Social Welfare Appeal G0073

This case concerns a father of two children who applied for Family Income Supplement (FIS) on 5th August 2013. 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 €450.
A Deciding Officer refused the Appellant’s claim on 20th August 2013 for the reason that he was not maintaining his former spouse/partner, and therefore could not be regarded as falling within the statutory definition of a ‘family’ for FIS purposes.
The Appellant appealed this decision. On 21st July 2014 an Appeals Officer disallowed his appeal by way of a summary decision; that is, without an oral hearing. The Appeals Officer rejected the Appeal on the same grounds that the Deciding Officer had disallowed the claim in the first instance.
On 29th May 2015 Dublin City Centre Citizens Information Service (CIS), on behalf of the Appellant, requested a review of the Appeals Officer’s decision pursuant to s. 318 of the Social Welfare Consolidation Act 2005 (as amended). The CIS asserted that the Appeals Officer had erred in his interpretation of the primary legislation, and had not applied the relevant regulatory provisions in this case.
On 29th June 2015, the Chief Appeals Officer revised the decision of the Appeals Officer and allowed the appeal.
Reference should be made to Case No: G0064 on casebase. That case concerns the same question of statutory interpretation and the Appeal was allowed.

Social Welfare Appeal G0077

This case concerns a father of one child who applied for Family Income Supplement (FIS) in April 2015. The Appellant does not live with the other parent, nor does he reside with his child. He maintains his child by way of two monthly maintenance payments of €150 (€69.23 weekly).

A Deciding Officer refused the Appellant’s claim on 27th April 2015 for the reason that he did not have a child normally residing with him, nor was he “wholly or mainly” maintaining the other parent.

In May 2015, Charleville & District MABS appealed this decision on behalf of the Appellant. On 25th August 2015 an Appeals Officer disallowed the appeal by way of a summary decision; that is, without an oral hearing.  The Appeals Officer rejected the Appeal on the grounds that the Appellant could not be regarded as “wholly or mainly” maintaining his family as required by the statutory provisions governing the award of FIS.

On receipt of this decision, MABS made a Freedom of Information request seeking all records relating to the reasoning and decision of the Appeals Officer. On receipt of these records, MABS made a submission to the Chief Appeals Officer requesting a review of the Appeals Officer’s decision pursuant to s. 318 of the Social Welfare Consolidation Act 2005 (as amended) – “the Act”, on the grounds that the Appeals Officer had erred in law.  MABS asserted that as the Appellant did not have a “spouse” within the meaning of Social Welfare Law, his claim fell to be decided in accordance with s. 3 and s. 227 of the Act, and Article 13(6) of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (as amended) – “the Regulations”, S.I. 142 of 2007.  MABS asserted the Appeals Officer had erred in her interpretation of the primary legislation, and that she had failed to apply the relevant regulatory provisions; namely, the Appellant is required to demonstrate that he is substantially maintaining his child.  MABS asserted that the Appellant had met this condition and was therefore eligible for FIS.

On 20th November 2015, the Chief Appeals Officer revised the decision of the Appeals Officer and allowed the appeal.

Reference should be made to Case No: G0064 and G0073 on casebase.  These cases concern the same question of statutory interpretation. Both appeals were allowed.

Social Welfare Appeal G0096

This  case relates to a decision of the Chief Appeals Officer (CAO) pursuant to a review under Section 318 of the Social Welfare Consolidation Act 2005 as amended (the 2005 Act) to uphold the decision of the Appeals Officer. The CAO determined that the Appeals Officer by way of decision dated 22nd  January 2014 had not erred in law or in relation to the facts in determining the effective date of award of Child Benefit to the Appellant payable in respect of her three children.

Social Welfare Appeal G0074

The issue in this case concerns the statutory rules governing the assessment of maintenance and non-cash benefits for the purpose of deciding the Appellant’s rate of Jobseekers Allowance (JA). The Appellant is separated with 3 dependant children.

By way of decision, dated 01/04/2014, a Deciding Officer determined that the Appellant had weekly means of €167, and was therefore entitled to Jobseekers Allowance at the rate of €110.40 per week for herself and her three dependant children. It was decided that the Appellant had weekly means of €12.34 from employment and means of €154.31 from maintenance.

The assessment of means from maintenance was based on the mediation agreement between the Appellant and her former spouse.  Under the terms of the agreement, the Appellant’s former spouse paid the following:

  • €1,300 monthly mortgage payments [including insurances],
  • €250 per month maintenance, and
  • €200 per month towards the children’s extracurricular activities.

The Deciding Officer found the Appellant’s total assessable income from maintenance to be €403.85 per week.  This equates to the sum of all the contributions (mortgage payments, contribution towards the children’s activities and cash maintenance) multiplied by 12 and then divided by 52.  The Deciding Officer then subtracted the statutory disregard of €95.23, and divided the remaining amount by two to arrive at a means figure of €154.31.

The Appellant appealed this decision on the grounds that the only income she received from her former spouse was the maintenance payment in the amount of s €250 per month.

By way of summary decision (without an oral hearing), the Appeal was disallowed on 10/11/2014.  The Appellant was unrepresented at Appeal.

The Appellant then sought the assistance of Kilkenny MABS.  In April 2015, Kilkenny MABS, on behalf the Appellant, made a submission to the Chief Appeals Officer in accordance with s. 318 of the Social Welfare Consolidation Act 2005, asserting that the Appeals Officer in this case had erred in fact and law.

The Chief Appeals Officer reviewed the Appeals Officer’s decision, and on 31/07/2015 she revised the decision in favour of the Appellant.  The Chief Appeals Officer found that the Appellant’s means from maintenance should be assessed as €55 per week, not €154.

Social Welfare Appeal G0071

The Appellant is a mother of two children.  In 1996 she had one child, a son, and she was living in her parents home. She applied for and was awarded the One Parent Family Payment [OPFP]. The Appellant’s second child, a daughter, was born in December 2010. The Appellant did not apply for an increase on her claim in respect of her daughter, and advised the Department of Social Protection [“the Department”], in writing, that she did not wish to claim an increase because the father, John [not his real name], was supporting her daughter by providing weekly maintenance payments.

When completing and signing claim review forms in 2009 and 2011, the Appellant maintained that she continued to reside in her parents’ house.

In 2012 the Department reviewed her claim, and in the course of their investigations established that the Appellant and John had jointly purchased a property in 2008.

In December 2012 a Deciding Officer issued a letter to the Appellant setting out the facts and evidence that in the Department’s opinion were consistent with a finding that the Appellant had been cohabiting with John from February 2008 – to the present. The Appellant was afforded the opportunity to respond before a decision was made.  The Appellant replied by way of letter asserting that she had resided for a short period with John in 2008, but John’s relationship with her son was so poor she had to move out in May 2008.  The Appellant asserted that from May 2008 to October 2012 she resided with her sister. She claimed that in October 2012 she moved back in with John but did not know if the relationship would last which is why she delayed notifying the Department.

The Department rejected the Appellant’s assertions, and on 15th January 2013 a Deciding Officer issued a decision whereby it was contended that from February 2008 to 9th January 2013 the Appellant was cohabiting with John and was therefore not entitled to the OPFP.  The decision was made in accordance with s. 302(a) of the Social Welfare Consolidation Act 2005 [as amended]. As a consequence of this revised decision, the Appellant was found liable for an overpayment amounting to €48,766.80.

The Appellant appealed the decision, and an oral hearing was held on 2nd December 2013.  The Appellant was unrepresented at the time. On 17th December 2013 the Appeals Officer disallowed the appeal in respect of the periods 21st February 2008 to 14th May 2012, and 20th October 2012 to 9th January 2013.  The Appeals Officer held that on the basis of a letter issued by the mortgage provider in November 2013, which referred to a Standard Financial Statement [SFS] completed by John in May 2012, the Appellant should have the benefit of “the very slight doubt” that she was not living with John at that time. Accordingly, the Appeals Officer did not make a finding that the Appellant was cohabiting from the date of the SFS [May 2012] to October 2012.

On 23 September 2014 Waterford MABS, on behalf of the Appellant, requested a review of the Appeals Officer’s decision.  The request for a review was made in accordance with s.317 and s.318 of the Social Welfare Consolidation Act 2005. MABS asserted that the Appeals Officer’s reasoning was flawed to the extent that there had been errors in fact and law in this case. MABS also submitted new evidence in the form of an Affidavit from the Appellant’s son who was then aged 18.

The Appeals Officer reviewed his decision, and in February 2015 he rejected MABS assertions.  The Appeals Officer restated his findings and did not accept that were grounds to revise his decision.

On 10 March 2015 MABS responded, requesting that the Chief Appeals Officer review the Appeals Officer’s decision in accordance with s. 318 of the Social Welfare Consolidation Act 2005 [as amended].

On 1st May 2015 the Chief Appeals Officer revised the decision of the Appeals Officer and allowed the appeal.

Social Welfare Appeal G0075

The case concerns the Appellant’s claim for Guardian’s Payment (Non-Contributory), formerly Orphan’s (Non-Contributory) Allowance, in respect of her grandchild.

According to the Appellant’s instructions, she first applied for Guardian’s Payment in or around October 2012. In September 2013 she reapplied, and this claim was refused on 8 January 2014. The Appellant applied for the third time in May 2014. This application was rejected on 1st July 2014. The Appellant sought a review of the refusal.  The Appellant attended CLM in or around August 2014 and was provided with advice and representation with respect to the review of the Deciding Officer’s decision.

On 20 March 2015 the Deciding Officer issued a decision with respect to the review.  The Deciding Officer confirmed her earlier decision, asserting that the Appellant was not eligible for a Guardian’s Payment as her grandson did not satisfy the definition of an orphan. The Deciding Officer found that the evidence did not demonstrate abandonment of the child by his father as required under the legislation, noting that, while incarceration limited the father’s ability to provide day-to-day care for his son it did not constitute abandonment.

On 30 March 2015 CLM on behalf of the Appellant submitted a Notice of Appeal in respect of the Deciding Officer’s decision.

On 21 April 2015, the Deciding Officer revised her decision (the Appeal’s Office having forwarded the Appellant’s grounds of Appeal to the Deciding Officer), and determined that the Appellant was entitled to Guardian’s Payment with effect from 19 December 2014 on the basis that the Appellant’s son was not residing at the Appellant’s address from this date.  According to the record, this decision is consistent with a December report by a Social Welfare Inspector (SWI); the SWI being satisfied that the Appellant was looking after her grandson and would continue to do so indefinitely.

The Appellant was awarded €2,910 in arrears (from 19 December 2014 until 30 April 2015). The Deciding Officer further advised that an investigation into whether the Appellant was eligible for arrears of the payment from an earlier date would be undertaken, and that the Social Welfare Appeals Office would be notified of this decision in due course.

On 18 August 2015 CLM wrote to the Deciding Officer seeking an update as regards the Appellant’s entitlement to payment from an earlier date. On 16 October 2015 the Deciding Officer wrote to the Appellant confirming her entitlement to payment from September 2014.  This decision resulted in a further € 1,972.25 arrears being issued.

As the Appellant was in receipt of the One Parent Family Payment, Guardian’s Payment was awarded at half rate.  Guardian’s payment and the One Parent Family Payment may be paid concurrently.

Social Welfare Appeal G0067

This case relates to the Appellant’s Carer’s Allowance (CA) claim in respect of his daughter for whom he cares.

The Appellant had been in receipt of Carer’s Allowance and Domiciliary Care Allowance (DCA) in respect of his daughter until 5 November 2013. At this time, the Appellant’s daughter reached aged 16, and therefore, the Appellant could no longer claim DCA in respect of his daughter. She subsequently applied for, and was awarded, Disability Allowance.

When the DCA payment ceased, the Appellant’s eligibility for Carer’s Allowance was reviewed.  A Deciding Officer determined that the Appellant’s daughter did not require full time care and attention and consequently the Appellant was found to be no longer entitled to Carer’s Allowance. The Appellant appealed this decision.  The Appeal was disallowed by an Appeals Officer on 20 June 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 10 April 2015.