Revised Decisions

Index

◊ REVISED DECISIONS - OVERVIEW
Power to Revise DO Decision
Power to Revise AO Decision
Restriction on Revising a Decision under Appeal
Date of Effect of Revised Decisions
Sequence to be followed
Composition of Revised Decisions
Example of Wording of Revised Decision

◊ REVISED DECISIONS: GENERAL QUESTIONS

◊ REVISED DECISIONS: CASES

REVISED DECISIONS - OVERVIEW

A Deciding Officer may revise a previous decision of a Deciding Officer subject to the provisions of Section 301 of the Social Welfare Consolidation Act, 2005 (see next paragraph). Having decided to revise the decision, the Deciding Officer must then determine from what date the revised decision should have effect. The comments below and the questions/cases which follow try to explain what those provisions mean in practice.

Power to Revise DO Decision

Section 301(1)(a) provides that a Deciding Officer may revise the decision of a Deciding Officer if:

new evidence or new facts come to light
a mistake was made in relation to the law or the facts
there is a relevant change of circumstances.

Power to Revise AO Decision

Under the provisions of Section 301(1)(b) an Appeals Officer's decision may be revised by a Deciding Officer when there has been a relevant change of circumstances since the Appeals Officer's decision was given.

(See also "Further Reviews following Appeals Officer Decisions" in the Guideline " Appeal Submissions" )

Restriction on Revising a Decision under Appeal

When a Deciding Officer's decision is under appeal, Section 301(3) stipulates that the decision can be revised by a Deciding Officer only if the revision would be in favour of the claimant. This means, for example, that additional grounds for disallowance or additional retrospection cannot be included.

(See also "DO Review before Appeal" in the Guideline " Appeal Submissions" )

Date of Effect of Revised Decisions

Section 302 sets out the date from which a revised decision should take effect. It is for the Deciding Officer to determine the appropriate date having regard to the legislation and the circumstances of the case.

The effective date may be the date of the original decision, the date of the new fact or new evidence, or a current date. Where fraud is involved, the decision should always be retrospective.

In other cases the general principle is that where the person concerned could reasonably have been expected to be aware of the relevant facts (e.g. a change of circumstances) and to have notified the Department about the position, the decision should have effect from a retrospective date. Otherwise the decision should normally apply from a current date.

In law, when a Deciding Officer revises a decision under 302(b) or 302(c) and makes it effective from a current date, there is no overpayment.

Sequence to be followed

In determining the effective date, the Deciding Officer should relate the facts of the case to each of the 3 subsections of section 302 in sequence - i.e. first: Is 302(a) appropriate? Then, is 302(b) appropriate? If neither of these subsections apply, then the decision should be revised in accordance with section 302(c).

Composition of Revised Decisions

A revised decision should include reference to:

the relevant provision in the legislation under which payment is being disallowed or reduced.
the sub-section of Section 302 which the Deciding Officer has applied in determining the effective date of the revised decision.

Example of Wording of Revised Decision

If payment of an Increase for Qualified Adult is being discontinued because the spouse is in receipt of a specified Social Welfare payment in his/her own right and the Deciding Officer considers that section 302(b) is appropriate, the revised decision should include:

Disallowance: An increase of benefit is not payable in respect of (the claimant's spouse) from (date) because he or she is .......(state circumstances) and, therefore, is not a Qualified Adult within the meaning of the Social Welfare legislation. [Section 2(2)(a)(iii)]

Effective date: This decision is made in accordance with section 302(b) and has effect from (date).

See also cases number 21 to 32 below, as circulated in DAO Bulletin Issue 2, which set out in question and answer form examples of the effective date of revised decisions to be applied in a range of different circumstances.

REVISED DECISIONS: GENERAL QUESTIONS

Question No 21: Fraud Cases

Q. In what circumstances should a Deciding Officer apply Section 302(a)?

A. 302(a) applies where fraud is involved. Fraud for this purpose means that the person deliberately gave false or misleading information or deliberately failed to disclose relevant information, either on the claim form, or on another enquiry form, or at an interview.

In order to base a decision on this section, the Deciding Officer has to be satisfied that the person:

deliberately gave information knowing it to be false or to be misleading in a material respect, or
deliberately withheld information knowing it to be material to the question of entitlement.

In all cases where the Deciding Officer decides to apply Section 302(a), the decision must be applied with retrospective effect.

Note: In fraud cases it is particularly important that the Deciding Officer states clearly as part of the decision that he or she has applied the provisions of subsection 302(a). This clarifies the opinion of the Deciding Officer in the event of an appeal or if consideration is given to taking legal proceedings.

Question No 22: Effective date of revised decisions made under section 302(b)

Q. When should 302(b) be applied retrospectively and when from a current date?

A. Section 302(b) allows a Deciding Officer, in making a revised decision reducing an entitlement in the light of new facts or new evidence, to decide that it shall take effect either from a current or from a retrospective date.

Section 302(b) should be applied with retrospective effect if

new facts have occurred since the person claimed the social welfare payment in question, or if new evidence comes to light which was not available at claim stage, and the person was aware of the new facts or evidence but failed to report this information to the Department, or
it is not possible for the Deciding Officer to establish that the person wilfully concealed the facts on a previous interview or enquiry but the Deciding Officer is satisfied that the person could reasonably have been expected to be aware of the new facts (or evidence) and their relevance.

Circumstances where it would be appropriate to revise a decision under 302(b) with effect from a current date include cases where the Deciding Officer is satisfied that

the person could not reasonably have been expected to know the relevance of the new fact, or
the person was not aware of the undisclosed evidence at the point when s/he made the claim or subsequently, or
the evidence on which the decision was based was defective in a material respect through no fault of the person concerned e.g. arithmetical error in means report.

Question No 23: New Facts or New Evidence (Non-fraud)

Q. What constitutes "new facts or new evidence" in the context of Section 302(b)?

A. 302(b) applies where the decision has to be revised because new facts have come into existence or new evidence has come to light.

An example of a new fact is where a qualified adult has commenced employment since the person claimed the Social Welfare payment.

An example of new evidence is where it comes to light that a person had not disclosed (in the context of the means test) a bank account. If the amount was small and the account had been dormant for a long time, it may be accepted that the non-disclosure was a genuine oversight by the person.

Question No 24: applying 302(c)

Q. When should 302(c) be applied?

A. 302(c) applies where a decision has to be revised but neither section 302(a) nor section 302(b) is appropriate, i.e. the reason for revising the decision

is not because the person concerned deliberately gave false/misleading information or deliberately withheld relevant information
and is not because new facts or new evidence have come to light, or the effect is to increase (not reduce) the entitlement.

The kind of circumstances where sub-section 302(c) may be applicable would include cases where:

the Deciding Officer who made the original decision authorised the claim in error or made a mistake in striking the rate payable, or
the Deciding Officer concludes that the original decision was incorrect because of a wrong interpretation of the legislation.

Question No 25: Effective date of revised decisions made under section 302(c)

Q. Is 302(c) always to be applied from a current date?

A. Obviously, where a customer was underpaid because of a wrong calculation or interpretation by the Deciding Officer, the position must be rectified by way of a revised decision awarding full entitlement from a retrospective date. In the majority of cases where an entitlement is being reduced, revised decisions made in accordance with 302(c) should have effect from a current date.

However, in cases where a person has been overpaid on foot of a decision which was wrong and the Deciding Officer is satisfied that the person knew the decision was wrong but deliberately omitted to bring the matter to the attention of the Department, it might be appropriate to apply the decision with retrospective effect.

REVISED DECISIONS: CASES

Case No. 26: Spouse in employment when claim made

Q. Mr A claimed Jobseeker's Benefit (JB) on 1 November 2005. He was awarded an increase of JB for his spouse on the basis of his statement that she was not working. However, in March 2006 it came to light that Mrs A was in employment at the time of Mr A's claim and had been working continuously since then.

Her wages are 400 a week. Mr A has been interviewed and has admitted that when claiming JB he had knowingly made a false statement that his wife was not employed. Which sub-section of section 302 should the Deciding Officer apply?

A. The increase of JB paid to Mr A in respect of his spouse should be disallowed on the grounds that she was not a Qualified Adult within the meaning of the Social Welfare legislation from 1 November 2005 onwards. The Deciding Officer should revise the decision and make it effective from 1 November 2005 in accordance with section 302(a), giving rise to an overpayment.

Case No. 27: Spouse starts work after claim is made.

Q. Mr B claimed JB on 1 November 2005. He was awarded an increase of JB for his spouse on the basis of his statement that she was not working. In February 2006 it came to light that Mrs B had commenced full-time employment on 12 January 2006 and had been working continuously since then. Her wages were 150 a week. Mr B had not notified the Department of this change in his circumstances. He has been interviewed about the matter and stated that his wife told him she was only receiving wages of 60 a week. He said he thought he only had to notify the Department if her earnings were over 88.18 a week. However, the Deciding Officer does not accept this statement. Which sub-section of section 302 should the Deciding Officer apply?

A. The increase of JB paid to Mr B in respect of his spouse should be disallowed on the grounds that she was not a Qualified Adult within the meaning of the Social Welfare legislation from 12 January 2006 onwards. The Deciding Officer should in our view revise the decision in accordance with section 302(b) and make it effective from 12 January 2006.

Note the difference between Cases 26 and 27.

In Case No 27 the false statement made by Mr A on his claim clearly constituted fraud. In case No 28, fraud could not be proved because Mr B had not been asked about his wife's position between November and February and had therefore not deliberately made a false statement. However the Deciding Officer concluded that Mr B was aware of the need to report a change of circumstances, and did not accept that he was ignorant of his wife's true earnings, so the decision is made retrospective.

Case No. 28: Pensioner dies leaving undisclosed means

Q. Ms C had been in receipt of full-rate State Pension (Non-Contributory) since 2000 on the basis of nil means. Following her death in September 2005 it came to light that she had received an inheritance of 60,000 in July 2002 which she had lodged to a bank account. The bank account shows regular lodgements and withdrawals by her between 2002 and 2005.

She had not notified the Department of this change in her circumstances. Which sub-section of section 302 should the Deciding Officer apply?

A. Ms C's means should be reassessed having regard to the undisclosed capital from 2002. In accordance with section 302(b) the decision should be applied with effect from 2002 if the Deciding Officer is satisfied on the basis of the available evidence that Ms C was aware of her increased means.

Case No. 29: Pensioner not aware of change of circumstances

Q. Mr D had been in receipt of full-rate State Pension (Non-Contributory) since 2000 on the basis of nil means. Following his death in August 2005 it came to light that he had a bank account since April 2003 containing a balance of 50,000. He had not notified the Department of this capital. However, evidence is now put forward that this money had been lodged to his bank account by his sister and that, because of his poor mental state of mind, Mr D had not known that she had done this. Which sub-section of section 302 should the Deciding Officer apply?

A. Mr D's means should be reassessed having regard to the undisclosed capital from April 2003. If the Deciding Officer is satisfied there is adequate evidence that Mr D was not aware that he had this capital, the decision should be made in accordance with section 302(b) and be applied with effect from a current date. (In practice, a formal decision is not made in this kind of case).

Note the difference between Cases 28 and 29.

In most 'Estate' cases where there has been a significant change of means the revised decision will apply from a retrospective date. This is the position in Case No 28. However, Case No 29 is exceptional in that there is satisfactory evidence that Mr D was not aware that there had been a significant change in his means and in these circumstances the Deciding Officer may apply the decision from a current date.

Case No. 30: One-Parent Family payment and cohabitation

Q. Ms E has been in receipt of One-Parent's Family Payment (OPFP) since 2003. In October 2005 it is established following investigation that she is cohabiting as husband and wife with another person. She alleges that this cohabitation has only just started. However, there is evidence to indicate that she has in fact been cohabiting since at least October 2004. Which sub-section of section 302 should the Deciding Officer apply?

A. Ms E should be disqualified for payment of OPFP in accordance with Section 160 of the Social Welfare (Consolidation) Act, 1993 (now Section 175 of the Social Welfare Consolidation Act 2005). It is very difficult to prove retrospectively that a person has been cohabiting with somebody as husband and wife. Many appeals against such decisions have been successful because of the inadequacy of available evidence, and in some cases even the evidence of current cohabitation has been overturned. So, unless the evidence of previous cohabitation is very strong, we would advise that the decision in Mrs E's case be revised with effect from a current date in accordance with section 302(b).

Case No. 31: Mistake by Deciding Officer

Q. Mrs F has been in receipt of Illness Benefit (IB) since February 2006. Her claim was authorised for payment on the basis that she satisfied the contribution conditions. It has now been discovered, however, that the Deciding Officer misread the contribution record and that Mrs F has only 37 (and not 39) contributions paid since her entry to insurance. Which sub-section of section 302 should the Deciding Officer apply?

A. Payment of IB to Mrs F should be disallowed on the grounds that she does not satisfy the first contribution condition. As the need for a revised decision in this case arises from an error by the Department and there is no reason for believing that Mrs F was aware she was being paid IB in error, the revision should, in accordance with section 302(c), be applied with effect from a current date.

Case No. 32: Adult Dependant claims in own right

Q. Mr G made a claim for Jobseeker's Benefit (JB) in January 2006 and was allowed an Increase for Qualified Adult for his wife who was in employment with wages of 60 a week. It has now come to light that Mrs G has been in receipt of Illness Benefit (IB) since March 2006. Mr G had not notified his local office of this. When she made her IB claim Mrs G had stated on the claim form that her husband was receiving UB. However, the fact that Mrs G had claimed IB was not notified by IB Section to the Local Office (LO) where Mr G was signing.

When he was interviewed about the matter, Mr G said that, because his wife had already informed the Department of the position, he did not think he had to tell the LO about it. In any event he thought that, because he could get an increase for his wife while she was working, he could continue to get it while she was on IB. He appeared honest in what he said at the interview. Which sub-section of section 302should the Deciding Officer apply?

A. Payment of an adult dependant allowance to Mr G should be disallowed on the grounds that his wife is in receipt of a social welfare payment in her own right (Section 2(2)(a)(iii) of the Act). Because of the failure by the Department to act on relevant information which had been furnished by Mrs G, and having regard to the evidence that Mr G did not deliberately omit to bring the matter to the Department's attention, we would consider that the decision should be revised with effect from a current date under section 302(b).

Points to note about Case No 32.

If instead of the above scenario, Mrs G had omitted to state on the IB claim form that her husband was on JB and/or if the Deciding Officer is satisfied that Mr G was aware that he should have reported his wife's IB claim, a retrospective decision under 302(b) could be appropriate.

Note also that if Mrs G had been in receipt of IB when Mr G first claimed JB and he had indicated this on his claim but the Deciding Officer had not noticed it, this would not constitute a "new fact" on coming to light some time later. The date of effect of the revised decision in such a case would therefore fall to be determined under 302(c), not 302(b).