Thematic Note G0137: Overpayment of Social Welfare – Estate of a Deceased

Theme: Overpayment of social welfare – Estate of a Deceased

Period of Analysis: SWAO Annual Reports 2009-2021

Keywords: Overpayments; Fraud; Appeals; Oral Hearing; Burden of Proof; Cohabitation; Reviews

Casebase No. Case G0137

Summary of the relevant law:

Overpayments of social welfare occur where a person gets a payment of an allowance, pension or any other benefit from the Department of Social Protection (the “Department”) that they are not entitled to. The Social Welfare (Consolidation) Act 2005 sets out the circumstances where an overpayment may arise and the liability of a person to repay an overpayment. 

An overpayment can arise where a person has been granted a payment but subsequently a revised decision is made by the Department under Section 302 or 325 of the Social Welfare (Consolidation) Act 2005 (the “Act”) to reduce a person’s entitlement to a social welfare payment retrospectively. In such circumstances, the Department will issue a letter informing the person of the revised decision.

A key question with overpayments is whether the Department allege fraud on the part of the recipient. Fraud occurs where the Department is told or led to believe something that the person receiving the payment knew was false or misleading or a key piece of information is withheld from the Department.

A revised decision that there has been an overpayment based on fraud is made under Section 302(a)/325(a)) of the Act.

If the overpayment arose as a result of fraud, the person may be criminally prosecuted even if the overpayment is repaid.

Where no fraud is alleged by the Department, they have some discretion to take into account the facts and circumstances that gave rise to the overpayment and this will be relevant in an appeal against such an overpayment. It is also possible to appeal the date when the overpayment is deemed to have arisen, which may result in the amount of the overpayment being reduced. A revised decision with no allegation of fraud is made under section 302(b).

It is therefore very important to know if fraud is alleged (ie, the decision was made based on section 302(a)) or no fraud is alleged (ie the decision is based on section 302(b).) A person can appeal the revised decision alleged fraud and if successful, the fact and circumstances that gave rise to the overpayment can also be considered in the appeal.

The other circumstances where an overpayment may arise are covered by sections 336, 336(a) and 336(b) of the Social Welfare Consolidation Act 2005 (as amended).

Examples of this category of overpayment are:

  • double cashing, for example a person reports that she or he did not receive a payment due, a duplicate is issued and both payments are cashed by the person;
  • impersonation, for example a person makes a claim assuming the identity of another person;
  • cashing after death, for example a relative continues to cash a pension or allowance after the death of the person entitled to it.

Finally, the rules relating to the how the Department can recover an overpayment of social welfare are in Statutory Instrument No. 349/2005 Social Welfare (Recovery of Overpayments) Regulations, the Department’s Operational Guidelines on Management of Customer Overpayments and Recovery of Customer Debt.  and more information is available through Citizen’s Information.

Observations on appeal outcomes in SWAO Case Studies:

Recovery of Overpayment from the Estate of a Deceased

Overpayments of social welfare can be recovered from the deceased’s estate if not paid prior to their death. A debt may also arise during the settlement of a deceased customer’s estate where it is determined that the customer had not adequately declared their means during the time they received an assistance payment (means tested payment) during their lifetime.

Overpayments discovered after the death of a person receiving social welfare payments can also be appealed. There are a number of appeals by the estate of a deceased in the case studies below. One example shows an appeal that was allowed because there no evidence of any other source of income to the deceased nor of him accessing the joint account which was in his name and his sister’s name. She appealed on the basis that it was her money held in the account for the upkeep on the family home that the deceased had been living in. See G4 2015/24 State Pension Non-contributory. Another successful appeal in seen in I9 2017/318/69 State Pension (Non-Contributory) where there was a failure by the Department to act on recommendations in Department reviews. The overpayment was reduced.

However in most instances, there are have very serious implications where means/assets are not communicated to the Department during one’s life and come to light when assets being dealt with on death.

Relevant Case Studies of the SWAO Annual Reports 2009-2021

G4 2015/24 State Pension Non-contributory

Question at Issue: Claim against deceased pensioner’s estate

Background: The deceased had been awarded pension in 1998 and had been in receipt of Disability Allowance prior to attaining pension age. At the time of the pension claim, he had declared a credit union account with a balance of some €1,900. His entitlement was reviewed in 2011 when he denied having any capital in the bank. Following his death, an investigation by a Social Welfare Inspector indicated undisclosed capital of €59,000 and his means were assessed retrospectively to take account of this. As a consequence of the revised means assessment, an overpayment of some €38,000 was calculated and a demand for payment was made against the estate. His sister, the executrix of the estate, made an appeal against the decision and solicitors acting on her behalf questioned the amount of the overpayment. It was submitted that the deceased never had capital in the [named] bank as his sister had provided this money for the upkeep of his residence.

Oral hearing: The sister of the deceased attended and was represented by her solicitor. The Deciding Officer attended at the request of the Appeals Officer, while the Social Welfare Inspector had moved to other duties and was unable to attend.

The solicitor in the case sought to provide some background, referring to the sister of the deceased, the fact that she had worked for some years in the United Kingdom before returning to the family home. He referred to the capital held at a [named] bank, and said that this had always belonged to his client and submitted that an affidavit from 1996 confirmed this. It was submitted that she had intended that the funds be used for the upkeep and renovation of the family home so that it would remain habitable until she returned to live there. It transpired that her brother had proved unable to maintain the house and evidence was produced showing that expenditure in the order of €230,000 had been incurred in the previous year for extensive renovations.

A copy of the grant of probate was submitted and it was pointed out that the net value of the estate came to just €20,000. It was submitted that the Department had misrepresented the ownership of the funds assessed and that the deceased had no interest in those funds. He had not been able to fulfil the purpose for which the capital had been set aside and he had never accessed the bank account at issue.

The Deciding Officer explained the assessment: the deceased had been assessed with capital held in his own name and a half share of the capital held in a joint account with his sister. She noted that there was evidence of transfers of funds between the accounts which suggested that they had been managed. In response, the deceased’s sister pointed out that her brother had received no State payments until he was aged 49 years and she had enquired about his entitlements. At that stage, he had received a Disabled Person’s Maintenance Allowance (subsequently Disability Allowance). She confirmed that she had managed the accounts and had moved the capital so that the best yield could be achieved. His sister described the deceased as having a learning disability and said that he had not been capable of managing things. They had another brother who died in 1995 and since then she had had to return home every 6 weeks. She recalled that the deceased had been duped by individuals purporting to do maintenance work and, on one occasion, had withdrawn €2,000 from his credit union account to pay them. She said that he had been vulnerable to such approaches and, after that, she had warned the bank and credit union to be aware of him seeking to withdraw funds.

The Deciding Officer conceded that the Department had not implemented its review policy over the years in question but said she believed that a reminder of the qualifying conditions had issued around the year 2000. It was accepted that there was no record of such a reminder on file. The Deciding Officer agreed there could be circumstances when a joint account was assessed in full against one of the named account holders. She went on to say, however, that she believed that the deceased could have accessed the account had he wished to. She noted that the Social Welfare Inspector had reported that there had been no evidence to indicate that the capital in the joint account was not the property of the deceased.

His sister insisted that the deceased did not have access to the [named] bank account and she said she objected to the Department seeking to recover what was, in effect, her savings. In conclusion, her solicitor reiterated the assertion that the deceased had no control over the funds at issue, the capital was the property of the deceased’s sister and he had been a party of convenience only and had never sought to access the account. It was submitted that it was wrong therefore to attribute those funds to him.

Thematic Note G0136: Overpayment of social welfare – Allegations of Fraud under Section 302(a)

Theme: Overpayment of social welfare – Allegations of Fraud under Section 302(a)

Period of Analysis: SWAO Annual Reports 2009-2021

Keywords: Overpayments; Fraud; Appeals; Oral Hearing; Burden of Proof; Cohabitation; Review

Casebase No. Case G0136

Summary of the relevant law:

Overpayments of social welfare occur where a person gets a payment of an allowance, pension or any other benefit from the Department of Social Protection (the “Department”) that they are not entitled to. The Social Welfare (Consolidation) Act 2005 sets out the circumstances where an overpayment may arise and the liability of a person to repay an overpayment. 

An overpayment can arise where a person has been granted a payment but subsequently a revised decision is made by the Department under Section 302 or 325 of the Social Welfare (Consolidation) Act 2005 (the “Act”) to reduce a person’s entitlement to a social welfare payment retrospectively. In such circumstances, the Department will issue a letter informing the person of the revised decision.

A key question with overpayments is whether the Department allege fraud on the part of the recipient. Fraud occurs where the Department is told or led to believe something that the person receiving the payment knew was false or misleading or a key piece of information is withheld from the Department.

A revised decision that there has been an overpayment based on fraud is made under Section 302(a)/325(a)) of the Act.

If the overpayment arose as a result of fraud, the person may be criminally prosecuted even if the overpayment is repaid.

Where no fraud is alleged by the Department, they have some discretion to take into account the facts and circumstances that gave rise to the overpayment and this will be relevant in an appeal against such an overpayment. It is also possible to appeal the date when the overpayment is deemed to have arisen, which may result in the amount of the overpayment being reduced. A revised decision with no allegation of fraud is made under section 302(b).

It is therefore very important to know if fraud is alleged (ie, the decision was made based on section 302(a)) or no fraud is alleged (ie the decision is based on section 302(b).) A person can appeal the revised decision alleged fraud and if successful, the fact and circumstances that gave rise to the overpayment can also be considered in the appeal.

In scenarios where the Department claims that the overpayment arose due to an act of fraud on the part of the claimant, a high standard of proof is present and the decisions suggest there must be evidence, not just that the person gave false information or withheld relevant information but also that he/she did so deliberately. If the overpayment is based on evidence of fraud, there is no discretion to reduce the overpayment. whether the overpayment must be paid in full still depends on the circumstances.

An example of the overpayment being successfully appealed in evident in Case Study H2 2016/23 Job Seeker’s Allowance. A finding of fraud was reversed in Case Study H1 2016/17 Disability Allowance, but the overpayment was still payable in full.

Relevant Case Studies of the SWAO Annual Reports 2009-2021

D2.  2012/22 Survivor’s (Contributory) Pension

Decision under appeal: revised entitlement with overpayment assessed – reason(s) stated:-

My decision is based on the report received from the local Social Welfare Inspector, in which he stated that [person named], was cohabiting with you for the past 20 years, and prior to your application for a Widow’s Pension. Accordingly, I have decided that you had no entitlement to Widow’s Contributory and I am terminating your payment immediately from your date of award.

This decision has been made in accordance with Section 302 (a) of the Social Welfare (Consolidation) Act, 2005, on the grounds that you wilfully concealed a material fact from the Department. As a result of this decision, you have been assessed with an overpayment. In the circumstances of this case, it is the intention of the Department to recover the overpayment in full. Our Debt Management Section will be in contact with you shortly regarding repayment of this overpayment.

Overpayment assessed: €73,300.

Background: The appellant applied for a Widow’s (Non-Contributory) Pension in 2001, following the death of her husband. The case was investigated by a Social Welfare Inspector and, shortly afterwards, the appellant withdrew her claim and signed a statement to this effect as recorded by the Inspector at the time. No formal reason was given for the withdrawal. The appellant was issued with a letter which advised her that no further action would be taken as a result of her wish not to continue with the claim. Later in that same month, however, a Deciding Officer concluded that she had an entitlement to a Widow’s (Contributory) Pension based on her late husband’s PRSI contributions and a letter was issued to the appellant advising as to the date of award .

The appellant, at the time of her initial application, was in receipt of Unemployment Assistance from a [specified] Social Welfare Local Office. In 2009, the person named in the overpayment decision applied for Jobseeker’s Allowance at that office and advised that the appellant was his partner and that she was in receipt of a Widow’s Pension. He stated that he had been cohabiting with her for the previous 20 years. The Department of Social Protection commenced an investigation into the appellant’s circumstances. Ultimately, it was decided that she was not entitled to the Widow’s Contributory Pension with effect from a date in 2000. As a consequence of this decision, an overpayment of €73,300 was assessed.

The revised decision was made under Section 302 (a) of the Social Welfare (Consolidation) Act, 2005, which refers to wilful concealment of a material fact – taken to mean cohabitation with the person named for some 20 years without advising the Department.

At oral hearing: the appellant was accompanied by a constituency worker from the office of her local T.D. The Deciding Officer attended at the request of the Appeals Officer. She read the decision and outlined details of the case history, referring to the Social Welfare Inspector’s report and letters of natural justice which had been issued to the appellant inviting her to comment before a decision was made. On the issue of the overpayment, she advised that the appellant had been awarded a State (Non-Contributory) Pension with effect from her 66th birthday and that this had the effect of reducing the overpayment amount to €50,500. She confirmed that the person named had been deemed to be an adult dependent on the appellant’s pension.

The appellant outlined the background to her relationship with the person named. She accepted that they had been living together in the period at issue. She advised that when she was interviewed by the Social Welfare Inspector in 2001, in connection with her Widow’s (Non- Contributory) Pension claim, she told the Inspector that she was co-habiting and that this was the reason for her withdrawing the claim subsequently. She said that at the time of her application she was in receipt of Unemployment Assistance and when she got the pension book from the Department, she stopped that claim.

She went on to say that she had accepted the payment in good faith on the basis that she had withdrawn her non-contributory claim and had not applied for a contributory pension.

On behalf of the appellant, her advocate asked if an application for a contributory pension had ever been made and if so, was there an application form. She stated that the appellant was distraught at the prospect of having to repay such a large overpayment, and went on to say that the appellant genuinely did not understand that she not was entitled to Widow’s (Contributory) Pension.  The appellant stated that she did not deliberately set out to defraud the State.

Following a general discussion about the application, the Deciding Officer accepted that there had been no claim for a Widow’s (Contributory) Pension but she made the point that it was unclear as to why the Widow’s (Non- Contributory) Pension claim had been withdrawn. She said that, in any event, when the appellant got the award letter for the contributory pension she would have received a leaflet about the conditions for receipt of the payment. She accepted that no review had taken place after the pension was awarded and acknowledged that the only contact the Department had with the appellant was when she changed her address.

Thematic Note G0135: Overpayment of Social Welfare and Cohabitation

Theme: Overpayment of social welfare – Cohabitation

Period of Analysis: SWAO Annual Reports 2009-2021  

Keywords: Overpayments; Fraud; Appeals; Oral Hearing; Burden of Proof; Cohabitation; Reviews

Casebase No. Case G0135

Summary of the relevant law: 

Overpayments of social welfare occur where a person gets a payment of an allowance, pension or any other benefit from the Department of Social Protection (the “Department”) that they are not entitled to. The Social Welfare (Consolidation) Act 2005 sets out the circumstances where an overpayment may arise and the liability of a person to repay an overpayment. 

An overpayment can arise where a person has been granted a payment but subsequently a revised decision is made by the Department under Section 302 or 325 of the Social Welfare (Consolidation) Act 2005 (the “Act”) to reduce a person’s entitlement to a social welfare payment retrospectively. In such circumstances, the Department will issue a letter informing the person of the revised decision.

A key question with overpayments is whether the Department allege fraud on the part of the recipient. Fraud occurs where the Department is told or led to believe something that the person receiving the payment knew was false or misleading or a key piece of information is withheld from the Department.

A revised decision that there has been an overpayment based on fraud is made under Section 302(a)/325(a)) of the Act.

If the overpayment arose as a result of fraud, the person may be criminally prosecuted even if the overpayment is repaid.

Where no fraud is alleged by the Department, they have some discretion to take into account the facts and circumstances that gave rise to the overpayment and this will be relevant in an appeal against such an overpayment. It is also possible to appeal the date when the overpayment is deemed to have arisen, which may result in the amount of the overpayment being reduced. A revised decision with no allegation of fraud is made under section 302(b).

It is therefore very important to know if fraud is alleged (ie, the decision was made based on section 302(a)) or no fraud is alleged (ie the decision is based on section 302(b).) A person can appeal the revised decision alleged fraud and if successful, the fact and circumstances that gave rise to the overpayment can also be considered in the appeal.

Observations on appeal outcomes in SWAO Case Studies re Cohabitation

The onus is on the Department to establish that cohabitation (i.e. in an intimate and committed relationship) exists based on evidence. It is not for the appellant to show they are not cohabiting with the nominated person. In putting together its case, the Department must follow its own Guidelines on Investigating Cohabitation and consider a range of evidence of cohabitation to make such a finding. For -an example of a situation where there was sufficient evidence of cohabitation, see Case Study D1 2012/15 One Parent Family Payment.

See Case Study G3 2015/22 & 2015/23 for an example where cohabitation was not found on appeal. It is states as follows:-

“On the basis of this evidence, and having regard to the unequivocal findings of Baker J [2015] IEHC 309, that a relationship must have been, at some point in time, a sexual relationship for intimacy to be found, he concluded that it had not been established that the appellants were cohabiting within the meaning of the governing legislation for the period since 2010 or, in the period prior to 2010, ‘as husband and wife’ within the meaning of the legislation which applied at the time. Accordingly, each of the appellants was entitled to the named payment during the period at issue and no overpayment applied.”

Likewise, see Case Study H5 2016/318/36 One parent family payment where is states:-

“I note that the Appeals Officer considered that the evidence advanced by the Department was more credible and convincing than that put forward by the appellant and that the Officer concluded the appellant had failed to show that she was not cohabiting with the nominated person. This was clearly an error of law. In misdirecting themselves on this point, I could only conclude that the Appeals Officer had placed an unreasonable burden of proof on the appellant such as to render the appeal hearing unfair. The Department, in its guidelines on cohabitation, accepts that ‘where an entitlement may be disallowed, limited or withdrawn, the onus is on the Department to establish that cohabitation exists’. I am of the view that the Department did not meet the requirements set out in its own guidelines to establish that cohabitation existed and that the Appeals Officer did not give sufficient weight to this fact and to the other evidence provided by the appellant, as outlined above, in support of her position.”

In addition the CAO notes: “I could find no evidence to indicate that the revised decision was made with reference to any of the provisions in Section 302, nor could I see where the appellant had been advised of the amount of the overpayment. This combination of failures is an error in law and in my view a serious denial of the appellant’s right to natural justice and fair procedures. The Appeals Officer did not direct her attention to the provisions and the obligations arising from this section in their consideration of the appeal. In light of all of the above considerations I concluded that the Appeals Officer had erred in law and, in the circumstances, revised the decision.”

For comments on reliance on Facebook evidence, see Case Study I7 2017/318/65 Disability Allowance (DA) and One Parent Family (OPF):-

“ In particular, it was my view that the photographic evidence of the presence of the appellants attending family events together did not in any way prove cohabitation within the meaning of the governing legislation.

With regard to the issue of Facebook evidence generally, I did not accept the appellants’ contention that an Appeals Officer must be an expert on Facebook or other forms of social media in order to properly determine an appeal involving evidence of this nature. In determining an appeal, an Appeals Officer must of course give due consideration to and weigh up all of the evidence presented, including evidence of social media interactions, in order to decide on the weight which should be applied to that evidence and/or the veracity of same.”

 Relevant Case Studies of the SWAO Annual Reports 2009-2021

G3 2015/22 & 2015/23 Unspecified payment in respect of two appellants

Question at Issue: Cohabitation

Background: The appellants were each in receipt of named payments. In the context of a review of entitlement, and an investigation by a Social Welfare Inspector, a question arose as to cohabitation. The Inspector interviewed each of the appellants and submitted reports and accompanying documents for determination. The Deciding Officer made reference to the interviews conducted by the Social Welfare Inspector and concluded that each of the appellants had concealed a material fact, that is, that they were cohabiting with one another. Ultimately, it was concluded that both persons were disqualified for receipt of the named payments as they were cohabiting. A revised decision was made in each case, with reference to the provisions of Section 302 (a) of the Social Welfare (Consolidation) Act, 2005, and overpayments were assessed. An appeal was made by both parties. In response to a request made by solicitors acting for each of the appellants, and with the approval of the Chief Appeals Officer, the appeals were heard together – with a separate report and decision completed in each case.

Oral hearing: The appellants attended, and each was represented separately by a solicitor. The Social Welfare Inspector attended at the request of the Appeals Officer. The decision at issue in each case was outlined, as was the manner in which the Appeals Officer intended to proceed.

It was acknowledged that the second appellant resided at the address of the first appellant for some years. It was contended, however, that the parties had never cohabited within the meaning of the Social Welfare Acts and, in particular, that they had not been engaged in an intimate/sexual relationship at any time. It was submitted that they had been nothing but platonic friends, had separate bedrooms, that the first appellant had her own independent means, that she was not engaged to, nor did she have any intention of marrying the other person.

In support of the appeal, reference was made to a Court Judgment, dated 5 May 2015, In the matter of Section 194 of the Civil Partnership and Certain Rights and Obligations Cohabitants Act 2010 [2015] IEHC 309, where Baker J found [paras. 21, 77, 78, 79] that in order to be a cohabitant for purposes of the 2010 Act, a relationship must be more than one of mere friendship and must be or have been at some point sexually intimate.

Medical evidence was submitted outlining medical issues which prevented a sexually intimate relationship. It was also submitted on behalf of both appellants that in the report of his investigation of the two claims, the Social Welfare Inspector had stated that the appellants were co-resident.

Thematic Note G0132: Overpayment of social welfare

Theme: Overpayment of Social Welfare – General Issues

Period of Analysis: SWAO Annual Reports 2009-2021  

Keywords: Overpayments; Fraud; Appeals; Oral Hearing; Burden of Proof; Cohabitation; Reviews

Casebase No. Case G0123

Summary of the relevant law:

Overpayments of social welfare occur where a person gets a payment of an allowance, pension or any other benefit from the Department of Social Protection (the “Department”) that they are not entitled to. The Social Welfare (Consolidation) Act 2005 sets out the circumstances where an overpayment may arise and the liability of a person to repay an overpayment. 

An overpayment can arise where a person has been granted a payment but subsequently a revised decision is made by the Department under Section 302 or 325 of the Social Welfare (Consolidation) Act 2005 (the “Act”) to reduce a person’s entitlement to a social welfare payment retrospectively. In such circumstances, the Department will issue a letter informing the person of the revised decision.

A key question with overpayments is whether the Department allege fraud on the part of the recipient. Fraud occurs where the Department is told or led to believe something that the person receiving the payment knew was false or misleading or a key piece of information is withheld from the Department.

A revised decision that there has been an overpayment based on fraud is made under Section 302(a)/325(a)) of the Act. If the overpayment arose as a result of fraud, the person may be criminally prosecuted even if the overpayment is repaid. See G0133 for further details.

Where no fraud is alleged by the Department, they have some discretion to take into account the facts and circumstances that gave rise to the overpayment and this will be relevant in an appeal against such an overpayment. It is also possible to appeal the date when the overpayment is deemed to have arisen, which may result in the amount of the overpayment being reduced. A revised decision with no allegation of fraud is made under section 302(b).

It is therefore very important to know if fraud is alleged (ie, the decision was made based on section 302(a)) or no fraud is alleged (ie the decision is based on section 302(b).)

The other circumstances where an overpayment may arise are covered by sections 336, 336(a) and 336(b) of the Social Welfare Consolidation Act 2005 (as amended).

Examples of this category of overpayment are:

  • double cashing, for example a person reports that she or he did not receive a payment due, a duplicate is issued and both payments are cashed by the person;
  • impersonation, for example a person makes a claim assuming the identity of another person;
  • cashing after death, for example a relative continues to cash a pension or allowance after the death of the person entitled to it.

Finally, the rules relating to the how the Department can recover an overpayment of social welfare are in Statutory Instrument No. 349/2005 Social Welfare (Recovery of Overpayments) Regulations, the Department’s Operational Guidelines on Management of Customer Overpayments and Recovery of Customer Debt.  and more information is available through Citizen’s Information.

Observations on appeal outcomes in SWAO Case Studies:

An appeal against an overpayment can be made to the Social Welfare Appeals Office (SWAO). A person has 21 days to appeal and details on appeals are available on the SWAO website.

To assist with appeals, we have drawn together the case studies relating to overpayments in the SWAO Annual Reports below and have made some observations based on our review of the case studies in Annual Reports dating from 2009 to 2021.

Below we set out observations under the following headings –

  • Initial Observations
  • Error by the Department

We have separate Thematic Reports on Casebase relating to the following: –

  • Fraud (Section 302(a)) (G0133)
  • Cohabitation (G0134)
  • Recovery of overpayment from the Estate of the Deceased (G0135)

Initial Observations –

  • Alleged ignorance of the requirements or criteria of a social welfare payment is generally disregarded, in particular where a claimant was explicitly made aware of the requirements. (See Case Study J5 2018/54 State Pension Non-Contributory Oral Hearing below)
  • The SWAO will have access to information from electoral registers, vehicle registrations, tenancies, births register and Social Welfare Inspectors in assessing the facts pertaining to the case.
  • There is a strict obligation to inform the Department of changes to your circumstances where in receipt of social welfare. This includes changes to your financial circumstances, living arrangements, absence of the State, periods where a child or caree is not residing in the home etc.  
  • If a change in circumstances has been notified to the Department, or the Department has made a clear error, an Appeals Officer may reduce or cancel an overpayment. This discretion arises under Article 246(1) of Part 9 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 – S.I. 142 of 2007 (as amended) which provides that the amount of an overpayment to be repaid may be reduced or cancelled where the overpayment arose because of: (i) a failure by the Department to act within a reasonable period on information which was provided by or on behalf of the person concerned; or (ii) an error by the Department. 
  • Other than in cases of fraud, an Appeals Officer can change the effective date when an overpayment is deemed to have arisen, having regard to all the circumstances of the case. This may result in no overpayment arising.
  • Decisions involving the assessment of means are very fact-dependent and will be governed by all circumstances relating to the individual case.

The Section 318 reviews of decisions of Appeal Officers by the Chief Appeals Officer are of particular note and show the following:

  • The obligation to notify the Department of a change of circumstances may be discharged if the relevant facts are disclosed in an application for a separate benefit.
  • A notification of relevant information to another Government body (e.g. Tusla) does not equate to the disclosure of that information to the Department.
  • Where an entitlement is disallowed, limited or withdrawn on the basis of cohabitation, the onus is on the Department to establish that cohabitation (i.e. in an intimate and committed relationship) exists and not the appellant to show they are not cohabiting with the nominated person. In putting together its case, the Department must follow its own Guidelines on Investigating Cohabitation and consider a range of evidence of cohabitation to make such a finding. See Cohabitation below.
  • In a revised decision, a Deciding Officer much set out the relevant provision in the legislation under which the decision is made and the amount of the overpayment amounts in order to respect an appellant’s right to natural justice and fair procedures.  
  • A lack of a review by the Department may be taken into account in circumstances where they failed to act on information (e.g. a clear instruction of a Social Welfare Inspector’s report) but not generally in other circumstances.

Error by the Department

Whether an error by the Department will result of the overpayment being reduced or set aside will depend on the circumstances of the case. See Case Study I2 2017/40 Jobseeker’s Allowance Summary Decision for an example of where the level of engagement with Department by the Appellants and circumstances surrounding the error were sufficient to reduce overpayment to nil. It states:-

“The couple had numerous interactions with the Intreo Centre over the course of their claims and always went there together when issues or queries arose. Their ongoing engagement with various activation measures was also mentioned. The appellant also got statements of payments received on four occasions for submission to the university where she studied in the UK. The letter of appeal also states that the couple had never claimed separately before, and they were not aware of the level of payment each would receive. Given their ongoing engagement with the Intreo Centre, they assumed they were receiving their correct entitlement.”

Also level of communication over the course of the relevant period with Department in  I3 2017/46 Supplementary Welfare Allowance Summary Decision was such that error of Department and overpayment effectively reduced to nil.

In Case Study J1 2018/35 Working Family Payment Oral Hearing, the Appeals Officer concluded that:-

“as there had been no change in the appellant’s circumstances as set out in the governing legislation, the appellant continued to be entitled to Working Family Payment for 52 weeks from the commencement of that claim. The Appeals Officer considered the retrospective examination of the hours worked from January 2015 to June 2015 as erroneous and unfair. With regard to the continuing entitlement from June 2015 to June 2016, the Appeals Officer concluded that the same principle applied. In the absence of any evidence to the contrary on the file, the Appeals Officer had to assume that at the time of renewal of Working Family Payment in June 2015, the appellant was found to be in compliance with the conditions for award, that this was likely to continue for 3 months and was payable for 52 weeks to June 2016.”

In Case Study J3 2018/49 Supplementary Welfare Allowance Summary Decision, the Appellant failed to tell the Department that she had taken up a training course while on SWA. It was on the recommendation of her GP as part of medical and psychological treatment and increased her employment possibilities.  The Appeals Officer noted that “under Section 190 (3) of the 2005 Act the Department has discretion to grant Supplementary Welfare Allowance to persons attending a course of study “in a case where there are exceptional circumstances.” This concession did not appear to have been considered by the Department in this instance. The Appeals Officer considered that the evidence submitted by the appellant in support of her appeal could be regarded as constituting “exceptional circumstances” and the appeal was allowed.”

Relevant Case Studies of the SWAO Annual Reports 2009-2021

A.2009 
B.2010 
1.2010/15 Disability AllowanceQuestion at issue: Over payment
C.2011 
D.2012 
1.2012/15 One Parent Family PaymentQuestion at issue: Overpayment
2.2012/22 Survivor’s (Contributory) PensionQuestion at issue: Overpayment
E.2013 
F.2014 
G.2015 
1.2015/15 Carer’s benefit & Maternity BenefitQuestion at issue: Concurrent payment of benefits
2.2015/21 State Pension (Non-Contributory)Question at issue: means and overpayment assessed following review
3.2015/22 & 2015/23 Unspecified payment in respect of two appellantsQuestion at issue: Cohabitation
4.2015/24 State Pension Non-contributoryQuestion at issue: Claim against the deceased pensioner’s estate
5.2015/25 State Pension (Non-contributory)Question at issue: Claim against the deceased pensioner’s estate
H2016 
1.2016/17 Disability AllowanceQuestion at issue: Eligibility (medical)
2.2016/23 Job Seeker’s AllowanceQuestion at issue: Eligibility (retrospective assessment of needs)
3.2016/28 State Pension (Non-contributory)Question at issue: Eligibility (revised decision as to means)
4.2016/318/34 Carer’s allowanceQuestion at issue: Overpayment assessed
5.2016/318/36 One parent family paymentQuestion at issue: Means and cohabitation
I2017 
12017/10 One-Parent Family Payment Oral hearingQuestion at issue: Overpayment whilst child in care
22017/40 Jobseeker’s Allowance Summary DecisionQuestion at issue: Overpayment (department error)
3.2017/46 Supplementary Welfare Allowance Summary DecisionQuestion at issue: Eligibility (rent supplement and overpayment)
4.2017/49 State Pension (Non-Contributory) Oral hearingQuestion at issue: Claim against the State
5.2017/51 State Pension (Contributory) Summary DecisionQuestion at issue: Overpayment (qualified adult)
6.2017/318/62 Jobseeker’s AllowanceQuestion at issue: Whether an Appeals Officer had erred when partially allowing an appeal in relation to an overpayment
7.2017/318/65 Disability Allowance (DA) and One Parent Family (OPF)Question at issue: whether the appellants were cohabiting
8.2017/318/68 State Pension (Non-Contributory)Question at issue: overpayment assessed (means)
9.2017/318/69 State Pension (Non-Contributory)Question at issue: overpayment assessed (means)
J2018 
1.2018/35 Working Family Payment Oral HearingQuestion at issue: Eligibility (hours worked)
2.2018/39 Jobseeker’s Allowance Summary DecisionQuestion at issue: eligibility (whether the person was unemployed)
3.2018/49 Supplementary Welfare Allowance Summary DecisionQuestion at issue: Eligibility and overpayment
4.2018/53 State Pension (Non-Contributory) Summary DecisionQuestion at issue: Eligibility (means and overpayment)
5.2018/54 State Pension Non-Contributory Oral HearingQuestion at issue: Eligibility (means and overpayment)
6.2018/318/66 Carer’s AllowanceQuestion at issue: Eligibility (care provided)
7.2018/318/67 State Pension (Non-Contributory)Question at issue: Absence from state
K.2019 
1.2019/03 Child Benefit Summary Decision  Question at issue: Qualified child- ordinarily resident
2.2019/44 Jobseeker’s Allowance Summary DecisionQuestion at issue: Eligibility (full-time education)
3.2019/50 Farm Assist Summary DecisionQuestion at issue: Overpayment
4.2019/57 Widower’s (Non-Contributory) Pension Oral HearingQuestion at issue: Entitlement-co-habiting
L.2020 
1.2020/01 Child Benefit – Qualified Person  Question at issue Qualified person
22020/49 State Pension (Contributory) 
M.2021 
1.2021/01 Child Benefit – Qualified Child  Question at issue Qualified child

Thematic Note G0119: Illness Benefit

Title of Payment: Illness Benefit

Date of Final Decision: SWAO Annual Reports 2009-2020

Keywords: Illness Benefit; Disability; Incapable of work; PRSI Contributions

Casebase no: G0119

Summary of the relevant law:

Illness benefit is a weekly payment that can be made to an individual who:

a) is incapable of work due to illness;

b) is under 66 years old; and

c) has made the required PRSI contributions (see below).

Under Section 40 of the Social Welfare Consolidation Act 2005 (as amended), illness benefit can be paid for any “day of incapacity for work” which forms part of a “period of interruption of employment”. In this context:

  • a “day of incapacity for work” means a day for which the individual is certified as unable to work (or to look for work) due to illness; and
  • a “period of interruption of employment” means any 3 days (whether consecutive or not) within 6 consecutive days.

Neither weekends nor paid holiday leave are taken into account when counting “days of incapacity for work” or a “period of interruption of employment”.

Section 41 of the Social Welfare Consolidation Act 2005 (as amended) provides that, to be entitled to illness benefit, generally an individual must have:

a) at least 104 PRSI contributions paid since they first started working; and

b) either:

c) 39 weeks of PRSI contributions paid or credited in the relevant tax year, of which 13 must be paid; or

d) 26 weeks of PRSI contributions paid in each of the relevant tax year and the previous tax year.

 

These rules are adjusted in certain circumstances, e.g. where an individual is already in receipt of certain other benefits immediately before applying for illness benefit.

For these purposes, the relevant tax year is the second-last complete tax year before the year in which a claim for illness benefit is made. E.g. where claim is made in 2022, the relevant tax year is 2020.

Social security contributions paid in certain other EEA member states or the UK can be counted for the purposes of qualifying for illness benefit, provided however that the last social security contributions were paid in Ireland. Periods of employment in certain other EEA member states of the UK can also be taken into account.

Key grounds of appeals by appellants: 

The majority of the appeals are in relation to medical eligibility for Illness Benefit, i.e. that the individual is incapable of work due to illness. In the majority of these appeals, the appellant had been examined at least once by a Medical Assessor appointed by the Department of Social Protection but disagreed with their medical assessment. The various grounds for disagreement include: (1) that the medical assessment only focused on physical impairment and not on mental health issues (regardless of whether these mental health issues were separate, related or resultant); (2) that further medical evidence contradicts the medical assessment; (3) that the medical assessment failed to  take into account the severity of the medical condition; or (4) that the appellant’s condition is changeable and was not at its worst on the day when the medical assessment was carried out.

There have only been two appeals where the appellant challenged the requirement to have a certain number of PRSI contributions. In both of these cases, the SWAO rejected the appeals on the basis that the PRSI contributions are a statutory requirement and that it cannot be waived.

Observations on appeal outcomes: 

As an overall observation, appellants are generally successful where they provide plenty of evidence to demonstrate that they are incapable of work. The evidence does not necessarily need to be medical or specifically related to their work duties – the SWAO also takes into account the impact that the illness has on the appellant’s daily life and routine tasks, e.g. ability to look after oneself and to do recreational activities.

While this evidence can be anecdotal and provided personally by the appellant, appellants are generally more successful where they provide letters of evidence from their GP and/or other medical practitioners. Where the GP has a long term relationship with the appellant and is familiar with their medical history, the letter from the GP can sometimes even take precedence over the medical opinion from the Medical Assessor that is appointed by the Department of Social Protection. For example, in one appeal, the SWAO disregarded a medical assessment which was carried out on a day in which the appellant coincidentally wasn’t in much pain. It can also be helpful to provide copies of scans and medical tests.

In addition to physical illness, the SWAO also takes into account an appellant’s mental illness. There is only one case in the Annual Reports where an appellant has been successful in arguing that they were incapable of work due to mental illness alone, in Case 2018/11. . Similar to physical illness, the mental illness must render the appellant incapable of work – generally, moderate mental health issues, general stress or an inability to cope with the demands of a busy job are not considered to render an individual incapable of work for the purposes of Illness Benefit. That said, the SWAO does take mental illness into account where it arises in conjunction with physical illness. For example, the SWAO has considered appellants to be incapable of work for the purposes of Illness Benefit where they had mental illness at the same time as their physical illness and also where they had mental health issues after/as a result of their physical illness.

In order to prove that an appellant is currently incapable of work for the purposes of Illness Benefit, the SWAO pays particular attention to medical treatments received and to be received.

  • In order to be successful, it is generally necessary for an appellant to provide evidence of current medical treatments, for example medication that they are currently taking, doctors that they are seeing regularly, etc. This can demonstrate that the appellant is currently incapable of work. That said, claims for Illness Benefit may be rejected where the medical treatments are so effective that the appellant is actually capable of work as a result.
  • It can also be persuasive for an appellant to provide evidence of upcoming medical appointments and/or treatments. This can support the argument that the appellant is likely to be incapable of work for some time. In this regard, it would appear to be necessary for these appointments and/or treatment to already be scheduled. For example, the SWAO has rejected an appeal in which it was argued that an appellant might need surgery at some point in the future.
  • It is not always necessary that the current medical treatments are specifically related to the original illness. For example, it can be persuasive that the appellant is taking medication for mental health issues that were triggered by the original illness.
  • While evidence of past medical treatments can provide context to a claim for Illness Benefit, it is less persuasive. For example, in one appeal, the appellant was relying on the fact that she had epilepsy, but this was disregarded by the SWAO given that she had been seizure free for 30 years.

Ultimately, the key question is whether the appellant is incapable of work. The SWAO appears to determine the question of whether an individual is incapable of work objectively. The SWAO considers whether the appellant is capable of any kind of work, and not necessarily the type of work that the appellant used to do. The SWAO does not take into account the appellant’s work experience or age etc. For example, Illness Benefit is often refused where the appellant is capable of lighter, more sedentary work.

Please note that the recent decision by the Supreme Court in the Sobhy case (Sobhy v. the Chief Appeals officer, Minister for Employment Affairs and Social Protection, Ireland, and the Attorney General (2021) S:AP:IE:2021:000025). In this case, the Supreme Court held that an immigrant without the right to work, despite meeting the other criteria, including PRSI contributions, does not have the right to access maternity benefits. This may have implications for other social insurance payments.

Thematic Note G0120: Disability Allowance

Title of Payment: Illness Benefit

Date of Final Decision: SWAO Annual Reports 2009-2020

Keywords: Illness Benefit; Disability; Incapable of work; PRSI Contributions

Casebase no: G0119

Summary of the relevant law:

Illness benefit is a weekly payment that can be made to an individual who:

a) is incapable of work due to illness;

b) is under 66 years old; and

c) has made the required PRSI contributions (see below).

Under Section 40 of the Social Welfare Consolidation Act 2005 (as amended), illness benefit can be paid for any “day of incapacity for work” which forms part of a “period of interruption of employment”. In this context:

  • a “day of incapacity for work” means a day for which the individual is certified as unable to work (or to look for work) due to illness; and
  • a “period of interruption of employment” means any 3 days (whether consecutive or not) within 6 consecutive days.

Neither weekends nor paid holiday leave are taken into account when counting “days of incapacity for work” or a “period of interruption of employment”.

Section 41 of the Social Welfare Consolidation Act 2005 (as amended) provides that, to be entitled to illness benefit, generally an individual must have:

a) at least 104 PRSI contributions paid since they first started working; and

b) either:

c) 39 weeks of PRSI contributions paid or credited in the relevant tax year, of which 13 must be paid; or

d) 26 weeks of PRSI contributions paid in each of the relevant tax year and the previous tax year.

 

These rules are adjusted in certain circumstances, e.g. where an individual is already in receipt of certain other benefits immediately before applying for illness benefit.

For these purposes, the relevant tax year is the second-last complete tax year before the year in which a claim for illness benefit is made. E.g. where claim is made in 2022, the relevant tax year is 2020.

Social security contributions paid in certain other EEA member states or the UK can be counted for the purposes of qualifying for illness benefit, provided however that the last social security contributions were paid in Ireland. Periods of employment in certain other EEA member states of the UK can also be taken into account.

Key grounds of appeals by appellants: 

The majority of the appeals are in relation to medical eligibility for Illness Benefit, i.e. that the individual is incapable of work due to illness. In the majority of these appeals, the appellant had been examined at least once by a Medical Assessor appointed by the Department of Social Protection but disagreed with their medical assessment. The various grounds for disagreement include: (1) that the medical assessment only focused on physical impairment and not on mental health issues (regardless of whether these mental health issues were separate, related or resultant); (2) that further medical evidence contradicts the medical assessment; (3) that the medical assessment failed to  take into account the severity of the medical condition; or (4) that the appellant’s condition is changeable and was not at its worst on the day when the medical assessment was carried out.

There have only been two appeals where the appellant challenged the requirement to have a certain number of PRSI contributions. In both of these cases, the SWAO rejected the appeals on the basis that the PRSI contributions are a statutory requirement and that it cannot be waived.

Observations on appeal outcomes: 

As an overall observation, appellants are generally successful where they provide plenty of evidence to demonstrate that they are incapable of work. The evidence does not necessarily need to be medical or specifically related to their work duties – the SWAO also takes into account the impact that the illness has on the appellant’s daily life and routine tasks, e.g. ability to look after oneself and to do recreational activities.

While this evidence can be anecdotal and provided personally by the appellant, appellants are generally more successful where they provide letters of evidence from their GP and/or other medical practitioners. Where the GP has a long term relationship with the appellant and is familiar with their medical history, the letter from the GP can sometimes even take precedence over the medical opinion from the Medical Assessor that is appointed by the Department of Social Protection. For example, in one appeal, the SWAO disregarded a medical assessment which was carried out on a day in which the appellant coincidentally wasn’t in much pain. It can also be helpful to provide copies of scans and medical tests.

In addition to physical illness, the SWAO also takes into account an appellant’s mental illness. There is only one case in the Annual Reports where an appellant has been successful in arguing that they were incapable of work due to mental illness alone, in Case 2018/11. . Similar to physical illness, the mental illness must render the appellant incapable of work – generally, moderate mental health issues, general stress or an inability to cope with the demands of a busy job are not considered to render an individual incapable of work for the purposes of Illness Benefit. That said, the SWAO does take mental illness into account where it arises in conjunction with physical illness. For example, the SWAO has considered appellants to be incapable of work for the purposes of Illness Benefit where they had mental illness at the same time as their physical illness and also where they had mental health issues after/as a result of their physical illness.

In order to prove that an appellant is currently incapable of work for the purposes of Illness Benefit, the SWAO pays particular attention to medical treatments received and to be received.

  • In order to be successful, it is generally necessary for an appellant to provide evidence of current medical treatments, for example medication that they are currently taking, doctors that they are seeing regularly, etc. This can demonstrate that the appellant is currently incapable of work. That said, claims for Illness Benefit may be rejected where the medical treatments are so effective that the appellant is actually capable of work as a result.
  • It can also be persuasive for an appellant to provide evidence of upcoming medical appointments and/or treatments. This can support the argument that the appellant is likely to be incapable of work for some time. In this regard, it would appear to be necessary for these appointments and/or treatment to already be scheduled. For example, the SWAO has rejected an appeal in which it was argued that an appellant might need surgery at some point in the future.
  • It is not always necessary that the current medical treatments are specifically related to the original illness. For example, it can be persuasive that the appellant is taking medication for mental health issues that were triggered by the original illness.
  • While evidence of past medical treatments can provide context to a claim for Illness Benefit, it is less persuasive. For example, in one appeal, the appellant was relying on the fact that she had epilepsy, but this was disregarded by the SWAO given that she had been seizure free for 30 years.

Ultimately, the key question is whether the appellant is incapable of work. The SWAO appears to determine the question of whether an individual is incapable of work objectively. The SWAO considers whether the appellant is capable of any kind of work, and not necessarily the type of work that the appellant used to do. The SWAO does not take into account the appellant’s work experience or age etc. For example, Illness Benefit is often refused where the appellant is capable of lighter, more sedentary work.

Please note that the recent decision by the Supreme Court in the Sobhy case (Sobhy v. the Chief Appeals officer, Minister for Employment Affairs and Social Protection, Ireland, and the Attorney General (2021) S:AP:IE:2021:000025). In this case, the Supreme Court held that an immigrant without the right to work, despite meeting the other criteria, including PRSI contributions, does not have the right to access maternity benefits. This may have implications for other social insurance payments.

Thematic Note G0121: Partial Capacity Benefit

Title of Payment: Illness Benefit

Date of Final Decision: SWAO Annual Reports 2009-2020

Keywords: Illness Benefit; Disability; Incapable of work; PRSI Contributions

Casebase no: G0119

Summary of the relevant law:

Illness benefit is a weekly payment that can be made to an individual who:

a) is incapable of work due to illness;

b) is under 66 years old; and

c) has made the required PRSI contributions (see below).

Under Section 40 of the Social Welfare Consolidation Act 2005 (as amended), illness benefit can be paid for any “day of incapacity for work” which forms part of a “period of interruption of employment”. In this context:

  • a “day of incapacity for work” means a day for which the individual is certified as unable to work (or to look for work) due to illness; and
  • a “period of interruption of employment” means any 3 days (whether consecutive or not) within 6 consecutive days.

Neither weekends nor paid holiday leave are taken into account when counting “days of incapacity for work” or a “period of interruption of employment”.

Section 41 of the Social Welfare Consolidation Act 2005 (as amended) provides that, to be entitled to illness benefit, generally an individual must have:

a) at least 104 PRSI contributions paid since they first started working; and

b) either:

c) 39 weeks of PRSI contributions paid or credited in the relevant tax year, of which 13 must be paid; or

d) 26 weeks of PRSI contributions paid in each of the relevant tax year and the previous tax year.

 

These rules are adjusted in certain circumstances, e.g. where an individual is already in receipt of certain other benefits immediately before applying for illness benefit.

For these purposes, the relevant tax year is the second-last complete tax year before the year in which a claim for illness benefit is made. E.g. where claim is made in 2022, the relevant tax year is 2020.

Social security contributions paid in certain other EEA member states or the UK can be counted for the purposes of qualifying for illness benefit, provided however that the last social security contributions were paid in Ireland. Periods of employment in certain other EEA member states of the UK can also be taken into account.

Key grounds of appeals by appellants: 

The majority of the appeals are in relation to medical eligibility for Illness Benefit, i.e. that the individual is incapable of work due to illness. In the majority of these appeals, the appellant had been examined at least once by a Medical Assessor appointed by the Department of Social Protection but disagreed with their medical assessment. The various grounds for disagreement include: (1) that the medical assessment only focused on physical impairment and not on mental health issues (regardless of whether these mental health issues were separate, related or resultant); (2) that further medical evidence contradicts the medical assessment; (3) that the medical assessment failed to  take into account the severity of the medical condition; or (4) that the appellant’s condition is changeable and was not at its worst on the day when the medical assessment was carried out.

There have only been two appeals where the appellant challenged the requirement to have a certain number of PRSI contributions. In both of these cases, the SWAO rejected the appeals on the basis that the PRSI contributions are a statutory requirement and that it cannot be waived.

Observations on appeal outcomes: 

As an overall observation, appellants are generally successful where they provide plenty of evidence to demonstrate that they are incapable of work. The evidence does not necessarily need to be medical or specifically related to their work duties – the SWAO also takes into account the impact that the illness has on the appellant’s daily life and routine tasks, e.g. ability to look after oneself and to do recreational activities.

While this evidence can be anecdotal and provided personally by the appellant, appellants are generally more successful where they provide letters of evidence from their GP and/or other medical practitioners. Where the GP has a long term relationship with the appellant and is familiar with their medical history, the letter from the GP can sometimes even take precedence over the medical opinion from the Medical Assessor that is appointed by the Department of Social Protection. For example, in one appeal, the SWAO disregarded a medical assessment which was carried out on a day in which the appellant coincidentally wasn’t in much pain. It can also be helpful to provide copies of scans and medical tests.

In addition to physical illness, the SWAO also takes into account an appellant’s mental illness. There is only one case in the Annual Reports where an appellant has been successful in arguing that they were incapable of work due to mental illness alone, in Case 2018/11. . Similar to physical illness, the mental illness must render the appellant incapable of work – generally, moderate mental health issues, general stress or an inability to cope with the demands of a busy job are not considered to render an individual incapable of work for the purposes of Illness Benefit. That said, the SWAO does take mental illness into account where it arises in conjunction with physical illness. For example, the SWAO has considered appellants to be incapable of work for the purposes of Illness Benefit where they had mental illness at the same time as their physical illness and also where they had mental health issues after/as a result of their physical illness.

In order to prove that an appellant is currently incapable of work for the purposes of Illness Benefit, the SWAO pays particular attention to medical treatments received and to be received.

  • In order to be successful, it is generally necessary for an appellant to provide evidence of current medical treatments, for example medication that they are currently taking, doctors that they are seeing regularly, etc. This can demonstrate that the appellant is currently incapable of work. That said, claims for Illness Benefit may be rejected where the medical treatments are so effective that the appellant is actually capable of work as a result.
  • It can also be persuasive for an appellant to provide evidence of upcoming medical appointments and/or treatments. This can support the argument that the appellant is likely to be incapable of work for some time. In this regard, it would appear to be necessary for these appointments and/or treatment to already be scheduled. For example, the SWAO has rejected an appeal in which it was argued that an appellant might need surgery at some point in the future.
  • It is not always necessary that the current medical treatments are specifically related to the original illness. For example, it can be persuasive that the appellant is taking medication for mental health issues that were triggered by the original illness.
  • While evidence of past medical treatments can provide context to a claim for Illness Benefit, it is less persuasive. For example, in one appeal, the appellant was relying on the fact that she had epilepsy, but this was disregarded by the SWAO given that she had been seizure free for 30 years.

Ultimately, the key question is whether the appellant is incapable of work. The SWAO appears to determine the question of whether an individual is incapable of work objectively. The SWAO considers whether the appellant is capable of any kind of work, and not necessarily the type of work that the appellant used to do. The SWAO does not take into account the appellant’s work experience or age etc. For example, Illness Benefit is often refused where the appellant is capable of lighter, more sedentary work.

Please note that the recent decision by the Supreme Court in the Sobhy case (Sobhy v. the Chief Appeals officer, Minister for Employment Affairs and Social Protection, Ireland, and the Attorney General (2021) S:AP:IE:2021:000025). In this case, the Supreme Court held that an immigrant without the right to work, despite meeting the other criteria, including PRSI contributions, does not have the right to access maternity benefits. This may have implications for other social insurance payments.

Thematic Note G0118: Invalidity Pension

Title of Payment: Illness Benefit

Date of Final Decision: SWAO Annual Reports 2009-2020

Keywords: Illness Benefit; Disability; Incapable of work; PRSI Contributions

Casebase no: G0119

Summary of the relevant law:

Illness benefit is a weekly payment that can be made to an individual who:

a) is incapable of work due to illness;

b) is under 66 years old; and

c) has made the required PRSI contributions (see below).

Under Section 40 of the Social Welfare Consolidation Act 2005 (as amended), illness benefit can be paid for any “day of incapacity for work” which forms part of a “period of interruption of employment”. In this context:

  • a “day of incapacity for work” means a day for which the individual is certified as unable to work (or to look for work) due to illness; and
  • a “period of interruption of employment” means any 3 days (whether consecutive or not) within 6 consecutive days.

Neither weekends nor paid holiday leave are taken into account when counting “days of incapacity for work” or a “period of interruption of employment”.

Section 41 of the Social Welfare Consolidation Act 2005 (as amended) provides that, to be entitled to illness benefit, generally an individual must have:

a) at least 104 PRSI contributions paid since they first started working; and

b) either:

c) 39 weeks of PRSI contributions paid or credited in the relevant tax year, of which 13 must be paid; or

d) 26 weeks of PRSI contributions paid in each of the relevant tax year and the previous tax year.

 

These rules are adjusted in certain circumstances, e.g. where an individual is already in receipt of certain other benefits immediately before applying for illness benefit.

For these purposes, the relevant tax year is the second-last complete tax year before the year in which a claim for illness benefit is made. E.g. where claim is made in 2022, the relevant tax year is 2020.

Social security contributions paid in certain other EEA member states or the UK can be counted for the purposes of qualifying for illness benefit, provided however that the last social security contributions were paid in Ireland. Periods of employment in certain other EEA member states of the UK can also be taken into account.

Key grounds of appeals by appellants: 

The majority of the appeals are in relation to medical eligibility for Illness Benefit, i.e. that the individual is incapable of work due to illness. In the majority of these appeals, the appellant had been examined at least once by a Medical Assessor appointed by the Department of Social Protection but disagreed with their medical assessment. The various grounds for disagreement include: (1) that the medical assessment only focused on physical impairment and not on mental health issues (regardless of whether these mental health issues were separate, related or resultant); (2) that further medical evidence contradicts the medical assessment; (3) that the medical assessment failed to  take into account the severity of the medical condition; or (4) that the appellant’s condition is changeable and was not at its worst on the day when the medical assessment was carried out.

There have only been two appeals where the appellant challenged the requirement to have a certain number of PRSI contributions. In both of these cases, the SWAO rejected the appeals on the basis that the PRSI contributions are a statutory requirement and that it cannot be waived.

Observations on appeal outcomes: 

As an overall observation, appellants are generally successful where they provide plenty of evidence to demonstrate that they are incapable of work. The evidence does not necessarily need to be medical or specifically related to their work duties – the SWAO also takes into account the impact that the illness has on the appellant’s daily life and routine tasks, e.g. ability to look after oneself and to do recreational activities.

While this evidence can be anecdotal and provided personally by the appellant, appellants are generally more successful where they provide letters of evidence from their GP and/or other medical practitioners. Where the GP has a long term relationship with the appellant and is familiar with their medical history, the letter from the GP can sometimes even take precedence over the medical opinion from the Medical Assessor that is appointed by the Department of Social Protection. For example, in one appeal, the SWAO disregarded a medical assessment which was carried out on a day in which the appellant coincidentally wasn’t in much pain. It can also be helpful to provide copies of scans and medical tests.

In addition to physical illness, the SWAO also takes into account an appellant’s mental illness. There is only one case in the Annual Reports where an appellant has been successful in arguing that they were incapable of work due to mental illness alone, in Case 2018/11. . Similar to physical illness, the mental illness must render the appellant incapable of work – generally, moderate mental health issues, general stress or an inability to cope with the demands of a busy job are not considered to render an individual incapable of work for the purposes of Illness Benefit. That said, the SWAO does take mental illness into account where it arises in conjunction with physical illness. For example, the SWAO has considered appellants to be incapable of work for the purposes of Illness Benefit where they had mental illness at the same time as their physical illness and also where they had mental health issues after/as a result of their physical illness.

In order to prove that an appellant is currently incapable of work for the purposes of Illness Benefit, the SWAO pays particular attention to medical treatments received and to be received.

  • In order to be successful, it is generally necessary for an appellant to provide evidence of current medical treatments, for example medication that they are currently taking, doctors that they are seeing regularly, etc. This can demonstrate that the appellant is currently incapable of work. That said, claims for Illness Benefit may be rejected where the medical treatments are so effective that the appellant is actually capable of work as a result.
  • It can also be persuasive for an appellant to provide evidence of upcoming medical appointments and/or treatments. This can support the argument that the appellant is likely to be incapable of work for some time. In this regard, it would appear to be necessary for these appointments and/or treatment to already be scheduled. For example, the SWAO has rejected an appeal in which it was argued that an appellant might need surgery at some point in the future.
  • It is not always necessary that the current medical treatments are specifically related to the original illness. For example, it can be persuasive that the appellant is taking medication for mental health issues that were triggered by the original illness.
  • While evidence of past medical treatments can provide context to a claim for Illness Benefit, it is less persuasive. For example, in one appeal, the appellant was relying on the fact that she had epilepsy, but this was disregarded by the SWAO given that she had been seizure free for 30 years.

Ultimately, the key question is whether the appellant is incapable of work. The SWAO appears to determine the question of whether an individual is incapable of work objectively. The SWAO considers whether the appellant is capable of any kind of work, and not necessarily the type of work that the appellant used to do. The SWAO does not take into account the appellant’s work experience or age etc. For example, Illness Benefit is often refused where the appellant is capable of lighter, more sedentary work.

Please note that the recent decision by the Supreme Court in the Sobhy case (Sobhy v. the Chief Appeals officer, Minister for Employment Affairs and Social Protection, Ireland, and the Attorney General (2021) S:AP:IE:2021:000025). In this case, the Supreme Court held that an immigrant without the right to work, despite meeting the other criteria, including PRSI contributions, does not have the right to access maternity benefits. This may have implications for other social insurance payments.

Thematic Note G0116: Right to Reside and Habitual Residence Condition

Theme: Right to Reside and Habitual Residence Condition

Period of Analysis: SWAO Annual Reports 2009-2020

Keywords: Habitual Residence Condition, Right to Reside

Casebase No. G0116

 

Summary of the relevant law:

The term “habitually resident” is not defined in Irish law. In practice it means that you have a proven close link to Ireland. The term also conveys permanence – that a person has been here for some time and intends to stay here for the foreseeable future.

The legislation providing for the habitual residence condition is contained in Section 246 of the Social Welfare Consolidation Action 2005 (as amended). However, Deciding Officers and Designated Persons must also have regard to S.I. No. 548/2015 – European Communities (Free Movement of Persons) Regulations 2015. , which deals with the right of residence for EU/EEA citizens and their families. Habitual residence in Ireland is a condition that you must satisfy for certain social welfare payments , for example Child Benefit. This condition took effect from 1 May 2004 and affects all applicants regardless of nationality.

With all social welfare payments in Ireland, you must satisfy the rules for each scheme to qualify.

Your spouse, civil partner or cohabitant and any dependent children you have are not required to satisfy the habitual residence condition in their own right. So if you apply for a social welfare payment only you, the applicant, has to satisfy the habitual residence condition.

Proving you are habitually resident relies heavily on fact. If you have lived in Ireland all your life, you will probably have no difficulty showing that you satisfy the factors which indicate habitual residence.

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

These are sometimes called the “five factors”.

Who has the right to reside?

People who have a right to reside include:

  • Irish nationals have a right of residence in Ireland;
  • UK nationals coming in from the Common Travel Area (CTA) also have a right to reside here under the CTA agreement;
  • EEA nationals who are employed or self-employed in Ireland have a right to reside;[1]
  • non-EEA nationals who have a residency or work permit to legally reside and work in the State, provided that there are no restrictions attached to that residency or work permit.

Permission to reside will generally be evidenced by an appropriate immigration stamp in the person’s passport, a letter of authorisation or a Certificate of Registration issued by the Garda National Immigration Bureau (GNIB), that is a GNIB card.

Key grounds of appeals by appellants:

The majority of the appeals are brought on the basis that the deciding/appeals officer erred in applying the correct legislation and/or legal grounds and erred in finding that the conditions of HRC were not met.

Observations on appeal outcomes:

Given that the majority of the appeals are brought on the basis that the deciding officer / appeals officer erred in finding that the criteria for ‘habitual resident’ was not been met, the appeals reported below focus principally on how the conditions of ‘habitually resident’ must be met and the application of the correct legislation.

In accordance with Section 246 of the 2005 Act establishing habitual residence is a two stage process which firstly requires that the person has a right to reside in the State. If it is established that the person has a right to reside, an assessment of their situation under 5 factors is carried out to determine their centre of interest and future intentions.

The reports below suggest that appellants are usually unsuccessful where they cannot establish a right to reside or on the basis of fact that they don’t fall under other factors to allow them to exercise this right. They further show that the majority of decisions may fall on the factual matrix of the particular case and the particular circumstances relevant to the person at issue.

[1] Regarding the right to reside of EU workers, see Casebase Report G0113 and Georgeta Voican v. Chief Appeals Officer, Social Welfare Appeals Office, Minister for Employment Affairs and Social Protection, Ireland and the Attorney General [2019] No.748 J.R

Social Welfare Appeal G0027

The Appellant was in receipt of Rent Supplement (RS) which was discontinued by the Health Service Executive (HSE) following the Appellant’s rejection of three offers of accommodation by a local authority. The Appellant appealed this decision to the Social Welfare Appeals Office whereby it was found, in the circumstances, that the three offers of accommodation from the local authority were not valid offers for the purposes of the legislation, as they were unsuited to the Appellants situation. In addition, the rejection of the offers did not happen within an 18 month period. Thus the decision by the HSE to discontinue RS was invalid. The appeal was allowed and RS was awarded.