Year: 2012

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.

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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.

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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.

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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.

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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

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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.

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Social Welfare Appeal G0037

The Appellant, a non-EU national, made an application for Child Benefit in June 2011. The application was refused on the grounds that the Appellant was not lawfully resident in the State and therefore could not satisfy the Habitual Residence Condition. This decision was appealed on the grounds that the Appellant derived a right of residence from her son, an Irish and EU citizen, under Articles 20 and 21 TFEU as per the European Court of Justice in Ruiz Zambrano v Office national de l’empoi.

The appeal was partially allowed and the Appellant was deemed entitled to Child Benefit from the 1st of December 2006.

The Appellant was subsequently successful in her applications for Rent Supplement and One Parent Family Payment and was awarded arrears of payments dating back to 2006 which amounted to approximately €16,000.

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Social Welfare Appeal G0034

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

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Social Welfare Appeal G0035

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

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Social Welfare Appeal G0039

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

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

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