Social Welfare Type: Jobseekers Allowance

This case concerns the judicial review of a decision by a Deciding Officer (DO) on 28 August 2009 whereby the Appellant was refused Jobseekers Allowance (JA) on the basis that he was a Romanian Citizen who failed to fulfil the requirements for JA. The DO held that the Appellant was not permitted to claim JA as he did not have a work permit for twelve consecutive months since 1 January 2006 and was therefore not available for full time work. This decision also had the effect of preventing the Appellant from receiving Supplementary Welfare Allowance (SWA) and Rent Supplement (RS).

The Appellant is a Romanian citizen who resided and worked in Ireland since 2004. When the Appellant first came to the State he was not aware of a requirement to have a work permit in order to work. Between September 2006 and April 2007 the Appellant worked as an insured employee and tax and PRSI was paid to the Revenue Commissioners by his employers.

From May 2007 to November 2008 he worked in a self-employed capacity paying all the requisite VAT, Income Tax and PRSI to the Revenue Commissioners. He was joined by his spouse and four children in February 2007. The Appellant lost his employment due to the economic downturn in November 2008. The Appellant’s fifth child was born in Ireland in July 2009.

This case concerns a revised decision by a Deciding Officer (DO), whereby it was asserted that the Appellant was overpaid Jobseekers Allowance (JA) from 2012 to the date of discovery in 2015.  The Appellant was assessed as having retrospectively derived means from her husband’s earnings, earnings that were not disclosed to the Department of Social Protection (the Department) throughout the period at issue.  As a consequence of this revised decision, it was asserted that the Appellant was liable to repay to the Department the sum of €36,584.

On appeal, the Appellant asserted that though married, she was estranged from her husband. With respect to her husband’s earnings, it was the Appellant’s position that she was unaware of his changed circumstances as she and her spouse live separate and independent lives.

This case relates to the decision by a Deciding Officer (DO) to assess the Appellant as though one of a couple for the purpose of his Jobseekers Allowance (JA) claim, despite his declaration that he is a separated single man.

The Appellant asserted that he separated from his wife, Ms.X, in or around 2000, but did not leave the family home for financial reasons.  The Appellant and Ms.X, though separated, continue to reside in the same house, which they jointly own.  They did not obtain a legal separation.  During previous periods of unemployment following his separation the Appellant had been assessed as a single person for JA purposes.

At the end of May 2016, the Appellant ceased employment and made a claim for JA. When making his application he declared that he was separated, and he provided information with respect to other members of the household, including his wife, Ms. X.  On 1^st June 2016 JA was awarded to the Appellant at the rate of €188 per week, the amount payable in respect of a single person .  After awarding the payment, the Appellant’s claim was referred to a Social Welfare Inspector (SWI) for investigation, and the Appellant was interviewed on 16^th June 2016. The SWI requested that the Appellant submit evidence of his wife’s earnings despite his assertion that he was a separated man.  On receipt of this evidence, means of €305 from Ms. X’s employment were assessed against the Appellant’s claim, and a decision was made to reduce his JA to €7.80 per week. This decision took effect from 22^nd June 2016. In making this decision, the DO made a finding that the Appellant was one of a couple, that the Appellant had not established that he was separated from his wife.

Shortly after receiving the decision of the DO, the Appellant submitted Notice of Appeal to the Social Welfare Appeals Office, together with a letter from the Legal Aid Board confirming that he had made an appointment with respect to commencing separation proceedings. The Appellant then sought the assistance of CLM. CLM sought the release of documents held by the Department of Social Protection under the Freedom of Information Act 2014.

The Department of Social Protection (DSP) referred the matter to another SWI for further review following the Appellant’s submission of his Notice of Appeal. On 28 July 2016 a SWI made an un-notified call to the Appellant’s home. According to the “Means Reporting Form” completed by the SWI on that date, the Appellant’s status was recorded as “married – but separated the last 15 years”.  The report also confirmed that the Appellant and his wife jointly own the property in which they live.

The SWI in her report, of 29 July 2016, noted:

“ [w]hile there did appear  to be bedding on the kitchen table , there was no evidence of any disarray that would result in 2 people sleeping downstairs  and 2 adults and 2 children sleeping upstairs in a 2 bedroomed house…Though Mr… does appear to be now proceeding legally with separation, they are both living under the one roof and I cannot rule out cohabitation. I recommend that the means applied to the client’s claim continues and that he be advised of his right to appeal that decision.”

The SWI did not interview the Appellant’s wife, Ms. X.

CLM made a written submission setting out legal arguments, and on 7 December 2016, CLM represented the Appellant at an oral hearing. In addition to the written submission, affidavits attesting to the relevant facts were submitted from the Appellant, his wife, and his sister.

On 20 December 2016, the Appeals Officer allowed the appeal

This case involved the Department of Social Protection seeking to recover an alleged overpayment in respect of Jobseekers Allowance in the amount of €12,952.40. Northside Community Law and Mediation Centre (NCL&MC)  submitted that the Department of Social Protection was not entitled to recover an overpayment unless the action was grounded upon a decision by a Deciding Officer, and reasons provided as to how the overpayment arose.

The department decided not to pursue the debt.

The Appellant was refused Jobseekers Allowance (JA) on the grounds that he had not shown how he maintained his household and met his financial commitments prior to making his claim for Jobseekers Allowance. In addition, the Deciding Officer (DO) was of the opinion that the Appellant had not made consistent efforts to obtain suitable employment. A revised decision was requested under S.317 of the Social Welfare Consolidation Act 2005. The appeal was disallowed on the basis that Appellant had not disclosed his means at the time of his application and the Appeals Officer (AO) was satisfied that the DO was correct in his findings that the Appellant was not genuinely seeking employment.

This case relates to the Appellant’s entitlement to Jobseekers Allowance which was terminated. The Deciding Officer (DO) considered that the Appellant was not available for work but staying at home to mind his children. This decision was appealed on the grounds that the Appellant was in fact looking for work and evidence was provided to that effect. The appeal was allowed by way of summary decision.

This case deals with a refusal of Jobseekers Allowance on the basis that the Appellant’s means were in excess of the weekly statutory limit. In this case the means were derived from two properties. This case is also linked with case report G0039(1).

The decision was appealed on the grounds that valuation of the properties was too high and it followed that the means figure was incorrect. Initially the appeal was refused; however, upon receipt of documentation proving the overvaluation, the Appellant’s appeal was allowed under Section 317 of the Social Welfare Consolidation Act 2005. Please see report G0039(1) for the outcome of the case on appeal under Section 317.

The Appellant applied for Jobseekers Allowance (JA), on the March 22th 2010. The claim was refused as the Deciding Officer (DO) was of the opinion that the Appellant had failed to show sufficient evidence that his means did not exceed the specified weekly limit. He provided no credible evidence to show how he had survived for the 12 years prior to the date of his claim, other than a personal statement to the effect that he had been supported by family and friends. This decision was appealed and an oral hearing granted. At the oral hearing, the Appellant provided written evidence demonstrating that he had been financially supported by family and friends. The Appeals Officer (AO) was satisfied that his means were, in fact NIL and the appeal was allowed.

The Appellant in this case was refused Jobseekers Allowance [JA] on two occasions. In both decisions the Deciding Officers asserted that the Appellant’s means could not be determined due to his failure to supply specific documentation relevant to his financial circumstances.

The Appellant appealed both decisions. The Appeals Officers upheld the respective decisions of the Deciding Officers.  In both cases oral hearings were held. The decision that is the subject of this report relates to the second claim.The Deciding Officer disallowed the claim on 19^th of June 2009. NCL&MC, on behalf of the applicant, appealed this decision on the 8^th of July 2009, and an oral hearing was held on the 23^rd of February 2010.

The Appeals Officer disallowed the Appeal on 4 May 2010 for the following reason:

Having considered all of the evidence in this case, both on file and at the oral hearing, I do not consider that the appellant has demonstrated that he fulfils the statutory conditions as to means and consequently I disallow his appeal