DAO Bulletin Issue No 3 Issued August 1997


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Appeal Submissions

Case No.

Defective Appeal Submission

  1. Lost Job because of misconduct (UB)

The Suggested Way - Cases 39 to 44

Case No.

  1. Appeal against "not genuinely seeking work" disallowance (UA)
  2. Appeal against "not available for employment" disallowance (UB)
  3. Appeal against "left job voluntarily' disqualification (UB)
  4. UA Appeal against "not genuinely seeking work" disallowance
  5. Appeal against level of Means assessed
  6. Appeal against "not genuinely seeking work" disallowance (UA)

Other Cases

Case No.

  1. Request to sign back for UB
  2. Backdating Child Dependant Increase
  3. Payment of CDI in Shared Custody cases
  4. Rate of CDI where claimant receives maintenance from separated spouse
  5. Ability to repay overpayment
  6. Break in insurance record
  7. Entitlement to Credits following self-employment
  8. Travel expenses of Working Spouse
  9. No means disregard in respect of maintenance payments
  10. Means disregard in respect of partner making maintenance payments

Appeal Submissions

Defective Submission

For the reasons shown below, the DO's submission in this example would be regarded as inadequate.

Case No 38: Lost Job because of misconduct (UB)

DO's Decision: Disqualified for payment of UB for 9 weeks

Grounds for DO's decision: Lost job because of misconduct.

Relevant Documents/Reports/Minutes: UA/UB 27 and UA/UB 13

Grounds of Appeal:
"I left my last job. I was not fired. I was accused of stealing money but this was not true. Everybody in the firm knows who really took the money but nobody's saying. I couldn't stand it any longer so I asked for my P.45 and left. I told my boss and he said he understood. My union said they would contact Social Welfare about the matter".

DO's comments:
When this person made a claim we sent a form UA/UB 13 to the employer. The employer returned the form to this Office last week. I interviewed the claimant about why his job terminated but I am satisfied that the disqualification should stand.

Criticisms of DO's comments:

  • Relevant Documents (Form UA/UB 27(a) and UA/UB13) not tabbed.
  • Reference to sending and return of UA/UB 13 is not relevant.
  • No reference to contents of employer's remarks on UA/UB 13.
  • No indication whether DO contacted employer about the contentions in the appeal.
  • No comment on whether Union contacted DSW about the case.
  • No reasons given by DO why disqualification should stand.

The Suggested Way - Cases 39 to 44

Case No 39:

Appeal against "not genuinely seeking work" disallowance (UA)

Decision of Deciding Officer: Summary of Decision:
Claimant is not entitled to UA with effect from ....(TAB A)

Ground for Decision: Main basis for decision: Not genuinely seeking work.

Relevant Documents/Reports/Minutes: Report on Interview with claimant (TAB B). Letters from employer (TAB C).

Grounds of Appeal:
"I have been unemployed for the last 2 years and have looked for work all over but can get nothing.(1). I am a lorry driver but there are very few jobs going for drivers.(2) I attach letters from 4 employers that I asked for work but they could not offer me anything (3). I have registered for work with FAS.(4) My parents can't afford to keep me so I need the money to live on" (5).

Deciding Officer's comments:
I wish to confirm my decision in this case. Re (1) I do not accept this as credible. Re (2) the newspapers are full of ads for drivers. He has been out of work for over 3 years (not 2 years as stated) and if he cannot get work as a driver he should be prepared to look for other kinds of work. Re (3) claimant was asked for evidence that he was looking for work previously but failed to supply it. Letters now furnished were all obtained in a period of 2 days and do not therefore show a continuing pattern of seeking work. Re (4) he only registered with FAS after his claim was disallowed. Re (5) - not relevant to decision. Other comments: Claimant is young and healthy and in my view could get work easily if he really tried, either as a driver or as a labourer.

Case No 40: Appeal against "not available for employment" disallowance (UB)

Decision of Deciding Officer: Claimant is not entitled to UA with effect from ... TAB A

Ground for Decision: Main basis for decision: Not available for work.

Relevant Documents/Reports/Minutes: Report from employer on Form UA/UB 13 (Tab B). Report on interview with claimant (Tab C)

Grounds of Appeal:
"I was working with my last employer for 5 years. I had a baby last year and went back to work after maternity leave. But my childminder had very sad problems with her own baby and I found I could not rely on her. So, I had to stop work. But my mother-in-law has told me that she will look after the child if I get another job.(1) I have tried everywhere for work (see letters attached) but cannot get anything suitable" (2).

Deciding Officer's comments:
I wish to confirm my decision in this case. Re (1) I do not accept this as genuine - it seems strange that this arrangement could not have been made before she left her job. Re (2) her employer has notified that the job she left is still vacant and that he would be willing to take her back but that she has not approached him about it.

Case No 41: Appeal against "left job voluntarily" disqualification (UB)

Decision of Deciding Officer: Claimant is disqualified for payment of UA from ...to ..... (TAB A).

Ground for Decision: Main basis for decision: Left work voluntarily without just cause.

Relevant Documents/Reports/Minutes: Employer's remarks on Form UA/UB 13 (Tab B) and report of interview with claimant (Tab C).

Grounds of Appeal:
"The reason I left my last job was because the boss didn't give me a pay rise he had promised me (1) and also because the work was boring and I wanted to do something more interesting.(2) I am looking hard for work at present and will take anything suitable that turns up."(3)

Deciding Officer's comments:
I wish to confirm my decision in this case. Re (1) employer says he never promised claimant a raise. He told claimant he would pay him more if business picked up but that this hadn't happened. Re (2) Claimant should have waited until he had another job lined up before giving up this one. Re (3) this is not relevant to the disqualification.

General Comment:
The employer is reputable and I do not accept that the points made by claimant amount to good cause for leaving his employment.

Case No 42: UA Appeal against "not genuinely seeking work" disallowance

Decision of Deciding Officer: Claimant is not entitled to UA with effect from ... (TAB A)

Grounds for Decision: Main basis for decision: (a) not available for work and (b) not genuinely seeking work

Relevant Documents/Reports/Minutes: Claimant's replies on Form AL 1 (completed in the case of non-nationals) (TAB B).

Grounds of Appeal:
"I wish to appeal this decision. I think I should not be disallowed just because I am a foreigner.(1) I am from Northern Italy and I have come to Ireland to look for work.(2) I hope to get work in an Italian restaurant. (3)

Deciding Officer's comments:
I wish to confirm my decision in this case. Re (1) claim was not disallowed because she is a foreigner but because she failed to satisfy the statutory conditions of entitlement. Re (2) claimant's English is very poor (she got an Irish acquaintance to write out her appeal) and she would have much better opportunities to find work in Italy. Re (3) she should have tried to arrange a job in a restaurant here before leaving Italy.

Other comments:
Claimant is staying in a youth hostel at present. She has recently finished secondary level education in Italy and I believe that the real reason she has come to Ireland is to improve her English language skills. I do not think she can be regarded as seriously seeking work here that would be suitable to her.

Case No 43: Appeal against level of Means assessed (OAP)

Decision of Deciding Officer: Not entitled to OAP (TAB A)

Ground for Decision: Main basis for decision: Means of £8,000 a year exceed the statutory limit.

Relevant Documents/Reports/Minutes: OAP1 claim form (Tab B).

SWI's IN 93 Report (Tab C). Additional comments furnished by SWI (Tab D).

Grounds of Appeal:
"My farm does not give me £8,000 per year (1). I enclose more receipts for seed and fertiliser (2). I spent £2,000 altogether on fertiliser last year and the Department allowed me for only £800 (3). I am entitled to the Old Age Pension as I am 70 years of age and all the other farmers around here are drawing it, including some with much bigger farms than mine (4)."

Deciding Officer's comments:
I wish to confirm my decision in this case. Re (1), the evidence confirms original estimate is basically correct. Re (2), the receipts marked C1 to C3 were already included in the assessment; additional expenses of £400 marked C4 are accepted, but does not bring the means below the limit. Re (3) I accept the SWI's finding that the unverified figure of £2,000 is not credible because a farm of 40 acres could not use this level of fertiliser annually. (4) is irrelevant to the question of means.


Other Cases

Case No 44: Appeal against "not genuinely seeking work" disallowance (UA)

Decision of Deciding Officer: Claimant is not entitled to UA with effect from .... (TAB A)

Ground for Decision: Main basis for decision: Not genuinely seeking work.

Relevant Documents/Reports/Minutes: Form UA1 (TAB B) and report on interview with claimant (TAB C).

Grounds of Appeal:
"I have been unemployed since I came to Ireland 14 months ago. Before that I was living in England but decided to come to Ireland because I heard there were great opportunities here. However, despite searching for work everywhere, I haven't been able to find a suitable position.(1) I got a promise of a job a few months ago but it fell through at the last moment.(2) I am a computer scientist and have looked for work all over but can get nothing.(3). I have registered for work with FAS" (4).

Deciding Officer's comments:
I wish to confirm my decision in this case. Re (1) claimant resides with a group of New Age Travellers in a remote rural area. The nearest urban area where there could be work suitable to him is almost 20 miles away. As he has no transport, I think he cannot be regarded as really interested in obtaining work. Re (2) claimant was very vague about the job in question. Re (3) By residing in a rural area he is making it very difficult for a person with his qualifications to get work. Re (4) having regard to the other circumstances I would not regard this as significant.

General Comment:
I think claimant has opted out of the life of work and has no real commitment to getting work.

Case No 45: Request to sign back for UB

Q. Ms R claimed UB on 10 June 1997. She had been working for a local company for over 30 years and was made redundant on 4 April 1997. Her claim has been authorised for payment from the date of claim by the Deciding Officer. However, Ms R is now seeking to have her UB claim back-dated to 5 April. She says this is the first time she has ever claimed UB and that the reason she had not claimed UB immediately after her job terminated was that she thought she could not claim for 9 weeks because she had been paid a redundancy lump sum. She now realises that disqualification does not apply in her case because the lump sum she received was under £15,000. Should she be allowed to sign back?

A. The rules for determining whether a claim under any of the statutory Social Welfare schemes may be back-dated are set out in legislation. Prior to November 1994 decisions in relation to these rules were a Ministerial function. However, any such decision is now a matter to be determined by Deciding Officers and Appeals Officers. In the case of unemployment benefit, the legislation ( see below) provides that in the case of unemployment benefit, a person is disqualified for receiving payment in respect of any period before the date on which the claim is made. However, the legislation also provides that a person shall not be disqualified for receiving UB for up to 6 months prior to the date of claim where the person can show that (a) s/he satisfied the conditions of entitlement during that earlier period and (b) there was good cause for the delay in making the claim.

In Ms R's case, we would take the view that, having regard to all the circumstances, her reason for delaying to claim may be accepted as constituting 'good cause' and, provided the Deciding Officer is satisfied her story is genuine and that she satisfied the conditions of entitlement, the claim may be allowed with effect from 5 April 1997.

Note:
Section 32 of the Social Welfare Act, 1997

Case No 46: Backdating Child Dependant Increase

Q. Mrs T has been in receipt of DB since 1989 in respect of herself and 2 children. In May 1997 she claimed CDI for a foster child who had come to reside with her in February 1994. She said that the reason for not claiming CDI for this child earlier was that a friend had advised her that she would not be entitled to it. She had earlier claimed Child Benefit for the foster child and had been awarded payment from February 1994. The Deciding Officer allowed the claim for CDI from November 1996 only i.e. he backdated it for the maximum period of 6 months allowed by the legislation. Mrs T is not satisfied with this and is pressing for payment from February 1994. Is there any scope within the legislation for paying arrears beyond 6 months in this case?

A. Social Welfare legislation provides that where a claim, "including any increases thereof", is not made in time, payment shall be disqualified beyond a certain date ( see below). The maximum backdating period specified for late claims under the different schemes varies; in the case of DB it is 6 months. However, the Minister has recently ruled that a claim for a pension shall in future be accepted as a claim for a related pension. In line with this rule, a claim for Child Benefit may be accepted as a claim for a Child Dependant increase. So, since Mrs T had claimed and been paid Child Benefit from February 1994, her claim for CDI may be treated as being received on that date and full arrears paid - provided, of course, that the Deciding Officer is satisfied that the underlying conditions for the receipt of CDI were fulfilled throughout this period.

Note:
Section 32 of the Social Welfare Act, 1997

Case No 47: Payment of CDI in Shared Custody cases

Q. Mr B is in receipt of UA. He is separated from his wife who is in full-time employment. The couple have a 6 year old son who stays with the mother 4 days a week and with the father on the other 3 days. Mrs B is getting Child Benefit for the child. Mr B has applied for CDI with UA in respect of the child on the grounds that he is contributing towards his maintenance. Can CDI be awarded to him?

A. In most cases payment of child dependant increases depends on whom the child is normally residing with. The Normal Residence Regulations ( see below) provide that a child who is resident with one parent shall be regarded as resident with that parent. However, the Normal Regulations also provide that, where the parents live apart and the child is resident with one parent who is not claiming or in receipt of a SW payment, the child shall be regarded as residing with the other parent if that other parent is contributing substantially to the child's maintenance. So, the question to be decided in the case of Mr B is whether he is 'contributing substantially' to his son's maintenance. As the child stays for weekends or a few days with Mr B, this may be accepted as evidence that he is so contributing, and CDI may be awarded to him.

Note: that payment of CDI in these circumstances is at full rate.

Note:
Article 7 of S.I. No 417 of 1994.

Case No 48 Rate of CDI where claimant receives maintenance from separated spouse

Q. Mrs J is on UB. She is separated from her husband who pays her maintenance of £100 a week in respect of herself and their 8 year old child. Should CDI be paid at full or half rate?

A. If child is resident with Mrs J in accordance with the Normal Residence rules, CDI at full-rate is payable to her. [Article 7 of S.I. 417 of 1994]

Case No 49: Ability to repay overpayment

Q. Mr Y was found to be working during a period when he was claiming UB. His claim was disallowed with retrospective effect and he was assessed with an overpayment of £455. He is currently in receipt of UA at the rate of £67.50 a week (long-term personal rate, no dependants, NIL means). When asked how he proposed to repay the overpayment he offered recovery by deductions of £10.00 a week from his UA payment. Can this offer be accepted, even though it will mean that his rate of payment will be below the SWA rate appropriate in his case?

A. Yes, the offer should be accepted. The Department is obliged to recover overpayments as quickly as possible. There is an equal obligation on a person who has been overpaid to repay the overpayment quickly. This means that where an overpayment is being recovered by deduction from ongoing SW payments, the level of deduction should be as high as possible, having regard to the amount of the overpayment, in order that the overpayment may be recovered in a realistic period. In determining this, regard must be had to the person's ability to repay. So, where a person is willing to repay an overpayment by way of deduction at a rate that would bring his/her SW payment below the SWA rate, such an arrangement is acceptable if it does not result in recourse to SWA.

[The DAO has recently issued revised guidelines for Authorised Officers in this regard.]

Case No 50: Break in insurance record

Q. Mr O'L was in insurable employment at Class A rate for 10 years. He then ceased employment and paid only Class K contributions on his occupational pension for 5 years. He is now again seeking employment. Is he entitled to unemployment credits?

A. No, he needs 26 Class A contributions before he will be entitled to the award of unemployment credits. Payment of Class J, K or S contributions do not bridge the gap.

[Article 57 of S.I. No 312 of 1996, previously Article 5 of S.I. No 5 of 1953.]

Case No 51 Entitlement to Credits following self-employment

Q. Mr J worked for a number of years in employment which was insurable at Class A. He then became self-employed for a few months and paid Class S contributions. He has now ceased self-employment and has claimed and been awarded UB. (He satisfies the GCY.) Is he entitled to credits while on UB?

A. Yes, credits should be awarded to Mr J while on UB as he has Class A contributions paid within the last 2 years. However, if he had had two consecutive years at Class S he would not be entitled to unemployment credits until 26 further Class A contributions were paid in respect of him.

Case No 52: Travel expenses of Working Spouse

Q. Mr J is in receipt of UA. His wife works in a firm which is 20 miles away and drives there by car every day. In assessing Mr J's means from his wife's earnings from employment, the Deciding Officer allowed a disregard of £10, believing that was the maximum allowable. But Mr J is arguing that since his wife's actual driving expenses come to £15 a week, the disregard should be for that amount. Should the actual expenses be allowed?

A. The actual expenses should be allowed if necessarily incurred (i.e. if there is no cheaper alternative available. In the Dublin area this usually means the appropriate commuter ticket.) If the Deciding Officer is satisfied in this case that Mrs J's actual expenses are £15 weekly and that a suitable alternative is not available, these expenses should be allowed in full.

Case No 53 No means disregard in respect of maintenance payments

Q. Mr N has recently claimed UA. He has been assessed with means of £55 from self-employment. He is separated from his wife and up to now had been paying her maintenance of £45 a week on foot of a court order. He has asked that this amount be disregarded in assessing his means. Is this in order?

A. No. Income from self-employment must be assessed in full, allowing only for expenses incurred directly in earning that income. Therefore the full £55 is assessed as means. (If Mrs N is not cohabiting and does not have other income exceeding £60 weekly, Mr N will be entitled to an Increase for Qualified Adult in respect of her because he is paying this rate of maintenance.)

[Rule 1(2) of Part I of the Third Schedule.]

Case No 54 Means disregard in respect of partner making maintenance payments

Q. Ms K has claimed UA. She is living as husband and wife with Mr W and has been assessed with means from his earnings. Recently Mr W has been ordered by the Courts to pay his separated wife maintenance of £40 a week. Should this amount be disregarded in calculating Ms K's means?

A. Yes. As Mr W is obliged to make these payments to Mrs W, "the estimated value to the household ...deriving from all income earned by" Mr W, in relation to Ms K's claim must take this commitment into consideration.

[Rule 1(5) of Part I of the Third Schedule.]

Last modified:17/08/2010
 

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