Keywords: Domiciliary Care Allowance; Social Welfare Payment; Discrimination; Irish Constitution; European Convention on Human Rights.
Organisation who represented the Claimant: N/A
Casebase no: G0127
Case Summary:
The case is that of Donnelly & Anor v Minister for Social Protection & Ors [2022] IESC 31.
This case concerned a challenge to legislation that excluded the first named appellant (“Mr. Donnelly”) from eligibility for a social welfare payment in respect of his severely disabled son, Henry, the second named appellant during a prolonged period when Henry was in hospital. The challenge was brought, under Article 40.1 of the Constitution and Article 14 of the European Convention on Human Rights, to a decision of the Minister of Social Protection and to certain provisions of the Social Welfare Consolidation Act 2005. The appellants argued that they have been unlawfully discriminated against as compared to families who are in a similar position but caring for a severely disabled child at home. The payment in question is the Domiciliary Care Allowance (“DCA”).
Henry was born with Down syndrome in June 2015 and has suffered with multiple other serious medical conditions. As a result, he was hospitalised for all the time from his birth until November 2017. During the time he was in hospital, Mr. Donnelly gave up his employment. It is apparent from the evidence that the level of care provided to Henry by his parents during this time, while undoubtedly onerous, was to an extent expected by the hospital. Mr. Donnelly applied for the DCA in July 2016 and his application was refused. He sought an internal departmental review of the decision which came to the same conclusion. Henry was discharged home in late 2017 and Mr. Donnelly has been in receipt of the payment since.
Relief was refused in the High Court ([2018] IEHC 421). The Court of Appeal ([2021] IECA 155) affirmed the decision of the High Court. The appellants were granted leave to appeal to the Supreme Court by determination of the 29th July 2021 ([2021] IESCDET 89).
Key Conclusions: The Supreme Court concluded that the appellants had failed to discharge the burden of proving that the measure in question was either invalid having regard to the Constitution or incompatible with the Convention.
Relevant Legislation:
Social Welfare Consolidation Act 2005:
Sections:
186B.— In this Chapter—
‘institution’, means a hospital, convalescent home or home for children suffering from physical or mental disability or ancillary accommodation and any other similar establishment providing residence, maintenance or care where the cost of the child’s maintenance in that institution is being met in whole or in part by or on behalf of the Executive or the Department of Education and Science;
‘international organisation’ means an international intergovernmental organisation, including, in particular and without limiting the generality of the foregoing—
(a) the United Nations Organization and its specialist agencies,
(b) the institutions and agencies of the European Communities,
(c) the Council of Europe, and
(d) the Organisation for Economic Co-operation and Development;
‘qualified child’ has the meaning given by section 186C;
‘qualified person’ has the meaning given by section 186D.
186C.— A person who is under the age of 16 years (in this section referred to as ‘the child’) 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—
(i) 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
(ii) 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—
(i) is ordinarily resident in the State, or
(ii) satisfies the requirements of section 219(2),
and
(c) the child is not detained in a children detention school as defined in section 3 of the Children Act 2001 .
186E.— (1) Subject to subsections (2) and (3), domiciliary care allowance is not payable for any period during which a child is resident in an institution.
186D.— (1) 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—
(i) that person is habitually resident in the State, or
(ii) the requirements of section 219(2) are satisfied in relation to that person.
(2) For the purposes of subsection (1)(a) the Minister may by regulation make rules for determining with whom a qualified child is to be regarded as normally residing.
Keywords: Domiciliary care allowance; appeal; judicial review; evidence; eligibility; change of circumstances
Organisation who represented the Claimant: N/A
Casebase no: G0125
Case Summary:
This case concerned the question of whether it was fundamental to a claim for benefit or assistance under the Social Welfare (Consolidation) Act 2005 (the “Act”) that the person claiming that benefit or assistance should be entitled to it at the time the claim is made. A person may become entitled to a benefit which was previously claimed at a time when they were not eligible. This case concerned the question of whether, when this occurs following the rejection of a claim, is it necessary to make a fresh claim, or can the rejected claim be revived in accordance with the Act.
The facts here concern determinations made by appeals officers to refuse to revise earlier decisions of appeals officers which declined claims for domiciliary claim allowance. The claimants argue that the latter appeals officers erred in stating that any new fact or evidence provided in an application to review a decision must bear on establishing the right of the claimant at the time of the claim for benefit, and not at a later time. Owens J notes that the Chief Appeals Officer disagrees with the applicants’ position that the appeals officers erred and that the Chief Appeals Officer is correct in this view:
“The statutory framework governing decisions and appeals relating to a claim does not permit a claimant to demonstrate that changes in circumstances subsequent to the time of that claim give rise to a right to benefit so as to enable this issue to be revisited in a revival of a claim which has been rejected following an appeal.”
Accordingly, Owens J rejected the judicial review claim that the appeals officers acted contrary to law in determining that a claimant under the 2005 Act must establish entitlement at the time of submission of the claim.
The background to each of LL and DZ’s claims are detailed in the judgment. With respect to LL (and LL’s child H), the initial claim was submitted in April 2015 and was subsequently rejected. In 2019, the applicant’s solicitor provided a letter for the purpose of supporting LL’s application for domiciliary care allowance which detailed a medical prescription from 2017 and contained further information on H’s health. This letter was submitted as “further evidence which was not available at the time of the oral hearing”. It was determined that the letter did not provide any additional information relating to the care required by H at the time of the application in 2015. Owens J supports the position of Chief Appeals Officer that “while an applicant is entitled to rely on evidence that post-dates the original application or any earlier decision, the substance of that evidence must relate to the eligibility of an applicant at the time of the original application for the purpose of deciding whether a decision to refuse that payment was erroneous”.
Owens J was also critical of the delay in bringing judicial review proceedings a “very long time” after the date of the decision which it challenged, and did not find the attributing of the delay to Covid-19 restrictions to be convincing. Owens J found that the excusing circumstances offered were not sufficient to extend the time limit for judicial review under O.84 r.21(3) of the Rules of the Superior Courts.
DZ’s claim (relating to her son K) was made in March 2018, rejected and subsequently appealed. A HSE report was made available in October 2019 relating to K and submitted with a request for review of the original decision. The appeals officer wrote on 31 January 2020 to state that an appeal may only be reviewed if new information of acts come to light which would render the initial appeal decision erroneous at the time it was made, and stated specifically that:
“We appreciate that K’s conditions will present challenges but regret that it has not been established that the original appeal decision in this case was erroneous based on the evidence available at the time…”
Owens J determined that this is not the correct test to apply. New facts and evidence may be presented under the Act (albeit relating to the time of the application). On the basis of this error which may have affected the outcome of the process, Owens J ordered that the decision of 31 January 2020 be set aside and the application be remitted back to the appeals officer.
In the case of DZ, Owens saw fit to extend the time allotted for judicial review on the basis that the initial delay related to circumstances outside the control of DZ and her solicitors, in particular correspondence between solicitors and the Social Welfare Appeals Office.
Keywords: Maternity Benefit, Immigration, Work Permit, PRSI Payments, PAYE Tax, Contract of Services
Organisation who represented the Claimant: N/A
Casebase no: G0126
Case Summary:
This case concerns PAYE and PRSI contributions made while working in Ireland without a valid work permit, and whether they should be taken into account by the Department of Social Protection when assessing eligibility for social insurance payments, such as maternity benefit.
Ms. Shardha Sobhy, a citizen of Mauritius, arrived in Ireland on 5 March 2005, and registered with the Garda National Immigration Bureau (GNIB). From the time she arrived in Ireland until the 26 June 2012, she was granted five consecutive Stamp 2 visas. During that time she was a student and worked in a part-time job. She was lawfully in the State until 26 June 2012. On 21 November 2011, Ms. Sobhy applied to change her Stamp 2 to a Stamp 4. She received a letter from the Irish Naturalisation and Immigration Service (INIS), dated 11 May 2012, refusing her request to change to a Stamp 4. Ms. Sobhy sought an extension of her visa on 20 July 2016.
On 5 August 2016, the Residents Division of the INIS refused to extend her visa, reasoning that the visa had already expired by the time the application for an extension had been received. This letter outlined her rights under the Immigration Act 2004, highlighting that it is illegal to reside in the State without permission from the Minister for Justice and Equality, and the penalties that went with failing to follow the law under The Immigration Act of 2004. This letter also specified that, without her visa, Ms. Sobhy was not entitled to work.
A firm of solicitors representing Ms. Sobhy wrote to the Residents Division of the INIS, in a letter dated 23 November 2016, requesting a review of the decision. It is unknown whether a response was received to this letter.
In 2018, the Minister for Justice introduced a scheme that allowed certain non-EEA nationals, who had a valid student permission during the period of 01 January 2005 to 31 December 2010 and who had not acquired an alternative immigration permission in the intervening period, to apply for permission in the State. Ms. Sobhy applied to the scheme and the INIS addressed this application on 26 February 2019, granting her temporary permission to reside in the State under Stamp 4s conditions for a period of two years from the date of the letter.
Between 2008 and 2019, Ms. Sobhy made numerous social welfare contributions. The respondent and her employer made all of the necessary PRSI and PAYE contributions necessary to receive maternity benefit. The case turns on the period of 26 June 2012 to 03 March 2019 when Ms. Sobhy was a resident of and working in the State without permission to remain or work.
The following is the number of paid contributions Ms. Sobhy made during the specified years:
Year
Paid Contributions
Reckonable Paid Contributions for Pension
2008
38 A, 1 J
38
2009
26 A
26
2010
29 A
29
2011
48 A
48
2012
44 A, 1 J
44
2013
33 A
33
2014
52 A
52
2015
53 A
52
2016
48 A
48
2017
51 A
51
2018
37 A
37
Ms. Sobhy went on maternity leave on 15 December 2018 and gave birth on 9 January 2019. On 11 April 2019, while a lawful resident in the State, Ms. Sobhy applied for maternity benefit. On 04 June 2019, a Deciding Officer refused her claim for maternity benefit on the basis that she did not have a valid work permit, making her employment uninsurable.
Ms. Sobhy appealed this decision on 23 June 2019. The Appeal was disallowed.
Keywords: Back to Work Family Dividend, Qualified Child, Employment, Self-employment, Habitual Residence Condition
Casebase No. Case G0124
Summary of the relevant law:
The Back to Work Family Dividend (BTWFD) is a weekly payment that is made to an individual who is a parent or guardian of a “qualified child” that ceases to claim or ceases to be entitled to claim a “qualifying payment” or a “relevant payment” from a “qualifying scheme” as they have commenced “employment” or “self-employment”.
Definitions:
A qualified child is:
(a) A child that is under 18 years of age
(b) A child aged 18 to 22 if they are in full-time education
(c) The child must live with the individual receiving the BTWFD
(d) The child must be resident in the State
(e) The child must not be in legal custody:
Section 219(1) (d) of the 2005 Act states that a child will not be a qualified child if they are detained in a children’s detention school, undergoing imprisonment or in detention in legal custody.
Section 238(A) of the Social Welfare Consolidation Act 2005 (as amended) (“2005 Act”) defines a qualifying payment as:
(a) Jobseeker’s benefit,
(b) Jobseeker’s benefit (self-employed),
(c) Jobseeker’s allowance, other than jobseeker’s allowance payable per section 148A of the 2005 Act
Section 238(A) of the 2005 Act defines a relevant payment as an allowance payable to an individual participating in a qualifying scheme where the person was in receipt of—
(a) One-parent family payment,
(b) Jobseeker’s allowance payable per section 148A
Section 238(A) of the 2005 Act defines a qualifying scheme as:
(a) A scheme administered by the Minister and known as—
(i) Community Employment,
(ii) Tús,
(iii) Rural Social Scheme,
(iv) Gateway, or
(v) The national internship scheme,
(b) An approved course of training, or
(c) Any other prescribed—
(i) Scheme or programme of employment or work experience, or
(ii) Course of education, training or development
Section 238(A) of the 2005 Act defines employment as employment that is liable for PRSI contributions (Insurable) but does not include participation in a qualifying scheme.
Section 238(A) of the 2005 Act defines self-employment as insurable self-employment.
Entitlement to Dividend
According to Section 238(B) of the 2005 Act, a person who has not yet attained pensionable age shall be entitled to the BTWFD where this person ceases to claim or receive the aforementioned payments or exited a qualified scheme where immediately before this person ceases to claim or exit a scheme was in receipt of a qualifying/relevant payment.
Section 238(B)(a) of the 2005 Act states that an individual will be entitled to BTWFD if:
(a) On or the 5th of January 2015 a person ceases to claim or be entitled to
(1) Jobseeker’s benefit, jobseeker’s benefit (self-employed), jobseeker’s allowance, a qualifying payment or a relevant payment, by reason of that person or, where appropriate, that person’s spouse, civil partner or cohabitant
(A) Being in employment or self-employment
(B) Commencing employment or self-employment within 4 weeks of the date on which that person ceased to claim or ceased to be entitled to the payment concerned
(2) One-parent family payment by reason of
(A) That person being in employment or self-employment,
(B) That person commencing employment or self-employment within 4 weeks of the date on which he or she ceased to claim or ceased to be entitled to that payment
(C) The youngest child having attained the relevant age under section 172(1) and the claimant being in employment or self-employment at the date on which they ceased to claim or ceased to be entitled to that payment
Section 238(B)(b) of the 2005 Act states thatan individual will be entitled to BTWFD if:
(b) Immediately before the date on which the person ceased to claim or ceased to be entitled to a benefit, allowance or payment specified in paragraph (a), the person was in receipt of
(1) An increase in jobseeker’s benefit, jobseeker’s benefit (self-employed), jobseeker’s allowance or one-parent family payment in respect of at least one qualified child who normally resides with that person, or
(2) An increase in a qualifying payment or a relevant payment in respect of a child
Section 238(B)(c) of the 2005 Act states thatan individual will be entitled to BTWFD if:
(c) In the case of—
(1) Jobseeker’s benefit, jobseeker’s benefit (self-employed), jobseeker’s allowance, other than jobseeker’s allowance payable in accordance with section 148A, or a qualifying payment,
(2) The person has, immediately before the date on which they ceased to claim or ceased to be entitled to the relevant payment, in any continuous period of unemployment been in receipt of such benefit, allowance or payment in respect of—
(A) Not less than 312 days of unemployment, of which not less than 156 days of unemployment have occurred in the 12 month period commencing immediately before that date
(B) A number of days such that when combined with days spent in receipt of the Covid-19 pandemic unemployment payment the total shall not be less than 312 days, of which not less than 156 days of unemployment have occurred in the 12 month period commencing immediately before that date.
Limitations
(a) Not more than one BTWFD shall be paid in respect of a couple
(b) A person shall not be entitled to the BTWFD if their partner is in receipt of any benefit or assistance other than those specified in Section 238(B)(3)
(c) A person must be habitually resident in the state
(d) A person or person’s partner receiving injury or illness benefit will only be paid the BTWFD for 36 days. The BTWFD payment will be suspended on the 36th day of the injury or illness benefit claim.
Duration and Rate of Dividend
Section 238(C) of the 2005 Act states that the BTWFD is paid for a maximum period of 104 weeks.
Section 238(D) of the 2005 Act states that for the first 52 weeks of this period, the individual shall receive the following:
(a) €42 per week per child (up to a maximum of 4 children) for children under 12.
(b) €50 per week per child (up to a maximum of 4 children) for children over 12.
Section 238(D) further states that for the second 52 weeks of this period, the individual shall receive half of what was initially paid to them during the previous year:
(a) €21 per week per child (up to a maximum of 4 children) for children under 12.
(b) €25 per week per child (up to a maximum of 4 children) for children over 12.
Limitations
Section 238(D)(2) of the 2005 Act states that:
(A) The weekly rate of back to work family dividend payable shall not include an amount in respect of a child to for any period during which that child
(1) Is treated as a qualified child/adult for the purposes of an increase in any benefit, an increase in any assistance or a continued payment for qualified children.
(2) Is treated as a child/adult for the purposes of an increase in any qualifying payment or any relevant payment which corresponds to an increase in benefit or assistance.
(3) Is in receipt of any benefit to or any assistance in their own right, or participates in a qualifying scheme
Increase for a Qualified Child (or adult) (IQC)
An IQC is an extra amount payable to an individual on certain existing social welfare payments that have a dependent child. To get an IQC your child must be a qualified child/adult. You may get full or half-rate IQC if your spouse has an income between €310 and €400 per week.
An individual claiming the BTWFD must have been receiving an IQC on their previous qualifying/relevant payment or benefit in order to be entitled to the BTWFD. The BTWFD is paid at the same rate as the IQC on the claimant’s prior benefit.
Rates of IQC
(a) €42 (full rate) and €21 (half rate) per week per child for children under 12.
(b) €50 (full rate) and €26 (half rate) per week per child (up to a maximum of 4 children) for children over 12.
Key grounds of appeals by appellants:
There have been two case studies in the Social Welfare Appeals Office (SWAO) Annual Reports regarding the BTWFD. Both of these concern the individual’s eligibility to the dividend. The appeals were both disallowed based upon the SWAO lacking the ability to waive statutory requirements provided for in the 2005 Act.
This has been displayed in the outcome of Case 2015/17. The SWAO disallowed this appeal on the basis that the individual was not habitually resident in the State and was providing employment contributions to another EU State. The SWAO cannot consider any social contributions paid to another State, whether in the EU or not. The SWAO cannot interpret the legislation in a way that could be received as not in its plain meaning. Currently there are a minimal number of exceptions to the habitually resident condition in the current legislation.
The requirement for the person claiming BTWFD to have been receiving an IQC on their entitlement before receiving the dividend was appealed in Case 2021/09. The appeal was disallowed on the basis that the SWAO cannot interpret the legislation in a manner contrary to its basic meaning. Appeals based upon this argument are likely not to succeed. The SWAO will not accept that a child that would qualify for an IQC, but has not been claimed for by the parent or guardian of this child on their prior benefits as being a qualified child. Therefore, the SWAO deems that this individual does not meet the criteria for the BTWFD.
Observations on appeal outcomes:
There is yet to be a successful appeal presented to the SWAO Annual Report case studies. The legislation surrounding this benefit is extensive.
According to S238(B)(5), a person not habitually resident in the State shall not be entitled to the BTWFD. The requirement of the individual claiming the BTWFD to be habitually resident in the state is enshrined in the majority of entitlements allowed for by the 2005 Act, with the exceptions of particular groups of people. Therefore, an appeal on this ground is likely to be unsuccessful. The SWAO has stated, in Case 2015/17, that under EU regulations, family benefits may only be claimed in the State in which the individual claiming is employed and to which they pay social insurance contributions. This case was of particular interest as the appellant was working in Northern Ireland. The appellant had argued that employment in Northern Ireland was not stated to be out of the scope of the scheme as there was no reference to his particular situation in the legislation. The appeal was dismissed on the grounds that although there was no reference to the appellant’s exact situation in the legislation, the appellant was not paying PRSI to the state and therefore did not qualify for the BTWFD.
To be successful in an appeal to the BTWFD, the appellant must have been claiming an IQC on their previous qualifying/relevant payment. The SWAO has stated that as per S238(B)(1)(b), an individual seeking to claim BTWFD must have been receiving an IQC on their benefit immediately before claiming. In Case 2021/09, the appellant had attempted to claim BTWFD but was not receiving IQC on her Jobseeker’s Benefit. The appellant had two dependent children who would qualify under the conditions set in the legislation. Still, as she had not been receiving an IQC before ceasing to claim the benefit, she did not satisfy the conditions to receive BTWFD. To be successful in appealing an entitlement to BTWFD, the appellant must have been in receipt of a benefit or a qualifying scheme with an IQC on their entitlements before appealing. There is no ability to qualify after this payment has ceased.
Relevant Case Studies of the SWAO Annual Reports 2009-2020
A-F.
2009-2014
N/A
G.
2015
2015/17 Back to Work Family Dividend – summary decision
Question at issue: Eligibility
H-L.
2016-2020
N/A
M.
2021
2021/09 Back to Work Family Dividend – summary decision
Keywords: Child Benefit, Qualified Child, Qualified Person, Full-time Education, Normal Place of Residence, Ordinarily Resides, Habitual Residence Condition
Casebase No. Case G0123
Summary of the relevant law:
Child Benefit is a monthly payment that is made to a qualified person for a qualified child. It is not means tested or taxable and there are no PRSI conditions.
Qualified Child
Section 219 of the Social Welfare Consolidation Act 2005 (as amended)(the “2005 Act”) defines a “qualified child” as the child is (i) under 16 years of age or (ii) between 16 and under 18 years of age if the child is in full-time education or full-time training or has a disability and cannot support themselves.
In accordance with Section 14(2) of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (the “2007 Regulations”), full-time education and training does not include courses (i) which form part of an employment or apprenticeship or work experience programme; (ii) which arise from employment; (iii) where the period of paid work experience exceeds the time spent in the classroom; and (iv) where the period of work experience in a course run by Teagasc exceeds the time spent in the classroom in the academic year.
Section 219(1)(b) provides that a child between the age of 16 and 18 shall be eligible where, by reason of physical or mental infirmity, the child is incapable of self-support and is likely to remain incapable for a prolonged period. A Deciding Officer will seek the advice of the Chief Medical Officer as to the acceptability of the relevant medical certification.
Child benefit is not paid on behalf of children 18 or older, even if they are in education or training.
The child must be ordinarily resident in the State. There is no statutory definition of ordinarily resident for these purposes. This requirement can be satisfied, pursuant to Section 2019(2) of the 2005 Act, in cases where the qualified person or that person’s spouse, civil partner or cohabitant is: (i) a member of the Defence Forces or the Irish Civil Service serving abroad, (ii) a volunteer development worker or (ii) persons temporarily employed abroad by an Irish employer and paying Irish social insurance contributions.
In addition, pursuant to Section 219(1)(d) a child will not qualify for Child Benefit if they are currently detained in a child detention school or imprisoned or detained in legal custody.
Qualified Person
Section 220(1) of the 2005 Act defines a qualified person as “[a] person with whom the qualified child normally resides.” Section 220(2)(a) of the 2005 Act provides that the Minister may make rules for determining with whom a qualified child shall be regarded as normally residing. Those rules are contained in Article 159 of the 2007 Regulations. An example of those rules includes the following Rule 4, which has been applied by Appeals Officers in cases:
Subject to Rule 8, a qualified child, who is resident elsewhere than with a parent or a step-parent and whose mother is alive, shall, where his or her mother is entitled to his or her custody whether solely or jointly with any other person, be regarded as normally residing with his or her mother and with no other person.
Additionally, Section 220(3) provides the applicant must satisfy the Habitual Residence Condition, which applies to all applicants regardless of nationality.
The Habitual Residence Condition consists of two parts. Firstly, a person must have an established right of residence in the State, pursuant to Section 246(5) of the 2005 Act and in accordance with S.I. No. 548/2015 – European Communities (Free Movement of Persons) Regulations 2015. This right of residence must be unconditional in that it does not preclude the person from accessing social welfare payments. Secondly, pursuant to Section 246(4) of the 2005 Act, a person’s situation and intentions will be taken into consideration by a Deciding Officer or Designated Person, in particular: (i) the length and continuity of residence in the State or any other country; (ii) the length and purpose of any absence from the State; (iii) the nature and pattern of the person’s employment; (iv) the person’s main centre of interest, and (v) the future intentions of the person concerned. This list is non-exhaustive and other information may be considered relevant in arriving at a decision. Also see Thematic Note on Right to Reside and Habitual Residence Condition (Thematic Note G0116).
It is worth noting that Child Benefit is classified as a Family Benefit under EU law. Accordingly, employed and self-employed EEA Nationals, whose entitlement derives from the application of EEC Regulation 883/04 on the coordination of social security systems and have become subject to Irish PRSI, do not have to satisfy the Habitual Residence Condition. This entitlement continues even if they become unemployed and receive Irish Unemployment Benefits.
Key grounds of appeals by appellants:
Qualified child ordinarily resident in the State
There were four appeals relating to whether a child was ordinarily resident in the State. The majority of appeals dealt with whether a period of absence meant that the appellant was no longer entitled to the benefit. For example, in Case 2019/03 it was held that the child was no longer qualified following an absence of 6 months from the State. Another deciding factor in these decisions was whether the appellant had custody of the child at the time of claiming the payments.
Qualified child’s normal place of residence
There were four appeals relating to a qualifying child’s normal place of residence which mainly dealt with who was considered the qualified person in accordance with Article 159 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142 of 2007). The various grounds for disagreement included: making educational and medical payments (Case 2016/01); providing payments from employment in the State to the qualified child’s mother in another state (Case 2018/02); being in regular contact, visiting and providing food, shelter and clothing during their child’s time in shared and full-time care (Case 2020/01); and having legally shared custody but arguing the amount of time actually spent in one parent’s home over another should be taken into account (Case 2021/01).
Qualified child attending full-time education between age of 16 and 18 years
There were two appeals where the appellant challenged whether sufficient evidence was provided to demonstrate that the child was either attending full-time education or was incapable of self-support by reason of mental infirmity. In both cases, the appeal was allowed on the basis that the appellants had met the threshold under the 2005 Act and the 2007 Regulations.
Backdating: See Thematic Notes on Backdating Claims (Thematic Note G0114)
Observations on appeal outcomes:
As there is no definition or test for qualifying as ordinarily resident, clear evidence establishing when a qualified person or child was resident in the State greatly impacted the success of appeals. The majority of ordinarily resident appeals were rejected due to the lack of the appellants’ ability to establish when the child left and/or returned to the State. Out of four cases, the appeal in Case 2012/03 was the exception, as the appellant successfully demonstrated the child was ordinarily resident in the state by way of an Irish Court Order in 2010, which granted the appellant full custodial rights in 2010. The loose assessment of 183 days in a year, or six months, was applied by Appeal Officers to determine those ordinarily resident in the state, with Case 2019/03 being disallowed as a 6 month absence meant that it could not be said that the children were ordinarily resident. Appeals Officers tended to be particularly strict in this regard, as appeals where explanations such as holidays or visiting family were used for absences from the State were disallowed.
Decisions in appeals of normal place of residence included a Section 318 review, Case 2020/318/57. Section 220(2)(a) states that Ministers may make rules to determine with whom a qualified child is normally residing. Despite the child residing with a guardian in the State rather than their parents outside of the State, Rule 4 of the Ministerial Rules provides that that the mother’s legal custody of the child overrode guardianship. The review concluded that this Rule 4 applied notwithstanding that the child’s mother was resident outside of Ireland.
Finally, these reports indicate that Appeals Officers were willing to allow appeals when evidence could be provided that a child between the ages of 16 and 18 years was being home-schooled or is incapable of continuing in an institution of full time education due to severe mental health issues. Evidence was also key in these cases.
Relevant Case Studies of the SWAO Annual Reports 2009-2020
A.
2009
N/A
B.
2010
1.
2010/01 Child Benefit – oral hearing
Question at issue: Habitual Residence Condition
C.
2011
2011/04 Child Benefit – summary Decision
Question at issue: Habitual Residence Condition
2011/06 Child Benefit – summary decision
Question at issue: Habitual Residence Condition
2011/10 Child Benefit – oral hearing
Question at issue: Habitual Residence Condition
2011/12 Child Benefit – oral hearing
Question at issue: Habitual Residence Condition
2011/13 Child Benefit – oral hearing
Question at issue: Habitual Residence Condition
2011/15Child Benefit – oral hearing
Question at issue: Habitual Residence Condition
2011/16 Child Benefit – oral hearing
Question at issue: Habitual Residence Condition
D.
2012
2012/03 – Child Benefit – oral hearing
Question at issue: Date of Award / Qualified Child – ordinarily resident
2012/04 – Child Benefit – summary decision
Question at issue: Qualified Child – ordinarily resident
E-F.
2013-2014
N/A
G.
2015
2015/01 Child Benefit – oral hearing
Question at issue: Habitual Residence Condition
H.
2016
2016/01 Child Benefit – oral hearing
Question at issue: Normal residence of qualified child
2016/02 Child Benefit – summary decision
Question at issue: Habitual residence
I.
2017
2017/01 Child Benefit – oral hearing
Question at issue: Habitual residence condition
2017/02 Child Benefit – summary decision
Question at issue: Backdating of payment
2017/03 Child Benefit – oral hearing
Question at issue: Extended payment of Child Benefit / Whether the child is in full-time education
2017/04 Child Benefit – summary decision
Question at issue: Extended payment of Child Benefit / Whether the child is in full-time education
2017/318/59 Child Benefit – Section 318 Review
Question at issue: Habitual residence
2017/318/60 Child Benefit – Section 318 Review
Question at issue: Right to reside in the State
J.
2018
2018/01 Child Benefit – summary decision
Question at issue: Eligibility (habitual residence condition)
2.
2018/02 Child Benefit summary decision
Question at issue: Normal residence of qualified child
K.
2019
1.
2019/01 Child Benefit – summary decision
Question at issue: Backdating
2.
2019/02 Child Benefit – summary decision
Question at issue: Backdating (Habitual Residence Condition)
3.
2019/03 Child Benefit – summary decision
Question at issue: Qualified Child – ordinarily resident
L.
2020
2020/01 Child Benefit – summary decision
Question at issue: Qualified Person – normal residence
2020/02 Child Benefit – summary decision
Question at issue: Eligibility (habitual residence condition)
2020/318/57 Child Benefit – Section 318 Review
Question at issue: Eligibility (qualified child and resident in the State)
Keywords: [ One Parent Family Payment; Means Test, Lone Parent, Appeal, Habitual Residence]
Casebase No. Case G0122
Summary of the relevant law:
The One Parent Family Payment (OFP) is a payment for persons under the age of 66 years old who are bringing children up without the support of a partner. The criteria for assessing the receipt of OFP are outlined below.
To qualify for OFP a person must meet the following criteria:
Aged under 66 years old;
Be the parent, step parent, adoptive parent or legal guardian of a child/children;
Their youngest child must be under the age of 7;
In certain instances, OFP will continue even after the youngest child turns seven. This occurs where the family is in receipt of;
Domiciliary Care Allowance (DCA);
If the individual claiming the OFP is in receipt of DCA for a child, they can also receive OFP until the child reaches the age of 16 or their entitlement to DCA ceases.
The individual will also get an Increase for a Qualified Child (IQC) for any other children in the family until they reach 18 (22 if in full-time education).
Blind Pension;
If the individual is in receipt of Blind Pension and also qualifies for OFP they are entitled to both payments (and any IQCs) until the child reaches the age of 16.
Carer’s Allowance;
If an individual in receipt of OFP is providing full-time care to one of their children or an adult, they are entitled to claim half-rate Carer’s Allowance alongside your OFP (and any IQC’s) until their youngest child turns 16.
Recent Bereavement.
If an individual applies for OFP on the basis that they are parenting alone following the death of their spouse, partner or civil partner, they will be entitled to OFP for 2 years following the date of death regardless of how old their youngest child is. The individual’s youngest child must be under the age of 18 in order to qualify for OFP in these circumstances.
Be the main carer of and live with the relevant child;
Must pass a means test;
To conduct a means test the Department of Social Protection will assess all sources of income which an individual applying for OFP is in receipt of. OFP will only be given to this person if their income is below a certain designated amount.
The income sources assessed in a means test are;
Cash Income
All cash income is taken into account for the means test bar;
Any payments made to an individual by the Department of Social Protection (except for Jobseeker’s Allowance);
Certain allowances from the HSE or the Department of Education;
Payments under certain scholarships or training allowances;
Approved by the Minister of Health;
Compensation awards provided for by the State.
Capital
All capital is taken into account for the means test bar;
Selling your home to move to more suitable accommodation while receiving State Pension, Disability Allowance or Blind Pension to the value of €190,500;
Sale of your home where an individual has significant maintenance costs – such as nursing home costs to the value of €190,500;
Maintenance
Only half of an individual’s income from maintenance will be assessed and deducted from your OFP. The person in receipt of maintenance can offset their housing costs against their maintenance income to the value of €95.23 per week.
Income from Work
The first €165 of an individual’s gross weekly earnings is assessed for the purposes of a OFP means test. Half of the remainder of a person’s gross earnings per week is then assessed. mSocial Insurance contributions, PRSI contributions or trade union subscriptions are not assessed.
Must live in Ireland and meet the habitual residence condition;
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
Must not be living with a spouse, civil partner or be cohabitating.
Additional Benefits
A person who receives OFP is entitled to avail of the Household Budget Scheme.
A person who receives OFP may also be entitled to additional benefits such as;
Fuel Allowance;
Working Family payment;
Medical Card; and/or
Rental assistance.
Key grounds of appeals by appellants:
Where an individual believes they have been erroneously refused OFP or they are unhappy about a decision of a social welfare Deciding Officer they can appeal this decision to the Social Welfare Appeals Office.
Cohabitating
Since 2012 there have been four appeals raised in relation to whether or not the person claiming OFP is actually cohabitating with another person.
As stated above, a person who is in a relationship and living with that person is not eligible for the OFP instead they must be widowed, separated, divorced, unmarried, have dissolved a civil partnership or be a prisoner’s spouse or civil partner. Likewise, they must not be cohabitating or living with a person they are in a relationship with.
In the case of cohabitation, appeals arise where a person portends that they are not in a relationship and living with the relevant person. As in case 2016/318/36the burden is on the Department is in this instance to establish that it is appropriate to withdraw that payment. In assessing cohabitation, as in case 2016/08 “no single criterion” will necessarily support or disprove a decision.
The burden of proof to prove cohabitation was set at being “highly probable“.
Assessment of Means
Four appeals have been made arguing the Assessment of Means test since 2012. A person who has been assessed as having means in excess of €217.80 per week is not entitled to OFP. The individual claiming OFP may avail of certain exemptions to their assessed means.
As per case 2016/318/36 this point will ultimately be decided on whether or not the person claiming OFP has been able to show that their means does not exceed the statutory qualifying limit and this test seems to be applied quite strictly compared to other grounds of appeal which arise.
Child not in parent’s care
The person who is claiming OFP must reside with their qualified child on a full-time basis. A child who is in a detention facility, foster care system or share joint equal custody with the child/children’s other parent does not qualify. If an individual’s child is put into foster care or detained for any period of time the person must notify the DSP and cease OFP until they become the main carer that resides with the child again.
In Case 2017/10 however, an individual’s child was taken into foster care for a number of months during which time she continued to receive OFP. During this time she continued to have daily contact, to keep a house ready for the child and to pay for much of her child’s upkeep. While on appeal, it was determined that she did not have any right to the OFP as she was not living with the child for which she was receiving the payment it was held that in these circumstances it would be unjust to charge her overpayment.
Habitual Residence Condition: See Thematic Note on Right to Reside and Habitual Residence Condition (Thematic Note G0116)
Backdating: See Thematic Notes on Backdating Claims (Thematic Note G0114)
Observations on appeal outcomes:
Where a decision to refuse or withdraw OFP is being appealed, the Appeals Officer tends to look at the situation of the person as a whole rather than at any isolated criteria when making a decision.
For example, lifestyle evidence was of relevance in determining cohabitation. This includes shared household duties and finances. Similarly, when an appeal is based on habitual residence, the Appeals Officer considers the entirety of the individuals experience and lifestyle, which may prove habitual residence on balance. Future intentions seem to be a key factor in any decision taken by the Appeal Officer in relation to habitual residence.
In the case of a Section 318 review again all elements of the person’s life is taken into account and an evidence based approach was used.
Relevant Case Studies of the SWAO Annual Reports 2009-2020
A.
2009
N/A
B.
2010
N/A
C.
2011
2011/01 One Parent Family Payment – summary decision
Question at issue: Habitual Residence Condition
2011/07 One Parent Family Payment – summary decision
Question at issue: Habitual Residence Condition
2011/08 One Parent Family Payment & Supplementary Welfare Allowance – oral hearing
Question at issue: Habitual Residence Condition
D.
2012
2012/15 One Parent Family Payment – oral hearing
Question at issue: Eligibility (cohabitation)
E-F.
2013-2014
N/A
G.
2015
2015/06 One Parent Family Payment – oral hearing
Question at issue: Cohabitation
H.
2016
2016/08 One-Parent Family Payment – oral hearing
Question at issue: Cohabitation
2016/09 One-Parent Family Payment – oral hearing
Question at issue: Assessment of means
2016/318/36 One-Parent Family Payment – Section 318 review
Question at issue: Means and cohabitation
2017
2017/09 One-Parent Family Payment – oral hearing
Question at issue: Eligibility (cohabitation and means)
2017/10 One-Parent Family Payment – oral hearing
Question at issue: Overpayment / Child in care
J.
2018
2018/06 One Parent Family Payment – oral hearing
Question at issue: Eligibility (means)
K.
2019
2019/07 One-Parent Family Payment – oral hearing
Question at issue: Backdating
L.
2020
1.
2020/05 One-Parent Family Payment – summary decision
Question at issue: Backdating
2.
2020/06 One-Parent Family Payment – summary decision
Question at issue: Eligibility (cohabitation)
M.
2021
2021/07 One-Parent Family Payment – summary decision
