Social Welfare Appeal G0133: Invalidity Pension

Date of Final Decision: 25 October 2022

Keywords: Invalidity Pension, Partial Capacity Benefit, Effective Date, Evidence, Section 317, Overpayment, Offset, Reduction in Overpayment, Oral Hearing

Organisation who represented the Claimant: Community Law & Mediation

Title of Payment: Invalidity Pension

Casebase no: G0133

Case Summary:

This case concerns an appeal of a decision of an Appeals Officer (AO) which had upheld the original decision of a Deciding Officer (DO). Those decisions asserted that the Appellant had been overpaid Invalidity Pension (INVP) from 30 June 2016 to 3 February 2021, as a result of her having returned to work as a carer during that period. As a consequence, it was asserted that the Appellant was liable to pay the Department of Social Protection (Department) the sum of €55,829.70. On appeal, the Appellant asserted that she had been informed by a Limerick officer of the Department that she could continue to receive INVP if she returned to work; that the Revenue and Department had been made aware on various occasions that she was working and still in receipt of INVP and had failed to act in a reasonable time, and therefore the date of effect of the decision of overpayment should take effect from the date she became aware of her mistake in February 2021 (and not the date she commenced work in June 2016).

In April 2016, the Appellant was deemed entitled to INVP as she was prevented from working due to a depressive illness. In 2016, she visited a Department Intreo office in Limerick, where she spoke with a Department work (Officer) and applied for and was granted a training grant with a view to returning to work. The Appellant claimed that she was advised at this meeting that she could continue to claim INVP if she returned to work. The Appellant was a walk-in visitor, meaning she had not booked an appointment in advance of attending the Intreo office. The Appellant claimed that she subsequently called the same Officer to tell him that she received a job offer, and that she was again advised by him that she could continue to claim INVP when she returned to work, though she would pay a higher level of tax. The Appellant commenced work as a carer in June 2016.

In October 2016, the Appellant completed a medical questionnaire relating to her continued entitlement to INVP. On the questionnaire, she declared to the Department that she was in employment. The Appellant continued to receive INVP from the Department, and she was again deemed to still be eligible for INVP following a Department review in 2017.

During her period of employment, the Appellant continued to declare her INVP income to Revenue and made seven treatment benefit claims (which she was entitled to as a result of her employment).

In February 2021, the Appellant ceased working due to a relapse. She was informed by a friend that she could be entitled to partial capacity benefit (PCB) if she returned to work. The Appellant applied for and was awarded partial capacity benefit at 50% (though she never claimed this as she did not return to work. It was around this time that she became aware of her mistake as to her entitlement to INVP. On 11 March 2021, the DO issued a decision that the Appellant had not been entitled to INVP during her period of employment with effect from 30 June 2016, and as such she had received an overpayment of INVP of €55,829.70.

The Appellant appealed this decision to the AO. While she accepted that she had not in fact been entitled to INVP during the period of employment, she argued the DO had not taken the circumstances of her case into account when deciding the decision effective date (as required by s.302(b)), in particular her “innocent mistake and the Department’s failure to notice it notwithstanding the information she provided it”. The appeal failed and the AO upheld the decision of the DO (Revised Decision).

The Appellant originally sought to appeal the AO’s decision to the Chief Appeals officer under s.318 on the basis that the AO had erred in law or in fact in deciding that the Officer would not have provided the advice claimed by the Appellant, in the absence of an oral hearing or any evidence from that Officer. 

On 29 June 2022, in light of the Appellant’s submissions and request for an oral hearing, the Chief Appeals Officer considered that a review of the AO’s decision should in the first instance be conducted by an appeal officer (Second AO) under s.317. It would then be open to the Appellant to appeal such a decision to the Chief Appeals Officer under s.318 if she wanted to.

The key question for the Second AO to consider was whether the Revised Decision should be upheld, and the correct effective date of that decision.

Thematic Note G0118: Invalidity Pension

Title of Payment: Invalidity Pension

Date of Final Decision: SWAO Annual Reports 2009-2020

Keywords: Invalidity Pension; incapable of  work; Disability

Casebase no: G0118

Summary of the relevant law:

The primary legislative provisions governing invalidity pensions are set out in Part 2, Chapter 17 (ss. 118 – 122) of the Social Welfare Consolidation Act 2005 (as amended) (the “Act”). Further provisions regarding invalidity pensions are contained in Part 2, Chapter 9 (regs. 76 – 78) of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (the “Regulations”).

The Act provides that a person will be entitled to an invalidity pension where they meet two conditions:

a) the person is permanently incapable of working due to an illness or disability and would be available to work were it not for that illness or disability (the “Medical Condition”); and

b) the person has made PRSI contributions in respect of at least 260 weeks since first entering social insurance and has made PRSI contributions (or been credited with PRSI contributions) in respect of at least 48 weeks in the last or second last complete contribution year before the “relevant date” – i.e. any date after the person became permanently incapable of work (the “Contribution Condition”).

The definition of “permanently incapable of work” is set out in the Regulations (reg. 76). To be “permanently incapable of work” a person must be able to provide evidence that they:

a) have been Incapable of work for a period of one year and are likely to continue to be incapable of work for at least a further year; or

b) are likely to be incapable of work for life.

The decision as to whether a person is “permanently incapable of work” is made by a Deciding Officer in the Department for Social Protection (the “DSP”).

A person may be disqualified from receiving an invalidity pension on a number of grounds specified in both the Act (s. 118(3)) and the Regulations (reg. 78), including:

a) failure to comply with instructions from, or receive treatments recommended by, medical practitioners;

b) failure to attend any medical examinations required by the DSP; or

c) failure to respond to any reasonable enquiries from an officer of the DSP regarding their claim for an invalidity pension.

“Part 2- Chapter 8 (Sections 40 to 46) of the 2005 Act and at Part 2- Chapter 1 (Articles 20 to 28) of the 2007 Regulations. Section 40 (3) (a) of the 2005 Act provides that, for the purposes of any provision of this Act relating to illness, a day shall not be treated as a day of incapacity for work unless on that day the person is incapable of work.” (Case 2020/13)

Key grounds of appeals by appellants: 

The two key grounds for appeal were:

a) applicants challenging the finding of the Deciding Officer that they are not permanently incapable of work, often by providing additional medical evidence;

b) applicants challenging the finding of the Deciding Officer that they have not made sufficient PRSI contributions to meet the Contribution Condition.

For appeals turning on being “permanently incapable of work”:

  •  immediately before the date of claim for the said pension –  see Case 2016/13, Case 2017/14. Case 2018/08, Case 2018/10, Case 2019/10, Case 2019/318/68);
  • at the time of making a claim the person – see Case 2016/12, Case 2017/15, Case 2018/09, Case 2019/08, Case 2019/09, Case 2020/10, Case 2020/11, Case 2020/12);
  • continuously – see Case 2016/12, Case 2016/13, Case 2017/14,Case 2017/15, Case 2018/08, Case 2018/09, Case 2018/10, Case 2019/08, 2019/09, Case 2019/10, Case 2019/13, Case 2019/318/68, Case 2020/10, Case 2020/11, Case 2020/12;
  • incapable of work for a period of one year and likely to continue – see Case 2018/08, Case 2019/10, and Case 2019/318/68.

Observations on appeal outcomes: 

The majority of appeals have related to cases where applications have been disallowed on the basis of a failure to meet the Medical Condition. As would be expected, medical evidence is crucial in these appeals. A statement from a GP or other medical professional that the applicant is likely to be incapable of work for one year (or indefinitely, in cases where the applicant has been incapable of work for less than one year) is often highly persuasive. In cases of unclear or conflicting medical opinions, evidence from oral hearings is often considered significant.

Applicants who are applying for an invalidity pension following the expiry of their Illness Benefit after two years of payment will have already satisfied the requirement of being incapable of work for more than one year so only need to satisfy the lower bar of proving that they are likely to be incapable of working for a further year. Applicants who have only needed to prove that they are likely to be incapable of work for the next year have generally been more successful than those who have needed to prove that they are likely to be incapable of work for life.

Where an applicant is no longer capable of doing a certain type of work (e.g. manual work) but is capable of doing other types of work (e.g. “lighter” non-manual work), they are unlikely to be considered permanently incapable of working.

An exception may be seen in Case 2019/13 where, The Appeals Officer took into consideration the appellant’s work experience for their qualifications for them being permanently incapable of working, before ruling in the appellant’s favour.

There have been a much smaller number of appeals in cases where the applicant’s application was disallowed on the basis of a failure to meet the Contribution Condition. Where an appeal is made on these grounds, the applicant is expected to produce evidence that the DSP’s records in respect of contributions are inaccurate or incomplete. The successful appeal in Case 2018/11 suggests that Appeals Officers are  willing to interpret the “relevant date” for the purposes of the Contribution Condition as being any date after the applicant becomes permanently incapable of work. Applicants should therefore seek to identify the “relevant date” that is most favourable for their claim.

Only one section 318 review in relation to invalidity pensions has been noted in the SWAO annual reports. In Case 2019/318/68, the Chief Appeals Officer ruled that a farmer who could no longer work as a farm “employee” (i.e. performing jobs on the farm himself) but could continue to work as a farm “employer” (i.e. managing the farm and arranging for jobs to be performed by others) was not permanently incapable of work. The term “permanently incapable of work” is a neutral one which does not make a distinction between working as an employer or an employee.

 

Social Welfare Appeal G0068

The Appellant applied for Invalidity Pension on 10 May 2013 and this claim was refused on the grounds that the Appellant was found not to be permanently incapable of work. The Appellant sought a review of the decision.  The Appellant’s review was unsuccessful, and the Department of Social Protection’s (DSP) decision was confirmed on 16 August 2013. The Appellant then appealed the decision of the Deciding Officer and submitted further medical evidence as part of this appeal. On 13 January 2014 the appeal was disallowed by way of summary decision; that is, without an oral hearing.

On 27 February 2014 the Appellant requested a review of the Appeals Officer’s decision, and provided grounds of appeal by way of letter as well as supporting medical evidence.

CLM, on behalf of the Appellant, gave notice of review to the Social Welfare Appeals Office and made a request for the Appellant’s file under the Freedom of Information Act.  The Appeals Officer decided to reopen the appeal by way of oral hearing.  This was set down for 25 September 2014. On medical grounds, the Appellant requested that this hearing be adjourned, and a new date was set for 11 November 2014.

On 3 November 2014 CLM made a further written submission on behalf of the Appellant, setting out the grounds for revising the Appeals Officer’s decision under sections 317 and 318 of the Social Welfare Consolidation Act 2005 (as amended). The written submission included new medical evidence in support of the Appellant’s claim.

On 11 November 2014 CLM represented the Appellant at oral hearing; however, at the hearing the Appeals Officer adjourned proceedings due to the Appellant’s inability to participate as a consequence of her medical condition.

On 3 December 2014 the Appeals Officer revised the previous decision and allowed the appeal.

Social Welfare Appeal G0044

The Appellant applied for and received Invalidity Pension in 2008. In 2010 his claim was reviewed. The Appellant’s G.P, despite certifying that the Appellant had incapacity likely to last indefinitely, stipulated that the Appellant’s ability was “normal”. On receiving this report a Department of Social Protection Medical Assessor examined the Appellant and expressed the opinion that the Appellant was capable of work. Based on the medical evidence, a decision was issued disallowing the Appellant’s claim. The Appellant unsuccessfully appealed this decision. NCL&MC sought a review of the Appeals Officer’s decision in accordance with Section 317 of the Social Welfare Consolidation Act 2005. Submissions were made on behalf of the Appellant and an oral hearing was held in December 2012. The decision of the first Appeals Officer was overturned in light of new evidence. The Appellant’s appeal was allowed and arrears were granted in the sum of €20,000.

Social Welfare Appeal 27-04-2005

Appellant suffered a subarachnoid haemorrhage in 1998. Postoperatively he developed a haemorrhagic infarct which manifested as left hemi paresis. He also developed epilepsy, which is exacerbated by fatigue and lack of sleep. As of June 2004, he required extra sleep in the afternoons due to side-effects of medication and brain surgery. Appellant’s official certified incapacity is C.V.A./Brain haemorrhage. Following his injury, Appellant was first allowed Disability Benefit and then switched to Invalidity Pension 15 months later. Beneficiaries of Invalidity Pension are allowed to participate in work like activities, such as the FAS Community Employment Scheme (CE), if the purpose of the work is therapeutic/rehabilitative (i.e. to counteract depression, etc).

Appellant was granted an exemption to participate in a CE scheme in 2001. He remained on Invalidity Pension until August of 2004, when he reapplied for an exemption to Rule 4 of the Rules of Behaviour for Invalidity Pensioners. He wished to continue to work part time in a FAS Community Employment Scheme. This application required a medical examination which found Appellant to be capable for work. Based on this examination, a Deciding Officer found Appellant not entitled to Invalidity Pension from September of 2004. To qualify, Appellant needed to be found incapable of any work. The September decision was appealed on the grounds that the side effects of Appellant’s medications included fatigue and irritability, rendering Appellant completely incapable of work in a normal setting. As evidence, Appellant listed his medications and their respective dosages and the symptoms of his condition (loss of hearing, trouble with concentration, short term memory loss, insensitivity, depression, and a weak left side). However, a second Deciding Officer upheld the decision denying the claim. He stated the Appellant provided no new medical evidence.

Appellant appealed this decision to the Social Welfare Appeals Office. Appellant provided evidence from Appellant’s GP and a Consultant Neurologist outlining Appellant’s condition and difficulty with fulltime work due to seizures and rest. Both recommended him for Invalidity Pension. He provided a follow-up letter from the Consultant Neurologist stating he suffered from on going partial seizures involving his left upper limb requiring changes in medication and regular visits in outpatient care, and confirming his condition rendered him incapable of any work. Also provided was a letter confirming Appellant’s participation in counselling at a Counselling Service.

Social Welfare Appeal 30-01-2004

Appellant was injured in an accident in July of 1994. She began receiving Disability Benefit in August of that year. She suffered and continues to suffer from chronic back pain with disc prolapse. Although the Department found her capable of work following a medical assessment in 2002 and stopped payment of Disability Benefit, this decision was successfully appealed. Appellant applied for Invalidity Pension in 2003. She was denied on November 25, 2003, pursuant to the recommendation of a medical assessor who examined her November 5, 2003. Appellant’s G.P. was not sent a questionnaire prior to this assessment. Appellant had been hospitalised due to her injuries and released just prior to the assessment. It was the view of Appellant’s G.P. that she was not fit to attend the assessment and that she would not be able to work again. Appellant did not work from the date of her injury for the nine years until her invalidity pension claim was allowed. Appellant appealed the refusal of her claim and a second medical assessment took place on January 30, 2004. Based on this assessment, the decision was reversed and Appellant’s Invalidity Pension Claim was allowed. No hearing was required.