Social Welfare Type: Rent Supplement

This case relates to a decision to limit the amount of Rent Supplement payable to the Appellant to the sum available for a single person notwithstanding that he is a separated father and joint custodian of four children.

Following his separation from his wife in 2011 the Appellant returned to Dublin to live with his parents while his children continued to reside in the West of Ireland with their mother. In May 2012, the Appellant applied to Fingal County Council, as the relevant housing authority, for social housing and was assessed as having a housing need for himself and his four children. As no suitable accommodation was available, the Appellant was placed on a waiting list for the allocation of suitable social housing for a family of five.

The Appellant applied for Rent Supplement to enable him to secure suitable private rented accommodation for his family until the housing authority were in a position to offer him suitable accommodation. He identified suitable accommodation at a rate of €900 per month, the amount within the relevant Rent Supplement applicable to his family size as provided by the regulatory rent limits set out in S.I.  412 of 2007 as amended.[1]

In April 2013, the Appellant sought assistance from CLM Northside having been denied Rent Supplement. The Appellant had appealed this decision but the Appeals Officer determined that the Appellant’s housing need was that of a single person as the accommodation needs of his children were already met by the fact that they resided in the home of their mother.  Accordingly, the Rent Supplement limit to be applied in the Appellant’s case was €475 per month, the prescribed statutory limit in the case of a single person household.

CLM, on behalf of the Appellant, requested the Chief Appeals Officer of the Social Welfare Appeals Office (SWAO) review the decision of the Appeals Officer under section 318 of the Social Welfare (Consolidation) Act 2005, as amended (the 2005 Act). CLM asserted that the Appeals Officer had erred in fact and law.

The Chief Appeals Officer, by way of decision dated November 2013, rejected CLM’s arguments. The Chief Appeals Officer found that the Appeals Officer had not erred in law or in fact for the reason that the housing and basic needs of the Appellant’s children were met by their primary carer, the children’s Mother.  The Chief Appeals Officer also found that as the Appellant received no increase on his primary payment in respect of his children, his children could not be regarded as “qualified” children within the meaning of the 2005 Act.  Accordingly, the Appellant did not present as a claimant with dependent children for the purpose of Rent Supplement.

On 2 December 2013, the Appellant was granted leave to issue judicial review proceedings in respect of the Chief Appeals Officer’s decision. In October 2014, Ms.  Justice Baker of the High Court held in favour of the Appellant on the basis that the decision making process of the Department of Social Protection (the DSP) was flawed. Ms. Justice Baker ruled that while the Chief Appeals Officer had applied the correct legal test, that test had been applied overly narrowly to the facts when determining the extent to which the Appellant’s children were in fact “qualified” children within the meaning of the 2005 Act.

The effect of the Judgement was to set aside the decision of the Chief Appeals Officer, thereby enabling the Appellant to make another application for Rent Supplement, taking into account his accommodation needs as a separated father with four dependant children.  Please see Casebase report G0070 in respect of the High Court decision.

This case relates to the effective date of award of the Appellant’s Rent Supplement payment. The Appellant applied for Rent Supplement in August 2009. The Appellant claimed that she made an application to the Local Authority for a housing needs assessment at the same time, but the Local Authority did not register the Application until 19^th October 2009. On the 8^th March 2010 the Local Authority confirmed in writing that the Appellant was in need of, and eligible for, social housing, and they also advised that the assessment process had been completed on the 22^nd January 2010.  Rent Supplement was awarded from the Local Authority assessment completion date, 22^nd January 2010, not the date of the application for Rent Supplement, or the date of application for a housing needs assessment (August/October 2009). As a consequence, the Appellant incurred significant rent arrears.  The Appellant appealed this decision seeking arrears of Rent Supplement from the date of her application.

The Appeals Officer rejected the appeal on 8^th May 2012 for the reason that under the Supplementary Welfare Allowance Scheme, Rent Supplement may be paid where a person is certified as having a housing need by the Local Authority, and as the Appellant’s housing assessment was not complete until 22^nd January 2010, she was not entitled to the payment prior to that date. On 2^nd July 2014, Kerry MABS on behalf of the Appellant requested a review of the Appeals Officer’s decision in accordance with section 318 of the Social Welfare Consolidation Act 2005, asserting that the Appeals Officer had made a mistake in the facts and the law as he failed to consider that the Appellant’s housing need may be regarded as having commenced at the time of her application.

Kerry MABS asserted that section 198 [3F] [a] of the Social Welfare Consolidation Act 2005 [as amended] does not preclude the award of Rent Supplement from the date of application for a housing needs assessment, and furthermore the wide positive discretion afforded to a Designated Officer arguably compels the award of assistance where a prima facie need exists. It was asserted that the effect of the Appeals Officer’s decision presented as being at odds with the facts and the objective intent of the statute; namely, that a person has sufficient means to meet their basic needs, including rental costs.

The Appeals Officer reviewed his decision and on 28^th July 2014 he issued a revised decision, finding that the Appeal should be allowed taking into account all of the circumstances of the case.  As the Appeals Officer made a revised determination in this case, the Chief Appeals Officer did not have to address the matter under section 318 of the Act.