon. An overpayment of some €15,000 was assessed. In his appeal submission, the Deciding Officer acknowledged that the overpayment had arisen solely as a consequence of a Departmental error as the appellant had provided the relevant information but it had not been taken into account.

Consideration: The Appeals Officer noted that the appellant had provided details of his means in full and that the Department had been made aware of the additional bank account when his partner was interviewed in 2013 in connection with her claim for Carer’s Allowance. In the circumstances, he determined that the means from savings were assessable from a specified date in 2015, that is the date from which the retrospective decision had been applied, with the effect that the overpayment was eliminated.

Outcome: Appeal allowed.

2016/24 Jobseeker’s Allowance

Question at issue: Eligibility (Habitual Residence)

Background: The appellant, in her late 20s, was born in Spain. She came to live in Ireland originally in 2010 and worked for periods between 2010 and 2013. She went back to Spain, where she worked until her return to Ireland in 2015. She made a claim for Jobseeker’s Allowance some six months later. This was refused on grounds that she was not habitually resident in the State.

Oral hearing: The appellant reported that during her previous residence in Ireland, she had worked in a number of jobs and lived with her Irish partner. She advised that she had made a claim for Jobseeker’s Allowance in 2013 and had been paid for a few months at a reduced rate as her means had been assessed with reference to her partner’s earnings from employment. She advised that she returned to live with her family in Spain when the relationship ended. She outlined details of her living arrangements since her return in 2015 and advised that, between then and the date of making her claim, she had one day of employment and ten days subsequently. She said that she was registered with an agency and paid on the basis of self-employment. She said that, since her return, she had been to Spain only once to renew her identity card and that she considers Ireland to be more her home than Spain at this stage. She advised that she had been refused renewal of her European Health Insurance Card (EHIC) in Spain and had been told that she had to apply for her card in Ireland. She submitted a certificate from the Spanish Embassy stating that she is resident in Ireland, a copy of her current tenancy agreement, Notice of Income Tax registration with Revenue, a Spanish identity card with an Irish address, as well as documentary evidence confirming her involvement in a range of social activities.

Consideration: The Appeals Officer noted that the decision in the case had been made with reference to the five factors to be taken into account in determining habitual residence, outlined in Section 246(4) of the Social Welfare Consolidation Act 2005. She observed that the appellant must be assumed to have a right to reside in the State as this had not been addressed in the decision. Accordingly, habitual residence fell to be determined with reference only to the five factors. She noted that the appellant had been paid Jobseeker’s Allowance in 2013 so that she must have satisfied the habitual residence condition at that time. She noted that the Department of Social Protection has issued Guidelines on the Habitual Residence Condition (HRC), which state that a person who had previously been habitually resident in the State, moves to live and work in another country and then resumes his/her long-term residence, may be regarded as being habitually resident immediately on their return. The Appeals Officer noted that the appellant had been deemed to be habitually resident in 2013 and that her circumstances were in line with those outlined in the HRC Guidelines. She noted that the evidence submitted had served to establish that her centre of interest was in Ireland and concluded that the appellant must be deemed to meet the habitual residence condition for purposes of her Jobseeker’s Allowance claim.

Outcome: Appeal allowed.

2016/25 Jobseeker’s Allowance

Question at issue: Eligibility (Means)

Background: The appellant was in his early 20s and living at home when he made a claim for Jobseeker’s Allowance. As he had not reached the prescribed age of 25 years, his means were assessed with reference to the ‘benefit and privilege’ of living with his parents. The rules which govern the calculation of means are outlined in Schedule 3 of the Social Welfare Consolidation Act 2005. Rule 1(10) provides that:

in the case of a person entitled to or in receipt of jobseeker’s allowance and who has

not attained the age that may be prescribed [25 years], the yearly value of any

benefit or privilege enjoyed by that person by virtue of residing with a parent or step-

parent, and the Minister may prescribe by regulations the manner in which the value

of the benefit and privilege may be calculated.

The manner in which the value of ‘benefit and privilege’ is to be calculated has not been prescribed in Regulations but the Department of Social Protection has issued guidelines for the information of Deciding Officers. These indicate that deductions from parental income are made for income tax, Pay Related Social Insurance (PRSI), Universal Social Charge (USC), pension levies, income levies, superannuation, private health insurance contributions, union fees and rent/mortgage payments. In addition, a disregard of €600 per week applies in relation to the parents’ own needs and one of €30 per week in respect of any other dependent child. The balance of parental income is then assessed at 34%.

Consideration: The Appeals Officer calculated the means attributable to the appellant based on the details of parental income he had provided, in line with the formula outlined above. This indicated net parental income of €1,005.55, less a disregard of €600 for the parents and €30 in respect of one dependent child. The balance, €375.55, was assessed at 34% to give a figure of €127.70. He determined that the appellant’s means, at €127.70 per week, were in excess of the maximum rate of Jobseeker’s Allowance (€100.00) which may be payable to a young person living with their parents.

Outcome: Appeal disallowed.

2016/26 Jobseeker’s Allowance & Supplementary Welfare Allowance

Question at issue:

Background: The appellant had two short periods of employment in Ireland, having worked for seventeen weeks in 2014 and for a further ten weeks in 2015. He had been doing seasonal farm work which finished in August 2015. He made a claim for a basic income payment under the Supplementary Welfare Allowance scheme in November 2015 and a claim for Jobseeker’s Allowance in April 2016. Both claims were disallowed on grounds that he was not habitually resident in the State as he was held not to have a right to reside. In an appeal against those decisions, the appellant submitted that he was seeking further employment since finishing work in August 2015 and had remained in Ireland as a jobseeker.

Governing legislation: Section 141(9) of the Social Welfare Consolidation Act 2005 provides that a person must be habitually resident in the State for purposes of establishing entitlement to Jobseeker’s Allowance, while Section 192 outlines the same requirement in relation to Supplementary Welfare Allowance. The legislation governing application of the Habitual Residence Condition (HRC) is outlined in Section 246 of the Act and subsection (5) provides that a person who does not have a right to reside in the State may not be regarded as being habitually resident.

The legislation which governs the rights of European citizens to reside in Ireland is outlined in the European Communities (Free Movement of Persons) Regulations 2015 (Statutory Instrument No. 548 of 2015). Article 6(2) prescribes that an EU citizen who has entered the State seeking employment continues to have a right of residence as long as he or she continues to seek employment and to have a realistic prospect of engagement.

Consideration: In determining whether the appellant had established that he had a right to reside, the Appeals Officer considered his presenting circumstances in accordance with Statutory Instrument No. 548 of 2015. Having done so, he noted the appellant’s employment in Ireland since he arrived first as a jobseeker: seventeen weeks in 2014 and a further ten weeks in 2015. He concluded that these periods of employment gave him a right of residence in accordance with Article 6(3)(d) of Statutory Instrument No. 548 of 2015. This prescribes that where a person has been employed for a period of less than one year and becomes involuntarily unemployed, he or she may retain a right of residence as a worker for six months after the cessation of employment. Accordingly, as the appellant ceased working on a date in August 2015, his right to reside as a worker ended on a date in February 2016, as he had not secured further employment within that six month period.

The Appeals Officer noted that the governing legislation, outlined in Article 17(2) of Statutory Instrument No. 548 of 2015, prescribes that a person whose right to reside derives from Article 6(2) of that Regulation is not entitled to receive assistance under the Social Welfare Acts. He noted further that the only question before him for appeal purposes was whether or not the appellant had established a right to reside and whether he could be held to meet the habitual residence condition for purposes of his social welfare claims. He concluded that it had been established that he had a right to reside in Ireland as a jobseeker in accordance with Article 6(2) of the European Communities (Free Movement of Persons) Regulations 2015 (Statutory Instrument No. 548 of 2015). With regard to the habitual residence condition, he was satisfied that the appellant could be deemed to be habitually resident in accordance with the statutory criteria provided in Section 246(5) of the Social Welfare Consolidation Act 2005. He noted, however, that the governing legislation prescribes that a person whose right to reside derives from Article 6(2) is not entitled to receive assistance under the Social Welfare Acts. He observed, therefore, that it was for the Department of Social Protection to determine whether the other statutory qualifying criteria were met in this case.

Outcome: Appeal allowed.

2016/318/35 Jobseeker’s Allowance

Question at issue: Habitual Residence

Grounds for Review: A review was requested on the grounds that the Appeals Officer erred in finding that the appellant was not habitually resident in the State. The terms of the request specifically referred me to a statement in the Appeals Officer’s decision that the appellant’s family, including his wife, live in [country], so that his centre of interest could be deemed to be stronger there. It was submitted that the Appeals Officer erred by giving undue weight to this as if it were fact.

Background: The appellant came to Ireland in 2005. He applied for Jobseeker’s Allowance in October 2015 having been outside of the State for a period of 3 months and in that connection he also completed an application form entitled Habitual Residence Condition (HRC1). By a decision in November 2015 and relying on Sections 149(1) and 246 of the Social Welfare Consolidation 2005, a Deciding Officer of the Department advised him that he did not satisfy the habitual residence condition for the following reasons: length and continuity of residence in the State does not provide for HRC approval – three absences in two years; centre of interest stronger elsewhere – got married on last visit to [country], close family members abroad – wife, mother, brother and sister; residency not continuous; no established employment record in the State; no apparent means of financial support: one of the conditions of temporary permission to remain in the State is that persons make every effort to gain employment and not be a burden on the State. By a decision in March 2016, an Appeals Officer disallowed the appeal. Having examined the evidence with reference to the five factors to be considered in determining if the appellant met the habitual residence condition, the Appeals Officer outlined the reasons for the decision as follows:

The appellant was refused as he was absent for three periods in three years, his centre of interest is stronger elsewhere, his close family members are abroad, his residency is not continuous, and he has no established employment record or apparent means of support.

Review: Habitual residence is a question of fact depending on the circumstances of each case, decided in accordance with the statutory provisions set out in Section 246 of the Social Welfare Consolidation Act 2005. Section 246(4) sets out the following five factors to be taken into account when deciding whether a person is habitually resident in the State:

(a) the length and continuity of residence in the State or in any other particular

country,

(b) the length and purpose of any absence from the State,

(d) the person’s main centre of interest, and

(e) the future intentions of the person concerned as they appear from all the

circumstances.

From my review, I noted that the appellant had been living in Ireland since 2005. He is a [specified] national and returned to [country] for the following periods: July-September 2013, July- September 2014 and July-October 2015. It appeared, but this was not clear from the evidence, that he had been in receipt of Jobseeker’s Allowance and did not encounter any difficulties with re-claiming until his return to Ireland in October 2015. The main reason cited by the Deciding Officer for the disallowance related to length and continuity of residence in the State, in particular the fact that the appellant returned to [country] on three occasions and, on his third visit, got married to a person who had no stated plans to come to Ireland. I noted also an incorrect reference to a ‘2 year presumption clause’ in the Department’s appeal submission of January 2016.

The Appeals Officer in disallowing the appeal expressed the view that the appellant’s centre of interest could be stronger in [country] and found that his centre of interest had shifted there. On behalf of the appellant, it was submitted that he had lived in the State for a period of 12 years and that the only change in his position was that he got married. It was stated that he had made many friends and acquaintances in Ireland and had integrated fully in his local community and that his intentions were to remain indefinitely. In support of his request for a review the following was submitted:

Letter from the Irish Naturalisation and Immigration Services (INIS) informing the appellant that the Minister for Justice and Equality had decided to renew his temporary permission to remain in the State, on a Stamp 4 basis, for three years until 2019. Certain conditions were attached to that permission.

Letter from his local Education and Training Board (ETB) confirming that he had been accepted on a Computer Basics (Equal Skills) Course.

A number of documents as evidence that he had been actively and genuinely seeking employment in the State.

It seems to me that the overwhelming reason in finding that the appellant was not habitually resident in the State was that both the Deciding Officer and the Appeals Officer considered that his marriage in his home country had the effect of shifting his centre of interest from Ireland where he had lived since 2005, to the country where his wife and immediate family members reside. It was stated that he married in 2012, whereas the Deciding Officer and Appeals Officer were of the view, based on information he provided, that he married during his most recent visit in 2015. The appellant merely stated that the third time he went to [country] he got married. The certificate relating to the marriage is somewhat ambiguous – a date in 2015 is shown but it is not clear if this is the date of issue or the date of marriage. In any event, the date does not coincide with his absence in 2015.

It appeared to me that, despite the lack of clarity surrounding the date of marriage and certain other aspects of the information available, the only change in the appellant’s position since he came to Ireland in 2005 was that he got married and his wife resides in [country]. While accepting that he has a centre of interest there, this does not of itself preclude him from satisfying the habitual residence condition in Ireland. From my review of the evidence, I find that insufficient weight was given to the fact that he had been resident in Ireland since 2005 and I note that he provided evidence of his efforts to find employment and that he was given a place on an ETB course.

While accepting that the appellant’s marriage is a significant event which is relevant in the consideration of whether he is habitually resident in Ireland or not, I am satisfied that its significance is far outweighed by the length and continuity of residence in Ireland since 2005 – some 11 years.

I am satisfied that the Appeals Officer gave disproportionate weight to the appellant’s marriage and the fact that his wife resides outside the State and did not fully consider all the other factors in determining if he could be deemed to be habitually resident in the State at the date of his claim in October 2015. In the circumstances I revised the decision of the Appeals Officer and allowed the appeal.

Outcome: Decision revised and appeal allowed.

2017:

2017/39 Jobseeker’s Allowance

Question at issue: Eligibility (habitual residence condition)

Background: The appellant, an EU national, applied for Jobseeker’s Allowance. That application was refused on the basis that the appellant was not regarded as being habitually resident in the State. The Department’s decision was based on the ‘five factors’ outlined in the legislation and found that the appellant had not worked since arriving in Ireland, did not have sufficient resources to support herself, and that her right of residence had expired.

Oral Hearing: According to her evidence, the appellant came to Ireland with her partner on foot of a job offer he had. The couple was apparently confident that between the resources they brought with them and his earning potential he could support both of them while she looked for employment. The promised job did not last, however, as a contractual dispute arose almost immediately after her partner started work. Despite being highly qualified in IT, he failed to secure alternative employment. The couple became homeless and there was evidence on file from various organisations to attest to their presence in the State for the previous two years. Despite the difficulties encountered, the appellant and her partner stated that they were determined to remain in Ireland. She had secured employment shortly before the appeal hearing and at the time he was still looking for employment.

Consideration: The habitual residence condition is a two-part provision which requires the establishment of a right of residence and then an assessment of the person’s situation in accordance with the ‘five factors’ outlined in Section 246 of the Social Welfare Consolidation Act 2005. The Department had decided that the right of residence had expired and that the five factors were not satisfied.

Right of residence

Right of residence is governed by Regulation 6 of S.I. 548 of 2015 (the European Communities (Free Movement of Persons) Regulations 2015). All EU citizens have an unqualified right of residence for up to three months. Thereafter, the right of residence (and associated entitlements) is qualified, and paragraph (3) requires that the person:

“(i) is in employment or in self-employment in the State,

(ii) has sufficient resources for himself or herself and his or her family members not to become an unreasonable burden on the social assistance system of the State, and has comprehensive sickness insurance in respect of himself or herself and his or her family members,

(iii) is enrolled in an educational establishment accredited or financed by the State for the principal purpose of following a course of study there and has comprehensive sickness insurance in respect of himself or herself and his or her family members and, by means of a declaration or otherwise, satisfies the Minister that he or she has sufficient resources for himself or herself and his or her family members not to become an unreasonable burden on the social assistance system of the State, or

(iv) subject to paragraph (4), is a family member of a Union citizen who satisfies one or more of the

conditions referred to in clause (i), (ii) or (iii).”

While the appellant came to Ireland with her partner, they were not married and so the Appeals Officer concluded that she did not meet the definition of a ‘family member’ contained in this legislation or any of the other criteria set out above. Accordingly, he decided she must establish that she is entitled to be resident in her own right.

The appellant stated that she came to Ireland to look for work and on that basis the Appeals Officer decided that she came within the terms of Regulation 6(2) of S.I. 548 of 2015 which states:

“(2) A Union citizen to whom Regulation 3(1)(a) applies, who has entered the State seeking employment, and his or her family members, may continue to reside in the State for a period that is longer than 3 months where the Union citizen concerned can satisfy the Minister that he or she continues to seek employment and has a realistic prospect of being engaged in employment.”

Subsequent to her claim for social welfare, she did commence employment and so her residence became based on Regulation 6(3)(i) as set out above, from the date of commencement of that employment.

The Appeals Officer also had regard to Regulation 17(2)(a), which provides that a person to whom Regulation 6(1) or 6(2) applies shall not be entitled to receive assistance under the Social Welfare Acts. Paragraph (b) of the same Article does, however, allow recourse to exceptional needs payments. Accordingly, the Appeals Officer found that at the time of claiming Jobseeker’s Allowance the appellant had an established right of residence as a jobseeker, but that status did not and does not confer any entitlement to access the social assistance system of which\ Jobseeker’s Allowance is part.

An assessment under the ‘five factors’ set out under Section 246 of the Act of 2005 Based on supporting documentation from voluntary bodies dealing with people who are homeless, the Appeals Officer accepted that the appellant had been in the country since the summer of 2015. The Appeals Officer accepted that the appellant’s centre of interest was now in Ireland. The appellant had experienced very serious difficulties over the previous two years but had persisted with her efforts to make a life in Ireland and had finally secured permanent employment. However, the Appeals Officer found that at the time of claiming Jobseeker’s Allowance her status was as a jobseeker only and while that gave her a right of residence in accordance with EU legislation, that status did not confer any right to access the social assistance system.

Outcome: Appeal disallowed.

2017/40 Jobseeker’s Allowance

Question at issue: Overpayment (Departmental error)

Background: The appellant was in receipt of Jobseeker’s Allowance. She claimed assistance when her husband’s claim was stopped as it was considered he was in full-time education. Some months later, the appellant’s husband re-applied and his payment was reinstated. However, the Department failed to apply the maximum payment provisions that apply to a couple with the result that the appellant and her husband each received the full payment of €432 per week in respect of the family. This resulted in an overpayment of almost €14,000. The error only came to light when the appellant informed the Department that she had commenced a Tús scheme.

Consideration: The Appeals Officer identified the relevant legislation as Section 144 of the Social Welfare Consolidation Act 2005. Based on the legislation and the facts of the case, it was clear that the appellant was overpaid Jobseeker’s Allowance. However, the overpayment arose in this case because of a Departmental error. From enquiries made by the Appeals Officer, it appears that a maximum payment indicator was not inserted on the appellant’s claim record and as a result both she and her husband received full payments. The Appeals Officer noted that when the appellant’s husband re-claimed Jobseeker’s Allowance, he clearly stated on his application form that the appellant was already receiving full payment in respect of the family. According to the letter of appeal, the couple had numerous interactions with the Intreo Centre over the course of their claims and always went there together when issues or queries arose. Their ongoing engagement with various activation measures was also mentioned. The appellant also got statements of payments received on four occasions for submission to the university where she studied in the UK. The letter of appeal also states that the couple had never claimed separately before, and they were not aware of the level of payment each would receive. Given their ongoing engagement with the Intreo Centre, they assumed they were receiving their correct entitlement.

The Appeals Officer considered that the over-payment was due to Departmental error. The Appeals Officer acknowledged that it could be argued that the appellant should have realised she was receiving too high a payment, however, given the ongoing engagement with the Department during the claims, the fact that the couple had not claimed separately before and that the appellant’s husband declared her payment when re-claiming assistance, an assumption on their part that they were receiving the correct payment was not unreasonable. Having considered the appellants’ submission and that of the Department, and given the circumstances in which the overpayment arose, the Appeals Officer considered it fair to revise the decision in this case to eliminate the overpayment. He applied Section 302(c) of the Social Welfare Consolidation Act 2005, which gives discretion to vary the effective date of a decision.

Outcome: Appeal allowed.

2017/41 Jobseeker’s Allowance Summary decision

Question at issue: Eligibility (means)

Background: The appellant had been in receipt of Jobseeker’s Allowance for some nine years when a decision was made to disallow her claim on grounds that she had failed to establish that her weekly means were not in excess of the limit provided for in the governing legislation. The reason cited was that her husband had failed to supply documentation to a Social Welfare Inspector in connection with a review of his claim. In an appeal against that decision, she stated that the decision had been made without contacting her to hear her side of the story. She submitted that her financial circumstances were strained and that she was feeling in some distress as a consequence.

Consideration: The Appeals Officer noted that, as the appellant had asserted, no notice appeared to have been given to her to indicate that her claim was under review or to invite her to comment. She noted that the evidence indicated that the review of her husband’s social welfare claim appeared to be ongoing, and that there was nothing to indicate that any decision had been made regarding his entitlement. Given that the appellant’s claim had been in payment for some time, there was a burden of proof to be discharged before it was disallowed. Having had regard to her grounds of appeal, the Appeals Officer concluded that

such a burden had not been discharged and that the manner in which the appellant’s claim had been disallowed was in conflict with the duty to act fairly.

Outcome: Appeal allowed

2017/318/62 Jobseeker’s Allowance

Question at issue: Whether an Appeals Officer had erred when partially allowing an appeal in relation to an overpayment

Grounds for review: The Department contended that the Appeals Officer had erred in law in arriving at her decision, which was somewhat favourable to the appellant, in that the appellant appeared to have acknowledged during interview that the full details of all her financial means should have been provided at the date of application but were not.

Background: The appellant had been employed on a casual basis and applied for Jobseeker’s Allowance at a date when her employment was reduced to three mornings per week. She would have been entitled to Jobseeker’s Benefit based on her social insurance contributions, but she was assessed by the Department as having no financial means and, on that basis, received a higher rate of Jobseeker’s Allowance which she opted to receive. A review of her claim was carried out by the Department a couple of years later when the Department received information from the Revenue Commissioners which outlined interest earned on accounts held by the appellant. Her claim was referred for investigation and she was invited to attend for interview with a Social Welfare Inspector. The appellant disclosed at that point that she held three other bank accounts which she had not declared when she made her claim. The capital amounts were duly assessed and an overpayment in the amount of over €15,000 in relation to the Jobseeker’s Allowance was calculated.

At appeal, the appellant acknowledged that she should have declared that she had savings but also asked whether she had any other entitlement during the period at issue. She repaid in full the amount assessed as having been overpaid. The Appeals Officer concluded that the revised decision should have been made with reference to the provisions of Section 302(b) rather than 302(a) of the Social Welfare Consolidation Act 2005 and, accordingly, the overpayment could be offset against the entitlement that she would have had to Jobseeker’s Benefit during the period. The appeal was therefore partially allowed, with the reduced amount of overpayment to be calculated by the Department.

Review: Section 302 of the Social Welfare Consolidation Act 2005 provides for the date of

effect of revised decisions as follows:

302.—A revised decision given by a deciding officer shall take effect as follows:

a. where any benefit, assistance, child benefit, family income supplement, continued payment for qualified children or back to work family dividend will, by virtue of the revised decision be disallowed or reduced and the revised decision is given owing to the original decision or determination having been given, or having continued in effect, by reason of any statement or representation (whether written or verbal) which was to the knowledge of the person making it false or misleading in a material respect or by reason of the wilful concealment of any material fact, it shall take effect from the date on which the original decision or determination took effect, but the original decision or determination may, in the discretion of the deciding officer, continue to apply to any period covered by the original decision or determination to which the false or misleading statement or representation or the wilful concealment of any material fact does not

relate;

b. where any benefit, assistance, child benefit, family income supplement, continued payment for qualified children or back to work family dividend will, by virtue of the revised decision be disallowed or reduced and the revised decision is given in the light of new evidence or new facts (relating to periods before and after the commencement of this Act) which have been brought to

the notice of the deciding officer since the original decision or determination was given, it shall take effect from the date that the deciding officer shall determine having regard to the new facts or new evidence and the circumstances of the case;

Section 302(a) of the Social Welfare Consolidation Act 2005 relates to situations where there is evidence that the person deliberately gave false or misleading information or deliberately concealed relevant information. The standard of proof is a high one and there must be evidence, not just that the person gave false information or withheld relevant information, but also that he/she did so deliberately.

Having considered the documentary and oral evidence, the Appeals Officer concluded that the Department’s Deciding Officer had incorrectly relied on Section 302(a) rather than Section 302(b) in determining the effect of the revised decision. In partially allowing the appeal, the Appeals Officer found that the Department’s decision as to the appellant’s financial means was correct, but that the appellant still had an underlying entitlement to Jobseeker’s Benefit based on her PRSI contributions which was not offset, but should have been offset, against the overpayment of Jobseeker’s Allowance, thus serving to reduce the sum at issue.

I concluded that the Appeals Officer’s evaluation of the evidence and her conclusion that the standard of proof required by Section 302(a) of the 2005 Act had not been fulfilled was correct and that Section 302(b) should instead have been the legal basis used.

Outcome: Decision not revised.

2018:

2018/39 Jobseeker’s Allowance

Question at issue: Eligibility (whether a person is unemployed)

Background: The appellant had been in receipt of Jobseeker’s Allowance but secured full- time employment during the period 2 May 2017 to 23 May 2017 and was therefore deemed to be not unemployed for that period resulting in an overpayment of €901.55. The appellant contacted the Department in May 2017 to state that she had commenced employment and had received a Commencement of Employment form in the post. She stated that the Local Employment Service (LES) Mediator advised her that she could collect payment until she had received the first payment from her employer. The Department told the appellant that she would be assessed with an overpayment. In June 2017, the Department wrote to the appellant advising that she appeared to have been overpaid for the period 2 May 2017 to 23 May 2017. The appellant stated that she had been in regular contact with the LES “who advised me I could continue to claim my allowance up until my first wage”. In her appeal, the appellant did not dispute the dates of employment or the fact that she had commenced work, did not inform the Department that she was working and continued to claim and collect her Jobseeker’s Allowance. The appellant stated that she received incorrect information from the LES. In the appeal submission, the Deciding Officer did not address the fact that the appellant may have been given incorrect information by the LES. The appeal submission stated, “it was explained to the appellant that the LES was not the DSP and that an overpayment would be assessed”. No evidence was provided to show that the appellant was not so informed by the LES.

Consideration: The Appeals Officer outlined that Section 302(b) of the Social Welfare Consolidation Act 2005 allows the decision maker, having regard to all the circumstances of the case to determine the effective date of the decision. Having considered all the evidence in this case, the Appeals Officer found that the appellant was not entitled to Jobseeker’s Allowance from 2 May 2017 to 23 May 2017 and relying on the provisions of Section302(b) of the 2005 Act decided that the decision should take effect from the date of the Department’s decision. The effect of the Appeals Officer decision was that no overpayment arose.

Outcome: Appeal allowed.

2018/40 Jobseeker’s Allowance

Question at issue: Eligibility (means)

Background: The appellant applied for Jobseeker’s Allowance which was disallowed on the basis of ‘means in excess’. The appellant’s means were found to be in excess, primarily due to his ownership of a property in the country in which the appellant was not living and which he had bought with the proceeds of an inheritance. The means were assessed primarily on the basis of his capital, which consisted of savings and a property not personally used at the time of application. The appellant had been living rent-free with a friend in Dublin while he looked for work. The property in the country was in need of renovation. The appellant appealed the decision on the basis that the local social welfare office did not give him any indication that his application was likely to be rejected as ‘means in excess’, which would have prompted him to live in the property in the country so it would not be assessable.

Consideration: The appellant’s main contention, in effect, was that he was denied a social welfare payment because he was not given crucial information at the outset. He also contended that the delays in processing his claim (both at first instance and on appeal) caused him to dwindle his savings and take on debt. The Appeals Officer identified the applicable legislation as Section 142(2)(b) of the Social Welfare Consolidation Act 2005.The appellant’s evidence at appeal suggested that the property in the country could not have been rented out but was capable of being sold. The Appeals Officer noted that had the appellant not bought the property in the country and had instead placed the inheritance money in a savings account, this would also be assessable for means testing purposes. The appellant asked the question what would happen if a person’s home was flooded, and they could not live there for a time. The Appeals Officer stated that in such a scenario Article 141 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations (S.I. No.142 of 2007) provides for an exemption of a person’s primary residence being treated as an investment property, but the provision also requires that the property had ordinarily been the person’s main residence before they vacated it. The Appeals Officer concluded that this exemption did not apply in the appellant’s case and was satisfied that the legislation was applied correctly by the Department to the facts of the appellant’s case.

Outcome: Appeal disallowed.

2018/41 Jobseeker’s Allowance

Question at issue: Eligibility

Background: The appellant declared that she was residing with a friend, who was in receipt of a disability payment. An investigation of the appellant’s means by a Social Welfare Inspector (SWI) took place and the Inspector applied the criteria for establishing if the couple were in a cohabiting relationship. The SWI’s report outlined that the appellant shared her home with her teenage son and a friend who had resided with her since the death of his mother three years before. The house had two bedrooms, and the appellant said that she and her friend shared a bedroom. The SWI’s report outlined that household chores were shared, and they had meals together. The SWI reported that the friend involved himself in the upbringing of appellant’s son and would discipline him if necessary and was named as a contact for the school. According to the SWI, the appellant accepted that they were a family unit.

Oral Hearing: The appellant conceded that she and her friend had in the past had a committed and intimate relationship. The financial interdependence was evident by the admission that he was a named driver on the appellant’s car insurance. The appellant agreed that utilities were in her name but that her friend contributed towards those costs. She specified that he contributed towards rent and food, household chores were shared, the couple took meals together and he assisted with the upbringing of her teenage son. The appellant had admitted that they socialised together occasionally.

The appellant denied that she and her friend existed as a family unit and suggested that a housemate would also assist in the rearing of her child. The appellant accepted that her friend had accompanied her to a parent/teacher meeting at her son’s school. The appellant contended that this was no more than what a flatmate would do but the Appeals Officer disagreed and regarded it as significant that the appellant’s friend participated in the upbringing of the appellant’s teenage son even to the point of disciplining him. The appellant confirmed that he was a contact for her son’s school. The appellant described her friend to the Social Welfare Inspector as a friend who had nowhere to go after the death of his mother and his moving out of her house. He now had resources which would enable him to move elsewhere but he remained in what would be a confined space for adults leading separate lives. The appellant and her friend lived in a two-bedroom dwelling and the appellant had told the SWI that while they used the same bedroom, he slept by day whereas she slept by night. The Appeals Officer considered that the appellant’s evidence that her friend stayed up gambling by night so that she could have the bedroom by night while he slept during the day was simply not credible.

Consideration: Jobseeker’s Allowance is a means tested scheme, and means are calculated under the provisions of Rule 1(2), Part 2 of Schedule 3 of the Social Welfare Consolidation Act 2005. The appellant was advised that she had not shown that her means did not exceed the statutory limit. The question of the appellant’s means arose from her relationship with the person who lived in the house with her and whether, as a cohabiting couple, his means should be considered in the assessment of the appellant’s means. Where an entitlement might be disallowed, limited or withdrawn, the onus was on the Department to establish that cohabitation exists. The findings of the SWI report stated that the appellant and her friend had lived together since October 2013. The appellant had initially agreed that she was within a family unit and that she had looked after her friend during his illness. The appellant had initially agreed to provide details of his means. Subsequently the appellant told the SWI that she was unable to provide the information. The Appeals Officer found that there was sufficient evidence to conclude, on the balance of probabilities, that the appellant and her friend were a cohabitating couple and as such his means were relevant in a review of the appellant’s entitlement to Jobseeker’s Allowance. Due to lack of co-operation with the investigation it was not possible to complete the assessment of the appellant’s means to confirm entitlement in accordance with the provisions of Section 141 (1)(c) of the Social Welfare Consolidation Act 2005.

Outcome: Appeal disallowed.

2018/42 Jobseeker’s Allowance

Question at issue: Eligibility (habitual residence condition)

Background: The appellant applied for Jobseeker’s Allowance. The decision of the Department was that the appellant did not fulfil the ‘habitual residence condition’ attached to the payment of Jobseeker’s Allowance. She was a Spanish national with some work experience in Dublin and a high level of formal education and good English language skills.

Consideration: The Appeals Officer at the outset outlined that the question for this appeal was in relation to the right to reside and the habitual residence condition only. Other qualifying criteria for the payment of Jobseeker’s Allowance were not under consideration as they were not part of the Department’s decision to refuse the application. Regulation 6 of S.I. No. 548 of 2015, the ‘European Communities (Free Movement of Persons) Regulations 2015’, which gives further effect to Directive 2004/38/EC, provides that EU/EEA nationals have an automatic and unqualified right of residence in Ireland for 3 months only. Thereafter, certain conditions apply, depending on the profile of the person. The appellant’s evidence in her application form and letter of appeal indicated that she came to Ireland in February 2015. She came looking for work and for opportunities to develop her career as the Irish economy was more favourable than the Spanish economy. She had a master’s degree in psychology and very good English language skills. She was not married and did not have children but had a partner in Dublin (who was employed and had resided here since 2014) and several close friends. She was in her 30s. Her parents lived in Spain. She described Dublin as ‘home’. Although she indicated on her application form that she might only stay in Ireland for 1-2 more years, she stated in her letter of appeal that her intention was to stay in Dublin long-term with her partner. She described efforts she made to make this possible, including registering this intention with the Spanish Embassy and applying for chartered membership to the PSI (Psychological Society of Ireland; the professional body for psychologists) and discussing a potential job with an established psychology clinic. An economically inactive person from the EU/EEA maintains a right to reside only for as long as they have both comprehensive sickness insurance cover and sufficient financial resources to maintain themselves so as not to become an unreasonable burden on the social assistance system of the State and persons who were previously an EU/EEA national worker or self-employed person for a period of less than one year retain the status of worker and the right to reside for a further six months. The appellant contended that since she came to Ireland in 2015, she worked as a childminder, was partly supported by her parents and partner, and then worked for 3 months in 2017 for a recruitment firm. This suggested that she had a legal right to reside at the time of her application for Jobseeker’s Allowance. The Appeals Officer outlined that it was important to note that having a right of residence is distinct from being ‘habitually resident’. Section 141(9) of the Social Welfare Consolidation Act 2005 provides that a person shall not be entitled to Jobseeker’s Allowance unless he or she is habitually resident in the State. In order to be habitually resident in Ireland, a person must be both legally residing in Ireland and have their ‘centre of interest’ in Ireland.

The question for this appeal, therefore, was whether the appellant had moved her ‘centre of interest’ to Ireland.

Section 246(4) of the 2005 Act provides that when determining whether a person is habitually resident in the State, a decision maker shall take into consideration all the circumstances of the case including, in particular, the following –

(a) the length and continuity of residence in the State or in any other particular country,

(b) the length and purpose of any absence from the State,

(d) the person’s main centre of interest, and

(e) the future intentions of the person concerned as they appear from all the circumstances.

In that context, the information on file indicated that the appellant had lived in Ireland for over three years, was in a long-term relationship with an employed person, had good employment prospects here, but would have lesser prospects in Spain due to its level of unemployment, and had made efforts to establish a steadier career path here. The Appeals Officer assumed that the Department would conduct a financial means assessment and would look into any co-habiting arrangements. However, subject to those other conditions of the Jobseeker’s Allowance scheme being met, the appeal succeeded.

Outcome: Appeal allowed.

2018/43 Jobseeker’s Allowance

Question at issue: Eligibility (habitual residence condition)

Background: The appellant applied for Jobseeker’s Allowance in January 2018. The decision of the Department was that the appellant did not fulfil the ‘habitual residence condition’ attached to the payment of Jobseeker’s Allowance. He was a UK national with no previous connection to Ireland.

Consideration: The file evidence indicated that the appellant was a 28 year old UK national. He came to Ireland in December 2016. He had no previous connection to Ireland. He secured work for a few months in 2017. All his close family members, including a young daughter, lived in England, but he stated on his letter of appeal that he had no contact with any of them. UK nationals enjoy an unqualified right of residence in Ireland. The Appeals Officer outlined that it was important to note that having a right of residence is distinct from being habitually resident. In order to be habitually resident in Ireland, a person must be both legally residing in Ireland and have their ‘centre of interest’ in Ireland. The question for this appeal, therefore, was whether the appellant had moved his ‘centre of interest’ to Ireland. The legislation requires, in accordance with Section 246(4) of the Social Welfare Consolidation Act 2005, that when determining whether a person is habitually resident in the State, a decision maker shall take into consideration all the circumstances of the case including, in particular, the following:

(a) the length and continuity of residence in the State or in any other particular country,

(b) the length and purpose of any absence from the State,

(d) the person’s main centre of interest, and

(e) the future intentions of the person concerned as they appear from all the circumstances.

The appellant had never lived or worked in Ireland before and had no Irish family connections. He only worked for a few months in 2017, having first arrived in late 2016. While he stated he had no contact with family in England, he had no strong links in Ireland either. He had been residing with a friend in Ireland, but, as stated in his letter of appeal, the friend wanted him to move out if he could not pay the rent. His stated intention was to stay in Ireland into the future and to secure employment. The appellant was called to an oral hearing, but did not attend and did not provide any reason for same. The Appeals Officer considered that this was a missed opportunity to make a more convincing case that his centre of interest had indeed moved to Ireland for the purposes of meeting the habitual residence condition. Having considered the evidence, the Appeals Officer concluded that it appeared more likely than not that the appellant’s centre of interest remained in the UK and not Ireland, particularly in the context of his family ties, lack of previous connections to Ireland and the fact that a young man of his profile was likely to want to seek employment opportunities wherever in the world they may be.

Outcome: Appeal disallowed.

2018/44 Jobseekers Allowance

Question at issue: Eligibility (failure to attend activation meetings)

Background: The appellant was in receipt of Jobseeker’s Allowance and, as a person selected for activation, was invited to attend a number of activation meetings, which he failed to do. The Department applied a penalty rate, and the appellant was notified of the decision. There is a note on file stating that the Deciding Officer contacted the appellant by phone to check why he had not been attending his meetings. The appellant stated that he had not received any post. The evidence on file indicated that two notifications had issued to the appellant. Following the decision of the Department to apply a penalty rate the appellant contacted the Intreo Centre to say that he was getting no post. Another meeting was arranged but the appellant did not attend. The appellant stated that he had received no post. In his letter of appeal, the appellant stated he did not attend because he had not received any information regarding the meetings. He stated that the first notice he received was a letter informing him that he had been “fined” for not attending. He stated he was not satisfied with the manner in which he was treated in the Intreo Centre.

Consideration: The Appeals Officer outlined that Section 141A of the Social Welfare Consolidation Act 2005 provides for the circumstances where a jobseeker refuses or fails to attend ‘activation meetings’ as follows:

“(1) Notice may be given by or on behalf of the Minister to any person receiving jobseeker’s allowance requesting the person, at the time specified in the notice, to comply with the requirement specified in paragraph (a) or (b) of subsection (3).

(2) Where a person refuses or fails, without good cause, to comply with the requirement specified in the notice under subsection (1) at the time specified in that notice, or at any time thereafter as may be determined by or on behalf of the Minister and notified to the person, the weekly rate of jobseeker’s allowance payable to that person in respect of any such period of refusal or failure shall, subject to this section, be as set out in section 142(1A), 142A(1A) or, as the case may be, section 142B(1A).

(3) A notice under this section may require the person to whom it is given to do one of the following, at the time specified in the notice, or at any time thereafter as may be determined by or on behalf of the Minister and notified to the person—

(a) attend at a meeting arranged by or on behalf of the Minister for the purpose of providing information to that person which is intended to improve his or her knowledge of the employment,

work experience, education, training and development opportunities available to that person, or

(b) attend for or submit to an assessment of that person’s education, training or development

needs.”

Section 142(1A) and 142A(1A) of the Act provides for specified penalty rates of payment where a person refuses or fails, without good cause, to comply with the requirements to attend activation meetings or take up suitable employment.

The Appeals Officer outlined that it is not permitted under social welfare legislation for a person to not attend what are commonly referred to as ‘employment activation meetings. Section 141A, Section 142(1A) and Section 142A(1A) of the Social Welfare Consolidation Act 2005 set out a number of consequences and penalties when this occurs. These penalties will only apply where the person concerned failed to attend meetings or to engage with the activation process without good cause. In this particular case, the appellant stated he did not attend several scheduled meetings because he alleged, he had not received notification of these appointments. The Department stated it was satisfied that letters advising the appellant of the meetings had issued to the appellant’s address. The Appeals Officer outlined

that the delivery or service by post of any document, which is authorised to be delivered or served by post, shall be deemed to have been served at the time at which it would be delivered in the ordinary course of post. The Appeals Officer was satisfied that the appellant had not demonstrated good cause for non-attendance at the meetings.

Outcome: Appeal disallowed.

2018/318/58 Jobseeker’s Allowance

Question at issue: Assessment of means derived from seasonal employment

Grounds for review: The Department in its request for a review of the Appeals Officer’s decision contended that the Appeals Officer erred in law in relying on Rule 1(2) of Part 2 of Schedule 3 of the 2005 Act in that, although reference is made in that Rule to ‘employment of a seasonal nature’, it specifically refers to insurable employment and there is no mention of self-employment.

Background: The person concerned applied for Jobseeker’s Allowance which was disallowed by a Deciding Officer of the Department, relying on Section 142(2)(b) of the Social Welfare Consolidation Act 2005, on the basis that the person was not entitled to Jobseeker’s Allowance as his weekly means were in excess of the weekly amount of Jobseeker’s Allowance that would be payable based on his family circumstances.

The Appeals Officer allowed the appeal and gave the following reasons for the decision:

“Where an income varies throughout the year the legislation allows the Department to assess income based on previous earnings to give an estimate of what the person may reasonably be expected to earn in the following year. In this case the appellant engages in seasonal employment which is not undertaken during the winter months. Where the self-employment continues throughout the year it is reasonable to assess income over the 52 weeks. However, where there is a definite end to the seasonal work which the appellant engages in, I am satisfied that in these periods he has nil means.”

Review: Part 2 of the Act contains the applicable rules for the purposes of calculating means for various means tested payments including Jobseeker’s Allowance. Rule 1 provides that:

“1. In the calculation of the means of a person for the purposes of Chapters 2 …..of Part 3, account shall be taken of the following—

(2) all income in cash and any non-cash benefits that may be prescribed which the person or his or her spouse, civil partner or cohabitant may reasonably expect to receive during the succeeding year, whether as contributions to the expenses of the household or otherwise, but—

(a) excluding the amounts at references 1 to 19 in Table 2 to this Schedule, and

(b) excluding—

…………

(v) in the case of jobseeker’s allowance, pre-retirement allowance and farm assist and subject to paragraphs (6), (7) and (8), any moneys earned by the person or his or her spouse, civil partner or cohabitant from insurable employment of a seasonal nature…”

From my review of the Appeals Officer’s decision, it was clear that the Appeals Officer relied on Rule 1(2)(b) (v) as the basis for the decision. However, as outlined above, that Rule relates to insurable employment, and does not apply to self-employment.

In this respect the Appeals Officer had erred in law and in the circumstances the decision of the Appeals Officer was revised as requested by the Department.

Outcome: Decision revised and appeal disallowed.

2018/318/60 Jobseeker’s Allowance

Question at issue: Information to be given when making a claim

Grounds for Review: The person concerned sought a review of the Appeals Officer’s decision on the basis of error of fact and/or law and contended that all necessary information was provided to the Department and that attendance at an office of the Department was unnecessary.

Background: The person concerned made a claim for Jobseeker’s Allowance and was asked by the investigating officer in the Department to provide certain information and attend at an office of the Department for the purposes of establishing means. The person concerned failed to provide all of the information requested and declined to attend at an office of the Department as requested. In those circumstances his claim for Jobseeker’s Allowance was declined as his means could not be assessed. The Appeals Officer disallowed the appeal on the same grounds as the Deciding Officer of the Department.

Review: Having reviewed the Appeals Officer’s decision I noted that the Appeals Officer identified that the question before her was whether the person concerned met the means test for the purposes of a Jobseeker’s Allowance claim. The Appeals Officer correctly identified that pursuant to Section 141 (1) of the Social Welfare Consolidation Act 2005 a person shall be entitled to Jobseeker’s Allowance in respect of any week of unemployment where – including other conditions:

“(c) the person’s weekly means, subject to subsection (2)(d), do not exceed the amount of jobseeker’s allowance (including any increases of jobseeker’s allowance) that would be payable to the person under this Chapter if that person had no means.”

The Appeals Officer also outlined that in accordance with Article 181 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007, (S.I. No. 142 of 2007),

(1) “Every claimant shall furnish such certificates, documents, information and evidence as may be required by an officer of the Minister, for the purposes of deciding the claim and in any particular class of case, shall, for the purposes of making any such claim, attend at such office or place as an officer of the Minister may direct”.

The Appeals Officer concluded that as the person concerned had not provided all of the evidence and/or attended for a meeting with an officer of the Minister as required, the Department were unable to complete a means assessment to establish if the person’s means came within the statutory limits provided for in the governing legislation.

On review of that decision, I was satisfied that the Appeals Officer had not erred in fact or law as it is clear that the legislation places an onus on the claimant to furnish such information and evidence as may be required for purposes of the deciding a claim. In the absence of the claimant providing what was required or requested it was not possible for the decision maker to make a decision in accordance with the legislative provisions.

Outcome: Decision not revised.

2018/318/64 Jobseeker’s Allowance

Question at issue: Attending a course of study

Grounds for review: It was contended that the Appeals Officer erred in law and fact and did not adequately consider the exemption for mature students contained in Article 121 (1) (b) of S.I. 327 of 2016 – the Social Welfare (Consolidated Claims, Payments and Control) (Amendment) (No.1) (Exemption from Disqualification for Course of Study) Regulations 2016. It was also contended that there is no requirement under Article 121 to notify the Department of a change in circumstances and the Appeals Officer erred in stating that

‘A condition for receipt of Jobseeker’s Allowance is that the claimant is obliged to inform the Department of a change of circumstances’.

Background: The appellant submitted an application for Jobseeker’s Allowance in March 2017 on claim form UP 1. It came to the attention of the Department that the appellant commenced a full-time course of study in September 2017 and was registered and attending as a full-time student with a named educational institute for the 2017/2018 academic year.

A Deciding Officer of the Department of Employment Affairs and Social Protection, relying on Section 148(1) of the Social Welfare Consolidation Act 2005, advised the appellant that he was disqualified from receiving Jobseeker’s Allowance on the grounds that he was attending a full-time course of study. The Deciding Officer revised the decision with effect from 18th September 2017 in accordance with Section 302 (a) of the Social Welfare Consolidation Act 2005.

An Appeals Officer disallowed the appeal and outlined that it is a condition for receipt of Jobseeker’s Allowance that a claimant is obliged to inform the Department of a change in circumstances and that the appellant in this case had failed to do so.

Review: The provisions governing entitlement to Jobseeker’s Allowance are contained in Chapter 2 of Part 3 of the Social Welfare Consolidation Act 2005 and Chapter 1 of Part 3 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 S.I. No 142 of 2007 (as amended). In accordance with these provisions a person must satisfy the conditions of being available for and genuinely seeking work in order to be entitled to payment of Jobseeker’s Allowance.

Section 148(1) of the 2005 Act makes provision for disqualifications where a person is attending a course of study and provides that ‘a person shall not be entitled to receive jobseeker’s allowance while attending a course of study, other than in the circumstances and subject to the conditions and for the periods that may be prescribed.’

Article 121 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142 of 2007) makes provision for certain exemptions from the disqualification while attending a course of study and provides as follows:

‘Exemption from disqualification for course of study

121. (1) A person shall not be disqualified for receiving jobseeker’s allowance—

(a) in accordance with section 148(3)(a) while participating in a course provided or approved

by an education and training board specified in Schedule 2 to the Education and Training

Boards Act 2013 (No. 11 of 2013) and known as Youthreach,

(b) in accordance with section 148(3)(c) while attending a course of study, where that person

is a mature student,

(c) in accordance with section 148, where that person is participating in an activity within the

meaning of article 120 and article 120(4) applies to that person.

(2) In this article—

“approved course”, “approved higher education course” and “approved post-leaving certificate

course” shall be construed in accordance with section 8 of the Student Support Act 2011 (No.

4 of 2011) and Regulation 4 of the Student Support Regulations 2015 (S.I. No. 154 of 2015); “course of study” has the meaning given to it in section 148;

“mature student” means a student who on 1 January—

(a) in the year of entry for the first time to an approved post leaving certificate course,

(b) in the year of entry for the first time to an approved higher education course (other than a course known for the time being as a post-leaving certificate course), or

(c) in the year of re-entry to an approved course, is at least 23 years old.’

I concluded that the exemption from disqualification that applied to the appellant is that contained in Article 121 (1)(b) which provides that a person shall not be disqualified for receiving Jobseeker’s Allowance in accordance with Section 148(3)(c) while attending a course of study, where that person is a mature student.

It was not disputed that the appellant met the age threshold in order to be considered to be a mature student. However, Section 148 (3) (c) of the 2005 Act provides that a person shall be regarded as attending a course of study…….

‘(c) for the period immediately following the completion of one academic year, other than the final academic year of a course of study, up to the beginning of the following academic year.’

In summary, I found that a combination of the provisions provided for in Article 121(1)(b) of the 2007 Regulations and Section 148 (3)(c) of the 2005 Act meant that the appellant was not eligible to receive Jobseeker’s Allowance while attending a full-time course of study but he may be eligible to apply for/receive Jobseeker’s Allowance for periods between academic years.

In those circumstances, I did not consider that the Appeals Officer had erred in fact or in law.

I also noted that it is a general requirement that recipients of social welfare payments notify the Department of any change in their circumstances which may impact on their entitlement or continued entitlement to a payment. When the appellant applied for Jobseeker’s Allowance, he signed a declaration which included an undertaking to advise the Department of any change in his circumstances which may affect his continued entitlement to Jobseeker’s Allowance. Having failed to comply with that undertaking, I did not consider that the Appeals Officer had erred in this respect.

Outcome: Decision not revised.

2019:

2019/38 Jobseeker’s Allowance

Question at issue: Eligibility (failure to attend activation meetings)

Background: The appellant was in receipt of Jobseeker’s Allowance and in connection with that claim was referred to a Job-Path service provider. The appellant failed to attend two separate appointments with the service provider. An officer of the Department met the appellant and explained to him the penalty rate guidelines and the possibility of a reduction in his payment if he did not engage with the service provider. The appellant agreed to attend future appointments but failed to attend a further scheduled meeting and a penalty rate was applied.

Two further appointments were scheduled and the appellant failed to attend both. The appellant contacted his local Intreo Centre and said that he kept forgetting to attend the appointments. The officer agreed to reinstate his payment on the strict understanding that the appellant would attend his next meeting. The appellant did not attend this meeting.

The Department wrote to the appellant advising him that a penalty rate would be applied, and his payment would be reduced/ The appellant was also advised that a further appointment with the service provider would be scheduled and that if after 21 days on the reduced payment he continued, without good cause, to fail to comply that he would be disqualified from receiving Jobseeker’s Allowance for a period of 9 weeks. The appellant failed to attend 2 further meetings with the service provider. The Department wrote to the appellant advising him that he was disqualified from payment for a period of 9 weeks on the grounds that he was on a penalty rate for 21 days or more for failure or refusal, without good cause, to attend activation meetings.

Consideration: The question under appeal was whether the appellant failed, without good cause, to attend activation meetings which led initially to a penalty rate being applied followed by a 9-week disqualification. Sections 141A and 141B of the 2005 Act allow for the imposition of a penalty rate to a person’s Jobseeker’s Allowance when that person fails, without good cause, to attend activation meetings, or other prescribed schemes, programmes or courses relating to Jobseeker’s Allowance.

The penalty rate is applied for 21 days. If, after 21 days, a person still fails, without good cause, to attend activation meetings or other prescribed schemes, programmes or courses, they shall then be disqualified from Jobseeker’s Allowance for up to 9 weeks. From the appellant’s letter of appeal, the Appeals Officer noted that he offered no reason as to why he failed to attend 9 activation meetings.

The appellant stated he was suffering from depression, but this had never been disclosed to the Department and there was no supporting medical evidence made available.

Having considered the details of the case the Appeals Officer was satisfied that the penalty rate and the subsequent disqualification were applied correctly and in line with the relevant legislation. The appellant did not establish good cause for his failure to attend the activation meetings.

Outcome: Appeal disallowed

2019/39 Jobseeker’s Allowance

Question at issue: Eligibility (means)

Background: The appellant applied for and was refused Jobseeker’s Allowance in 2018. The Department advised the appellant that he was not entitled to Jobseeker’s Allowance on the grounds that his means were in excess of the rate of Jobseeker’s Allowance that would be payable based on the appellant’s family circumstances.

Consideration: In his letter of appeal, the appellant listed factors which he felt should have been taken into account in deciding his claim. The appellant disputed the method used in calculating his means with regard to his wife’s income from insurable employment.

He requested that deductions be allowed in respect of mortgage payments and household expenses, and that consideration should have been given to the fact that his wife was 31 weeks pregnant at the time of his application and had two pregnancy related medical conditions. The appellant stated that he was not entitled to a medical card or GP visit card. He stated that as he had previously worked in Canada, he felt that the social insurance contributions he made in Canada should be reckonable when calculating his entitlement in Ireland.

The legislative provisions governing the assessment of means are contained in Part 1 & 2 of Schedule 3 of the 2005 Act, and Articles 141 to 158 of S.I. 142 of 2007. Article 153(2) of the 2007 Regulations states that when calculating the means derived from the insurable employment of a spouse, civil partner, or cohabitant, it shall be taken as 60% of the average weekly earnings from that employment.

Article 153(4) states that average weekly earnings are calculated by deducting PRSI, pension contributions, union fees, and €20 in respect of each day of insurable employment, subject to a maximum of €60 per week.

The appellant disputed the figures used in calculating means and stated that his wife’s gross salary as taken into account was not a true reflection of the family income.

Having examined the Deciding Officer’s calculations, the Appeals Officer was satisfied that they were calculated in line with the relevant legislation and had allowed for all permissible deductions to be made. The appellant’s means as assessed were in excess of the maximum rate of Jobseeker’s Allowance payable based on his family circumstances. The legislation regarding payment of Jobseeker’s Allowance does not allow for specific individual deductions as described in the letter of appeal.

The Appeals Officer noted that while the governments of Ireland and Canada have a bilateral agreement on social security the main purpose of the agreement is to protect the pension rights of persons who have paid social insurance contributions in Ireland and have reckonable periods in the other country. Jobseekers Benefit is not one of the schemes covered by this agreement.

Outcome: Appeal disallowed

2019/40 Jobseeker’s Allowance

Question at issue: Eligibility (failure to attend activation meetings)

Background: The appellant had been in receipt of Jobseeker’s Allowance from 2016. He failed to attend a number of activation appointments in 2018 and was aware that further non- engagement would result in a penalty rate being applied. Subsequently, he did not attend activation meetings on three occasions between 2018 and 2019 and a penalty rate was applied to his Jobseeker’s Allowance claim. The appellant was advised by letter that his Jobseeker’s Allowance was reduced by €44.00 per week for a three-week period as he had failed to attend activation appointments. Under section 195 of the 2005 Act recourse to

Supplementary Welfare Allowance is precluded in respect of any Jobseeker’s Allowance claim that is subject to a penalty rate.

When the appellant received notification from the Department of the application of the penalty rate, he attended at the Department offices and was advised that the penalty rate would be lifted if he attended a re-engagement meeting. However, he failed to attend this meeting and a further re-engagement meeting that was scheduled.

His claim was then suspended for a period of 9 weeks as he had been on a penalty rate for over 21 days and had not re-engaged with the activation process as advised in writing by the Department. During the 9-week period three further activation appointments were arranged for the appellant. The appellant did not avail of the opportunity to attend these meetings and did not provide any good cause for his non-attendance.

The appellant was advised by letter from the Department that his Jobseeker’s Allowance claim was being disqualified and payment of the claim suspended. He did not subsequently seek to re-engage with the activation process. It was noted that the Department instituted a review of his claim in 2019 and the appellant also failed to attend these meetings.

Consideration: Section 141 of the 2005 Act allows for the imposition of a penalty rate to a person’s Jobseeker’s Allowance claim when that person fails, without good cause, to attend at activation meetings, or other prescribed schemes, programmes or courses relating to Jobseeker’s Allowance. The penalty rate is applied for 21 days. If, after 21 days, a person still fails, without good cause, to attend activation meetings or other prescribed schemes, programmes or courses, the person can be disqualified from Jobseeker’s Allowance for up to 9 weeks. The Appeals Officer in this case was satisfied that the appellant repeatedly failed to engage with the activation process as required under the relevant legislation and good cause for failure to attend scheduled meetings had not been demonstrated.

Outcome: Appeal disallowed

2019/44 Jobseeker’s Allowance

Question at issue: Eligibility (full-time education)

Background: The appellant was in receipt of Jobseeker’s Allowance as a casual worker from September 2017. Following a review of her claim by the Department it emerged that the appellant was registered as a full-time student on a course in an ETB college for the academic year 2017/2018 which covered the period September 2017 to May 2018.

A revised decision was made by the Department in April 2018 disqualifying the appellant from receiving Jobseeker’s Allowance for the period from September 2017 to March 2018 on the grounds that she was attending a full-time day course of study. The decision was made in accordance with Sections 148(1) and 302(a) of the 2005 Act. The decision resulted in an overpayment being assessed against the appellant.

Consideration: Section 148(1) of the 2005 Act states that a person shall not be entitled to receive Jobseeker’s Allowance while attending a course of study, other than in the circumstances and subject to the conditions and for the periods that may be prescribed. A course of study is further defined as “a full-time day course of study, instruction or training which may take place over more than one academic year at an institution of education”.

The Appeals Officer noted that the appellant did not dispute that she was attending a full- time course and there was evidence from the college confirming this.

The decision to disallow the appellant’s Jobseeker’s Allowance was made under Section 302(a) of the Act which provides for a revised decision to be made due to the person wilfully concealing relevant information or providing false or misleading information. In her application form for Jobseeker’s Allowance, the appellant indicated that the course was part- time, 8 hours per week.

The Appeals Officer concluded that as the appellant was in full-time education she was not entitled to Jobseeker’s Allowance from the date of claim and that she had provided misleading information to the Department.

Outcome: Appeal disallowed

2019/318/64 Jobseeker’s Allowance

Question at issue: Entitlement (Penalty Rate)

Grounds for review: The appellant submitted in his request for a review of the Appeals Officer’s decision that the Job Path scheme is administered in contravention of national data protection legislation (citing the DPA 2003) and a European Union Directive on the protection of individuals with regard to the processing of person data (citing Directive 95/46/ EC). The appellant contended that his personal data had been unlawfully shared by the Department with a named provider and used illegitimately by that provider. He expressed the view that the Appeals Officer erred in his assertion that ‘the Department made every effort to assure’ him regarding the security of his personal data. The appellant also asserted that the decision of the Deciding Officer was not made in accordance with natural justice and that before such decisions are taken a designated person in the Department should meet with the claimant concerned.

Background: The appellant was in receipt of Jobseeker’s Allowance and in connection with that claim was invited to attend meetings arranged by the Department for the purpose of providing information intended to improve his knowledge of the employment, work experience and other opportunities available to him. He failed to attend a number of scheduled meetings, and a Deciding Officer applied a penalty rate to his claim resulting in a reduction of €44 to his weekly payment.

While the appellant was ultimately disqualified for receiving Jobseeker’s Allowance, the question before the Appeals Officer at that point in time was whether the appellant had without good cause failed to attend the scheduled meetings. As the Appeals Officer considered that the appellant had not demonstrated good cause for his failure to attend the meetings the appeal was disallowed.

Review: As the appellant’s grounds for review included issues relating to the administration of the Job Path Programme, I highlighted that the role of the Social Welfare Appeals Office is to determine appeals against decisions of Deciding Officers and/or Designated Persons of the Department. Section 300(2) of the 2005 Act gives statutory power to Deciding Officers of the Department to determine questions relating to social assistance. All such decisions can be appealed under the provisions of Section 311 of the 2005 Act to an Appeals Officer.

I outlined that, in accordance with these statutory provisions, Appeals Officer have no role in relation to the administration of Job Path. The Appeals Officer’s role therefore was confined to the decision of the Deciding Officer which resulted in the reduction in the appellant’s weekly payment.

The provisions governing entitlement to Jobseeker’s Allowance are contained in Chapter 2 of Part 3 of the 2005 Act and Chapter 1 of Part 3 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations, 2007 (S.I. No 142 of 2007).

Section 141A of the 2005 Act provides that a person receiving Jobseeker’s Allowance may be requested to attend meetings for the purpose of assisting the person in their search for employment or for the assessment of the person’s education, training or development needs – generally referred to as activation meetings. Section 141A also sets out the penalties that may be applied where the person refuses or fails to attend activation meetings and in this respect subsection (2) provides:

Where a person refuses or fails, without good cause, to comply with the requirement specified in the notice under subsection (1) at the time specified in that notice, or at any time thereafter as may be determined by or on behalf of the Minister and notified to the person the weekly rate of jobseeker’s allowance payable to that person in respect of any such period of refusal or failure shall, subject to this section, be as set out in section 142(1A), 142A(1A) or, as the case may be, section 142B(1A).

Insofar as the appellant’s assertion that the decision [of the Deciding Officer] was not made in accordance with natural justice, while noting that all decisions must be made in accordance with natural justice, I outlined that the legislation does not provide for meetings and/or that any such meetings must be presided over by a designated person. From my review of the file that was before the Appeals Officer, I noted that prior to the Deciding Officer making her decision there was correspondence on file from the Department’s Offices outlining the obligations on jobseekers to attend activation meetings and the consequences of failure to attend was also outlined.

The appellant had also acknowledged that he had read the material and was aware that if he failed to attend interviews his payment may be reduced. In those circumstances I did not find that the decision of the Appeals Officer was erroneous. Insofar as it was asserted that the Appeals Officer erred in his assertion that ‘the Department made every effort to assure the appellant regarding the security of his personal data,’ I did not find that the Appeals Officer had erred in fact or law in this respect. From my review of the file, there was correspondence on file which showed that the Department made considerable efforts to provide information and assurances to the appellant as regards his personal data and the sharing of that data with the Job Path companies. While I concluded that it was reasonable that the appellant would seek assurances as to the protocols which apply and the safeguards put in place with reference to the provisions of the Data Protection Acts, I considered that the evidence indicated that the requirement to attend scheduled meetings as requested by the Department had not been fulfilled by the appellant and, in light of the assurances given to him by the Department, his concerns as regards data protection did not constitute “good cause” for failure to attend scheduled meetings.

Outcome: Decision not revised

2020:

2020/34 Jobseeker’s Allowance

Question at issue: Eligibility (available for and genuinely seeking work)

Background: The appellant’s claim for Jobseeker’s Allowance was disallowed by the Department on the grounds that he was not available for or looking for full-time work. In his application he stated that he had left his employment for medical reasons. He also stated in his application that he was not available for or seeking full-time work. The appellant submitted a letter explaining that he was not available for or looking for full-time work as he had not worked since early 2016 due to medical reasons and was trying to ease back into the workplace. He also outlined that he had to provide assistance to his ill parent. The appellant appealed the Department’s decision and stated that he wished to retract the original answer on his application form and change it to that he was looking for and available for full-time work. He stated that his parent only needed help sometimes during the week and he would be available to provide help outside of work hours. The Department did not accept this submission, and the decision remained unchanged.

Consideration: The Appeals Officer identified the relevant legislation in this case as Section 141(1)(b) of the 2005 Act and Articles 15 and 16 of the 2007 Regulations. It is a condition of entitlement to Jobseeker’s Allowance that a person is genuinely seeking work and is available for full-time work.

The Appeals Officer noted the evidence submitted by the appellant at application stage that he was neither available for nor seeking full-time work. While the appellant later stated that he would be available for full-time work the Appeals Officer noted that this statement of availability only came about when his Jobseeker’s Allowance application was disallowed. The Appeals Officer concluded that the weighting to be afforded to this evidence was significantly reduced and concluded that the appellant had not shown that he was willing and able to take up, at once, an offer of suitable employment and had not shown that he could be regarded as genuinely seeking employment as required by the governing legislation.

Outcome: Appeal disallowed

2020/35 Jobseeker’s Allowance

Question at issue: Eligibility (habitual residence condition)

Background: The appellant’s application for Jobseeker’s Allowance submitted in December 2019 was disallowed by the Department on the grounds that the appellant was not habitually resident in the State. In its decision, the Department outlined that since his arrival in the State in December 2018 the appellant had two brief periods of employment in 2019 and that he previously resided in another country for ten years.

Consideration: The evidence before the Appeals Officer was that the appellant, in his early 40s, was born outside of Ireland in the late 1970s, had a difficult childhood and was fostered by a family in Ireland in the early 1990s and resided in Ireland for some 20 years up to the end of 2010. The evidence showed that the appellant left Ireland in 2010 to spend some time with his birthmother who died in 2018. On his return to Ireland in 2018 the appellant was supported by his foster family and also accessed services for mental health issues. The appellant submitted that he was returning to Ireland as a place where he had history and current supports.

In his consideration of the appeal the Appeals Officer outlined that in accordance with Section 246 (4) of the 2005 Act in determining whether a person is habitually resident in the State account shall be taken of all the circumstances of the case, including the five factors outlined in that provision.

Having regard to the circumstances in this case and in particular the reason for the appellant’s absence from the State and his strong connection to Ireland over a substantial period of his life the Appeals Officer was satisfied based on the totality of the evidence that the appellant was habitually resident in the State for the purposes of his claim for Jobseeker’s Allowance.

Outcome: Appeal allowed

2020/36 Jobseeker’s Allowance

Question at issue: Eligibility (means)

Background: The appellant’s application for Jobseeker’s Allowance was refused on the grounds that his means were in excess of the rate of Jobseeker’s Allowance that would be payable based on the appellant’s family circumstances. His means were derived from self-employment.

Consideration: Jobseeker’s Allowance is a means tested payment calculated in accordance with the Rules contained in Part 2 of Schedule 3 of the 2005 Act.

In his letter of appeal, the appellant indicated that he found the calculation of his means puzzling and that he would like a further breakdown. He also indicated that he had lost his biggest client in 2019, had paid tax on some of his income in another State and he also outlined his family circumstances. The Department subsequently provided a detailed breakdown of the means assessment, and the appellant was afforded the opportunity to comment. No reply was received from the appellant.

In its reply to the appellant, the Department outlined that the gross income was taken from the 2019 accounts which the appellant had submitted and that income from the lost client was disregarded in the calculation of means. The Department also provided a breakdown of the expenses allowed.

The Appeals Officer, having examined the calculations, was satisfied that the expenses allowed by the Department in respect of landline/broadband, heating and other utility expenses, car insurance, fuel, An Post, travel and car repairs were reasonable. The Appeals Officer also noted that while it was accepted that the appellant had expenditure on other outgoings, the legislation did not provide for the exclusion of domestic or personal expenses.

The Appeals Officer found that the appellant’s means from self-employment were correctly calculated by the Department in accordance with the governing legislation

Outcome: Appeal disallowed

2020/37 Jobseeker’s Allowance

Question at issue: Eligibility (means)

Background: The appellant’s application for Jobseeker’s Allowance was refused by the Department on the grounds that her means were in excess of the rate of Jobseeker’s Allowance that would be payable based on her family circumstances.

Consideration: The Appeals Officer outlined that the appellant was aged 20 and where a person under 25 years of age is living with parents in the family home, an assessment is made of the yearly value of any benefit and privilege enjoyed by that person by virtue of residing with parents. The value of the benefit and privilege assessed is based on the level of the parents’ income.

The Department assessed the appellant’s benefit and privilege on the basis of her father’s income from employment. The information was taken from a copy of a payslip provided by the appellant. The payslip showed gross income for 24 insurable weeks.

The Appeals Officer determined that the Deciding Officer took the incorrect figure as gross income from the payslip. The figure taken was the tax cut-off point instead of the year-to-date gross income. The tax cut-off point figure was approximately 2½ times more than the year-to-date gross income and resulted in a means assessment of €332 per week.

When the correct gross income figure was used, and all relevant disregards applied the benefit and privilege enjoyed by the appellant by virtue of residing with her parents amounted to nil when calculated in accordance with the Department’s guidelines. As the appellant had no other source of means she was entitled to Jobseeker’s Allowance at maximum rate applicable to her age.

Outcome: Appeal allowed

2020/318/65 Jobseeker’s Allowance

Question at issue: Entitlement (penalty rate)

Grounds for Review: The appellant submitted a number of grounds, including some which were outside the remit of the appeals process, in support of her request for a review of the Appeals Officer’s decision but the substantive issue was whether the appellant’s refusal to engage with a provider under the JobPath Employment Activation Programme constituted good cause for her failure to attend activation meetings. In this respect the appellant also asserted that the governing legislation was unconstitutional.

Background: The appellant was in receipt of Jobseeker’s Allowance and in connection with that claim was invited to attend meetings arranged by the Department for the purpose of providing employment support. A penalty rate was applied to her claim on the grounds that she had failed without good cause to attend activation meetings resulting in a reduction of €44 to her weekly payment. The appellant was subsequently disqualified from receiving Jobseeker’s Allowance as she failed to avail of a further opportunity to comply with the activation process. The appellant refused to engage with the JobPath programme as she believed that this would entail entering into a contract with a third-party agency. Maintaining a position that her contract was directly with the Department, the appellant stated that the correspondence she received from the provider under the JobPath programme was unsolicited and she didn’t engage with any such correspondence received.

Review: As the appellant’s grounds for review included issues outside the remit of the appeal process, I outlined in the first instance that the role of the Social Welfare Appeals Office is to determine appeals against decisions of Deciding Officers and/or Designated Persons of the Department. Section 300(2) of the 2005 Act gives statutory power to Deciding Officers of the Department to determine questions relating to social assistance. All such decisions can be appealed under the provisions of Section 311 of the 2005 Act to an Appeals Officer. The Appeals Officer’s role in this case was confined to the decision of the Deciding Officer which resulted in the reduction in the appellant’s weekly payment.

The provisions governing entitlement to Jobseeker’s Allowance are contained in Chapter 2 of Part 3 of the 2005 Act and Chapter 1 of Part 3 of the 2007 Regulations.

Section 141A also references the penalties that may be applied where the person refuses or fails to attend activation meetings and in this respect subsection (2) provides:

Where a person refuses or fails, without good cause, to comply with the requirement specified in the notice under subsection (1) at the time specified in that notice, or at any time thereafter as may be determined by or on behalf of the Minister and notified to the person, the weekly rate of jobseeker’s allowance payable to that person in respect of any such period of refusal or failure shall, subject to this section, be as set out in section 142(1A), or, as the case may be, section 142A(1A).

It was clear that the appellant was of the view that her engagement in relation to activation should be directly with the Department and she refused to engage with the JobPath provider. It was also clear that the governing legislation provides that a person may be required to attend activation meetings and that for this purpose notice may be given by or behalf of the Minister to any person receiving Jobseeker’s Allowance requesting the person to comply with the requirement to (a) attend a meeting arranged by or on behalf of the Minister, or (b) attend for or submit to an assessment of that person’s education, training or development needs. It is also clear that where a person refuses or fails, without good cause, to comply with this requirement a penalty may be applied. I was satisfied that the words by or behalf of the Minister’ included providers under the JobPath programme.

The central issue before the Appeals Officer was whether, in accordance with the legislation governing Jobseeker’s Allowance, the appellant had demonstrated ‘good cause’ for the failure or refusal to engage with the activation measures put in place to assist her in her job search.

I was satisfied that the Appeals Officer had not erred in fact or law in concluding that the appellant had not demonstrated ‘good cause’ for her failure to attend meetings arranged by or on behalf of the Minister for the purpose of providing information intended to improve her knowledge of the employment, work experience and other opportunities available to her as provided for in governing legislation.

In relation to the constitutionality of the law applied, I outlined that a law passed by the Oireachtas is presumed to be constitutional until it is proven not to be and in applying the legislation in the appellant’s appeal the Appeals Officer was obliged to act on the presumption that the legislation was constitutional.

Outcome: Decision not revised

2020/318/66 Jobseeker’s Allowance

Question at issue: Entitlement (penalty rate)

Grounds for Review: The appellant submitted a number of grounds, some of which related to the administration of the JobPath Employment Activation Programme and his engagement with the Department under its complaint’s procedure. As these issues do not come within the remit of the appeal process as provided for in the governing legislation they were not addressed in this review. The appellant asserted that the Appeals Officer by relying on the 2005 Act had erred in law and should instead have relied on the Social Welfare and Pensions Act 2013. The appellant outlined concerns in relation to the impartiality of findings of the Appeals Officer and asserted that the non-attendance of the case officer of the Department at the oral hearing of his appeal was not in keeping with a fair process. In addition, the appellant asserted that selection for participation in the JobPath programme was random and as such constituted ‘good grounds’ for not attending activation meetings.

Background: The appellant was in receipt of Jobseeker’s Allowance and in connection with that claim was invited to attend meetings arranged by the Department for the purpose of providing complete that session. The appellant failed to attend four subsequent sessions arranged by the Department. The evidence before the Appeals Officer also showed that the Intreo Centre concerned had contacted the appellant who was advised of the requirement to attend meetings and of the potential outcomes for failure to engage, including the application of a penalty rate. A penalty rate was ultimately applied on the grounds that the appellant had failed without good cause to attend activation meetings resulting in a reduction of €44 to his weekly payment.

The subsequent appeal was disallowed as the Appeals Officer considered that the appellant had not shown good cause for his failure to attend the scheduled meetings.

Review: Insofar as it was contended that the Appeals Officer erred in law by relying on the incorrect legislative provisions, I outlined that the legislation governing social welfare payments and related matters is contained in the 2005 Act – generally referred to as the Principal Act. That Act has been amended since its enactment in 2005 and one such amendment was made by Section 13 of the Social Welfare and Pensions (Miscellaneous Provisions) Act 2013. Section 13(2) of the 2013 Act provides, inter alia, for an amendment to the Principal Act by the substitution for Section 141A of Section 141A, 141B and 141C. Consequently the 2005 Act must be read as including the amendments introduced by the 2013 Act. I found no error of law in the Appeals Officer’s decision or reliance on the provisions of the 2005 Act as set out in the decision.

Insofar as it was asserted that the non-attendance of the case officer at the oral hearing of the appellant’s appeal resulted in a lack of fair process, I outlined that Article 15 of the Social Welfare (Appeals) Regulations, 1998 (S.I. No. 108 of 1998) provides that in circumstances where an appeal is being determined by means of an oral hearing the Deciding Officer or the Designated Person, as the case may be, may appear at the hearing in person or be represented by another officer of the Minister. It is also open to the Appeals Officer to ask any other person to attend at the hearing. However, these provisions are not mandatory, and it is a matter for the Appeals Officer to determine whose attendance is required in order to determine the appeal.

From my review of the material that was before the Appeals Officer I was satisfied that the attendance of the case officer was not necessary in order to ensure fair process.

I outlined that the role of the Appeals Officer was confined to the decision of the Deciding Officer which advised the appellant that his rate of Jobseeker’s Allowance would be reduced by €44 per week. The decision of the Deciding Officer outlined that the appellant had, without good cause, failed to attend meetings arranged by or on behalf of the Minister for the purpose of providing information which was intended to improve knowledge of the employment, work experience, education, training or development opportunities available to him.

The provisions governing entitlement to Jobseeker’s Allowance are contained in Chapter 2 of Part 3 of the 2005 Act and Chapter 1 of Part 3 of the 2007 Regulations.

Section 141A of the 2005 Act provides that a person receiving Jobseeker’s Allowance may be requested to attend meetings for the purpose of assisting the person in their search for employment or for the assessment of the person’s education, training or development needs – generally referred to as activation meetings. Section 141A also contains the penalties that may be applied where the person refuses or fails to attend activation meetings and in this respect subsection (2) provides:

Where a person refuses or fails, without good cause, to comply with the requirement specified in the notice under subsection (1) at the time specified in that notice, or at any time thereafter as may be determined by or on behalf of the Minister and notified to the person, the weekly rate of jobseeker’s allowance payable to that person in respect of any such period of refusal or failure shall, subject to this section, be as set out in section 142(1A), or, as the case may be, section 142A(1A).

It was clear that the appellant was requested to attend meetings for the purpose of assisting him in his search for employment. Once invoked and in circumstances where the appellant refused/failed without good cause to comply with these requirements he could not be regarded as being compliant with the provisions of Section 141A. The central question therefore before the Appeals Officer was whether the appellant had demonstrated good cause for his failure to engage and/or comply with the requirements of Section 141A.

The appellant’s reasons for not attending scheduled meetings were to the effect that he saw no value in attending the programme and considered that the Job Path programme was a waste of money and considered it more useful if he conducted his own job search. In this respect I outlined that the requirement to attend such meetings is not optional and once a person is notified to attend s/he must engage, unless there is ‘good cause’ for non-engagement.

I considered that the evidence indicated that the requirement to attend scheduled meetings as requested by the Department had not been fulfilled by the appellant and the reasons advanced by the appellant did not, in my view, constitute good cause for failure to attend such meetings.

Outcome: Decision not revised

2020/318/67 Jobseeker’s Allowance

Question at issue: Eligibility (right to reside in the State)

Grounds for Review: The Department in its request for a review of the Appeals Officer’s decision submitted that the Appeals Officer erred in law in that the appellant’s status in the State was that of an asylum seeker who has applied to the International Protection Office for recognition as a refugee in accordance with the Refugee Act 1996 or the International Protection Act 2015 and whose application had yet to be determined.

The Department, while acknowledging that the Deciding Officer erred in carrying out a full habitual residence test rather than finding the appellant did not satisfy the habitual residence condition under Section 246(7) of the 2005 Act, submitted that under Section 311 (3) of the 2005 Act the Appeals Officer was obliged to use the correct legislation in making his decision. In those circumstances it was submitted that the Appeals Officer erred in law in arriving at his decision as it was contrary to Section 246 (7) of the 2005 Act which provides that such a person cannot be regarded as habitually resident and as such may not access standard social assistance payments.

Background: The appellant resided in Ireland and was the holder of an international protection card which was valid for six months. Her claim for Jobseeker’s Allowance was disallowed by a Deciding Officer on the grounds that the appellant did not meet the habitual residence conditions set out in Section 246(4) of the 2005 Act i.e. the five factors. The appellant submitted that she resided in the State under the protection of the Minister for Justice and had a right to access the same social welfare benefits under the same conditions as applied to Irish citizens. Relying solely on Section 246(4) of the 2005 Act the Appeals Officer found that the habitual residence condition was satisfied and allowed the appeal.

Review: In accordance with Section 246 of the 2005 Act establishing habitual residence is a two-stage process which firstly requires that the person has a right to reside in the State. If it is established that the person has a right to reside, an assessment of their situation under 5 factors applies to determine their centre of interest and future intentions.

From my review of the material that was before the Appeals Officer it was clear that the appellant resided in the State as the holder of an international protection card. The reverse side of that card outlined, inter alia, that this temporary card indicates that an individual claiming to be the person named on the card has applied for international protection in the State.

I was satisfied that the Appeals Officer accepted at face value an extract from a Department of Justice document which was submitted by the appellant in support of her appeal, and which outlined a person’s rights if granted international protection. The relevant section which was submitted outlined that when a person receives a refugee declaration or a subsidiary protection declaration under the provisions of the International Protection Act, 2015 various entitlements arise, including access to medical care and social welfare benefits subject to the same conditions applicable to Irish citizens.

However, the appellant had not received a refugee declaration or a subsidiary protection from the Minister for Justice and her status in the State was that of an asylum seeker who had applied for recognition as a refugee in accordance with the Refugee Act 1996 or the International Protection Act 2015. In those circumstances and in accordance with the provisions of Section 246(7) of the 2005 Act she could not be regarded as being habitually resident in the State.

In those circumstances I considered that the Appeals Officer had erred in law.

Outcome: Decision revised

2021:

2021/49: Jobseeker’s Allowance

Question under Appeal: Right to reside and habitual residence.

Background: The appellant, an EU national, applied for Jobseeker’s Allowance in December 2020. The application was disallowed by the Department on the grounds that the appellant did not have a right to reside and could not therefore be considered to be habitually resident in the State. The appellant informed that she arrived in Ireland in October 2020 but did not provide evidence of travel to verify entry. Three months had not elapsed between the date of entry to the State and the date of application for Jobseeker’s Allowance. In her appeal notification, the appellant contended that she was an EU citizen who came to Ireland looking for a job, intending to stay as long as possible. She advised that she lived in Ireland from 2013 until 2014 and had some employment in that period after which she returned to her country of origin. She returned to Ireland in 2020 and was trying to find work.

Consideration: Under the Act it is a requirement for entitlement to most social assistance payments that the person is habitually resident in the State. Section 246 of the Act contains the provisions with respect to habitual residence and deciding if a person is habitually resident is a two-stage process involving establishing, in the first instance, a right of residence and secondly determining whether a person is habitually resident. Section 246 (5) of the Act provides that a person who does not have a right to reside in the State cannot be regarded as being habitually resident in the State.

Right of residence for EU nationals and their family members is governed by Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations, 2015 (S.I. No. 548 of 2015).

The evidence in this case was that the appellant had applied for an assistance payment within three months of her arrival in the State. In the circumstances the Appeals Officer concluded that the appellant had was not entitled to receive Jobseeker’s Allowance.

Outcome: Appeal disallowed.

2021/50: Jobseeker’s Allowance

Question at issue: Means – partner’s income.

Background: The appellant’s claim for Jobseeker’s Allowance was awarded by the Department at a reduced weekly rate, consisting of a personal rate and an increase in respect of one dependent child at half-rate less means assessed. The appellant queried the assessment of means in view of overall household costs including education expenses.

Consideration:

Section 141(1)(c) of the Act provides that entitlement to Jobseeker’s Allowance is subject to a means assessment calculated in accordance with the rules contained in Part 2 of Schedule 3 of the Act.

Assessable means refers to all household income and, in the appellant’s case, his partner’s earnings from insurable employment fell to be assessed. The Appeals Officer outlined that the governing legislation provides for the assessment of means with reference to household income, and this is based on gross rather than net income, with a limited number of allowable deductions.

Having considered the available evidence, the Appeals Officer determined that the rate of entitlement to Jobseeker’s Allowance as calculated by the Department was correct and that means including the appellant’s partner’s reckonable income from insurable employment had been assessed correctly in line with the provisions set out in governing legislation.

Outcome: Appeal disallowed.

2021/51: Jobseeker’s Allowance

Question at issue: Means- assessment of capital.

Background: The appellant, in her mid-50s, applied for Jobseeker’s Allowance which was disallowed by the Department on the grounds that her means were in excess of the rate of Jobseeker’s Allowance that would otherwise be payable. The appellant’s means derived from an assessment of capital held by the appellant and income from a private pension.

The assessment of capital included money held in a number of financial institutions and money held in an Irish State Savings Solidarity Bond. The appellant outlined her intention to work up to pension age and to having invested part of a redundancy payment from a previous employment with a view to retirement at that time. She queried the inclusion of the amount invested for this purpose in the assessment of means.

Consideration:

Assessable means refers to any form of income that is available to a person claiming a means-tested payment and in this instance, included the amount held in a savings bond.

The Appeals Officer determined that the appellant’s means had been assessed correctly in line with the provisions set out in governing legislation and that an entitlement to Jobseeker’s Allowance did not accrue.

Outcome: Appeal disallowed.

2021/75 Jobseeker’s Allowance

Question at issue: Jobseeker’s Allowance means assessment and provision of information

Grounds for Review: The appellant sought a review of the Appeals Officer’s decision stating that she had provided all the information requested by the Department in connection with a review of her entitlement to Jobseeker’s Allowance.

Background: The appellant had been in receipt of Jobseeker’s Allowance and her claim was disallowed by the Department on the grounds that she had not shown that her means were less than the weekly rate of Jobseeker’s Allowance appropriate to her family circumstances. The Department stated that the appellant had failed to provide evidence to a Social Welfare Inspector in relation to capital and property when requested to do so. The information requested related to a compensation award of a substantial amount of money awarded to the appellant’s spouse, details of named bank accounts and the current market value of a site owned by her spouse or evidence of sale if the property had been sold. The Inspector reported that the appellant has failed to provide the information, and it had not been possible to determine her continued entitlement to Jobseeker’s Allowance at the rate initially approved.

Consideration:

The legislation governing entitlement to Jobseeker’s Allowance is contained in Chapter 2 of Part 3 of the Act and certain provisions of the 2007 Regulations also apply.

Section 141 of the Act provides that entitlement to Jobseeker’s Allowance is subject to an assessment of means. In accordance with Article 181 of the 2007 Regulations it is a requirement that every claimant furnish such certificates, documents, information and evidence as may be required by an officer of the Minister for the purposes of deciding a claim.

While the appellant stated that she had provided all the information requested by the Social Welfare Inspector, the Appeals Officer and I, on reviewing that decision, were satisfied that the appellant had failed to provide any of the information requested and in those circumstances, it was not possible to carry out a means assessment for the purposes of establishing entitlement to Jobseeker’s Allowance.

Outcome: Decision not revised.

2022:

2022/46 Jobseeker’s Allowance

Question at issue: Eligibility –available for and genuinely seeking work

Background: The Department disallowed the appellant’s application for Jobseeker’s Allowance on the basis that she was not available for or seeking full-time work.

She indicated on her application form that she was not available for or looking for full-time work She stated that she was looking for part-time work but only after her husband came home from his work as otherwise, there was no one to collect her son from preschool.

In her appeal the appellant stated that she was searching for full-time jobs around her location and had applied for jobs online, by phone and by WhatsApp. She outlined the various jobs and areas she can work in and listed three recent applications.

In the appeal submission the Deciding Officer stated the appellant had been disallowed based on the direct evidence that she was not looking for or available for full-time work. He stated that she had not provided any documentary evidence to substantiate her claim that she had applied for jobs, and she also had not made any reference to her child-minding issue.

Consideration: The eligibility conditions for the payment of Jobseekers Allowance are laid down in social welfare legislation and must be satisfied before payment can be made. It is a condition of entitlement that a person must show that they are genuinely seeking and are available for full time work. There is no discretion to work outside the legislation.

At the time of application, the burden of proof is on the appellant to prove that they have an entitlement to payment. Having carefully considered the evidence in this case the Appeals Officer concluded that the appellant at the time of the Department’s decision had not established that she met the conditions of genuinely seeking work or being available for full time work.

Whilst her contentions on appeal were noted, she did not provide any evidence to indicate that she was genuinely seeking full-time work neither did she provide any evidence that she was available for full-time work.

Outcome: Appeal disallowed

2022/47 Jobseekers Allowance

Question at Issue: Eligibility (means)

Background: The appellant was awarded Jobseeker’s Allowance (JA) at a weekly rate of €91.00 having been assessed with weekly means of €157 based on his spouse’s earnings from insurable employment. The appellant appealed the rate of payment as it was insufficient to meet their financial commitments.

Consideration: The question before the Appeals Officer was whether the appellant’s means and rate of payment have been assessed in accordance with the governing legislation for Jobseekers Allowance?

The appellant’s means assessment and rate of payment resulted from a number of calculations, the first being to determine the maximum rate payable for the Appellant’s family circumstances. The appellant’s maximum rate of Jobseekers Allowance was determined as €248 weekly. This rate comprised the maximum personal rate of €208 with increases of €20 for each of the Appellant’s two children. There was no qualified adult increase payable. Next, the spouse’ average weekly earnings from insurable employment were established from payslips. The spouse was also in receipt of a social welfare payment therefore their means were halved to €157. The appellant did not dispute the spousal means on appeal. The appellant was liable to be assessed on spousal means as per the governing legislation.

The Appeals Officer reviewed the Department’s calculations and determined they were in accordance with the relevant legislative provisions. The appellant’s rate of €91 represented the net figure when assessed means of €157 were deducted from the maximum rate payable of €248.00.

Outcome: Appeal disallowed

2022/48 Jobseeker’s Allowance

Question at Issue: Right to reside and habitual residence

Background: The appellant, a 27-year-old EU national, was deemed not to meet the habitual residence condition as he was deemed not to have a right to reside for the purposes of satisfying the condition, nor did he satisfy the five factors which prove Ireland is the appellant’s main centre of interest.

The appellant states he came to Ireland in 2019 to work. There was no evidence that he is in employment. He states he wishes to remain in Ireland for as long as possible for work and a better social life and status. He lives with his parents who came to Ireland in 2020.

Consideration: The Habitual Residence Condition is a two-part process: firstly, a person must establish a right of residence. Only if a right to reside is established, the Appellant’s circumstances must then be considered in the context of the 5 factors set out in Section 246(4) of the 2005 Act.

Under Article 6 of SI 548/2015 (European Communities (Free Movement of Persons) Regulations 2015), all EU citizens have an unqualified right of residence for up to 3 months. Thereafter the right of residence (and associated entitlements) is qualified – they have the right to reside if they are (i) in employment/self-employment in the State, have sufficient resources for themselves and their family not to become an unreasonable burden on the social assistance system of the State, …(ii) or is enrolled in an accredited educational establishment to study…. and, by means of a declaration or otherwise, satisfies the Minister that they have sufficient resources for themselves and their family members not to become an unreasonable burden on the social assistance system of the State, or (iii) is a family member of a Union citizen who satisfies one or more of the conditions referred to above.

The evidence showed that none of these appear to apply to the appellant. As he did not establish a right to reside in Ireland, under Section 246(5) of the 2005 Act, he cannot be considered habitually resident and does not qualify for Jobseekers Allowance. In these circumstances, the five factors listed in Section 246(4) of the Act were not considered.

Outcome: Appeal disallowed

2022/49 Jobseeker’s Allowance

Question at Issue: Eligibility – registered as full-time student

Background: The appellant applied for Jobseeker’s Allowance while undertaking a course of study in a third level institution in the evenings. His application was refused on grounds that he was excluded under Section 148 (1) of the 2005 Act while attending a course of study. In his grounds of appeal, the appellant contended that he was not a full- time student as he attended College in the evening.

Consideration: The Appeals Officer considered whether the appellant was regarded as a full-time student for the purposes of Jobseeker’s Allowance as set out in section 148 of the 2005 Act. Section 148(1) which generally excludes persons attending a course of study from receipt of Jobseeker’s Allowance must be read in conjunction with Section 148(2) which defines a course of study as a full-time day course of study. The appellant had submitted a letter from the third level college confirming that he was ‘a registered student of the college on the Higher Diploma in Science and Computing, Full-Time evening programme’.

As the appellant had clearly demonstrated that his course was an evening programme, he was not excluded under the legislation.

Outcome: Appeal allowed

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Social Welfare Appeal G0128: One Parent Family Payment / Habitual Residence Condition.

Title of Payment: One Parent Family Payment

Date of Final Decision: 31 May 2020

Keywords: Habitual Residence Condition, Right to Reside, Permission to Remain and Conditions, One Parent Family Payment, Section 318 Review.

Organisation who represented the Claimant: Irish Human Rights & Equality Commission

Casebase no: G0128

Case Summary:

The applicant was a single mother of two children, who arrived in Ireland in 2013. She applied for refugee status and was granted permission-to-remain (Stamp 4) in the State in 2019, having resided in Ireland throughout. The applicant was originally enrolled in a course, but due to lack of funds and no access to the One Parent Scheme, was forced to leave the course. Her application for the One Parent Scheme was rejected in 2020.

The Appeal Officer’s decision to refuse a social welfare One-Parent Family Payment was under Section 246 of the Social Welfare Consolidation Act 2005. This decision to refuse the applicant’s payment was made on the grounds that she had failed to satisfy the habitual-residence condition, as her presence in the State was not in accordance with her permission-to-remain.

Section 246 of the 2005 Act provides that it is a requirement for those applying for SWA and Child Benefit to be habitually resident in the State. Under section 246(4), a deciding officer or a designated person when determining whether a person is habitually resident in the State shall take into consideration all the circumstances of the case including, in particular, the following:

(a) the length and continuity of residence in the State or in any other particular country,

(b) the length and purpose of any absence from the State,

(c) the nature and pattern of the person’s employment,

(d) the person’s main centre of interest, and

(e) the future intentions of the person concerned as they appear from all the circumstances.

The applicant’s permission-to-remain was noted as being subject to certain conditions, which included:

You will make every effort to gain employment and not be a burden on the State.

At the time of the application for payment, the applicant was not working.

The Applicant sought a further review before the Chief Appeals Officer, who under section 318 of the Act of 2005 may revise any decision of an Appeals Officer where it appears that the decision was erroneous by reason of some mistake having been made in relation to the law or the facts. In her submission, the applicant argued that the appeals officer “materially erred in fact” in finding that the conditions attached to the woman’s permission-to-remain prohibited her from accessing social welfare.

As the applicant was not working at the time she applied for the One-Parent Family Payment, the Chief Appeals Officer relied on the permission-to-remain condition that states applicants must make “every effort to gain employment, set up a business or pursue a profession, and not to be a burden on the State”.

The applicant subsequently obtained employment as a cleaner. The initial refusal decision relied on the permission-to-remain condition that she makes an effort to gain employment and the appeals officer was unaware the applicant became employed Maintaining that it is lawful to consider compliance with permission-to-remain conditions when assessing the habitual residence condition requirement, the Chief Appeals Officer overturned the refusal decision following a review of all the facts, considering the woman’s compliance with the permission-to-remain and the new information submitted in respect of her recent employment status.

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Thematic Note G0116: Right to Reside and Habitual Residence Condition

Theme: Right to Reside and Habitual Residence Condition

Period of Analysis: SWAO Annual Reports 2009-2020

Keywords: Habitual Residence Condition, Right to Reside

Casebase No. G0116

Summary of the relevant law:

The term “habitually resident” is not defined in Irish law. In practice it means that you have a proven close link to Ireland. The term also conveys permanence – that a person has been here for some time and intends to stay here for the foreseeable future.

The legislation providing for the habitual residence condition is contained in Section 246 of the Social Welfare Consolidation Action 2005 (as amended). However, Deciding Officers and Designated Persons must also have regard to S.I. No. 548/2015 – European Communities (Free Movement of Persons) Regulations 2015. , which deals with the right of residence for EU/EEA citizens and their families. Habitual residence in Ireland is a condition that you must satisfy for certain social welfare payments , for example Child Benefit. This condition took effect from 1 May 2004 and affects all applicants regardless of nationality.

With all social welfare payments in Ireland, you must satisfy the rules for each scheme to qualify.

Your spouse, civil partner or cohabitant and any dependent children you have are not required to satisfy the habitual residence condition in their own right. So if you apply for a social welfare payment only you, the applicant, has to satisfy the habitual residence condition.

Proving you are habitually resident relies heavily on fact. If you have lived in Ireland all your life, you will probably have no difficulty showing that you satisfy the factors which indicate habitual residence.

To satisfy the Habitual Residence Condition (HRC) you must:

Have the right to reside in the State AND

Show that you are habitually resident, having regard to all of your circumstances, including in particular the following which are set out in the legislation:

the length and continuity of your residence in Ireland or in any other particular country
the length and purpose of any absence from Ireland
the nature and pattern of your employment
your main centre of interest AND
your future intentions as they appear from all the circumstances

These are sometimes called the “five factors”.

Who has the right to reside?

People who have a right to reside include:

Irish nationals have a right of residence in Ireland;
UK nationals coming in from the Common Travel Area (CTA) also have a right to reside here under the CTA agreement;
EEA nationals who are employed or self-employed in Ireland have a right to reside;[1]
non-EEA nationals who have a residency or work permit to legally reside and work in the State, provided that there are no restrictions attached to that residency or work permit.

Permission to reside will generally be evidenced by an appropriate immigration stamp in the person’s passport, a letter of authorisation or a Certificate of Registration issued by the Garda National Immigration Bureau (GNIB), that is a GNIB card.

Key grounds of appeals by appellants:

The majority of the appeals are brought on the basis that the deciding/appeals officer erred in applying the correct legislation and/or legal grounds and erred in finding that the conditions of HRC were not met.

Observations on appeal outcomes:

Given that the majority of the appeals are brought on the basis that the deciding officer / appeals officer erred in finding that the criteria for ‘habitual resident’ was not been met, the appeals reported below focus principally on how the conditions of ‘habitually resident’ must be met and the application of the correct legislation.

In accordance with Section 246 of the 2005 Act establishing habitual residence is a two stage process which firstly requires that the person has a right to reside in the State. If it is established that the person has a right to reside, an assessment of their situation under 5 factors is carried out to determine their centre of interest and future intentions.

The reports below suggest that appellants are usually unsuccessful where they cannot establish a right to reside or on the basis of fact that they don’t fall under other factors to allow them to exercise this right. They further show that the majority of decisions may fall on the factual matrix of the particular case and the particular circumstances relevant to the person at issue.

[1] Regarding the right to reside of EU workers, see Casebase Report G0113 and 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

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