DAO Bulletin Issue No 1 Issued July 1996


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Increase for adult dependant

Case No.

  1. Calculating income for adult dependency purposes
    QUERIES ON CASE NO 1
  2. Opting to become an adult dependant
    QUERIES ON CASE NO 2
  3. ADA and Redundancy Payments disqualification
  4. Partner in receipt of maintenance
  5. ADA for Separated spouse who is not
  6. FIS and ADA overlap
  7. Spouse on FAS training course

Child Dependant Increase

Case No.

  1. Separated parents and CDA

Subsidiary Employment

Case No.

  1. Person with Class D and Class A insurance in GCY

Other UA/UB issues

Case No.

  1. UA Overpayment
  2. Substantial Loss of Employment
  3. Extra work during requalification period
  4. Short period of part-time work after working full-time
  5. Part-timers who work Week-On/Week-Off
    QUERY ON CASE NO 14
  6. Intensive shifts

Exemption of casuals from sub-loss rule

Case No.

  1. Casual contracts in Health Boards
  2. Assurance of being re-employed

Systematic Short-time

Case No.

  1. Meaning of 'systematic' for SST purposes
  2. Meaning of 'for the time being'
  3. One worker on SST

Increase for adult dependant

Note: 'Adult Dependant Allowance' (ADA) is now known as 'Increase for Qualified Adult' (IQA).

Case No 1: Calculating income for adult dependency purposes

Q. Mr O'S is claiming DB. His wife is not in employment or self-employment nor is she on SW. She has £40,000 in capital which she has invested. Is he entitled to an ADA for her?

A. If Mrs O'S's income exceeds £60 weekly, she does not qualify as an adult dependant. This applies irrespective of whether the source of her income is employment or capital/property.
[Article 3 of SI 95 of 1996]

Where a person claims an ADA for a spouse/partner who has income from capital e.g. redundancy money, or who owns property which is neither personally used nor let, it is assessed as follows:

First £2,000 - yearly value = NIL
Next £20,000 - yearly value = 7.5%
Over £22,000 - yearly value = 15%.

The yearly value is divided by 52 to give the weekly income.

In this case, Mrs O'S's income from her capital of £40,000 would be assessed as follows:

First £2,000 = NIL;
£20,000 @ 7.5% = £1.500
+ £18,000 @ 15% = £2,700;
added together = £4.200;
divided by 52 = £80.77.

So, an ADA would not be payable in this case.

This method of assessment applies to all SW schemes in determining whether or not a spouse who has income from property may be admitted as an adult dependant.

NB. In assessing capital for the purposes of determining the means of the claimant for a non-contributory payment, a different method may apply. For example, if Mr O'S were to claim UA, his means from his wife's capital would be assessed at £77.00 a week as follows: 5% of the first £400 (£20) plus 10% of the remaining £39,600 (£3,960) = £3,980 divided by 52 = £76.54.

Where the spouse has property which is let, the actual profit from letting is assessed, not the capital value.

Queries on Case NO 1

Q. In Case No 1 you advised that if Mr O'S were to claim UA, his means from his wife's capital would be assessed at £77.00 a week under the rules which apply to the assessment of capital of UA applicants (i.e. 5% of the first £400 and 10% of the balance). But surely he would only be assessed with half of these means?

A. Correct - we should have added that the means would be 'halved' in accordance with the provisions of Section 122 (2).

Q. In Case No 1 you said that the method of calculating income for adult dependency purposes (as prescribed in Article 3 of S.I. 95 of 1996) "applies to all SW schemes". But should you not have added "other than OAP" since, in accordance with section 137, an increase of OAP is payable for a spouse rather than an adult dependant?

A. No. Although we agree that the rules of Article 3 of S.I. 95 of 1996 are not relevant where the Old Age pensioner and spouse are living together, however, section 137 also provides that an increase of OAP is payable for a spouse who is living apart from the pensioner but who is wholly or mainly maintained by him or her. The rules of Article 3 would apply in these circumstances.

Q. In Case No 1 you said that: ' Where the spouse has property which is let, the actual profit from letting is assessed, not the capital value'. What has this to do with the assessment of the means of the applicant?

A. Sorry, this appeared out of context. We just wanted to convey that, in assessing the £60 income limit for ADA purposes, where the spouse's property is let, the actual income from letting is to be taken into account, not the capital value of the property.

We should also have referred to the principle that, where property is jointly owned by a couple, only half of the capital value is treated as belonging to either spouse. So, if in Case No 1 the property of £40,000 was held jointly in the names of Mr O'S and Mrs O'S, only £20,000 would be taken into account in determining whether Mrs O'S was his adult dependant.

Case No 2: Opting to become an adult dependant

Q. Mr C is in receipt of UA and is assessed with £40 means. Mrs C is on DB. If Mr C signed off and became an adult dependant of Mrs C, household income would increase. Is this arrangement in order?

A. Yes - Mr C cannot be required to pursue an entitlement if he does not wish to do so. So if he ceases to claim UA in his own right, Mrs C can be paid an ADA for him. Mr C may sign for credits in these circumstances.

Queries on Case No. 2

Q. In Case No 2 you stated that there would be an increase of household income if Mr C signed off UA and became an adult dependant of Mrs C on her DB claim. But your calculation of Mr C's UA entitlement seems to have overlooked the fact that his weekly means of £40 would be halved (to £20) while his wife was on DB. In these circumstances, there would be no advantage for Mr C to sign off because household income would be the same.

A. Well spotted! If Mr C's means were assessed at only £20, his UA entitlement, limited by Section 122(4), would give the same overall household income as his wife would get on DB if he were to become her ADA.

Q. In case No 2 if Mr C's means for UA (following halving) are £40, then the full means are £80 and surely an ADA would not be payable on his wife's DB claim?

A. Again, point taken. We obviously should have chosen a different means figure. For instance, if Mr C's means were, say, £58 weekly he could qualify as an adult dependant on his wife's DB claim. This would mean she could receive an increase of DB of £38.50 for him which would be higher than his own UA entitlement of £33.40 (STUA: £62.40 - £29.00) or £35.50 (LTUA: £64.50 - £29.00)

Case No 3: ADA and Redundancy Payments disqualification

Q. Mr R has been disqualified for 9 weeks for receipt of UB because he received a redundancy payment exceeding £15,000.
[Section 47(4)(e)]. His wife is on DB. If Mr R ceases to sign, can he be treated as the adult dependant of Mrs R on her DB claim?

A. Yes. Nothing in the legislation prevents an ADA being paid to Mrs R in these circumstances provided that Mr R doe not have a weekly income in his own right of £60 or over. In particular, the capital value of his Redundancy Lump sum should be assessed (see advice on Case No 1 above).

Note, however, that if the reason for Mr R's disqualification for UB was because of his participation in a trade dispute, an ADA could not be paid because the legislation specifically rules this out. [Section 2(2)(a)(iv)]

Case No 4: Partner in receipt of maintenance

Q. If Mrs A is separated from her husband and is living with Mr B who is in receipt of a SW payment, can Mr B receive an ADA in respect of her if she is receiving maintenance of, say £50 a week, from Mr A?

A. Yes, once the spouse's weekly income from whatever source does not exceed £60, he or she qualifies as an adult dependant. So, in this case, as the level of maintenance is under £60, Mr B is entitled to an ADA for Mrs A. provided, of course, that Mrs A does not have other income which would bring her over £60 and is not in employment or in receipt of a SW payment in her own right. Note also that if Mr A were to claim SW he would not be entitled to an ADA for Mrs A because a spouse who is cohabiting with another person as husband and wife cannot be treated as the adult dependant of his/her own husband/wife. [Article 3 of S.I. 95 of 1996]

Case No 5: ADA for Separated spouse who is not cohabiting

Q. Mr and Mrs Z are living apart. He is on DB and paying her £40 per week maintenance. She is working and gets wages of £56. Is Mr Z entitled to an ADA for Mrs Z?

A. Yes, an ADA is payable in this case because the level of maintenance being paid by Mr Z to Mrs Z is more than the equivalent of the ADA and because Mrs Z has income in her own right of under £60 a week. (The maintenance paid by Mr Z is not included in determining whether or not she has income exceeding £60 a week). If he was paying her less than the ADA rate or if she had income (excluding maintenance) of over £60, an ADA would not be payable. [Article 3 of SI 95 of 1996]

[ Note: the difference between this and Case No 4 where the spouse was living with someone else.]

Case No 6: FIS and ADA overlap

Q Can a person on UB or UA claim an ADA for a spouse who is on low earnings and in receipt of FIS?

A. No, under the overlapping provisions, a person is not entitled to receive an increase of UB, UA, PRETA or Retirement Pension in respect of a spouse who is in receipt of FIS. [Section 209 (6)]

Case No 7: Spouse on FAS training course

Q. Can a person be paid an ADA for a spouse who is on a FAS course?

A. It depends on the type of FAS course. If the spouse is on a non-craft full-time course, an ADA is not payable. [Specifically excluded by Section 2(2)(a)(v)]. In other cases the income limit for ADA purposes will determine the position. If the FAS training allowance payable for the course, whether it is a full-time Craft Course or a part-time non-craft course, is £60 or under an ADA can be paid. The type of course should be checked with FAS.


Child Dependant Increase

Case No 8: Separated parents and CDA

Q. Mr T is on RP. He is separated from Mrs T who is not claiming SW in her own right. Mr T contributes £10 a week towards the maintenance of his daughter who is living with Mrs T. Can he be paid CDA for his daughter? If so, would he get half-rate or full rate CDA?

A. The Normal Residence regulations provide that, if the parent with whom the child is living is not claiming or in receipt of a SW payment, the other parent is entitled to CDA provided s/he is contributing substantially to the child's maintenance. "Contributing substantially" is not defined, but it is reasonable to take it to mean, at least, the equivalent of the CDA rate (£13.20 upwards a week). On this basis, CDA would not be payable to Mr T in this case because the level of maintenance is less than the CDA rate. However, if Mr T were to contribute £13.20 or more weekly, full rate CDA would be payable provided Mrs T did not have a SW claim. [Article 7(6)]


Subsidiary Employment

Case No 9: Person with Class D and Class A insurance in GCY

Q. Mr McN is a permanent and pensionable postman for whom Class D contributions are payable by An Post. He is also a part-time fireman and the Local Authority pay Class A contributions in respect of this employment. He is due to retire as a postman shortly. Will he be entitled to UB on foot of having 52 Class A contributions in the GCY?

A. No. A permanent and pensionable postman is insurable at the modified rate of contributions which does not give cover for UB/DB. The Social Welfare (Subsidiary Employments) Regulations specify that any other employment adopted by a person, where their ordinary employment is insurable at the modified rate of insurance, is classed as a subsidiary employment (insurable at the Class J rate of contribution). {Article 4 of SI No 80 of 1995}

The Class A contributions paid in respect of his employment as a part-time fireman are refundable.


Other UA/UB Issues

Case No 10: UA Overpayment

The following 'appeal' case highlights the need to review cases on a regular basis and, in particular, to follow up on aspects of a person's circumstances that we know about.

Basic Facts:
Mrs M claimed UA in 1987. As her husband was in employment, she was assessed with weekly means from his wages. From April 1989 her weekly means were assessed by reference to her husband's wages of £152 a week. Her means were reviewed again in 1995 when it was established that her husband's earnings had increased in the interim - e.g. his wages, including overtime, were £288 in April 1994. Following this review, the Deciding Officer decided that Mrs M was no longer entitled to payment of UA and that she had been overpaid UA from April 1989 to October 1995 amounting to over £10,000. The basis for the Deciding Officer revising the decision from a retrospective date was that Mrs M had failed to disclose her change of circumstances to the Department as she was obliged to do. She appealed this decision.

Appeal:
At the hearing Mrs M said that she thought a 'change of circumstances' meant if she got a job. She said she did not think overtime counted. She thought she was all right because she signed every week and 'nothing was said'. She was never asked if her circumstances had changed.

Appeals Officer's decision:
The AO allowed the appeal by making the decision effective from a current date only. As a result no overpayment arose. The grounds for the Appeals Officer's decision were that the AO accepted that Mrs M did not realise she had to report changes in her husband's earnings. The AO also considered that, since the Department had been aware that Mr M was in employment, there was an onus on DSW to review Mrs M's means more regularly - it being a simple step, and one which could or, indeed, would reasonably be expected, for the Department to make periodic enquiry from the client by asking, say, for the completion of a short form to show any change in her spouse's earnings.

Case No 11: Substantial Loss of Employment

Q. In what circumstances should the substantial loss test be applied?

A. The substantial loss test must be applied in all cases where a person loses employment except where the person i) is in casual employment; or ii) is a systematic short-time worker where the normal level of employment continues to be calculated by reference to the period before SST commenced (normally 5 days).

Case No 12: Extra work during requalification period

Q. Mrs B is a part-time worker and normally works 3 days a week. Her UB expires and during the requalification period she works 4 days a week. On return to UB she goes back to working 3 days a week. Does she qualify for UB under the 'sub loss' rule?

A. No. In this case, while there has been a substantial loss of employment by reference to Mrs B's recent work experience, the position needs to be looked at over a longer period. So, her work record should be examined by reference to the previous 26 or 52 weeks (rather than 13 weeks) which will show the true picture i.e. that there has been no substantial loss of employment over the period.

Case No 13: Short period of part-time work after working full-time

Q. Mr G receives a redundancy payment of £40,000 and does not claim UB for 9 weeks. He gets a part-time job two weeks before the end of what would have been the disqualification period. If he signs-on for UB, would the normal period of employment be calculated by reference to the part-time period even though he only worked part-time prior to claiming UB?

A. No, a short period of part-time employment may be disregarded and the person should be treated as having come from full-time employment i.e. the 'sub loss' rule would be satisfied in this case.

Case No 14: Part-timers who work Week-On/Week-Off

Q. Mr Q works Monday to Friday every second week and signs for UB on the other days. As the UB week runs from Thurs to Wed, this means he signs 3 days one week and 4 days the next week. Would he have a substantial loss of employment every second week?

A. Yes, the normal level of employment is 3 days so Mr Q qualifies for UB every second week.

Query on Advice Given on Case No 14

Q. In Case No 14 you advised that Mr Q, who worked Monday to Friday in alternate weeks, would suffer a substantial loss of employment and be entitled to UB every second week. Does this apply where a person was working week-on week-off prior to claiming UB?

A. No, the advice we gave in relation to Case No. 14 applies where a person, prior to claiming UB, had been working full-time and had then been put on week-on week-off working by his employer. However, a number of week-on week-off appeal cases have recently come to our notice where the Appeals Officer held that, in order to satisfy the substantial loss condition, the number of days actually worked after the date of claim to UB must be less than the number of days actually worked prior to then. So, if Mr Q had been working week-on week-off continuously prior to the UB claim, and continued to work the same pattern of days after claiming UB, there would be no actual loss of employment and UB would not be payable to him.

Q. In your comments on Case No 14 you say that UB is payable where a person was working full-time and is then put on week-on week-off working - on the basis that the person has sustained a substantial loss of employment. What is the position if, after UB expires, a person requalifies on the basis of contributions paid while working week-on week-off? Will s/he satisfy the substantial loss rule?

A. If there is no change in the person's pattern of week-on week-off employment (i.e. the actual number of days being worked is the same as previously), s/he will not satisfy the substantial loss rule and UB will not be payable at that point.

Q. In your comments in Issue No 2 on a query about Case No 14, you said that, in order to satisfy the substantial loss condition in week-on week-off cases, the number of days actually worked after the date of claim to UB must be less than the number of days actually worked before then. There are a number of these cases at our office where payment was authorised before we received this advice. Should the decisions in these now be revised?

A. The advice given in the Bulletin on Case No 14 was based on recent decisions by Appeals Officers which clarified how the law was to be interpreted on the points in question. This clarification should now be followed by Deciding Officers generally in determining new cases of that kind. But in our view it would not be appropriate to revise decisions already made before that clarification became available. However, any such cases should be reviewed on expiry of UB or on break of claim and the new clarification applied at that point.

Case No 15: Intensive shifts

Q. Workers who previously worked 5 days a week now work weekends only, but work the same number of hours a week as before. Is UB payable for the days when they do no work?

A. If the number of hours they were working constituted full-time employment for that employment, they would not be entitled to UB for any day if they are now working the same number of hours each week. (decision 'not unemployed')

Although not defined in S.W. legislation, it would normally be reasonable to treat persons who work 36 hours or over in a week as being in full-time employment. However, in some circumstances workers who work a lower number of hours (perhaps as low as 30 hours) in a week could also be regarded as in full-time employment. Where the number of hours worked does not add up to full-time employment, regard has to be had to the actual number of days worked in applying the 'sub loss' rule.

If there is an increase in earnings (e.g. a shift allowance or bonus is paid) or a guarantee has been given that there will be no loss of earnings as a result of the revised hours, the 'sub loss' rule should be applied.


Exemption of casuals from sub-loss rule

Case No 16: Casual contracts in Health Boards

Q. Nurses and domestics with Health Boards often have a 1 to 3 month contract for sick/holiday relief work. Are they to be treated as casuals?

A. All 3 conditions set out in Art 33 must be fulfilled for a person to be treated as a casual. The conditions are that:

  1. the person is normally employed for periods of less than a week;
  2. the number of days and the days of the week on which s/he is employed in each period varies with the level of activity in the employer's business; and
  3. on the termination of each period of employment the person has no assurance of being re-employed with the same employer.

Note:
The majority of Health Board contracts which have come to notice do not guarantee any minimum level of employment, and therefore satisfy condition (3) above. Where this is the case and the employment is irregular and part-time, these workers can be treated as casuals.

Case No 17: Assurance of being re-employed

Q. Mr N normally works 3 days a week but his employer will not give him a written guarantee that he will be taken on again in the following week. Should he be treated as a casual on the basis that he has 'no assurance of being re-employed' within the meaning of Article 33(1)(c)?

A. Refusal by an employer to give a written guarantee does not necessarily mean that there is no assurance that the person will be re-employed. In this case, if Mr N has a consistent pattern of working each week, it may be taken that he will be re-employed in the following week in the absence of a good reason for believing that the pattern is going to change.


Systematic Short-Time

Case No. 18: Meaning of 'systematic' for SST purposes

Q. Mr B has a regular pattern of working 3 days in one week and 2 in the next. Should he be regarded as on systematic short-time SST?

A. Yes, if there is a regular pattern of working such as 3 days in Week One and 2 days in Week Two Mr B's employment may be treated as 'systematic' provided he was previously employed full-time in that employment.

Case No. 19: Meaning of 'for the time being'

Q. Short-time is defined as employment in which "for the time being" the number of days systematically worked is less than is normal in that employment. Should cases be reviewed under the Substantial Loss rule on expiry of UB?

A. No, unless there is evidence that all the workers on short-time in the firm concerned have moved from SST to permanent part-time working (e.g. P45s issued and new contracts signed etc.)

Case No. 20: One worker on SST

Q. Do the SST provisions apply to situations where an employer has only one employee (e.g. doctor's receptionist)?

A. SST normally applies where a group of workers is put on a reduced working week. Although SST could also apply to a sole employee, care should be taken to ensure that the person is not job-sharing or has not become a permanent part-time worker.

Last modified:17/08/2010
 

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