Year: 2019

Thematic Note G0119: Illness Benefit

Title of Payment: Illness Benefit

Date of Final Decision: SWAO Annual Reports 2009-2020

Keywords: Illness Benefit; Disability; Incapable of work; PRSI Contributions

Casebase no: G0119

Summary of the relevant law:

Illness benefit is a weekly payment that can be made to an individual who:

a) is incapable of work due to illness;

b) is under 66 years old; and

c) has made the required PRSI contributions (see below).

Under Section 40 of the Social Welfare Consolidation Act 2005 (as amended), illness benefit can be paid for any “day of incapacity for work” which forms part of a “period of interruption of employment”. In this context:

  • a “day of incapacity for work” means a day for which the individual is certified as unable to work (or to look for work) due to illness; and
  • a “period of interruption of employment” means any 3 days (whether consecutive or not) within 6 consecutive days.

Neither weekends nor paid holiday leave are taken into account when counting “days of incapacity for work” or a “period of interruption of employment”.

Section 41 of the Social Welfare Consolidation Act 2005 (as amended) provides that, to be entitled to illness benefit, generally an individual must have:

a) at least 104 PRSI contributions paid since they first started working; and

b) either:

c) 39 weeks of PRSI contributions paid or credited in the relevant tax year, of which 13 must be paid; or

d) 26 weeks of PRSI contributions paid in each of the relevant tax year and the previous tax year.

 

These rules are adjusted in certain circumstances, e.g. where an individual is already in receipt of certain other benefits immediately before applying for illness benefit.

For these purposes, the relevant tax year is the second-last complete tax year before the year in which a claim for illness benefit is made. E.g. where claim is made in 2022, the relevant tax year is 2020.

Social security contributions paid in certain other EEA member states or the UK can be counted for the purposes of qualifying for illness benefit, provided however that the last social security contributions were paid in Ireland. Periods of employment in certain other EEA member states of the UK can also be taken into account.

Key grounds of appeals by appellants: 

The majority of the appeals are in relation to medical eligibility for Illness Benefit, i.e. that the individual is incapable of work due to illness. In the majority of these appeals, the appellant had been examined at least once by a Medical Assessor appointed by the Department of Social Protection but disagreed with their medical assessment. The various grounds for disagreement include: (1) that the medical assessment only focused on physical impairment and not on mental health issues (regardless of whether these mental health issues were separate, related or resultant); (2) that further medical evidence contradicts the medical assessment; (3) that the medical assessment failed to  take into account the severity of the medical condition; or (4) that the appellant’s condition is changeable and was not at its worst on the day when the medical assessment was carried out.

There have only been two appeals where the appellant challenged the requirement to have a certain number of PRSI contributions. In both of these cases, the SWAO rejected the appeals on the basis that the PRSI contributions are a statutory requirement and that it cannot be waived.

Observations on appeal outcomes: 

As an overall observation, appellants are generally successful where they provide plenty of evidence to demonstrate that they are incapable of work. The evidence does not necessarily need to be medical or specifically related to their work duties – the SWAO also takes into account the impact that the illness has on the appellant’s daily life and routine tasks, e.g. ability to look after oneself and to do recreational activities.

While this evidence can be anecdotal and provided personally by the appellant, appellants are generally more successful where they provide letters of evidence from their GP and/or other medical practitioners. Where the GP has a long term relationship with the appellant and is familiar with their medical history, the letter from the GP can sometimes even take precedence over the medical opinion from the Medical Assessor that is appointed by the Department of Social Protection. For example, in one appeal, the SWAO disregarded a medical assessment which was carried out on a day in which the appellant coincidentally wasn’t in much pain. It can also be helpful to provide copies of scans and medical tests.

In addition to physical illness, the SWAO also takes into account an appellant’s mental illness. There is only one case in the Annual Reports where an appellant has been successful in arguing that they were incapable of work due to mental illness alone, in Case 2018/11. . Similar to physical illness, the mental illness must render the appellant incapable of work – generally, moderate mental health issues, general stress or an inability to cope with the demands of a busy job are not considered to render an individual incapable of work for the purposes of Illness Benefit. That said, the SWAO does take mental illness into account where it arises in conjunction with physical illness. For example, the SWAO has considered appellants to be incapable of work for the purposes of Illness Benefit where they had mental illness at the same time as their physical illness and also where they had mental health issues after/as a result of their physical illness.

In order to prove that an appellant is currently incapable of work for the purposes of Illness Benefit, the SWAO pays particular attention to medical treatments received and to be received.

  • In order to be successful, it is generally necessary for an appellant to provide evidence of current medical treatments, for example medication that they are currently taking, doctors that they are seeing regularly, etc. This can demonstrate that the appellant is currently incapable of work. That said, claims for Illness Benefit may be rejected where the medical treatments are so effective that the appellant is actually capable of work as a result.
  • It can also be persuasive for an appellant to provide evidence of upcoming medical appointments and/or treatments. This can support the argument that the appellant is likely to be incapable of work for some time. In this regard, it would appear to be necessary for these appointments and/or treatment to already be scheduled. For example, the SWAO has rejected an appeal in which it was argued that an appellant might need surgery at some point in the future.
  • It is not always necessary that the current medical treatments are specifically related to the original illness. For example, it can be persuasive that the appellant is taking medication for mental health issues that were triggered by the original illness.
  • While evidence of past medical treatments can provide context to a claim for Illness Benefit, it is less persuasive. For example, in one appeal, the appellant was relying on the fact that she had epilepsy, but this was disregarded by the SWAO given that she had been seizure free for 30 years.

Ultimately, the key question is whether the appellant is incapable of work. The SWAO appears to determine the question of whether an individual is incapable of work objectively. The SWAO considers whether the appellant is capable of any kind of work, and not necessarily the type of work that the appellant used to do. The SWAO does not take into account the appellant’s work experience or age etc. For example, Illness Benefit is often refused where the appellant is capable of lighter, more sedentary work.

Please note that the recent decision by the Supreme Court in the Sobhy case (Sobhy v. the Chief Appeals officer, Minister for Employment Affairs and Social Protection, Ireland, and the Attorney General (2021) S:AP:IE:2021:000025). In this case, the Supreme Court held that an immigrant without the right to work, despite meeting the other criteria, including PRSI contributions, does not have the right to access maternity benefits. This may have implications for other social insurance payments.

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Thematic Note G0120: Disability Allowance

Title of Payment: Illness Benefit

Date of Final Decision: SWAO Annual Reports 2009-2020

Keywords: Illness Benefit; Disability; Incapable of work; PRSI Contributions

Casebase no: G0119

Summary of the relevant law:

Illness benefit is a weekly payment that can be made to an individual who:

a) is incapable of work due to illness;

b) is under 66 years old; and

c) has made the required PRSI contributions (see below).

Under Section 40 of the Social Welfare Consolidation Act 2005 (as amended), illness benefit can be paid for any “day of incapacity for work” which forms part of a “period of interruption of employment”. In this context:

  • a “day of incapacity for work” means a day for which the individual is certified as unable to work (or to look for work) due to illness; and
  • a “period of interruption of employment” means any 3 days (whether consecutive or not) within 6 consecutive days.

Neither weekends nor paid holiday leave are taken into account when counting “days of incapacity for work” or a “period of interruption of employment”.

Section 41 of the Social Welfare Consolidation Act 2005 (as amended) provides that, to be entitled to illness benefit, generally an individual must have:

a) at least 104 PRSI contributions paid since they first started working; and

b) either:

c) 39 weeks of PRSI contributions paid or credited in the relevant tax year, of which 13 must be paid; or

d) 26 weeks of PRSI contributions paid in each of the relevant tax year and the previous tax year.

 

These rules are adjusted in certain circumstances, e.g. where an individual is already in receipt of certain other benefits immediately before applying for illness benefit.

For these purposes, the relevant tax year is the second-last complete tax year before the year in which a claim for illness benefit is made. E.g. where claim is made in 2022, the relevant tax year is 2020.

Social security contributions paid in certain other EEA member states or the UK can be counted for the purposes of qualifying for illness benefit, provided however that the last social security contributions were paid in Ireland. Periods of employment in certain other EEA member states of the UK can also be taken into account.

Key grounds of appeals by appellants: 

The majority of the appeals are in relation to medical eligibility for Illness Benefit, i.e. that the individual is incapable of work due to illness. In the majority of these appeals, the appellant had been examined at least once by a Medical Assessor appointed by the Department of Social Protection but disagreed with their medical assessment. The various grounds for disagreement include: (1) that the medical assessment only focused on physical impairment and not on mental health issues (regardless of whether these mental health issues were separate, related or resultant); (2) that further medical evidence contradicts the medical assessment; (3) that the medical assessment failed to  take into account the severity of the medical condition; or (4) that the appellant’s condition is changeable and was not at its worst on the day when the medical assessment was carried out.

There have only been two appeals where the appellant challenged the requirement to have a certain number of PRSI contributions. In both of these cases, the SWAO rejected the appeals on the basis that the PRSI contributions are a statutory requirement and that it cannot be waived.

Observations on appeal outcomes: 

As an overall observation, appellants are generally successful where they provide plenty of evidence to demonstrate that they are incapable of work. The evidence does not necessarily need to be medical or specifically related to their work duties – the SWAO also takes into account the impact that the illness has on the appellant’s daily life and routine tasks, e.g. ability to look after oneself and to do recreational activities.

While this evidence can be anecdotal and provided personally by the appellant, appellants are generally more successful where they provide letters of evidence from their GP and/or other medical practitioners. Where the GP has a long term relationship with the appellant and is familiar with their medical history, the letter from the GP can sometimes even take precedence over the medical opinion from the Medical Assessor that is appointed by the Department of Social Protection. For example, in one appeal, the SWAO disregarded a medical assessment which was carried out on a day in which the appellant coincidentally wasn’t in much pain. It can also be helpful to provide copies of scans and medical tests.

In addition to physical illness, the SWAO also takes into account an appellant’s mental illness. There is only one case in the Annual Reports where an appellant has been successful in arguing that they were incapable of work due to mental illness alone, in Case 2018/11. . Similar to physical illness, the mental illness must render the appellant incapable of work – generally, moderate mental health issues, general stress or an inability to cope with the demands of a busy job are not considered to render an individual incapable of work for the purposes of Illness Benefit. That said, the SWAO does take mental illness into account where it arises in conjunction with physical illness. For example, the SWAO has considered appellants to be incapable of work for the purposes of Illness Benefit where they had mental illness at the same time as their physical illness and also where they had mental health issues after/as a result of their physical illness.

In order to prove that an appellant is currently incapable of work for the purposes of Illness Benefit, the SWAO pays particular attention to medical treatments received and to be received.

  • In order to be successful, it is generally necessary for an appellant to provide evidence of current medical treatments, for example medication that they are currently taking, doctors that they are seeing regularly, etc. This can demonstrate that the appellant is currently incapable of work. That said, claims for Illness Benefit may be rejected where the medical treatments are so effective that the appellant is actually capable of work as a result.
  • It can also be persuasive for an appellant to provide evidence of upcoming medical appointments and/or treatments. This can support the argument that the appellant is likely to be incapable of work for some time. In this regard, it would appear to be necessary for these appointments and/or treatment to already be scheduled. For example, the SWAO has rejected an appeal in which it was argued that an appellant might need surgery at some point in the future.
  • It is not always necessary that the current medical treatments are specifically related to the original illness. For example, it can be persuasive that the appellant is taking medication for mental health issues that were triggered by the original illness.
  • While evidence of past medical treatments can provide context to a claim for Illness Benefit, it is less persuasive. For example, in one appeal, the appellant was relying on the fact that she had epilepsy, but this was disregarded by the SWAO given that she had been seizure free for 30 years.

Ultimately, the key question is whether the appellant is incapable of work. The SWAO appears to determine the question of whether an individual is incapable of work objectively. The SWAO considers whether the appellant is capable of any kind of work, and not necessarily the type of work that the appellant used to do. The SWAO does not take into account the appellant’s work experience or age etc. For example, Illness Benefit is often refused where the appellant is capable of lighter, more sedentary work.

Please note that the recent decision by the Supreme Court in the Sobhy case (Sobhy v. the Chief Appeals officer, Minister for Employment Affairs and Social Protection, Ireland, and the Attorney General (2021) S:AP:IE:2021:000025). In this case, the Supreme Court held that an immigrant without the right to work, despite meeting the other criteria, including PRSI contributions, does not have the right to access maternity benefits. This may have implications for other social insurance payments.

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Thematic Note G0121: Partial Capacity Benefit

Title of Payment: Illness Benefit

Date of Final Decision: SWAO Annual Reports 2009-2020

Keywords: Illness Benefit; Disability; Incapable of work; PRSI Contributions

Casebase no: G0119

Summary of the relevant law:

Illness benefit is a weekly payment that can be made to an individual who:

a) is incapable of work due to illness;

b) is under 66 years old; and

c) has made the required PRSI contributions (see below).

Under Section 40 of the Social Welfare Consolidation Act 2005 (as amended), illness benefit can be paid for any “day of incapacity for work” which forms part of a “period of interruption of employment”. In this context:

  • a “day of incapacity for work” means a day for which the individual is certified as unable to work (or to look for work) due to illness; and
  • a “period of interruption of employment” means any 3 days (whether consecutive or not) within 6 consecutive days.

Neither weekends nor paid holiday leave are taken into account when counting “days of incapacity for work” or a “period of interruption of employment”.

Section 41 of the Social Welfare Consolidation Act 2005 (as amended) provides that, to be entitled to illness benefit, generally an individual must have:

a) at least 104 PRSI contributions paid since they first started working; and

b) either:

c) 39 weeks of PRSI contributions paid or credited in the relevant tax year, of which 13 must be paid; or

d) 26 weeks of PRSI contributions paid in each of the relevant tax year and the previous tax year.

 

These rules are adjusted in certain circumstances, e.g. where an individual is already in receipt of certain other benefits immediately before applying for illness benefit.

For these purposes, the relevant tax year is the second-last complete tax year before the year in which a claim for illness benefit is made. E.g. where claim is made in 2022, the relevant tax year is 2020.

Social security contributions paid in certain other EEA member states or the UK can be counted for the purposes of qualifying for illness benefit, provided however that the last social security contributions were paid in Ireland. Periods of employment in certain other EEA member states of the UK can also be taken into account.

Key grounds of appeals by appellants: 

The majority of the appeals are in relation to medical eligibility for Illness Benefit, i.e. that the individual is incapable of work due to illness. In the majority of these appeals, the appellant had been examined at least once by a Medical Assessor appointed by the Department of Social Protection but disagreed with their medical assessment. The various grounds for disagreement include: (1) that the medical assessment only focused on physical impairment and not on mental health issues (regardless of whether these mental health issues were separate, related or resultant); (2) that further medical evidence contradicts the medical assessment; (3) that the medical assessment failed to  take into account the severity of the medical condition; or (4) that the appellant’s condition is changeable and was not at its worst on the day when the medical assessment was carried out.

There have only been two appeals where the appellant challenged the requirement to have a certain number of PRSI contributions. In both of these cases, the SWAO rejected the appeals on the basis that the PRSI contributions are a statutory requirement and that it cannot be waived.

Observations on appeal outcomes: 

As an overall observation, appellants are generally successful where they provide plenty of evidence to demonstrate that they are incapable of work. The evidence does not necessarily need to be medical or specifically related to their work duties – the SWAO also takes into account the impact that the illness has on the appellant’s daily life and routine tasks, e.g. ability to look after oneself and to do recreational activities.

While this evidence can be anecdotal and provided personally by the appellant, appellants are generally more successful where they provide letters of evidence from their GP and/or other medical practitioners. Where the GP has a long term relationship with the appellant and is familiar with their medical history, the letter from the GP can sometimes even take precedence over the medical opinion from the Medical Assessor that is appointed by the Department of Social Protection. For example, in one appeal, the SWAO disregarded a medical assessment which was carried out on a day in which the appellant coincidentally wasn’t in much pain. It can also be helpful to provide copies of scans and medical tests.

In addition to physical illness, the SWAO also takes into account an appellant’s mental illness. There is only one case in the Annual Reports where an appellant has been successful in arguing that they were incapable of work due to mental illness alone, in Case 2018/11. . Similar to physical illness, the mental illness must render the appellant incapable of work – generally, moderate mental health issues, general stress or an inability to cope with the demands of a busy job are not considered to render an individual incapable of work for the purposes of Illness Benefit. That said, the SWAO does take mental illness into account where it arises in conjunction with physical illness. For example, the SWAO has considered appellants to be incapable of work for the purposes of Illness Benefit where they had mental illness at the same time as their physical illness and also where they had mental health issues after/as a result of their physical illness.

In order to prove that an appellant is currently incapable of work for the purposes of Illness Benefit, the SWAO pays particular attention to medical treatments received and to be received.

  • In order to be successful, it is generally necessary for an appellant to provide evidence of current medical treatments, for example medication that they are currently taking, doctors that they are seeing regularly, etc. This can demonstrate that the appellant is currently incapable of work. That said, claims for Illness Benefit may be rejected where the medical treatments are so effective that the appellant is actually capable of work as a result.
  • It can also be persuasive for an appellant to provide evidence of upcoming medical appointments and/or treatments. This can support the argument that the appellant is likely to be incapable of work for some time. In this regard, it would appear to be necessary for these appointments and/or treatment to already be scheduled. For example, the SWAO has rejected an appeal in which it was argued that an appellant might need surgery at some point in the future.
  • It is not always necessary that the current medical treatments are specifically related to the original illness. For example, it can be persuasive that the appellant is taking medication for mental health issues that were triggered by the original illness.
  • While evidence of past medical treatments can provide context to a claim for Illness Benefit, it is less persuasive. For example, in one appeal, the appellant was relying on the fact that she had epilepsy, but this was disregarded by the SWAO given that she had been seizure free for 30 years.

Ultimately, the key question is whether the appellant is incapable of work. The SWAO appears to determine the question of whether an individual is incapable of work objectively. The SWAO considers whether the appellant is capable of any kind of work, and not necessarily the type of work that the appellant used to do. The SWAO does not take into account the appellant’s work experience or age etc. For example, Illness Benefit is often refused where the appellant is capable of lighter, more sedentary work.

Please note that the recent decision by the Supreme Court in the Sobhy case (Sobhy v. the Chief Appeals officer, Minister for Employment Affairs and Social Protection, Ireland, and the Attorney General (2021) S:AP:IE:2021:000025). In this case, the Supreme Court held that an immigrant without the right to work, despite meeting the other criteria, including PRSI contributions, does not have the right to access maternity benefits. This may have implications for other social insurance payments.

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Thematic Note G0118: Invalidity Pension

Title of Payment: Illness Benefit

Date of Final Decision: SWAO Annual Reports 2009-2020

Keywords: Illness Benefit; Disability; Incapable of work; PRSI Contributions

Casebase no: G0119

Summary of the relevant law:

Illness benefit is a weekly payment that can be made to an individual who:

a) is incapable of work due to illness;

b) is under 66 years old; and

c) has made the required PRSI contributions (see below).

Under Section 40 of the Social Welfare Consolidation Act 2005 (as amended), illness benefit can be paid for any “day of incapacity for work” which forms part of a “period of interruption of employment”. In this context:

  • a “day of incapacity for work” means a day for which the individual is certified as unable to work (or to look for work) due to illness; and
  • a “period of interruption of employment” means any 3 days (whether consecutive or not) within 6 consecutive days.

Neither weekends nor paid holiday leave are taken into account when counting “days of incapacity for work” or a “period of interruption of employment”.

Section 41 of the Social Welfare Consolidation Act 2005 (as amended) provides that, to be entitled to illness benefit, generally an individual must have:

a) at least 104 PRSI contributions paid since they first started working; and

b) either:

c) 39 weeks of PRSI contributions paid or credited in the relevant tax year, of which 13 must be paid; or

d) 26 weeks of PRSI contributions paid in each of the relevant tax year and the previous tax year.

 

These rules are adjusted in certain circumstances, e.g. where an individual is already in receipt of certain other benefits immediately before applying for illness benefit.

For these purposes, the relevant tax year is the second-last complete tax year before the year in which a claim for illness benefit is made. E.g. where claim is made in 2022, the relevant tax year is 2020.

Social security contributions paid in certain other EEA member states or the UK can be counted for the purposes of qualifying for illness benefit, provided however that the last social security contributions were paid in Ireland. Periods of employment in certain other EEA member states of the UK can also be taken into account.

Key grounds of appeals by appellants: 

The majority of the appeals are in relation to medical eligibility for Illness Benefit, i.e. that the individual is incapable of work due to illness. In the majority of these appeals, the appellant had been examined at least once by a Medical Assessor appointed by the Department of Social Protection but disagreed with their medical assessment. The various grounds for disagreement include: (1) that the medical assessment only focused on physical impairment and not on mental health issues (regardless of whether these mental health issues were separate, related or resultant); (2) that further medical evidence contradicts the medical assessment; (3) that the medical assessment failed to  take into account the severity of the medical condition; or (4) that the appellant’s condition is changeable and was not at its worst on the day when the medical assessment was carried out.

There have only been two appeals where the appellant challenged the requirement to have a certain number of PRSI contributions. In both of these cases, the SWAO rejected the appeals on the basis that the PRSI contributions are a statutory requirement and that it cannot be waived.

Observations on appeal outcomes: 

As an overall observation, appellants are generally successful where they provide plenty of evidence to demonstrate that they are incapable of work. The evidence does not necessarily need to be medical or specifically related to their work duties – the SWAO also takes into account the impact that the illness has on the appellant’s daily life and routine tasks, e.g. ability to look after oneself and to do recreational activities.

While this evidence can be anecdotal and provided personally by the appellant, appellants are generally more successful where they provide letters of evidence from their GP and/or other medical practitioners. Where the GP has a long term relationship with the appellant and is familiar with their medical history, the letter from the GP can sometimes even take precedence over the medical opinion from the Medical Assessor that is appointed by the Department of Social Protection. For example, in one appeal, the SWAO disregarded a medical assessment which was carried out on a day in which the appellant coincidentally wasn’t in much pain. It can also be helpful to provide copies of scans and medical tests.

In addition to physical illness, the SWAO also takes into account an appellant’s mental illness. There is only one case in the Annual Reports where an appellant has been successful in arguing that they were incapable of work due to mental illness alone, in Case 2018/11. . Similar to physical illness, the mental illness must render the appellant incapable of work – generally, moderate mental health issues, general stress or an inability to cope with the demands of a busy job are not considered to render an individual incapable of work for the purposes of Illness Benefit. That said, the SWAO does take mental illness into account where it arises in conjunction with physical illness. For example, the SWAO has considered appellants to be incapable of work for the purposes of Illness Benefit where they had mental illness at the same time as their physical illness and also where they had mental health issues after/as a result of their physical illness.

In order to prove that an appellant is currently incapable of work for the purposes of Illness Benefit, the SWAO pays particular attention to medical treatments received and to be received.

  • In order to be successful, it is generally necessary for an appellant to provide evidence of current medical treatments, for example medication that they are currently taking, doctors that they are seeing regularly, etc. This can demonstrate that the appellant is currently incapable of work. That said, claims for Illness Benefit may be rejected where the medical treatments are so effective that the appellant is actually capable of work as a result.
  • It can also be persuasive for an appellant to provide evidence of upcoming medical appointments and/or treatments. This can support the argument that the appellant is likely to be incapable of work for some time. In this regard, it would appear to be necessary for these appointments and/or treatment to already be scheduled. For example, the SWAO has rejected an appeal in which it was argued that an appellant might need surgery at some point in the future.
  • It is not always necessary that the current medical treatments are specifically related to the original illness. For example, it can be persuasive that the appellant is taking medication for mental health issues that were triggered by the original illness.
  • While evidence of past medical treatments can provide context to a claim for Illness Benefit, it is less persuasive. For example, in one appeal, the appellant was relying on the fact that she had epilepsy, but this was disregarded by the SWAO given that she had been seizure free for 30 years.

Ultimately, the key question is whether the appellant is incapable of work. The SWAO appears to determine the question of whether an individual is incapable of work objectively. The SWAO considers whether the appellant is capable of any kind of work, and not necessarily the type of work that the appellant used to do. The SWAO does not take into account the appellant’s work experience or age etc. For example, Illness Benefit is often refused where the appellant is capable of lighter, more sedentary work.

Please note that the recent decision by the Supreme Court in the Sobhy case (Sobhy v. the Chief Appeals officer, Minister for Employment Affairs and Social Protection, Ireland, and the Attorney General (2021) S:AP:IE:2021:000025). In this case, the Supreme Court held that an immigrant without the right to work, despite meeting the other criteria, including PRSI contributions, does not have the right to access maternity benefits. This may have implications for other social insurance payments.

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Thematic Note G0116: Right to Reside and Habitual Residence Condition

Theme: Right to Reside and Habitual Residence Condition

Period of Analysis: SWAO Annual Reports 2009-2020

Keywords: Habitual Residence Condition, Right to Reside

Casebase No. G0116

 

Summary of the relevant law:

The term “habitually resident” is not defined in Irish law. In practice it means that you have a proven close link to Ireland. The term also conveys permanence – that a person has been here for some time and intends to stay here for the foreseeable future.

The legislation providing for the habitual residence condition is contained in Section 246 of the Social Welfare Consolidation Action 2005 (as amended). However, Deciding Officers and Designated Persons must also have regard to S.I. No. 548/2015 – European Communities (Free Movement of Persons) Regulations 2015. , which deals with the right of residence for EU/EEA citizens and their families. Habitual residence in Ireland is a condition that you must satisfy for certain social welfare payments , for example Child Benefit. This condition took effect from 1 May 2004 and affects all applicants regardless of nationality.

With all social welfare payments in Ireland, you must satisfy the rules for each scheme to qualify.

Your spouse, civil partner or cohabitant and any dependent children you have are not required to satisfy the habitual residence condition in their own right. So if you apply for a social welfare payment only you, the applicant, has to satisfy the habitual residence condition.

Proving you are habitually resident relies heavily on fact. If you have lived in Ireland all your life, you will probably have no difficulty showing that you satisfy the factors which indicate habitual residence.

To satisfy the Habitual Residence Condition (HRC) you must:

Have the right to reside in the State AND

Show that you are habitually resident, having regard to all of your circumstances, including in particular the following which are set out in the legislation:

  • the length and continuity of your residence in Ireland or in any other particular country
  • the length and purpose of any absence from Ireland
  • the nature and pattern of your employment
  • your main centre of interest AND
  • your future intentions as they appear from all the circumstances

These are sometimes called the “five factors”.

Who has the right to reside?

People who have a right to reside include:

  • Irish nationals have a right of residence in Ireland;
  • UK nationals coming in from the Common Travel Area (CTA) also have a right to reside here under the CTA agreement;
  • EEA nationals who are employed or self-employed in Ireland have a right to reside;[1]
  • non-EEA nationals who have a residency or work permit to legally reside and work in the State, provided that there are no restrictions attached to that residency or work permit.

Permission to reside will generally be evidenced by an appropriate immigration stamp in the person’s passport, a letter of authorisation or a Certificate of Registration issued by the Garda National Immigration Bureau (GNIB), that is a GNIB card.

Key grounds of appeals by appellants:

The majority of the appeals are brought on the basis that the deciding/appeals officer erred in applying the correct legislation and/or legal grounds and erred in finding that the conditions of HRC were not met.

Observations on appeal outcomes:

Given that the majority of the appeals are brought on the basis that the deciding officer / appeals officer erred in finding that the criteria for ‘habitual resident’ was not been met, the appeals reported below focus principally on how the conditions of ‘habitually resident’ must be met and the application of the correct legislation.

In accordance with Section 246 of the 2005 Act establishing habitual residence is a two stage process which firstly requires that the person has a right to reside in the State. If it is established that the person has a right to reside, an assessment of their situation under 5 factors is carried out to determine their centre of interest and future intentions.

The reports below suggest that appellants are usually unsuccessful where they cannot establish a right to reside or on the basis of fact that they don’t fall under other factors to allow them to exercise this right. They further show that the majority of decisions may fall on the factual matrix of the particular case and the particular circumstances relevant to the person at issue.

[1] Regarding the right to reside of EU workers, see Casebase Report G0113 and Georgeta Voican v. Chief Appeals Officer, Social Welfare Appeals Office, Minister for Employment Affairs and Social Protection, Ireland and the Attorney General [2019] No.748 J.R

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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.

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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.

 

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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.

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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.

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