- Fraud Cases
- Effective date of revised decisions made under section 249(b)
- New Facts or New Evidence
- Applying section 249(c)
- Effective date of revised decisions made under section 249(c)
- Spouse in employment when claim made
- Spouse starts work after claim is made
Note the difference between Cases 26 and 27.
- Pensioner dies leaving undisclosed means
- Pensioner not aware of change of circumstances
Note the difference between Cases 28 and 29
- Lone Parent cohabiting
- Mistake by Deciding Officer
- Adult Dependant claims in own right
- Adult Dependant Allowance for persons aged under 18 years.
QUERY ON ADVICE GIVEN IN CASE NO 33
- Family members working on the family farm
- Assessment of capital where person on UA is changing residence
- Substantial Loss Rule and unrepresentative periods of employment
- Money in Trust Fund
Revised Decisions: General Questions
Question No 21: Fraud Cases
Q. In what circumstances should a Deciding Officer apply Section 249(a)?
A. 249(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 249(a), 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,
- deliberately withheld information knowing it to be material to the question of entitlement.
In all cases where the Deciding Officer decides to apply Section 249(a), the decision should be applied with retrospective effect.
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 249(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 249(b)
Q. When should section 249(b) be applied retrospectively and when from a current date?
A. Section 249(b) allows a Deciding Officer, in making a revised decision 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 249(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 has come 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,
- 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 249(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,
- the person was not aware of the undisclosed evidence at the point when s/he made the claim or subsequently,
- 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
Q. What constitutes "new facts or new evidence" in the context of Section 249(b)?
A. An example of a new fact is where an adult dependant has commenced employment since the person claimed the SW payment. An example of new evidence is where it comes to light that a person had not disclosed a bank account when claiming a means-tested Social Welfare payment but, as the amount was small and the account had been dormant for a long time, it is accepted that the non-disclosure was a genuine oversight by the person.
Question No 24: Applying section 249(c)
Q. When should section 249(c) be applied?
A. 249(c) applies where a decision has to be revised but neither subsection 249(a) nor subsection 249(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.
The kind of circumstances where sub-section 249(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,
- 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 249(c)
Q. Is section 249(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 the correct entitlement from a retrospective date.
In the vast majority of cases where an entitlement is being reduced, revised decisions made in accordance with 249(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 could 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 UB on 1 November 1995. He was awarded an increase of UB for his spouse on the basis of his statement that she was not working. However, in October 1996 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 £300 a week. Mr A has been interviewed and has admitted that when claiming UB he had knowingly made a false statement that his wife was not employed. Which sub-section of section 249 should the Deciding Officer apply?
A. The increase of UB paid to Mr A in respect of his spouse should be disallowed on the grounds that she was not an adult dependant within the meaning of Social Welfare legislation from 1 November 1995 onwards. The Deciding Officer should revise the decision and make it effective from I November 1995 in accordance with section 249(a).
Case No 27: Spouse starts work after claim is made
Q. Mr B claimed UB on 1 November 1995. He was awarded an increase of UB for his spouse on the basis of his statement that she was not working. In October 1996 it came to light that Mrs B had commenced full-time employment on 1 April 1996 and had been working continuously since then. Her wages are £100 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 £50 a week. He said he thought he only had to notify the Department if her earnings were over £60 a week. However, the Deciding Officer does not accept Mr B's story. Which sub-section of section 249 should the Deciding Officer apply?
A. The increase of UB paid to Mr B in respect of his spouse should be disallowed on the grounds that she was not an adult dependant within the meaning of Social Welfare legislation from 1 April 1996 onwards. The Deciding Officer should revise the decision in accordance with section 249(b) and make it effective from 1 April 1996.
Note the difference between Cases 26 and 27
In Case No 26 the false statement made by Mr A on his claim clearly constituted fraud. In case No 27, fraud could not be proved because Mr B had not been asked about his wife's position between April and October 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 OAP since 1989 on the basis of nil means. Following her death in September 1996 it came to light that she had received an inheritance of £20,000 in July 1992 which she had lodged to a bank account. The bank account shows regular lodgements and withdrawals by her between 1992 and 1996. She had not notified the Department of this change in her circumstances. Which sub-section of section 249 should the Deciding Officer apply?
A. Ms C's means should be reassessed having regard to the undisclosed capital from 1992. As she was not interviewed between July 1992 and her death, there was no fraudulent statement and wilful concealment cannot be proved, so section 249(a) is not appropriate. The receipt of the inheritance is a new fact, so the decision should be made in accordance with section 249(b). The decision should be applied with effect from 1992 on the basis of the available evidence that Ms C was aware of her increased means and should have notified the Department about the position.
Case No. 29: Pensioner not aware of change of circumstances
Q. Mr D had been in receipt of full-rate OAP since 1990 on the basis of nil means. Following his death in August 1996 it came to light that he had a bank account since April 1994 containing a balance of £25,000. 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 249 should the Deciding Officer apply?
A. Mr D's means should be reassessed having regard to the undisclosed capital from April 1994. 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 249(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 i.e. having regard to the date of the new fact or evidence. 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 change in his means and having regard to the circumstances of the case the Deciding Officer may apply the decision from a current date.
Case No 30: Lone Parent cohabiting
Q. Ms E has been in receipt of Lone Parent's Allowance since 1993. In October 1996 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 1994. Which sub-section of section 249 should the Deciding Officer apply?
A. Ms E should be disqualified for payment of LPA in accordance with Section 160 of the Act. It is normally very difficult to prove in respect of a past period 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
Case No 31: Mistake by Deciding Officer
Q. Mrs F has been in receipt of DB since February 1996. 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 249 should the Deciding Officer apply?
A. Payment of DB 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 Deciding Officer and there is no reason for believing that Mrs F was aware she was being paid DB in error, the revision should, in accordance with section 249(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 UB in January 1996 and was allowed an adult dependant increase for his wife who was in employment with wages of £40 a week. It has now come to light that Mrs G has been in receipt of DB since March 1996. Mr G had not notified his Local Office of this development. When she made her DB claim Mrs G had stated on the claim form that her husband was receiving UB. However, the fact that Mrs G had claimed DB was not notified by DB Section to the Local Office 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 DB. He appeared honest in what he said at the interview. Which sub-section of section 249 should 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]. Having regard to the evidence that Mr G genuinely believed that he did not need to report the information which had already been notified to the Department by his wife, we would consider that the decision should be revised with effect from a current date under section 249(b).
Cases 26 to 32 are hypothetical examples.
Case No 33 Adult Dependant Allowance for persons aged under 18 years
Q. Is a person entitled to an ADA for a partner under age 18 with whom s/he is cohabiting?
A. While SW legislation does not specify the age a person has to be in order to be considered an adult for the purposes of qualifying as an adult dependant (other than age 16 in relation to the special provision dealing with the care of children), we think it reasonable for Deciding Officers to refuse to award an ADA for a person under age 18 on the basis that s/he is not an adult.
The following legal considerations are relevant in this regard:
- The Child Care Act, 1991 defines a child as
"a person under the age of 18 years other than a person who is or has been married".
- Under the Family Law Act, 1995 a person under age 18 requires the permission of the courts in order to marry.
(Obviously where the permission of the courts has been obtained and the couple are married, an ADA may be payable).
- Persons under age 18 are not entitled to vote in a national or local authority election.
- Legal definitions of adult include "a person who attains full age" and age of majority as "age 18 years or, if married before that age, age on marriage".
QUERY ON ADVICE GIVEN IN CASE NO 33
Q. In Case No 33 you advised that an ADA* is not payable in respect of a person under 18 years other than in the case of a child over age 16 having the care of a child of the claimant. Could CDI be paid instead to the claimant?
A. No, the normal residence of the child is to be determined according to Article 7 of SI 417/94 which say that the qualified child shall be regarded as normally resident with his or her parents. The only exception is where both parents have abandoned the child (not where the child opted out), in which case the child shall be regarded as residing with the head of the household of which the child is normally a member. We would not consider that a person who is living as husband and wife with a person under 18 years can be regarded as "head of the household" within the meaning of this provision and would advise therefore that CDI should not be paid.
Insurability of Employment
Case No 34: Family members working on the family farm
Q. Are family members working on the family farm insurable under the Social Welfare Acts? Are they covered under the Social Welfare Acts in the case of an accident at work, or in the case of illness?
A. No. Prescribed Relatives working and living on the family farm, who are not employed under a written contract of service or apprenticeship, are exempted as insurable employees under the First Schedule, Part II of the Social Welfare (Consolidation) Act 1993
[Article 93 of S.I. 312 of 1996 refers]. A spouse is also excluded under the same Part.
For such family members Class K or M is returned, if the PAYE system is in operation. They are not covered for Occupational Injuries Benefit and have no entitlement to Disability Benefit. Prescribed Relatives are excepted from paying self-employment contributions also, under the First Schedule, Part III of the Social Welfare (Consolidation) Act), 1993, where the principal of the farm is a self-employed contributor.
However, if the relative is a partner in the farm, contributions may be due at the Class S rate for each of the partners. Enquiries on these cases should be referred to Scope Section.
If the prescribed relative is not living on the family farm and is employed under a contract of service then class A is payable and s/he would be covered for all benefits including Occupational Injuries Benefit and Disability Benefit. These cases should also be referred to Scope Section for determination.
A Prescribed Relative is a father, mother, grandmother, grandfather, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, halfbrother, halfsister of the employed person. A spouse is included as a Prescribed Relative for self-employment purposes.
Case No 35: Assessment of capital where person on UA is changing residence
Q. Where a person in receipt of Unemployment Assistance has received money from the sale of the family home, is that capital assessable in the usual way?
A. No. While each case would have to be considered on its merits, the general rule of thumb is that where the money has come from the sale of the person's main residence and the person is actively seeking to purchase alternative accommodation, the can be exempted from assessment.
[Special rules apply where a person over age 66 changes accommodation - see Rule 2 of Part II of the Third Schedule and Article 90 of S.I. 417 of 1994]
Case No 36: Substantial Loss Rule and unrepresentative periods of employment
The following UB 'appeal' case points to the need for Deciding Officers to go back over a longer period (than the usual 13 weeks) in cases where the person concerned has recently had a spell of employment during which the number of days worked per week was different from his/her normal pattern.
Ms K is a part-time sales assistant in a Shopping Store. She worked for an average of 2 days a week and signed on for UB on the days she did not work until her claim expired on 27 February 1996. On 28 May 1996 she made a new claim for UB and reported 2 days work per week but during the 13 week requalification period she had worked an average of 3 days a week.
The Deciding Officer disallowed the new UB claim on the grounds that she had not sustained a substantial loss of employment. The Deciding Officer based this decision by reference to 2 periods:
1995 year: Average 1.8 days a week.
1996 to date of claim: Average 2.47 days a week.
Both periods rounded to 2 days a week.
She appealed this decision.
Appeals Officer's decision:
In upholding the Deciding Officer's decision, the AO stated:
"Social Welfare legislation provides that an applicant for Unemployment Benefit must sustain a loss of employment i.e. their level of employment (days worked per week) must fall below what can be regarded as the normal pattern. The period over which the pattern of employment is measured is not specified in legislation. A period of 13 weeks is often taken but Deciding Officers are free to take a longer period as happened in this case. I am satisfied that the longer period chosen is appropriate in this case and that the appellant's normal level of employment - as shown by her signing pattern - is two days per week. Accordingly I am satisfied that a loss of employment is only sustained where she works less than 2 days a week".
Case No 37: Money in Trust Fund
Q. Mrs R is in receipt of a Widow's Non-Contributory Pension. When her means were reviewed recently it was discovered that her bank balance had increased as a result of the sale of some land. She told the investigator that the reason she had sold the land was to make provision in the event of her death for her two children who are in their 30s and who are both badly handicapped. She is 70 years of age and intends to place the money in a Trust fund to ensure it is used solely for this purpose. Will the money be assessable as her means after it is lodged to the Trust fund?
A. In the normal way if a person deprives himself or herself of capital for the sake of qualifying for a higher rate of payment, that capital is assessable as means
[Rule 3(i) of Part II of the Third Schedule].
However, in this case, if the Deciding Officer is satisfied that Mrs R has genuinely transferred the money to a trust fund for the sake of her children, it is no longer legally her money and is not assessable as means.