This case relates to a decision of the Office of the Ombudsman regarding a complaint concerning a review by the Chief Appeals Officer (CAO) under Section 318 of the Social Welfare Consolidation Act 2005 as amended (the 2005 Act). The CAO determined by way of decision dated 3 November 2015 that the Appeals Officer had not erred in law or in relation to the facts in determining the effective date of award of Child Benefit to the Appellant. While the Ombudsman requested that the Department of Employment Affairs and Social Protection (the Department) backdate payment to January 2012 in view of the decision in DN and Anor v Chief Appeals Officer and Ors, the complaint ultimately was not upheld. It is clear from the decision of the Ombudsman that upon receiving the request from the Ombudsman to backdate the payment the Department refused to do so on the basis that s 246 (8) of the 2005 Act removes any discretion to backdate a claim for Child Benefit for periods where a claimant’s right of residence has not been declared or permitted.
This case concerns a revised decision by a Deciding Officer (DO), whereby it was asserted that the Appellant was overpaid Jobseekers Allowance (JA) from 2012 to the date of discovery in 2015. The Appellant was assessed as having retrospectively derived means from her husband’s earnings, earnings that were not disclosed to the Department of Social Protection (the Department) throughout the period at issue. As a consequence of this revised decision, it was asserted that the Appellant was liable to repay to the Department the sum of €36,584.
On appeal, the Appellant asserted that though married, she was estranged from her husband. With respect to her husband’s earnings, it was the Appellant’s position that she was unaware of his changed circumstances as she and her spouse live separate and independent lives.
This case relates to the appeal of a decision to retrospectively charge the Appellant for an alleged overpayment of Rent Supplement, due to the retrospective assessment of a contribution from another person in the household, the Appellant’s daughter. This decision was made pursuant to Article 12(3) of the Social Welfare (Consolidated Supplementary Welfare Allowance) Regulations 2007 (as amended), S.I. 412 of 2007. The Appellant, a Carer, resides with his two daughters and had been claiming Rent Supplement since February 2013.
The Appellant’s Rent Supplement claim was reviewed in June 2016, and a revised decision was issued on 25 July 2016, notifying the Appellant that a Designated Officer (DO) had determined that his entitlement would be reduced and that this decision was to apply retrospectively. As a consequence of this decision, the Appellant was found to have been overpaid the sum of €1,091.70, an amount recoverable as a debt due to the Department of Social Protection (the Department).
Rent Supplement-Supplementary Welfare Allowance- Non-financially dependent child – Overpayment of Rent Supplement -Retrospective assessment- Appeal partially allowed
The Appellant had been in receipt of One Parent Family Payment and half rate Carer’s Allowance (CA) in respect of her son, for whom Domiciliary Care Allowance (DCA) was in payment.
On 7 January 2016, the Department of Social Protection (the Department) commenced a review of the Appellant’s entitlement to Carer’s Allowance in respect of the full time care needs of her son, the Caree. The Appellant submitted, as requested, a completed Medical Report (CR1) on which the Caree’s GP certified that he was moderately affected in relation to his mental health and behaviour. The Appellant also submitted a school report and further medical evidence, including a medical report from a Consultant Child and Adolescent Consultant.
Following receipt of the papers the Department issued multiple decisions whereby it was asserted that the Caree did not require full time care and attention within the meaning of section 179(4) of the Social Welfare Consolidation Act 2005 (as amended) (the 2005 Act). Despite decisions having been made that the Caree did not require full time care and attention the Department did not revoke the Appellant’s claim.
In April 2016, the Appellant’s son reached age 16 and therefore entitlement to DCA ceased. By letter, dated 15 June 2016, the Deciding Officer stopped the Appellant’s Carer’s Allowance with effect from 30 June 2016.
DN (a minor) and AS v. Chief Appeals Officer and Others  IEHC 52, White J, 13 February 2017
In 2006, Ms S came to Ireland and applied for asylum seeking refugee status. Her application was refused in March 2007. In December of that year her son DN was born. There was litigation around the refugee status refusal until 2010, when she made an application for subsidiary protection under the EC (Eligibility for Protection) Regulations 2006. Ultimately, she was granted subsidiary protection on 1 May 2012.
While waiting for it to be processed, Ms S and her family lived in Direct Provision. She made several applications for child benefit in respect of DN. These applications were refused by the Department of Employment Affairs and Social Protection on the basis that as an applicant for subsidiary protection, she was not habitually resident in Ireland. Eventually she was granted subsidiary protection and awarded child benefit, but the award took effect only from 1 May 2012, the date on which the subsidiary protection declaration was made. The award was appealed but the appeals officer found that the definition of habitual residence in section 246 of the Social Welfare Consolidation Act 2005 expressly excluded applicants for subsidiary protection, and that section 246(8)(c) expressly precluded back-dating benefits for persons granted subsidiary protection beyond the date of the declaration.
Ms S and DN challenged the appeals officer’s decision not to backdate the award on the basis that the exclusions in section 246 post-dated the date of Ms S’ first application for child benefit and that the said exclusions were unconstitutional.
The High Court (White J) found that the constitutionality of the exclusions had already been upheld in earlier cases and that they were not applied retrospectively as her most recent application for child benefit was made after their enactment. The Court held that while Ms S was an applicant for subsidiary protection she was ineligible for child benefit, but found that the delay on the part of the Minister for Justice and Equality in determining her application for subsidiary protection violated her rights and those of D under EU law and the Constitution.
This case relates to the appeal of a decision, dated 21/09/2016, to refuse the Appellant Guardian’s Payment (Contributory) in order to care for her grandson (“the Child”).
The Appellant applied for Guardian’s Payment (Contributory) in respect of her grandson on 15 August 2016. By letter, dated 21st September 2016, the Appellant was notified that her clam was refused for the reason that the facts with respect to her grandson’s contact with his father, and the support provided by the Child’s father, were not consistent with the statutory definition of an “orphan” for the purpose of receiving the Guardian’s Payment (Contributory).
When submitting her application for the Guardian’s Payment, the Appellant completed a questionnaire in which she stated that her son, the father, provided support through the provision of uniform, books and clothing. The Appellant further stated that the father had overnight access to his son at the weekends. In view of this information, the Deciding Officer found the Child could not be regarded as an orphan within the meaning of the relevant statutory provision.
One Parent Family Payment; New evidence; Separated Spouse