Social Welfare Appeal GO108

This is a joint decision in respect of two cases that both address the question of when a parent of as of yet undetermined immigration status is entitled to a child benefit payment in respect of a child who either is an Irish citizen or holds refugee status.

Ms. Agha and Osagie each applied for child benefit while living in Direct Provision as they awaited the outcome of their respective requests for permission to remain in the State, The said applications were refused on the basis that absent a legal right to reside in the State they were not considered “habitually resident” for the purposes of s.220 of the Social Welfare Consolidation Act 2005. Following the regularisation of their immigration status, further applications for child benefit were made by both applicants which the Department of Social Protection acceded to and backdated to the date they were granted permission to remain. They then sought to have child benefit further backdated to the date that the relevant child became a “qualified child” under s.219 of the 2005 Act. The Department refused to do so.

The applicants, on behalf of their children, challenged the decision not to backdate the child benefit on the basis that it breached the equality provisions under Article 40.1 of the Constitution and EU Law.

In the High Court, both cases were unsuccessful with White J. holding that the restricting of child benefit to parents who were habitually resident in the State was not unconstitutional or contrary to EU law because it applies equally to Irish citizens and non-Irish citizens and the equality guarantee in the Constitution does not require identical treatment for all persons without recognition of difference of circumstances. Although for the benefit of children, child benefit was paid to parents, and the distinction between people lawfully in the State and people without permission to be here was a valid one that the Oireachtas was entitled to make.

The decision at first instance was overturned in the Court of Appeal. Hogan J. found that the State had not provided objective justification for withholding child benefit in respect of an Irish citizen regardless of Ms. Osagie’s immigration status and that constitutional equality was breached in the refusal to backdate payments. Insofar Ms. Agha’s application related to a child who was granted refugee status, child benefit entitlements accrued from the date that the relevant child became entitled to reside in the State. There could be no basis for withholding child benefit in respect of a qualified child simply because the person applying for the benefit on the child’s behalf did not have a regularised immigration status. To do so would be to disproportionately deny parents a payment designed for the benefit of children.

The State was ultimately successful in its appeal before the Supreme Court. Dunne J. held that the Court of Appeal had fallen into error by focusing on the children rather than considering the positions of their respective parents as the claimants of child benefit. The Court held that there was no requirement in EU law to backdate child benefit payments in the manner claimed and that the equality provisions were not breached in circumstances where the habitual residency requirements applied to all prospective applicants equally.

Social Welfare Appeal G0107

The Applicant moved to Ireland from her country of origin in September 2018 with her four children. She was separated from her husband and father of the children. Her applications for Supplementary Welfare Allowance (‘SWA’) and Child Benefit were refused in November 2018. At the time of the said applications, the Applicant had a right to reside in the State pursuant to a Stamp 4 permit and had previously reside in the State for a short period in 2003.

 

The Child Benefit and SWA applications were both refused on the basis that she had failed to satisfy the habitual residence condition, as required by section 246 of the Social Welfare Consolidation Act 2005 (the ‘Act of 2005’). While she was found to have a right to reside in Ireland, the Community Welfare Officer was not satisfied that it had been established that she was habitually resident in Ireland.

 

Section 246 of the 2005 Act provides that it is a requirement for those applying for SWA and Child Benefit to be habitually resident in the State. Per section 246(4), a deciding officer or a designated person when determining whether a person is habitually resident in the State shall take into consideration all the circumstances of the case including, in particular, the following:

 

(a) the length and continuity of residence in the State or in any other particular country,

(b) the length and purpose of any absence from the State,

(c) the nature and pattern of the person’s employment,

(d) the person’s main centre of interest, and

(e) the future intentions of the person concerned as they appear from all the circumstances.

 

The Applicant appealed the refusal and submitted evidence to the effect that she had left her country with the intention of settling in Ireland permanently, including evidence that she had travelled on a one-way ticket and that she had sold all her belongings and closed her bank account. This evidence notwithstanding, the refusal decision was upheld by an Appeals Officer in May 2019 on the basis that the Applicant had not secured employment or childcare.

 

The Applicant sought a further review before the Chief Appeals Officer, who under section 318 of the Act of 2005 may revise any decision of an Appeals Officer where it appears that the decision was erroneous by reason of some mistake having been made in relation to the law or the facts.

Meanwhile, in July 2019, the Applicant applied for One Parent Family Payment. In September 2019 she was found to be habitually resident for the purposes of receiving the One Parent Family Payment, with the award backdated.

 

In her appeal to the Chief Appeals Officer, the Applicant submitted that the Appeals Officer had had sufficient evidence to conclude that she was habitually resident in the State, that it had been tacitly accepted that she had a settled intention to remain in Ireland, and that this evidence had been disregarded. It was also noted that the Applicant had been found to be habitually resident for the purposes of the One Parent Family Payment in September 2019, and it was submitted that the adverse finding in relation to her Child Benefit and SWA application was contrary to the Department of Social Welfare’s policy on consistency in decision-making on the basis that had been no significant change of circumstances in her case since that negative decision was taken.

 

In December 2019, the Chief Appeals Officer found that the Appeals Officer gave disproportionate weight to the challenges the Applicant faced in relation to childcare and housing inasmuch as it related to her stated intention to remain in Ireland. She found that the Appeals Officer did not duly consider the other factors which supported the claim. She also noted the finding of habitual residence in relation to the Applicant’s application for One Parent Family Payment. For these reasons, the Applicant’s appeal was allowed and the decision of the Appeals Officer was revised.

 

Social Welfare Appeal G0106

The Applicant, a British citizen, moved to Ireland from the UK in 2015 with his wife, a third country national, and their eight children.

He applied for Family Income Supplement in May 2017. In June 2017, his application was refused on the basis that his employment was not genuine. He appealed this decision, but it was returned to the Department for review. A social welfare investigation concluded that his employment was fraudulent. On 1 January 2018, Family Income Supplement was reclassified as Working Family Payment.

In April 2018, the Applicant was made redundant. The Department’s negative decision was affirmed on review and then, following an oral hearing, affirmed on appeal. The Appeals Officer found that the Applicant had not produced sufficient documentary evidence of his full-time remunerative employment.

In July 2018, the Applicant sought a review of the decision of the Appeals Officer under section 318 of the Social Welfare Consolidation Act 2005 by the Chief Appeals Officer (CAO). On the Applicant’s behalf, CLM submitted that the manner in which the Applicant’s claim for WFP had been investigated by the Department was unfair, arguing that the inspector had placed undue weight on the visits that he had made to the Applicant’s place of work where he had not directly observed the Applicant working. CLM noted that, on one of these visits, the Applicant was present. On occasions when the inspector had concluded that the Applicant was not present, he had only walked past the Applicant’s place of employment. CLM further submitted that at the meeting held between the inspector and the Applicant, the inspector had never raised his concerns with the Applicant. CLM also submitted that the inspector’s conclusion was inconsistent with documentary evidence provided by the Applicant he was in full-time remunerative employment, and that the Applicant could not be held responsible for a failure to produce evidence of his employment after he had ceased to be employed by the business in question in April 2018.

The CAO found that the scope of the appeal under section 318 was confined to the decision of the Appeals Officer and could not look into the investigation concluded by the social welfare inspector. She therefore upheld the decision of the Appeals Officer on the basis that there had been no error in law.

In January 2019, the Applicant issued judicial review proceedings seeking to quash the decisions of the Appeals Officer and the CAO. These proceedings were adjourned to facilitate consideration of an appeal to the CAO under section 317.

Social Welfare Appeal G0105

The Applicant moved to Ireland from the UK in 2015 with her husband, a British citizen, and their eight children. She applied for Child Benefit from September 2015.

She was awarded Child Benefit for six of her children from September 2015 to November 2015. This was reviewed on the basis of an allegation that her husband’s self-employment was fake, that he was not therefore exercising EU free movement rights, and that, as a consequence, she was did not satisfy the habitual residence condition in section 246 of the Social Welfare Consolidation Act 2005 because she was not lawfully in the State as the family member of an EU worker. This decision was upheld on appeal.

Child Benefit was reinstated in November 2016 when her husband entered employment, but again, this was reviewed in March 2018 on the basis that his employment between June 2017 and March 2018 was not genuine. In April 2018, her husband was granted Jobseekers’ Allowance, and it was accepted that he was habitually resident at that time. Her claim for Child Benefit was reinstated from April 2018 onwards, but the Department sought repayment of the Child Benefit which, it said, had been overpaid between June 2017 and March 2018. The Applicant appealed the overpayment decision on the basis that she had, in fact, been habitually resident and that, in any event, her husband’s employment had actually been genuine.