Thematic Note G0137: Overpayment of Social Welfare – Estate of a Deceased

Theme: Overpayment of social welfare – Estate of a Deceased

Period of Analysis: SWAO Annual Reports 2009-2021

Keywords: Overpayments; Fraud; Appeals; Oral Hearing; Burden of Proof; Cohabitation; Reviews

Casebase No. Case G0137

Summary of the relevant law:

Overpayments of social welfare occur where a person gets a payment of an allowance, pension or any other benefit from the Department of Social Protection (the “Department”) that they are not entitled to. The Social Welfare (Consolidation) Act 2005 sets out the circumstances where an overpayment may arise and the liability of a person to repay an overpayment. 

An overpayment can arise where a person has been granted a payment but subsequently a revised decision is made by the Department under Section 302 or 325 of the Social Welfare (Consolidation) Act 2005 (the “Act”) to reduce a person’s entitlement to a social welfare payment retrospectively. In such circumstances, the Department will issue a letter informing the person of the revised decision.

A key question with overpayments is whether the Department allege fraud on the part of the recipient. Fraud occurs where the Department is told or led to believe something that the person receiving the payment knew was false or misleading or a key piece of information is withheld from the Department.

A revised decision that there has been an overpayment based on fraud is made under Section 302(a)/325(a)) of the Act.

If the overpayment arose as a result of fraud, the person may be criminally prosecuted even if the overpayment is repaid.

Where no fraud is alleged by the Department, they have some discretion to take into account the facts and circumstances that gave rise to the overpayment and this will be relevant in an appeal against such an overpayment. It is also possible to appeal the date when the overpayment is deemed to have arisen, which may result in the amount of the overpayment being reduced. A revised decision with no allegation of fraud is made under section 302(b).

It is therefore very important to know if fraud is alleged (ie, the decision was made based on section 302(a)) or no fraud is alleged (ie the decision is based on section 302(b).) A person can appeal the revised decision alleged fraud and if successful, the fact and circumstances that gave rise to the overpayment can also be considered in the appeal.

The other circumstances where an overpayment may arise are covered by sections 336, 336(a) and 336(b) of the Social Welfare Consolidation Act 2005 (as amended).

Examples of this category of overpayment are:

  • double cashing, for example a person reports that she or he did not receive a payment due, a duplicate is issued and both payments are cashed by the person;
  • impersonation, for example a person makes a claim assuming the identity of another person;
  • cashing after death, for example a relative continues to cash a pension or allowance after the death of the person entitled to it.

Finally, the rules relating to the how the Department can recover an overpayment of social welfare are in Statutory Instrument No. 349/2005 Social Welfare (Recovery of Overpayments) Regulations, the Department’s Operational Guidelines on Management of Customer Overpayments and Recovery of Customer Debt.  and more information is available through Citizen’s Information.

Observations on appeal outcomes in SWAO Case Studies:

Recovery of Overpayment from the Estate of a Deceased

Overpayments of social welfare can be recovered from the deceased’s estate if not paid prior to their death. A debt may also arise during the settlement of a deceased customer’s estate where it is determined that the customer had not adequately declared their means during the time they received an assistance payment (means tested payment) during their lifetime.

Overpayments discovered after the death of a person receiving social welfare payments can also be appealed. There are a number of appeals by the estate of a deceased in the case studies below. One example shows an appeal that was allowed because there no evidence of any other source of income to the deceased nor of him accessing the joint account which was in his name and his sister’s name. She appealed on the basis that it was her money held in the account for the upkeep on the family home that the deceased had been living in. See G4 2015/24 State Pension Non-contributory. Another successful appeal in seen in I9 2017/318/69 State Pension (Non-Contributory) where there was a failure by the Department to act on recommendations in Department reviews. The overpayment was reduced.

However in most instances, there are have very serious implications where means/assets are not communicated to the Department during one’s life and come to light when assets being dealt with on death.

Relevant Case Studies of the SWAO Annual Reports 2009-2021

G4 2015/24 State Pension Non-contributory

Question at Issue: Claim against deceased pensioner’s estate

Background: The deceased had been awarded pension in 1998 and had been in receipt of Disability Allowance prior to attaining pension age. At the time of the pension claim, he had declared a credit union account with a balance of some €1,900. His entitlement was reviewed in 2011 when he denied having any capital in the bank. Following his death, an investigation by a Social Welfare Inspector indicated undisclosed capital of €59,000 and his means were assessed retrospectively to take account of this. As a consequence of the revised means assessment, an overpayment of some €38,000 was calculated and a demand for payment was made against the estate. His sister, the executrix of the estate, made an appeal against the decision and solicitors acting on her behalf questioned the amount of the overpayment. It was submitted that the deceased never had capital in the [named] bank as his sister had provided this money for the upkeep of his residence.

Oral hearing: The sister of the deceased attended and was represented by her solicitor. The Deciding Officer attended at the request of the Appeals Officer, while the Social Welfare Inspector had moved to other duties and was unable to attend.

The solicitor in the case sought to provide some background, referring to the sister of the deceased, the fact that she had worked for some years in the United Kingdom before returning to the family home. He referred to the capital held at a [named] bank, and said that this had always belonged to his client and submitted that an affidavit from 1996 confirmed this. It was submitted that she had intended that the funds be used for the upkeep and renovation of the family home so that it would remain habitable until she returned to live there. It transpired that her brother had proved unable to maintain the house and evidence was produced showing that expenditure in the order of €230,000 had been incurred in the previous year for extensive renovations.

A copy of the grant of probate was submitted and it was pointed out that the net value of the estate came to just €20,000. It was submitted that the Department had misrepresented the ownership of the funds assessed and that the deceased had no interest in those funds. He had not been able to fulfil the purpose for which the capital had been set aside and he had never accessed the bank account at issue.

The Deciding Officer explained the assessment: the deceased had been assessed with capital held in his own name and a half share of the capital held in a joint account with his sister. She noted that there was evidence of transfers of funds between the accounts which suggested that they had been managed. In response, the deceased’s sister pointed out that her brother had received no State payments until he was aged 49 years and she had enquired about his entitlements. At that stage, he had received a Disabled Person’s Maintenance Allowance (subsequently Disability Allowance). She confirmed that she had managed the accounts and had moved the capital so that the best yield could be achieved. His sister described the deceased as having a learning disability and said that he had not been capable of managing things. They had another brother who died in 1995 and since then she had had to return home every 6 weeks. She recalled that the deceased had been duped by individuals purporting to do maintenance work and, on one occasion, had withdrawn €2,000 from his credit union account to pay them. She said that he had been vulnerable to such approaches and, after that, she had warned the bank and credit union to be aware of him seeking to withdraw funds.

The Deciding Officer conceded that the Department had not implemented its review policy over the years in question but said she believed that a reminder of the qualifying conditions had issued around the year 2000. It was accepted that there was no record of such a reminder on file. The Deciding Officer agreed there could be circumstances when a joint account was assessed in full against one of the named account holders. She went on to say, however, that she believed that the deceased could have accessed the account had he wished to. She noted that the Social Welfare Inspector had reported that there had been no evidence to indicate that the capital in the joint account was not the property of the deceased.

His sister insisted that the deceased did not have access to the [named] bank account and she said she objected to the Department seeking to recover what was, in effect, her savings. In conclusion, her solicitor reiterated the assertion that the deceased had no control over the funds at issue, the capital was the property of the deceased’s sister and he had been a party of convenience only and had never sought to access the account. It was submitted that it was wrong therefore to attribute those funds to him.

Thematic Note G0136: Overpayment of social welfare – Allegations of Fraud under Section 302(a)

Theme: Overpayment of social welfare – Allegations of Fraud under Section 302(a)

Period of Analysis: SWAO Annual Reports 2009-2021

Keywords: Overpayments; Fraud; Appeals; Oral Hearing; Burden of Proof; Cohabitation; Review

Casebase No. Case G0136

Summary of the relevant law:

Overpayments of social welfare occur where a person gets a payment of an allowance, pension or any other benefit from the Department of Social Protection (the “Department”) that they are not entitled to. The Social Welfare (Consolidation) Act 2005 sets out the circumstances where an overpayment may arise and the liability of a person to repay an overpayment. 

An overpayment can arise where a person has been granted a payment but subsequently a revised decision is made by the Department under Section 302 or 325 of the Social Welfare (Consolidation) Act 2005 (the “Act”) to reduce a person’s entitlement to a social welfare payment retrospectively. In such circumstances, the Department will issue a letter informing the person of the revised decision.

A key question with overpayments is whether the Department allege fraud on the part of the recipient. Fraud occurs where the Department is told or led to believe something that the person receiving the payment knew was false or misleading or a key piece of information is withheld from the Department.

A revised decision that there has been an overpayment based on fraud is made under Section 302(a)/325(a)) of the Act.

If the overpayment arose as a result of fraud, the person may be criminally prosecuted even if the overpayment is repaid.

Where no fraud is alleged by the Department, they have some discretion to take into account the facts and circumstances that gave rise to the overpayment and this will be relevant in an appeal against such an overpayment. It is also possible to appeal the date when the overpayment is deemed to have arisen, which may result in the amount of the overpayment being reduced. A revised decision with no allegation of fraud is made under section 302(b).

It is therefore very important to know if fraud is alleged (ie, the decision was made based on section 302(a)) or no fraud is alleged (ie the decision is based on section 302(b).) A person can appeal the revised decision alleged fraud and if successful, the fact and circumstances that gave rise to the overpayment can also be considered in the appeal.

In scenarios where the Department claims that the overpayment arose due to an act of fraud on the part of the claimant, a high standard of proof is present and the decisions suggest there must be evidence, not just that the person gave false information or withheld relevant information but also that he/she did so deliberately. If the overpayment is based on evidence of fraud, there is no discretion to reduce the overpayment. whether the overpayment must be paid in full still depends on the circumstances.

An example of the overpayment being successfully appealed in evident in Case Study H2 2016/23 Job Seeker’s Allowance. A finding of fraud was reversed in Case Study H1 2016/17 Disability Allowance, but the overpayment was still payable in full.

Relevant Case Studies of the SWAO Annual Reports 2009-2021

D2.  2012/22 Survivor’s (Contributory) Pension

Decision under appeal: revised entitlement with overpayment assessed – reason(s) stated:-

My decision is based on the report received from the local Social Welfare Inspector, in which he stated that [person named], was cohabiting with you for the past 20 years, and prior to your application for a Widow’s Pension. Accordingly, I have decided that you had no entitlement to Widow’s Contributory and I am terminating your payment immediately from your date of award.

This decision has been made in accordance with Section 302 (a) of the Social Welfare (Consolidation) Act, 2005, on the grounds that you wilfully concealed a material fact from the Department. As a result of this decision, you have been assessed with an overpayment. In the circumstances of this case, it is the intention of the Department to recover the overpayment in full. Our Debt Management Section will be in contact with you shortly regarding repayment of this overpayment.

Overpayment assessed: €73,300.

Background: The appellant applied for a Widow’s (Non-Contributory) Pension in 2001, following the death of her husband. The case was investigated by a Social Welfare Inspector and, shortly afterwards, the appellant withdrew her claim and signed a statement to this effect as recorded by the Inspector at the time. No formal reason was given for the withdrawal. The appellant was issued with a letter which advised her that no further action would be taken as a result of her wish not to continue with the claim. Later in that same month, however, a Deciding Officer concluded that she had an entitlement to a Widow’s (Contributory) Pension based on her late husband’s PRSI contributions and a letter was issued to the appellant advising as to the date of award .

The appellant, at the time of her initial application, was in receipt of Unemployment Assistance from a [specified] Social Welfare Local Office. In 2009, the person named in the overpayment decision applied for Jobseeker’s Allowance at that office and advised that the appellant was his partner and that she was in receipt of a Widow’s Pension. He stated that he had been cohabiting with her for the previous 20 years. The Department of Social Protection commenced an investigation into the appellant’s circumstances. Ultimately, it was decided that she was not entitled to the Widow’s Contributory Pension with effect from a date in 2000. As a consequence of this decision, an overpayment of €73,300 was assessed.

The revised decision was made under Section 302 (a) of the Social Welfare (Consolidation) Act, 2005, which refers to wilful concealment of a material fact – taken to mean cohabitation with the person named for some 20 years without advising the Department.

At oral hearing: the appellant was accompanied by a constituency worker from the office of her local T.D. The Deciding Officer attended at the request of the Appeals Officer. She read the decision and outlined details of the case history, referring to the Social Welfare Inspector’s report and letters of natural justice which had been issued to the appellant inviting her to comment before a decision was made. On the issue of the overpayment, she advised that the appellant had been awarded a State (Non-Contributory) Pension with effect from her 66th birthday and that this had the effect of reducing the overpayment amount to €50,500. She confirmed that the person named had been deemed to be an adult dependent on the appellant’s pension.

The appellant outlined the background to her relationship with the person named. She accepted that they had been living together in the period at issue. She advised that when she was interviewed by the Social Welfare Inspector in 2001, in connection with her Widow’s (Non- Contributory) Pension claim, she told the Inspector that she was co-habiting and that this was the reason for her withdrawing the claim subsequently. She said that at the time of her application she was in receipt of Unemployment Assistance and when she got the pension book from the Department, she stopped that claim.

She went on to say that she had accepted the payment in good faith on the basis that she had withdrawn her non-contributory claim and had not applied for a contributory pension.

On behalf of the appellant, her advocate asked if an application for a contributory pension had ever been made and if so, was there an application form. She stated that the appellant was distraught at the prospect of having to repay such a large overpayment, and went on to say that the appellant genuinely did not understand that she not was entitled to Widow’s (Contributory) Pension.  The appellant stated that she did not deliberately set out to defraud the State.

Following a general discussion about the application, the Deciding Officer accepted that there had been no claim for a Widow’s (Contributory) Pension but she made the point that it was unclear as to why the Widow’s (Non- Contributory) Pension claim had been withdrawn. She said that, in any event, when the appellant got the award letter for the contributory pension she would have received a leaflet about the conditions for receipt of the payment. She accepted that no review had taken place after the pension was awarded and acknowledged that the only contact the Department had with the appellant was when she changed her address.

Thematic Note G0135: Overpayment of Social Welfare and Cohabitation

Theme: Overpayment of social welfare – Cohabitation

Period of Analysis: SWAO Annual Reports 2009-2021  

Keywords: Overpayments; Fraud; Appeals; Oral Hearing; Burden of Proof; Cohabitation; Reviews

Casebase No. Case G0135

Summary of the relevant law: 

Overpayments of social welfare occur where a person gets a payment of an allowance, pension or any other benefit from the Department of Social Protection (the “Department”) that they are not entitled to. The Social Welfare (Consolidation) Act 2005 sets out the circumstances where an overpayment may arise and the liability of a person to repay an overpayment. 

An overpayment can arise where a person has been granted a payment but subsequently a revised decision is made by the Department under Section 302 or 325 of the Social Welfare (Consolidation) Act 2005 (the “Act”) to reduce a person’s entitlement to a social welfare payment retrospectively. In such circumstances, the Department will issue a letter informing the person of the revised decision.

A key question with overpayments is whether the Department allege fraud on the part of the recipient. Fraud occurs where the Department is told or led to believe something that the person receiving the payment knew was false or misleading or a key piece of information is withheld from the Department.

A revised decision that there has been an overpayment based on fraud is made under Section 302(a)/325(a)) of the Act.

If the overpayment arose as a result of fraud, the person may be criminally prosecuted even if the overpayment is repaid.

Where no fraud is alleged by the Department, they have some discretion to take into account the facts and circumstances that gave rise to the overpayment and this will be relevant in an appeal against such an overpayment. It is also possible to appeal the date when the overpayment is deemed to have arisen, which may result in the amount of the overpayment being reduced. A revised decision with no allegation of fraud is made under section 302(b).

It is therefore very important to know if fraud is alleged (ie, the decision was made based on section 302(a)) or no fraud is alleged (ie the decision is based on section 302(b).) A person can appeal the revised decision alleged fraud and if successful, the fact and circumstances that gave rise to the overpayment can also be considered in the appeal.

Observations on appeal outcomes in SWAO Case Studies re Cohabitation

The onus is on the Department to establish that cohabitation (i.e. in an intimate and committed relationship) exists based on evidence. It is not for the appellant to show they are not cohabiting with the nominated person. In putting together its case, the Department must follow its own Guidelines on Investigating Cohabitation and consider a range of evidence of cohabitation to make such a finding. For -an example of a situation where there was sufficient evidence of cohabitation, see Case Study D1 2012/15 One Parent Family Payment.

See Case Study G3 2015/22 & 2015/23 for an example where cohabitation was not found on appeal. It is states as follows:-

“On the basis of this evidence, and having regard to the unequivocal findings of Baker J [2015] IEHC 309, that a relationship must have been, at some point in time, a sexual relationship for intimacy to be found, he concluded that it had not been established that the appellants were cohabiting within the meaning of the governing legislation for the period since 2010 or, in the period prior to 2010, ‘as husband and wife’ within the meaning of the legislation which applied at the time. Accordingly, each of the appellants was entitled to the named payment during the period at issue and no overpayment applied.”

Likewise, see Case Study H5 2016/318/36 One parent family payment where is states:-

“I note that the Appeals Officer considered that the evidence advanced by the Department was more credible and convincing than that put forward by the appellant and that the Officer concluded the appellant had failed to show that she was not cohabiting with the nominated person. This was clearly an error of law. In misdirecting themselves on this point, I could only conclude that the Appeals Officer had placed an unreasonable burden of proof on the appellant such as to render the appeal hearing unfair. The Department, in its guidelines on cohabitation, accepts that ‘where an entitlement may be disallowed, limited or withdrawn, the onus is on the Department to establish that cohabitation exists’. I am of the view that the Department did not meet the requirements set out in its own guidelines to establish that cohabitation existed and that the Appeals Officer did not give sufficient weight to this fact and to the other evidence provided by the appellant, as outlined above, in support of her position.”

In addition the CAO notes: “I could find no evidence to indicate that the revised decision was made with reference to any of the provisions in Section 302, nor could I see where the appellant had been advised of the amount of the overpayment. This combination of failures is an error in law and in my view a serious denial of the appellant’s right to natural justice and fair procedures. The Appeals Officer did not direct her attention to the provisions and the obligations arising from this section in their consideration of the appeal. In light of all of the above considerations I concluded that the Appeals Officer had erred in law and, in the circumstances, revised the decision.”

For comments on reliance on Facebook evidence, see Case Study I7 2017/318/65 Disability Allowance (DA) and One Parent Family (OPF):-

“ In particular, it was my view that the photographic evidence of the presence of the appellants attending family events together did not in any way prove cohabitation within the meaning of the governing legislation.

With regard to the issue of Facebook evidence generally, I did not accept the appellants’ contention that an Appeals Officer must be an expert on Facebook or other forms of social media in order to properly determine an appeal involving evidence of this nature. In determining an appeal, an Appeals Officer must of course give due consideration to and weigh up all of the evidence presented, including evidence of social media interactions, in order to decide on the weight which should be applied to that evidence and/or the veracity of same.”

 Relevant Case Studies of the SWAO Annual Reports 2009-2021

G3 2015/22 & 2015/23 Unspecified payment in respect of two appellants

Question at Issue: Cohabitation

Background: The appellants were each in receipt of named payments. In the context of a review of entitlement, and an investigation by a Social Welfare Inspector, a question arose as to cohabitation. The Inspector interviewed each of the appellants and submitted reports and accompanying documents for determination. The Deciding Officer made reference to the interviews conducted by the Social Welfare Inspector and concluded that each of the appellants had concealed a material fact, that is, that they were cohabiting with one another. Ultimately, it was concluded that both persons were disqualified for receipt of the named payments as they were cohabiting. A revised decision was made in each case, with reference to the provisions of Section 302 (a) of the Social Welfare (Consolidation) Act, 2005, and overpayments were assessed. An appeal was made by both parties. In response to a request made by solicitors acting for each of the appellants, and with the approval of the Chief Appeals Officer, the appeals were heard together – with a separate report and decision completed in each case.

Oral hearing: The appellants attended, and each was represented separately by a solicitor. The Social Welfare Inspector attended at the request of the Appeals Officer. The decision at issue in each case was outlined, as was the manner in which the Appeals Officer intended to proceed.

It was acknowledged that the second appellant resided at the address of the first appellant for some years. It was contended, however, that the parties had never cohabited within the meaning of the Social Welfare Acts and, in particular, that they had not been engaged in an intimate/sexual relationship at any time. It was submitted that they had been nothing but platonic friends, had separate bedrooms, that the first appellant had her own independent means, that she was not engaged to, nor did she have any intention of marrying the other person.

In support of the appeal, reference was made to a Court Judgment, dated 5 May 2015, In the matter of Section 194 of the Civil Partnership and Certain Rights and Obligations Cohabitants Act 2010 [2015] IEHC 309, where Baker J found [paras. 21, 77, 78, 79] that in order to be a cohabitant for purposes of the 2010 Act, a relationship must be more than one of mere friendship and must be or have been at some point sexually intimate.

Medical evidence was submitted outlining medical issues which prevented a sexually intimate relationship. It was also submitted on behalf of both appellants that in the report of his investigation of the two claims, the Social Welfare Inspector had stated that the appellants were co-resident.

Thematic Note G0132: Overpayment of social welfare

Theme: Overpayment of Social Welfare – General Issues

Period of Analysis: SWAO Annual Reports 2009-2021  

Keywords: Overpayments; Fraud; Appeals; Oral Hearing; Burden of Proof; Cohabitation; Reviews

Casebase No. Case G0123

Summary of the relevant law:

Overpayments of social welfare occur where a person gets a payment of an allowance, pension or any other benefit from the Department of Social Protection (the “Department”) that they are not entitled to. The Social Welfare (Consolidation) Act 2005 sets out the circumstances where an overpayment may arise and the liability of a person to repay an overpayment. 

An overpayment can arise where a person has been granted a payment but subsequently a revised decision is made by the Department under Section 302 or 325 of the Social Welfare (Consolidation) Act 2005 (the “Act”) to reduce a person’s entitlement to a social welfare payment retrospectively. In such circumstances, the Department will issue a letter informing the person of the revised decision.

A key question with overpayments is whether the Department allege fraud on the part of the recipient. Fraud occurs where the Department is told or led to believe something that the person receiving the payment knew was false or misleading or a key piece of information is withheld from the Department.

A revised decision that there has been an overpayment based on fraud is made under Section 302(a)/325(a)) of the Act. If the overpayment arose as a result of fraud, the person may be criminally prosecuted even if the overpayment is repaid. See G0133 for further details.

Where no fraud is alleged by the Department, they have some discretion to take into account the facts and circumstances that gave rise to the overpayment and this will be relevant in an appeal against such an overpayment. It is also possible to appeal the date when the overpayment is deemed to have arisen, which may result in the amount of the overpayment being reduced. A revised decision with no allegation of fraud is made under section 302(b).

It is therefore very important to know if fraud is alleged (ie, the decision was made based on section 302(a)) or no fraud is alleged (ie the decision is based on section 302(b).)

The other circumstances where an overpayment may arise are covered by sections 336, 336(a) and 336(b) of the Social Welfare Consolidation Act 2005 (as amended).

Examples of this category of overpayment are:

  • double cashing, for example a person reports that she or he did not receive a payment due, a duplicate is issued and both payments are cashed by the person;
  • impersonation, for example a person makes a claim assuming the identity of another person;
  • cashing after death, for example a relative continues to cash a pension or allowance after the death of the person entitled to it.

Finally, the rules relating to the how the Department can recover an overpayment of social welfare are in Statutory Instrument No. 349/2005 Social Welfare (Recovery of Overpayments) Regulations, the Department’s Operational Guidelines on Management of Customer Overpayments and Recovery of Customer Debt.  and more information is available through Citizen’s Information.

Observations on appeal outcomes in SWAO Case Studies:

An appeal against an overpayment can be made to the Social Welfare Appeals Office (SWAO). A person has 21 days to appeal and details on appeals are available on the SWAO website.

To assist with appeals, we have drawn together the case studies relating to overpayments in the SWAO Annual Reports below and have made some observations based on our review of the case studies in Annual Reports dating from 2009 to 2021.

Below we set out observations under the following headings –

  • Initial Observations
  • Error by the Department

We have separate Thematic Reports on Casebase relating to the following: –

  • Fraud (Section 302(a)) (G0133)
  • Cohabitation (G0134)
  • Recovery of overpayment from the Estate of the Deceased (G0135)

Initial Observations –

  • Alleged ignorance of the requirements or criteria of a social welfare payment is generally disregarded, in particular where a claimant was explicitly made aware of the requirements. (See Case Study J5 2018/54 State Pension Non-Contributory Oral Hearing below)
  • The SWAO will have access to information from electoral registers, vehicle registrations, tenancies, births register and Social Welfare Inspectors in assessing the facts pertaining to the case.
  • There is a strict obligation to inform the Department of changes to your circumstances where in receipt of social welfare. This includes changes to your financial circumstances, living arrangements, absence of the State, periods where a child or caree is not residing in the home etc.  
  • If a change in circumstances has been notified to the Department, or the Department has made a clear error, an Appeals Officer may reduce or cancel an overpayment. This discretion arises under Article 246(1) of Part 9 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 – S.I. 142 of 2007 (as amended) which provides that the amount of an overpayment to be repaid may be reduced or cancelled where the overpayment arose because of: (i) a failure by the Department to act within a reasonable period on information which was provided by or on behalf of the person concerned; or (ii) an error by the Department. 
  • Other than in cases of fraud, an Appeals Officer can change the effective date when an overpayment is deemed to have arisen, having regard to all the circumstances of the case. This may result in no overpayment arising.
  • Decisions involving the assessment of means are very fact-dependent and will be governed by all circumstances relating to the individual case.

The Section 318 reviews of decisions of Appeal Officers by the Chief Appeals Officer are of particular note and show the following:

  • The obligation to notify the Department of a change of circumstances may be discharged if the relevant facts are disclosed in an application for a separate benefit.
  • A notification of relevant information to another Government body (e.g. Tusla) does not equate to the disclosure of that information to the Department.
  • Where an entitlement is disallowed, limited or withdrawn on the basis of cohabitation, the onus is on the Department to establish that cohabitation (i.e. in an intimate and committed relationship) exists and not the appellant to show they are not cohabiting with the nominated person. In putting together its case, the Department must follow its own Guidelines on Investigating Cohabitation and consider a range of evidence of cohabitation to make such a finding. See Cohabitation below.
  • In a revised decision, a Deciding Officer much set out the relevant provision in the legislation under which the decision is made and the amount of the overpayment amounts in order to respect an appellant’s right to natural justice and fair procedures.  
  • A lack of a review by the Department may be taken into account in circumstances where they failed to act on information (e.g. a clear instruction of a Social Welfare Inspector’s report) but not generally in other circumstances.

Error by the Department

Whether an error by the Department will result of the overpayment being reduced or set aside will depend on the circumstances of the case. See Case Study I2 2017/40 Jobseeker’s Allowance Summary Decision for an example of where the level of engagement with Department by the Appellants and circumstances surrounding the error were sufficient to reduce overpayment to nil. It states:-

“The couple had numerous interactions with the Intreo Centre over the course of their claims and always went there together when issues or queries arose. Their ongoing engagement with various activation measures was also mentioned. The appellant also got statements of payments received on four occasions for submission to the university where she studied in the UK. The letter of appeal also states that the couple had never claimed separately before, and they were not aware of the level of payment each would receive. Given their ongoing engagement with the Intreo Centre, they assumed they were receiving their correct entitlement.”

Also level of communication over the course of the relevant period with Department in  I3 2017/46 Supplementary Welfare Allowance Summary Decision was such that error of Department and overpayment effectively reduced to nil.

In Case Study J1 2018/35 Working Family Payment Oral Hearing, the Appeals Officer concluded that:-

“as there had been no change in the appellant’s circumstances as set out in the governing legislation, the appellant continued to be entitled to Working Family Payment for 52 weeks from the commencement of that claim. The Appeals Officer considered the retrospective examination of the hours worked from January 2015 to June 2015 as erroneous and unfair. With regard to the continuing entitlement from June 2015 to June 2016, the Appeals Officer concluded that the same principle applied. In the absence of any evidence to the contrary on the file, the Appeals Officer had to assume that at the time of renewal of Working Family Payment in June 2015, the appellant was found to be in compliance with the conditions for award, that this was likely to continue for 3 months and was payable for 52 weeks to June 2016.”

In Case Study J3 2018/49 Supplementary Welfare Allowance Summary Decision, the Appellant failed to tell the Department that she had taken up a training course while on SWA. It was on the recommendation of her GP as part of medical and psychological treatment and increased her employment possibilities.  The Appeals Officer noted that “under Section 190 (3) of the 2005 Act the Department has discretion to grant Supplementary Welfare Allowance to persons attending a course of study “in a case where there are exceptional circumstances.” This concession did not appear to have been considered by the Department in this instance. The Appeals Officer considered that the evidence submitted by the appellant in support of her appeal could be regarded as constituting “exceptional circumstances” and the appeal was allowed.”

Relevant Case Studies of the SWAO Annual Reports 2009-2021

A.2009 
B.2010 
1.2010/15 Disability AllowanceQuestion at issue: Over payment
C.2011 
D.2012 
1.2012/15 One Parent Family PaymentQuestion at issue: Overpayment
2.2012/22 Survivor’s (Contributory) PensionQuestion at issue: Overpayment
E.2013 
F.2014 
G.2015 
1.2015/15 Carer’s benefit & Maternity BenefitQuestion at issue: Concurrent payment of benefits
2.2015/21 State Pension (Non-Contributory)Question at issue: means and overpayment assessed following review
3.2015/22 & 2015/23 Unspecified payment in respect of two appellantsQuestion at issue: Cohabitation
4.2015/24 State Pension Non-contributoryQuestion at issue: Claim against the deceased pensioner’s estate
5.2015/25 State Pension (Non-contributory)Question at issue: Claim against the deceased pensioner’s estate
H2016 
1.2016/17 Disability AllowanceQuestion at issue: Eligibility (medical)
2.2016/23 Job Seeker’s AllowanceQuestion at issue: Eligibility (retrospective assessment of needs)
3.2016/28 State Pension (Non-contributory)Question at issue: Eligibility (revised decision as to means)
4.2016/318/34 Carer’s allowanceQuestion at issue: Overpayment assessed
5.2016/318/36 One parent family paymentQuestion at issue: Means and cohabitation
I2017 
12017/10 One-Parent Family Payment Oral hearingQuestion at issue: Overpayment whilst child in care
22017/40 Jobseeker’s Allowance Summary DecisionQuestion at issue: Overpayment (department error)
3.2017/46 Supplementary Welfare Allowance Summary DecisionQuestion at issue: Eligibility (rent supplement and overpayment)
4.2017/49 State Pension (Non-Contributory) Oral hearingQuestion at issue: Claim against the State
5.2017/51 State Pension (Contributory) Summary DecisionQuestion at issue: Overpayment (qualified adult)
6.2017/318/62 Jobseeker’s AllowanceQuestion at issue: Whether an Appeals Officer had erred when partially allowing an appeal in relation to an overpayment
7.2017/318/65 Disability Allowance (DA) and One Parent Family (OPF)Question at issue: whether the appellants were cohabiting
8.2017/318/68 State Pension (Non-Contributory)Question at issue: overpayment assessed (means)
9.2017/318/69 State Pension (Non-Contributory)Question at issue: overpayment assessed (means)
J2018 
1.2018/35 Working Family Payment Oral HearingQuestion at issue: Eligibility (hours worked)
2.2018/39 Jobseeker’s Allowance Summary DecisionQuestion at issue: eligibility (whether the person was unemployed)
3.2018/49 Supplementary Welfare Allowance Summary DecisionQuestion at issue: Eligibility and overpayment
4.2018/53 State Pension (Non-Contributory) Summary DecisionQuestion at issue: Eligibility (means and overpayment)
5.2018/54 State Pension Non-Contributory Oral HearingQuestion at issue: Eligibility (means and overpayment)
6.2018/318/66 Carer’s AllowanceQuestion at issue: Eligibility (care provided)
7.2018/318/67 State Pension (Non-Contributory)Question at issue: Absence from state
K.2019 
1.2019/03 Child Benefit Summary Decision  Question at issue: Qualified child- ordinarily resident
2.2019/44 Jobseeker’s Allowance Summary DecisionQuestion at issue: Eligibility (full-time education)
3.2019/50 Farm Assist Summary DecisionQuestion at issue: Overpayment
4.2019/57 Widower’s (Non-Contributory) Pension Oral HearingQuestion at issue: Entitlement-co-habiting
L.2020 
1.2020/01 Child Benefit – Qualified Person  Question at issue Qualified person
22020/49 State Pension (Contributory) 
M.2021 
1.2021/01 Child Benefit – Qualified Child  Question at issue Qualified child

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 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.