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.

Social Welfare Appeal G0032

After separating from her spouse, the Appellant applied for the One-Parent Family Payment. She was refused as she was not deemed to be habitually resident in the State. The Deciding Officer (DO) stated that there was no evidence of the Appellant’s continuous residence and means of support in the State. Also, the DO was of the opinion that the Appellant’s centre of interest was not Ireland, as she had lived elsewhere for most of her life and she had no apparent family ties in Ireland. This decision was appealed. The Appellant submitted evidence to support her assertion, that she was habitually resident in Ireland. The Appeals Officer was satisfied that the facts in this case supported the Appellant’s claim to be habitually resident in the state. The Appeals Officer issued a summary decision in this case.

Social Welfare Appeal G0012

One Parent Family Payment claim. The Appellant’s husband left Ireland for a European country in 2006 with the aim of finding work. According to the Appellant, this was to be for a short-term period. According to the Appellant, her contact with her husband was intermittent following his departure. It was also asserted by the Appellant that her husband did not contact her when he returned to the State. The Appellant claimed One-Parent Family Payment. Her application was initially refused on the grounds that her marriage tie was not broken and that she was merely separated from her husband geographically. On appeal, the Appellant submitted that she had started judicial separation proceedings and that the marriage tie was broken. The Appeal was allowed.

Social Welfare Appeal G0009

One Parent Family Payment. Appeal allowed. Year of Appeals Officer’s decision: 2007. The Appellant was a single parent with sole custody of her son. In 2006 she applied for and was refused One Parent Family Payment for the following reason: “you do not have the main care of your son”. The Appellant, to allow her go to work, had arranged that her mother would mind her child while she was at work. As the Appellant’s mother lived in a different town, about an hour and a half’s drive from the Appellant’s town, the child lived with the Appellant’s mother for a number of days of the week. The Deciding Officer decided that the living arrangements were such that the child could not be regarded as “normally resident” with the Appellant and therefore was not a “qualified child” for the purpose of the One Parent Family Payment. The Appellant appealed the decision. An oral hearing of the appeal was held. The Appeals Officer allowed the appeal.