Social Welfare Appeal G0069

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

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

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

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

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

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

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

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

[1] The rent allowance limits have been amended by S.I. No. 340/2016, Social Welfare (Consolidated Supplementary Welfare Allowance) (Amendment) (No. 1) (Rent Supplement) Regulations 2016 which came into effect on 1 July 2016.

Social Welfare Appeal G0050

This case concerns the Appellant’s entitlement to Guardian’s Payment (Contributory), formerly Orphan’s (Contributory) Allowance, in respect of her two grand children, for the period 5th of January, 2011 to 7th of March, 2013.

The Appellant had been in receipt of Guardian’s Payment (Contributory), hereafter GPC, since 13th September 2002. Following a review, a letter was issued by a Deciding Officer [DO] on 25th of February, 2013 advising the Appellant of the factors which indicated that she was not eligible for the payment of the GPC between January 2011 – March 2013, and that she had incurred an overpayment. The Appellant was afforded the opportunity to bring any relevant matters to the notice of the DO before a final decision was issued. The Appellant duly submitted evidence at this time in support of her claim.

The Appellant’s claim was suspended on 1st of March 2013 for the reason that the children’s mother was “resident at same address and has not abandoned and failed to provide for her children”. However, on review of the evidence submitted by the Appellant, a decision was made on 21st of May 2013 to reinstate the claim with effect from 8th March 2013. This decision was made on the basis that this was the date when the children’s mother allegedly ceased residing at the Appellant’s address.

The DO affirmed the position that for the period 5th January 2011 to 7th March 2013 the Appellant was not eligible for the GPC for the reason that “it could not be considered that the [children’s mother] had abandoned her [children].”

On the 3rd July 2013, the DO confirming her findings with regard to the period January 2011 – March 2013 made a revised decision as follows:

According to the records of the Department, the children’s mother stayed with them two or three nights a week and had regular contact with the children during the period 5 January 2-11 to 7 March 2013, therefore, the children’s mother could not have been considered to have abandoned and failed to provide for them.

The decision was retrospective in effect; that is, the DO found that that Appellant was not eligible for GPC for the period 5th January 2011 to 7th March 2013. As a consequence, the Appellant was assessed with a liability for an overpayment of GPC amounting to €32,522.

On the same date, an officer, authorised by the Department of Social Protection [the Department] to recover debts owed to the Department, issued a letter seeking the recovery of the overpayment.

On behalf of the Appellant, NCL&MC submitted notice of appeal to the Social Welfare Appeals Office on the 20th of August 2013.

On 17Th December 2013, the Appeals Officer allowed the appeal. The Appeals Officer found that “the children were orphans for the purposes of social welfare legislation in the period 7/1/11 to 7/3/13.”

Social Welfare Appeal G0055

This case relates to the Appellant’s Disability Allowance (DA) claim.  The Appellant encountered a number of difficulties at various stages in relation to this claim, and each one will be looked at in turn.

  1. Appeal
  2. Review and decision to suspend DA claim
  3. Arrears and Overpayment Calculation

The Appellant represented himself at the Appeal, and CLM represented the claimant for the two latter issues. However, the Appellant’s original application, subsequent refusal, review and appeal, informs the background to the two latter issues and so will be discussed first.

Social Welfare Appeal G0056

The Appellant and her husband were in receipt of Mortgage Interest Supplement (MIS) from August 2005 until 31st January 2013. Following the breakdown of the Appellant’s marriage a barring order was issued against her former spouse.  The Appellant advised Community Welfare Services on the 31st January 2013 that her husband no longer resided with her in the family home. As a result, the MIS claim was reassessed.

When reviewing the MIS claim the Designated Officer based their assessment on half the interest payable, rather than the full interest charged as the Appellant’s husband was named on the mortgage agreement and on the deeds of property.   Half the interest payable amounted to €56.18 per week.

As is the case in all MIS claims, the claimant and any non-dependants residing in the home are required to make a minimum contribution.  In this case the Appellant would have been assessed has having to pay at least €30 per week plus any means assessed, and her daughter would have been required to pay a further €30.   The total figure of €60 exceeded the amount of interest the Designated Officer deemed eligible under the MIS scheme, consequently no MIS was payable.

The actual interest payable on the property was confirmed to be €112.36 per week.

The Appellant appealed the decision with a submission prepared by CLM Northside.

Social Welfare Appeal G0046

The Appellant applied to have his social housing needs assessed in order to qualify for Rent Supplement. The Appellant was advised that he was not entitled to have his social housing needs assessed as he did not have five years reckonable residency required for Non-EEA Nationals. Northside Community Law and Mediation Centre (NCL&MC) challenged this on the grounds that the Appellant satisfied the criteria under section 8 Circular 41/2012 which entitles the parent of an Irish child, who is financially and emotionally dependant on that parent, to be considered for social housing regardless of reckonable residency. Dublin City Council reviewed their decision and the Appellant was deemed eligible for social housing. He was subsequently granted Rent Supplement with retrospective effect.

Social Welfare Appeal G0044

The Appellant applied for and received Invalidity Pension in 2008. In 2010 his claim was reviewed. The Appellant’s G.P, despite certifying that the Appellant had incapacity likely to last indefinitely, stipulated that the Appellant’s ability was “normal”. On receiving this report a Department of Social Protection Medical Assessor examined the Appellant and expressed the opinion that the Appellant was capable of work. Based on the medical evidence, a decision was issued disallowing the Appellant’s claim. The Appellant unsuccessfully appealed this decision. NCL&MC sought a review of the Appeals Officer’s decision in accordance with Section 317 of the Social Welfare Consolidation Act 2005. Submissions were made on behalf of the Appellant and an oral hearing was held in December 2012. The decision of the first Appeals Officer was overturned in light of new evidence. The Appellant’s appeal was allowed and arrears were granted in the sum of €20,000.