Social Welfare Appeal G0117

Title of Payment: Domiciliary Care Allowance

Date of Final Decision: 21st May 2021

Keywords: Domiciliary Care Allowance; Refusal to revise a decision, Revised decision, Right to appeal to the Chief of Appeals Officer.

Organisation who represented the Claimant: KOD Lyons

Casebase no: G0117

Case Summary:

This case is that of Brigid Wilton McDonagh v. The Chief Appeals Officer and Minister for Social Protection [2021] IESC 33. The case concerned whether the refusal of a deciding officer to revise an earlier decision of a deciding officer constituted a new “decision” or “revised decision” so that the refusal would give rise to the right of the applicant to appeal to the Chief of Appeals Officer.

Ms McDonagh (The Applicant) is the primary carer of her child who has a diagnosis of learning/developmental difficulties. On the 10 June 2011, the applicant applied, pursuant to s.186(D) of the Social Welfare Consolidation Act 2005 as amended (2005 Act), to become a recipient of Domiciliary Care Allowance. On the 21st September 2011, a deciding officer refused the applicant’s application pursuant to s.300(2)(b) of the 2005 Act.

The applicant was informed of her right to seek a review/revision of the decision under s.301(1) of the 2005 Act and her right to seek an appeal of the decision pursuant to s.311(1) of the 2005 Act. The applicant did not seek an appeal of the decision but after an interval of four and half years sought a revision of the decision by the deciding officer under s.301(1) of the 2005 Act on three separate occasions. On each occasion the application for a review was refused, the last of these refusals being issued on the 23rd May 2017.

On the 12th July 2017, the applicant’s solicitor wrote to The Chief Appeals Officer (the first-named respondent) seeking an appeal of the decision to refuse a revision of the decision. The first named respondent wrote to the applicant informing her there was no possibility to appeal to The Chief Appeals Officer as the 21-day appeal time limit for the decision made on the 21st September 2011 had expired and there was no avenue to appeal to the Chief Appeals Officer where a deciding officer reviewed a decision but refused to revise the decision.

The applicant was subsequently granted leave to seek judicial review of the decision of the first named respondent and sought an order of certiorari quashing the decision of the first-named respondent and an order of mandamus compelling the first-named respondent to determine the appellant’s appeal. In doing so, she argued that a decision of a deciding officer refusing to revise an original decision constituted either a fresh “decision” or a “revised decision” under the legislation so that it gave rise to the right to appeal to the Chief of Appeals Officer.

The applicant’s arguments were rejected in the High Court and the reliefs sought were refused. The Court of Appeal affirmed the decision of the High Court, again rejecting the applicant’s arguments. The Supreme Court subsequently allowed the applicant’s appeal holding a decision of a deciding officer not to revise an original decision is a decision, just as a decision to revise is a decision and that as a result the applicant was entitled to appeal the decision not to revise her application for Domiciliary Care Allowance.

Key Conclusions: The refusal of a deciding officer to revise an earlier decision of a deciding officer is a decision that may be subject to appeal.

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

Thematic Note G0115: Domiciliary Care Allowance

Theme: Domiciliary Care Allowance

Period of Analysis: SWAO Annual Reports 2009-2020

Keywords: Domiciliary Care Allowance; Qualified Child; Section 318 Review

Casebase No. G0115

Summary of the relevant law:

Domiciliary Care Allowance (DCA) is a monthly payment for a child under the age of 16 with a severe disability, who requires ongoing care and attention, substantially over and above the care and attention usually required by a child of the same age.

The provision of Domiciliary Care Allowance is governed by Sections 15-17 of the Social Welfare and Pensions Act 2008.

A person who is under the age of 16 years is a qualified child for the purposes of payment of domiciliary care allowance if:

(a) a medical practitioner has certified, in such manner as is prescribed, that –
a. the child has a severe disability requiring continual or continuous care and attention substantially in excess of the care and attention normally required by a child of the same age, and
b. the disability is such that the child is likely to require full-time care and attention for at least 12 consecutive months,
(b) the child
a. is ordinarily resident in the State, or
b. satisfied the requirements of section 219(2), and
(c) the child is not detained in a children detention school.

A person is a qualified person for the purpose of receiving domiciliary care allowance in respect of a qualified child if –

(a) the child normally resides with that person,
(b) that person provides for the care of the child, and
(c) at the date of the making of the application for domiciliary care allowance
1. that person is habitually resident in the State, or
2. the requirements of section 219(2) are satisfied in relation to that person.

Key grounds of appeals by appellants:

The majority of the appeals are made on the basis that the deciding officer / appeals officer erred in finding that the criteria for a qualified child had not been met.

Observations on appeal outcomes:

As the majority of the appeals are made on the basis that the deciding officer / appeals officer erred in finding that the criteria for a qualitied child had not been met, the appeals reported below focus principally on the criteria for a ‘qualified child’. In particular the requirement for ‘continual or continuous care and attention’ and the requirement that the care and attention required must be ‘substantially in excess of the care and attention normally required by a child of the same age’.

The reports below suggest that appellants are usually unsuccessful where they cannot establish that the care required is continual or continuous. For example, a number of the reports below note that favourable decisions for appellants were reached where the appellants demonstrated that the condition of the child in question meant that they required constant supervision and could not be left unattended for any length of time, in particular where supervision at night was required. In contrast, where the level of care and attention could be said to be more intermittent, or there was periods of time where supervision was not required it was often found that the ‘continual or continuous’ requirement has not been satisfied.

Similarly, in many of the reports below, the appeals officer considered carefully whether the care and attention required could be said to be ‘substantially in excess’ of the care and attention normally required by a child of the same age, noting that ‘substantially’ is a relatively high bar.

Finally, a number of the reports below indicate that where continual or continuous care and attention is required in order to ensure that there is no risk of physical harm either to the child in respect of whom the application for Domiciliary Care Allowance is made or another individual in the household, that child will often be considered a qualified child.

Thematic Note G0114: Backdating Claims

Theme: Backdating

Period of Analysis: SWAO Annual Reports 2009-2020

Keywords: Backdating; entitlements; late claims

Casebase No. Case G0114

 

Summary of the relevant law:

 

The primary legislative provisions governing claims and late claims are set out in Sections 241, 342 and 342A of the Social Welfare Consolidation Act 2005, as amended. See also Part 9, Chapter 1 of Social Welfare Consolidation Act 2005 (as amended).

The main regulatory provisions with regard to claims are contained in Chapter 1 of Part 7 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations (S.I. No. 142 of 2007) as amended – Articles 179 to 191 and SI 102 of 2007 (for the purposes of the Occupational Injury scheme).

Certain provisions override or reduce the period of disqualification for a late claim. All decisions with regard to entitlement under these provisions are made by deciding officers, and can therefore be appealed to the Social Welfare Appeals Office (SWAO).

Helpful guidance is contained in the Department of Social Protection Operational Guidelines on Claims and Late Claims and in the separate departmental guidelines dealing with the individual schemes.

Generally social welfare legislation provides for backdating of claims (for up to 6 months) where it is accepted that there was good cause for the delay and where entitlement throughout the period in question is established (Section 241(3) of the 2005 Act as amended). The deciding officer may consider backdating the claim where there is a good cause for the delay in making the application.  What constitutes “good cause” is not clearly set out; however being ill or delay in establishing that the applicant qualifies for the relevant scheme may be considered good cause. Generally, not knowing that you were entitled to a payment is not considered to be good cause for not making your claim on time.

The circumstances in which a claim may be backdated further are more onerous to establish and are specified in legislation as an incapacity to make a claim and where incorrect information was given by the Department.

Normally payments will be made from the date of the application.

 

Key grounds of appeals by appellants:

Key grounds for appeal included:

  • applicants not being aware of the entitlement;
  • applicant having difficulties in completing the application on time due to personal circumstances;
  • the date of qualification for the relevant scheme being in doubt;

 

Observations on appeal outcomes:

The appeals were generally successful in backdating the claim by six months where the deciding officer was satisfied that the applicant had a good cause for the delay, these included personal circumstances, not being informed of entitlements by the department and delay in establishing that the applicant qualified for the relevant scheme.

Where the applicant applied for the wrong scheme but this should have alerted the department of entitlement for another scheme, the date of initial application for the wrong scheme can be used for backdating.

While generally, not knowing that you were entitled to a payment is not considered to be a good reason for not making your claim on time, the cases are to be considered on a case by case basis and in specific circumstances it may constitute a good cause.