Social Welfare Appeal G0129:  Widowed Parent’s Allowance

Types of Social Welfare: Widowed Parent’s Allowance, One-Parent Family Payment; Widows pension; Widowed or Surviving Civil Partner Grant.

Title of Payment: One Parent Family Payment

Date of Final Decision: 30 August 2018

Keywords: Widowed Parent’s Allowance; Discrimination; European Convention on Human Rights; Judicial Review: One-Parent Family Payment; Widows pension; Widowed or Surviving Civil Partner Grant

Organisation who represented the Claimant: n/a

Casebase no: G0129

Case Summary:

This is a case concerning legislation applicable in Northern Ireland.

Widowed parent’s allowance (‘WPA’) is a contributory, non-means-tested, social security benefit payable to men and women with dependent children, who were widowed before March 2017. Under s 39A Social Security Contributions and Benefits (Northern Ireland) Act 1992 (‘s 39A’) the widowed parent can only claim the allowance if he or she was married to, or the civil partner of, the deceased. The issue in this appeal is whether this requirement unjustifiably discriminates against the survivor and/or the children on the basis of their marital or birth status, contrary to article 14 of the European Convention on Human Rights (‘ECHR’) (when read with either the right to respect for family life under article 8, or the protection of property rights in Article 1 of the First Protocol (A1P1)).

Ms McLaughlin and her husband, John Adams, lived together (apart from two short periods of separation) for 23 years until he died on 28 January 2014. They never married and had four children who were aged between the ages of eleven and nineteen when their father died. He had made sufficient National Insurance contributions for Ms McLaughlin to be able to claim bereavement payment and WPA, had she been married to him. Ms McLaughlin’s claims for both bereavement payment and widowed parent’s allowance were refused by the Northern Ireland Department for Communities. She applied for judicial review of that decision on the ground that the relevant legislation was incompatible with the ECHR. That claim succeeded in part before Treacy J in the High Court: In the matter of an application by Siobhan McLaughlin for Judicial Review: [2016] NIQB 11.

He made a declaration of incompatibility under section 4(2) of the Human Rights Act 1998, that s39A is incompatible with article 8 of the ECHR in conjunction with article 14  “insofar as it restricts eligibility for WPA by reference to  the marital status of the applicant and the deceased”. The Court of Appeal unanimously held that the legislation was not incompatible with article 14, read either with article 8 or with A1P1: [2016] NICA 53.

Ms McLaughlin therefore appealed to the Supreme Court.

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.

Thematic Note G0122: One Parent Family Payment

Theme: One Parent Family Payment

Period of Analysis: SWAO Annual Reports 2009-2021  

Keywords: [ One Parent Family Payment; Means Test, Lone Parent, Appeal, Habitual Residence]

Casebase No. Case G0122

Summary of the relevant law: 

The One Parent Family Payment (OFP) is a payment for persons under the age of 66 years old who are bringing children up without the support of a partner. The criteria for assessing the receipt of OFP are outlined below.

To qualify for OFP a person must meet the following criteria:

  1. Aged under 66 years old;
  2. Be the parent, step parent, adoptive parent or legal guardian of a child/children;
  3. Their youngest child must be under the age of 7;

In certain instances, OFP will continue even after the youngest child turns seven. This occurs where the family is in receipt of;

  • Domiciliary Care Allowance (DCA);
    • If the individual claiming the OFP is in receipt of DCA for a child, they can also receive OFP until the child reaches the age of 16 or their entitlement to DCA ceases.
    • The individual will also get an Increase for a Qualified Child (IQC) for any other children in the family until they reach 18 (22 if in full-time education).
    • Blind Pension;
      • If the individual is in receipt of Blind Pension and also qualifies for OFP they are entitled to both payments (and any IQCs) until the child reaches the age of 16.
    • Carer’s Allowance;
      • If an individual in receipt of OFP is providing full-time care to one of their children or an adult, they are entitled to claim half-rate Carer’s Allowance alongside your OFP (and any IQC’s) until their youngest child turns 16.
    • Recent Bereavement.
      • If an individual applies for OFP on the basis that they are parenting alone following the death of their spouse, partner or civil partner, they will be entitled to OFP for 2 years following the date of death regardless of how old their youngest child is. The individual’s youngest child must be under the age of 18 in order to qualify for OFP in these circumstances.
  • Be the main carer of and live with the relevant child;
  • Must pass a means test;

To conduct a means test the Department of Social Protection will assess all sources of income which an individual applying for OFP is in receipt of. OFP will only be given to this person if their income is below a certain designated amount.

The income sources assessed in a means test are;

  • Cash Income

All cash income is taken into account for the means test bar;

  • Any payments made to an individual by the Department of Social Protection (except for Jobseeker’s Allowance);
    • Certain allowances from the HSE or the Department of Education;
    • Payments under certain scholarships or training allowances;
    • Approved by the Minister of Health;
    • Compensation awards provided for by the State.
    • Capital

All capital is taken into account for the means test bar;

  • Selling your home to move to more suitable accommodation while receiving State Pension, Disability Allowance or Blind Pension to the value of €190,500;
    • Sale of your home where an individual has significant maintenance costs – such as nursing home costs to the value of €190,500;
    • Maintenance

Only half of an individual’s income from maintenance will be assessed and deducted from your OFP.  The person in receipt of maintenance can offset their housing costs against their maintenance income to the value of €95.23 per week.

  • Income from Work

The first €165 of an individual’s gross weekly earnings is assessed for the purposes of a OFP means test. Half of the remainder of a person’s gross earnings per week is then  assessed. mSocial Insurance contributions, PRSI contributions or trade union subscriptions are not assessed.

  • Must live in Ireland and meet the habitual residence condition;
  • 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
  • Must not be living with a spouse, civil partner or be cohabitating.

Additional Benefits

  1. A person who receives OFP is entitled to avail of the Household Budget Scheme.
  2. A person who receives OFP may also be entitled to additional benefits such as;
    1. Fuel Allowance;
    1. Working Family payment;
    1. Medical Card; and/or
    1. Rental assistance.

Key grounds of appeals by appellants: 

Where an individual believes they have been erroneously refused OFP or they are unhappy about a decision of a social welfare Deciding Officer they can appeal this decision to the Social Welfare Appeals Office.

  1. Cohabitating

Since 2012 there have been four appeals raised in relation to whether or not the person claiming OFP is actually cohabitating with another person.

As stated above, a person who is in a relationship and living with that person is not eligible for the OFP instead they must be widowed, separated, divorced, unmarried, have dissolved a civil partnership or be a prisoner’s spouse or civil partner. Likewise, they must not be cohabitating or living with a person they are in a relationship with.

In the case of cohabitation, appeals arise where a person portends that they are not in a relationship and living with the relevant person. As in case 2016/318/36 the burden is on the Department is in this instance to establish that it is appropriate to withdraw that payment. In assessing cohabitation, as in case 2016/08 “no single criterion” will necessarily support or disprove a decision.

The burden of proof to prove cohabitation was set at being “highly probable“.

  • Assessment of Means

Four appeals have been made arguing the Assessment of Means test since 2012. A person who has been assessed as having means in excess of €217.80 per week is not entitled to OFP. The individual claiming OFP may avail of certain exemptions to their assessed means.

As per case 2016/318/36 this point will ultimately be decided on whether or not the person claiming OFP has been able to show that their means does not exceed the statutory qualifying limit and this test seems to be applied quite strictly compared to other grounds of appeal which arise.

  • Child not in parent’s care

The person who is claiming OFP must reside with their qualified child on a full-time basis. A child who is in a detention facility, foster care system or share joint equal custody with the child/children’s other parent does not qualify. If an individual’s child is put into foster care or detained for any period of time the person must notify the DSP and cease OFP until they become the main carer that resides with the child again.

In Case 2017/10 however, an individual’s child was taken into foster care for a number of months during which time she continued to receive OFP. During this time she continued to have daily contact, to keep a house ready for the child and to pay for much of her child’s upkeep. While on appeal, it was determined that she did not have any right to the OFP as she was not living with the child for which she was receiving the payment it was held that in these circumstances it would be unjust to charge her overpayment.

  • Habitual Residence Condition: See Thematic Note on Right to Reside and Habitual Residence Condition (Thematic Note G0116)
  • Backdating: See Thematic Notes on Backdating Claims (Thematic Note G0114)

Observations on appeal outcomes: 

Where a decision to refuse or withdraw OFP is being appealed, the Appeals Officer tends to look at the situation of the person as a whole rather than at any isolated criteria when making a decision.

For example, lifestyle evidence was of relevance in determining cohabitation. This includes shared household duties and finances. Similarly, when an appeal is based on habitual residence, the Appeals Officer considers the entirety of the individuals experience and lifestyle, which may prove habitual residence on balance. Future intentions seem to be a key factor in any decision taken by the Appeal Officer in relation to habitual residence.

In the case of a Section 318 review again all elements of the person’s life is taken into account and an evidence based approach was used.

Relevant Case Studies of the SWAO Annual Reports 2009-2020 

A. 2009  
N/A
B.  2010  
 N/A 
C.2011 
 2011/01 One Parent Family Payment – summary decisionQuestion at issue: Habitual Residence Condition
 2011/07 One Parent Family Payment – summary decisionQuestion at issue: Habitual Residence Condition
 2011/08 One Parent Family Payment & Supplementary Welfare Allowance – oral hearingQuestion at issue: Habitual Residence Condition
D.2012 
 2012/15 One Parent Family Payment – oral hearingQuestion at issue: Eligibility (cohabitation)
E-F.2013-2014 
 N/A 
G.2015 
 2015/06 One Parent Family Payment – oral hearingQuestion at issue: Cohabitation
H.2016 
 2016/08 One-Parent Family Payment – oral hearingQuestion at issue: Cohabitation
 2016/09 One-Parent Family Payment – oral hearingQuestion at issue: Assessment of means
 2016/318/36 One-Parent Family Payment – Section 318 reviewQuestion at issue: Means and cohabitation
 2017 
 2017/09 One-Parent Family Payment – oral hearingQuestion at issue: Eligibility (cohabitation and means)
 2017/10 One-Parent Family Payment –  oral hearingQuestion at issue: Overpayment / Child in care
J.2018 
 2018/06 One Parent Family Payment – oral hearingQuestion at issue: Eligibility (means)
K.2019 
 2019/07 One-Parent Family Payment – oral hearingQuestion at issue: Backdating
L.2020 
1.2020/05 One-Parent Family Payment – summary decisionQuestion at issue: Backdating
2.2020/06 One-Parent Family Payment – summary decisionQuestion at issue: Eligibility (cohabitation)
M.2021 
 2021/07 One-Parent Family Payment – summary decisionQuestion at issue: Date of award; backdating

Social Welfare Appeal G0112

Title of Payment: One Parent Family Payment

Date of Final Decision: 5 August 2020

Keywords: One Parent Family Payment; Means Test; Mortgage Repayments; Adequacy of Reasons; Arbitrariness; Equal Treatment of Similar Applicants; Precedent Decisions; Legislative Interpretation; Judicial Review; Regulation 142; Regulation 143.

Organisation who represented the Claimant: Citizens Information

Casebase No. G0112

 Case Summary:

This case is that of Deirdre Brennan v Minister for Employment Affairs and Social Protection [2018] No.76 J.R. It was heard with the case of Margaret Bracken v. Minister of Employment Affairs and Social Protection [2018] No.165 J.R (2020 IEHC 394). Casebase Report No. G0111 details the latter decision.

The case concerns a challenge to the decision by the Minister for Employment Affairs and Social Protection (the “Respondent”), when assessing the means of Ms Brennan (the “Applicant”) for the purposes of determining the amount of her One Parent Family Payment, to use the full value of monthly mortgage repayments made by her ex-partner.

The applicant was a nurse, working as a homemaker, who lived with her two young children in the home she had jointly bought with her ex-partner.  Her ex-partner met the mortgage payments (€1161.36 / month).

The Applicant applied for a One Parent Family Payment.  On 2 February 2015 the Deciding Officer determined that the full mortgage repayments being made by the Applicant’s ex-husband should be taken into account in assessing the means of the applicant.  On review, this decision was upheld.  (This meant that the applicant was entitled to receive a One Parent Family Payment of €190 / week.)

The Applicant appealed the Deciding Officer’s Decision to the Social Welfare Appeals Office.  In her appeal, she relied on a previous decision of the Chief Appeals Officer dated 31 July 2015 (the “Precedent Decision”).  The Precedent Decision concerned a similar applicant in whose case only 50% of the mortgage repayment was taken into account when assessing her means.  The Precedent Decision included the statement that “given the joint ownership of the property and liability of both parties to discharge the debts/bills on the property it is reasonable that half the mortgage and associated payments should be disregarded.”  The Applicant maintained that, as her house was in joint names, her ex-partner derived a benefit from the mortgage payments, and so only half of the payments should be used in the assessment.

On 26 July 2017 the Social Welfare Appeals Officer dismissed the applicant’s appeal.  Notwithstanding the Precedent Decision, the Social Welfare Appeals Officer considered that: “In this case the legislation … provides for the assessment of housing costs paid by the liable relative.  I have sympathy with the arguments put forward …  However, in my view the legislation does not allow the payments being made to be qualified in such a way as to discount from the means assessment the benefit which the ex-partner derives from those payments.  In the circumstances the full value of the mortgage payments being made must be used in assessing the appellant’s means.”

The Applicant appealed the dismissal of her appeal to the Chief Appeals Officer.  On 7 November 2017 the Chief Appeal Officer dismissed this appeal.  The Chief Appeals Officer stated: “While previous decisions do not create precedents the appeals office endeavours to be consistent in its decision making. Having reviewed the decision that I am now referred to I am of the view that while I gave the benefit of a more favourable calculation in that particular case there was in fact no precise rule which allowed for that more favourable treatment.  While that decision was made by me in good faith I do not consider that in the absence of a specific rule in the governing legislation permitting the application of a more favourable calculation it would be appropriate for me to apply the same consideration in Ms. Brennan’s case”. 

The applicant applied to the High Court for judicial review of the Chief Appeal Officer’s decision.  The issue for the High Court was “one of statutory construction and the proper interpretation of the phrase “the net cash value to the (applicant) of her annual housing costs actually incurred and paid by a liable relative insofar as the cash value exceeds €4,952 per annum” and whether the decision of the respondent taken on review was taken within the proper meaning of Regulation 142 of the 2007 Regulations”.

The High Court dismissed the judicial appeal, finding that the Respondent had correctly interpreted the statute.

Key conclusions:

When assessing an applicant’s means for the purpose of calculating a One Parent Family Payment, the Department for Employment Affairs and Social Protection is entitled to take into account mortgage repayments made by a liable relative.  Legislation provides for a portion of the mortgage repayments to be disregarded (at the relevant time, €4952) and the the remainder halved.  However, the legislation does not provide, as the applicant contended, that only half the mortgage repayments should be used in the assessment of means on the basis that the liable relative making the repayments is a joint owner and therefore deriving a benefit from making the repayments.

Social Welfare Appeal G0089

This case relates to a review of a decision made in 2004 to retrospectively charge the claimant for an overpayment of the One Parent Family Payment (OPF), and the decision eleven years later to commence recovery of that overpayment by way of involuntary deductions from her Jobseekers Benefit claim. In October 2015 the claimant sought the assistance of Kerry MABS (MABS). In accordance with the provisions of the Freedom of Information Act, 2014, MABS wrote to the Department of Social Protection (the Department) on her behalf, requesting all records relating to the decision that had the effect of raising the debt.

Social Welfare Appeal G0078

The case concerns an overpayment of the One Parent Family Payment (OPFP).

The Appellant was awarded the OPFP in 1995 (or Lone Parent’s Allowance as it then was), following separation from her husband. From 1996-1999 the Appellant worked on a Community Employment (CE) scheme. In August, 1999, the Appellant commenced full time employment.  The DSP were not aware of this change in her circumstances until an investigation into her claim was carried out in 2003. A revised decision was issued in 2004 (the 2004 Decision) in accordance with sections 248 and 249 of the Social Welfare Consolidation Act 1993 (the 1993 Act).[1] The DSP asserted that the Appellant’s means exceeded the relevant statutory limit during the period April 1999 to August 2003; that is, due to the increase in her income, the Appellant ceased to be entitled to the OPFP. As a consequence of this revised decision, an overpayment in the amount of €20,153.56 was assessed as a debt due to be repaid to the DSP.  The Appellant did not appeal the 2004 Decision or make any repayment in respect of her debt liability.

Social Welfare Appeal G0071

The Appellant is a mother of two children.  In 1996 she had one child, a son, and she was living in her parents home. She applied for and was awarded the One Parent Family Payment [OPFP]. The Appellant’s second child, a daughter, was born in December 2010. The Appellant did not apply for an increase on her claim in respect of her daughter, and advised the Department of Social Protection [“the Department”], in writing, that she did not wish to claim an increase because the father, John [not his real name], was supporting her daughter by providing weekly maintenance payments.

When completing and signing claim review forms in 2009 and 2011, the Appellant maintained that she continued to reside in her parents’ house.

In 2012 the Department reviewed her claim, and in the course of their investigations established that the Appellant and John had jointly purchased a property in 2008.

In December 2012 a Deciding Officer issued a letter to the Appellant setting out the facts and evidence that in the Department’s opinion were consistent with a finding that the Appellant had been cohabiting with John from February 2008 – to the present. The Appellant was afforded the opportunity to respond before a decision was made.  The Appellant replied by way of letter asserting that she had resided for a short period with John in 2008, but John’s relationship with her son was so poor she had to move out in May 2008.  The Appellant asserted that from May 2008 to October 2012 she resided with her sister. She claimed that in October 2012 she moved back in with John but did not know if the relationship would last which is why she delayed notifying the Department.

The Department rejected the Appellant’s assertions, and on 15th January 2013 a Deciding Officer issued a decision whereby it was contended that from February 2008 to 9th January 2013 the Appellant was cohabiting with John and was therefore not entitled to the OPFP.  The decision was made in accordance with s. 302(a) of the Social Welfare Consolidation Act 2005 [as amended]. As a consequence of this revised decision, the Appellant was found liable for an overpayment amounting to €48,766.80.

The Appellant appealed the decision, and an oral hearing was held on 2nd December 2013.  The Appellant was unrepresented at the time. On 17th December 2013 the Appeals Officer disallowed the appeal in respect of the periods 21st February 2008 to 14th May 2012, and 20th October 2012 to 9th January 2013.  The Appeals Officer held that on the basis of a letter issued by the mortgage provider in November 2013, which referred to a Standard Financial Statement [SFS] completed by John in May 2012, the Appellant should have the benefit of “the very slight doubt” that she was not living with John at that time. Accordingly, the Appeals Officer did not make a finding that the Appellant was cohabiting from the date of the SFS [May 2012] to October 2012.

On 23 September 2014 Waterford MABS, on behalf of the Appellant, requested a review of the Appeals Officer’s decision.  The request for a review was made in accordance with s.317 and s.318 of the Social Welfare Consolidation Act 2005. MABS asserted that the Appeals Officer’s reasoning was flawed to the extent that there had been errors in fact and law in this case. MABS also submitted new evidence in the form of an Affidavit from the Appellant’s son who was then aged 18.

The Appeals Officer reviewed his decision, and in February 2015 he rejected MABS assertions.  The Appeals Officer restated his findings and did not accept that were grounds to revise his decision.

On 10 March 2015 MABS responded, requesting that the Chief Appeals Officer review the Appeals Officer’s decision in accordance with s. 318 of the Social Welfare Consolidation Act 2005 [as amended].

On 1st May 2015 the Chief Appeals Officer revised the decision of the Appeals Officer and allowed the appeal.

Social Welfare Appeal G0058

The Appellant is a mother of four. She had been in receipt of the OPFP [or equivalent] since August 1994, shortly after the birth of her eldest child. The Appellant had twins in 1996 and the relevant increases were awarded on her claim. The Appellant’s fourth child was born in 2010.

Following an investigation by the Department of Social Protection [DSP], a decision was issued by a Deciding Officer on 12th February 2013, advising the Appellant that her payment was withdrawn for the reason that she was regarded as cohabiting with the father of her three eldest children. The Deciding Officer made the decision pursuant to section 302[b] of the Social Welfare Consolidation Act 2005. The Appellant sought an appeal of the determination to an Appeals Officer. An oral hearing was held on the 14th January 2014.  The Appeals Officer disallowed the appeal on 10th February 2014.

The Appellant’s Family Income Supplement claim was also the subject of an appeal.  This payment had been disallowed as a consequence of the decision in respect of the OPFP; that is, the Department asserted that the Appellant should be treated as one of a couple rather than a one parent family.

Social Welfare Appeal G0040

The Appellant’s One Parent Family Payment was disallowed on the 9th February 2011. The Appellant re-applied for the One Parent Family Payment on the 21st February 2012. This was refused as she was employed under a Community Employment Scheme and, due to a recent change in the law, it was no longer permissible to receive payments from a CE scheme and the One Parent Family Payment simultaneously. The Appellant appealed on the 27th February 2012 on the grounds that she had been employed under the CE scheme since 2010 and therefore the legislative changes in 2012 did not apply to her circumstances. This appeal was disallowed by way of a summary decision on the 21st September 2012. A review of the decision was sought under section 318 of the Social Welfare Consolidation Act 2005 on the grounds that the Appeals Officer had made a mistake in the law. This review under Section 318 was successful and the Appellant was awarded arrears of payment from February 2012 to June 2013 which amounted to €13,603.80.