Social Welfare Appeal G0064

This case concerns a father of two children who applied for Family Income Supplement (FIS) on 17 October 2012. The Appellant does not live with the other parent, nor does he reside with his children. He maintains his children by way of monthly maintenance payments of €260. The children’s mother is not in receipt of a social welfare payment other than Child Benefit. The Deciding Officer refused the Appellant’s claim for FIS on the 24 October 2012 on the basis that he could not qualify for FIS unless he was wholly or mainly maintaining his spouse and children; or, alternatively, his children must be living with him the majority of the time.
Sligo MABS, on behalf of the Appellant, appealed this decision on 8 November 2012. On 3 April 2014, an oral hearing was held. On 9 June 2014 the Appeals Office issued its decision disallowing the appeal on the grounds that the Appellant’s circumstances did not fall within the statutory definition of a “family” as provided by s.227 of the Social Welfare (Consolidation) Act 2005 (as amended) -“the Act”, and that Article 13 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007, S.I. 142 of 2007, – “the Regulations”, which refer to the “normal residence” of a child/ren, did not apply in this case.
On 26 August 2014 the Appellant requested a review by the Chief Appeals Officer of the Appeals Officer’s decision in accordance with s.318 of the Act, submitting that the Appeals Officer had erred in law, that the Appellant’s circumstances were in fact consistent with the meaning of “family” as provided by s.227 of the Act, and that the “normal residence” of his children should be decided in accordance with Article 13 of the Regulations.
The Appeals Officer subsequently reviewed his decision and decided to allow the appeal on 10 November 2014. The Appeals Officer accepted that the Appellant’s circumstances were in fact consistent with the statutory definition of a “family” for the purpose of receiving FIS and that Article 13 of the Regulations did apply in this case. See also Case Number G0073, which was decided by the Chief Appeals Officer on 29/06/2015.
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Social Welfare Appeal G0101

This case concerns a challenge to a decision made by a Deciding Officer (DO) whereby it was asserted that the Appellant was not entitled to Child Benefit (CB) prior to the 1st May 2012. It was determined that the Appellant could not satisfy the habitual residence condition (HRC) prior to this date as she had no legal right of residence in the State. Reference is made in the case summary to the Appellant’s legal status only as applies to the question of her entitlement to Child Benefit.
The Appellant and her husband arrived in Ireland in January 2006 and claimed asylum. The application was refused and in March 2007 the Refugee Appeals Tribunal confirmed this decision. On 22nd of May 2007 the Appellant sought to challenge the decision of the Refugee Appeals Tribunal by way of Judicial Review proceedings. These proceedings were subsequently struck out by consent in February 2009. The Appellant applied for readmission to the asylum process and this was refused on 11th December 2009.
In 2007 a separate application was made for leave to remain on humanitarian grounds and subsidiary protection. Subsidiary protection was granted by way of letter from the Irish Naturalisation and Immigration Service (INIS) on the 1st of May 2012.
Throughout the period the Appellant, her husband, and her child (born in 2007) lived in direct provision accommodation.
The Appellant’s son was born on the 31st of December 2007. The Appellant applied for Child Benefit in February 2008. The claim was refused by a DO on the 17th of May 2008 on the grounds that the Appellant’s legal right of residence had not been determined and therefore she could not be found to be habitually resident in the State. A second application for Child Benefit was made in October 2008. This was also refused by letter in February 2009. The Appellant appealed this decision to the Social Welfare Appeals Office. By way of decision dated 7th September 2009 the AO disallowed the appeal on the grounds that the Appellant’s application to be declared a refugee had been refused, and therefore “the appellant may not be deemed to be habitually resident for the purpose of her Child Benefit claim at [that] time.
In 2012 the Appellant made representations to the Social Welfare Appeals Office requesting that the AO decision be reviewed by the Chief Appeal Officer pursuant to s 318 of the Social Welfare Consolidation Act 2005 (as amended) – (“the Principal Act”). It was the Appellant’s position that the Appeals Officer has erred in law. This request was refused on the grounds of delay, some two and a half years had lapsed since the date of the Appeals Officer’s decision. The Appellant was invited to make a new application for Child Benefit.
In February 2013 the Appellant made her third application for Child Benefit. This application was granted with effect from 1st of May 2012, the date the Appellant was granted leave to remain.

Social Welfare Appeal G0066

The Appellant is a mother of one child and has power of attorney over her niece who lives with and is cared for by the Appellant. The Appellant is in receipt of Child Benefit in respect of her own child and she applied for Child Benefit in respect of her niece on 26 September 2012.
On 7 November 2012 the Department of Social Protection disallowed her claim for Child Benefit on the grounds that her niece was “not ordinarily resident” in the State and was here for educational purposes only.
The Appellant appealed the decision of the Deciding Officer with assistance from Citizens Information Service Northside. The Appeal was disallowed by way of summary decision (no oral hearing) on 13 June 2013. The Appeals Officer found that the Appellant was not entitled to Child Benefit in respect of her niece on the grounds that her niece was in Ireland for educational purposes only, and that the child was not therefore “ordinarily resident” in Ireland.
CLM Northside made written submissions on behalf of the Appellant on 13 September 2013 and on 25 August 2014, requesting that the Chief Appeals Officer review the decision of the Appeals Officer in accordance with sections 317 and 318 of the Social Welfare (Consolidation) Act 2005.
On 17 October 2014 the Appeals Officer issued a revised decision, allowing the appeal in light of the submission made on behalf of the Appellant.

Social Welfare Appeal G0065

This case concerns a blind person who first applied for the Blind Pension in April 1994 when he was 18 years old.  At the time of application the Appellant was assessed by a Social Welfare Inspector (SWI) as having nil means, therefore the Blind Pension was awarded at the full rate with effect from 22 April 1994. When the Appellant initially applied for this payment, he was living at home with his parents and his mother acted as his agent by collecting his weekly payment from the Post Office.

In 1997 the Appellant moved out of home and commenced an 18-month training course at a “Rehab Training Centre”.  In 1998 a SWI investigated the Appellant’s claim and reported that he was participating in a telephonist-training course that was due to end in May 1999.

No further review of the Appellant’s payment was carried out until 2014. On 30 May 2014 the investigating SWI submitted a report to a Deciding Officer (DO) of the Department of Social Protection (DSP), advising that the Appellant was employed by the National Council for the Blind in Ireland (NCBI) and that he had gross income of €2,993.25 per month.  In the course of the investigation the Central Records System was accessed by the DSP and the resulting report showed that the Appellant had earnings and reckonable contributions since 2003.

On 11 June 2014 a DO issued a revised decision stating that the Appellant was not entitled to the Blind Pension from 1 January 2007 to 12 June 2014; and, as a consequence of this revised decision, was liable for an overpayment of €72,826.60. A debt recovery letter to this effect was issued to the Appellant on the same date.

The Appellant submitted notice of appeal to the Social Welfare Appeals Office on 23 June 2014, and North Donegal MABS submitted more detailed grounds of appeal on his behalf on 1 September 2014. MABS also requested that an oral hearing be held.

MABS asserted that in view of the circumstances that gave rise to the overpayment it was neither proportionate nor reasonable to issue a revised decision with retrospective effect, the consequences of which were clearly devastating to the client.  It was further asserted that the relevant statutory provisions governing the assessment of means provided that “any moneys from a charitable organisation” are excluded in the means test; accordingly, it was arguable that moneys the Appellant received from the NCBI, a charitable body, fell within the scope of this statutory income disregard.

On 22 October 2014 an oral hearing was held. A Money Advisor from North Donegal MABS attended on behalf of the Appellant. A family member also accompanied the Appellant. Two members of staff represented the DSP.

On 17 December 2014 the Appeals Officer decided that the Appellant was not entitled to Blind Pension from January 2007, rejecting the assertion that moneys received in the form of remunerative employment could be regarded as falling within the scope of the statutory provision that allows for the disregard of moneys from charitable organisations.  However, the Appeals Officer did accept that the circumstances that gave rise to the overpayment were such that is was not appropriate that the DSP’s decision take effect retrospectively.  Accordingly, while the Appeals Officer found that the Appellant was not entitled to the Blind Pension from 2007, it was decided that the decision should take effect from 12 June 2014.  As a consequence of the Appeals Officer’s decision, the Appellant was not liable for an overpayment of €72, 826.60.

Social Welfare Appeal G0068

The Appellant applied for Invalidity Pension on 10 May 2013 and this claim was refused on the grounds that the Appellant was found not to be permanently incapable of work. The Appellant sought a review of the decision.  The Appellant’s review was unsuccessful, and the Department of Social Protection’s (DSP) decision was confirmed on 16 August 2013. The Appellant then appealed the decision of the Deciding Officer and submitted further medical evidence as part of this appeal. On 13 January 2014 the appeal was disallowed by way of summary decision; that is, without an oral hearing.

On 27 February 2014 the Appellant requested a review of the Appeals Officer’s decision, and provided grounds of appeal by way of letter as well as supporting medical evidence.

CLM, on behalf of the Appellant, gave notice of review to the Social Welfare Appeals Office and made a request for the Appellant’s file under the Freedom of Information Act.  The Appeals Officer decided to reopen the appeal by way of oral hearing.  This was set down for 25 September 2014. On medical grounds, the Appellant requested that this hearing be adjourned, and a new date was set for 11 November 2014.

On 3 November 2014 CLM made a further written submission on behalf of the Appellant, setting out the grounds for revising the Appeals Officer’s decision under sections 317 and 318 of the Social Welfare Consolidation Act 2005 (as amended). The written submission included new medical evidence in support of the Appellant’s claim.

On 11 November 2014 CLM represented the Appellant at oral hearing; however, at the hearing the Appeals Officer adjourned proceedings due to the Appellant’s inability to participate as a consequence of her medical condition.

On 3 December 2014 the Appeals Officer revised the previous decision and allowed the appeal.

Social Welfare Appeal G0058

The Appellant is a mother of four. She had been in receipt of the OPFP [or equivalent] since August 1994, shortly after the birth of her eldest child. The Appellant had twins in 1996 and the relevant increases were awarded on her claim. The Appellant’s fourth child was born in 2010.

Following an investigation by the Department of Social Protection [DSP], a decision was issued by a Deciding Officer on 12th February 2013, advising the Appellant that her payment was withdrawn for the reason that she was regarded as cohabiting with the father of her three eldest children. The Deciding Officer made the decision pursuant to section 302[b] of the Social Welfare Consolidation Act 2005. The Appellant sought an appeal of the determination to an Appeals Officer. An oral hearing was held on the 14th January 2014.  The Appeals Officer disallowed the appeal on 10th February 2014.

The Appellant’s Family Income Supplement claim was also the subject of an appeal.  This payment had been disallowed as a consequence of the decision in respect of the OPFP; that is, the Department asserted that the Appellant should be treated as one of a couple rather than a one parent family.

Social Welfare Appeal G0061

This case relates to the Appellant’s Carer’s Allowance (CA) claim in respect of her son for whom she cares.

The Appellant had been in receipt of Carer’s Allowance and Domiciliary Care Allowance [DCA] in respect of her son until the 15th May 2013. At this time, the Appellant’s son reached aged 16, and therefore, in accordance with the relevant statutory provisions, the Appellant could no longer claim DCA. The Appellant’s son subsequently applied for, and was refused, Disability Allowance.  Following a successful appeal, Disability Allowance was awarded. The Disability Allowance appeal was allowed on 30th April 2014.

At the time when the DCA payment ceased, the Appellant’s eligibility for Carer’s Allowance was reviewed.  It was decided that the Appellant’s son did not require full time care and attention as set out in the relevant legislation. The Appellant appealed the decision.  The Appeal was disallowed by the Social Welfare Appeals Office on the 13th January 2014. The decision was made on a summary basis; that is, without an oral hearing.

The Appellant subsequently sought a review of the Appeals Officer’s decision under Sections 317 and 318 of the Social Welfare (Consolidation) Act 2005 (as amended). The Appeals Officer revised his decision and the appeal was allowed on the 6th August 2014.

Social Welfare Appeal G0063

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

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

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

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

Social Welfare Appeal G0054

This case involved the Department of Social Protection seeking to recover an alleged overpayment in respect of Jobseekers Allowance in the amount of €12,952.40. Northside Community Law and Mediation Centre (NCL&MC)  submitted that the Department of Social Protection was not entitled to recover an overpayment unless the action was grounded upon a decision by a Deciding Officer, and reasons provided as to how the overpayment arose.

The department decided not to pursue the debt.

Social Welfare Appeal G0095

This case concerns a challenge to a decision made by a Deciding Officer (DO) whereby it was asserted that the Appellant was not entitled to arrears of Child Benefit on the basis that she did not satisfy the habitual residence condition (HRC) as she had no legal right of residence prior to be being granted leave to remain in the State.