DAO Bulletin Issue No 5 Issued May 1999


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Case No.

  1. IQA for divorced spouse
  2. Rate of CDI where spouse is on strike.
  3. Means assessment where Maintenance Payments not received.
  4. PRSI Class for Primary Teacher who had break in service
  5. PRSI Class for Civil Servant on Career Break
  6. Joint Holding and IQA
  7. Commissioned Officer and Credits
  8. Becoming a Voluntary Contributor here following retirement in the UK
  9. Non-EU claimant and restrictions on Working
  10. Deliberate Failure to exhaust UB
  11. No UA for Mature Student during Christmas/Easter holidays
  12. Sub-loss rule where there is a break in part-time working
  13. UA 'saver clause' for casuals
  14. C45 worker and entitlement to UB/UA

Case No 74: IQA for divorced spouse

Q. Mr and Mrs W are divorced. Under the divorce agreement he is obliged to pay her £40 support a week. She has no other income. He has recently claimed UA. Is he entitled to an increase of UA for his divorced wife as his Qualified Adult?

A. Mr W is entitled to an IQA for his divorced wife because she is a "spouse' wihin the meaning of the legislation who is being wholly or mainly maintained by him (provided she is not cohabiting and her income does not exceed £90 a week. The legislation specifically provides that a 'spouse' for the purposes of payment of an IQA 'includes a party to a marriage that has been dissolved, being a dissolution that is recognised as valid in the State'. [Section 10(2)(a), Social Welfare No. 2 Act, 1995]. The weekly payment by Mr. W to his spouse of £40 satisfies the "wholly or mainly maintained" condition.

Case No 75: Rate of CDI where spouse is on strike

Q. Mrs Y has claimed DB for herself and two children. Her husband is currently on strike and has been disqualified for UB under the trade dispute provision. Is a Child Dependant Increase (CDI) payable to Mrs Y and, if so, should it be at full or half rate?

A. Mr Y, being disqualified for UB because of his involvement in a trade dispute, is not a Qualified Adult. Therefore, as in any case where a claimant's spouse is not a Qualified Adult, Mrs Y is entitled to CDI at half-rate.

Case No 76: Means assessment where Maintenance Payments not received

Q. Mrs G is separated from her husband and is entitled to maintenance payments of £60 a week from him under a Court Order. She is in receipt of UA and the maintenance payments have been assessed against her as means. But she has recently notified that Mr G has defaulted on the payments. Should she continue to be assessed with these payments as means?

A. Provided you are satisfied that she is not receiving the maintenance payments and that she has taken, and continues to take, all reasonable steps to enforce entitlement, Mrs G should not be assessed with them. For example, if the reason why Mr G has defaulted was because of his inability to pay, or if it is established that, for other reasons, there is no point in her pursuing her legal entitlement, no assessment should be made. The position should be kept under continuous review. But if you conclude from the evidence that Mrs G has failed to take reasonable steps to secure the payments, she may continue to be assessed with that amount for means purposes on the grounds that she has "directly or indirectly deprived herself" of that income. [Rule 1(4) Third Schedule of the Principal Act].

Case No 77: PRSI Class for Primary Teacher who had break in service

Q. Ms D took a career break from her permanent primary teaching post in Donegal on 1/9/97 as her husband was relocated to Cork. She had been paying PRSI Class D. She applied for and obtained a permanent post in Cork from 11/1/99. She wrote (on 13/12/98) to the Board of Management of her old school in Donegal resigning her post there. What Class of PRSI is payable in her new post in Cork?

A. Class A. As mentioned in Case No. 69 (Issue No 4) PRSI Class D applies to primary teachers who have been in continuous employment since before 6 April 1995. Because Ms D had a break in service between 13/12/98 (when she resigned from her old permanent post) and 11/1/99 (when she took up her new permanent post), her employment is not 'continuous' and so Class A is payable.

Case No 78: PRSI Class for Civil Servant on Career Break

Q. Ms. E is a Civil Servant on a Career Break for one year until November 1999. She had previously been paying PRSI at Class B. She has recently taken up temporary employment in the local supermarket for wages of £70 per week. What rate of PRSI is payable for this employment.

A. Class J applies because Ms. Es' employment while on a career break is regarded as subsidiary to her main employment.

Case No 79: Joint Holding and IQA

Q. Mr V has applied for UA. Mrs V is working in employment for wages of £55 a week. They are joint owners of a small farm, the income from which has been assessed at £80 a week. For the purposes of determining entitlement to an increase for Qualified Adult, should half of this amount (i.e. £40) be assessed against Mrs V? Or should the full amount (i.e. £80) be assessed against Mr V and none against her?

A. Where the farm/property is held jointly by a couple, half the value of the income from it is taken as belonging to each spouse. In this case, therefore, Mrs V's weekly income for IQA purposes will be £95, made up of £55 wages and £40 farm income, with the result that an IQA is not payable.

Case No 80: Commissioned Officer and Credits

Q. Mr S was a Commissioned Offer in the Defence Forces until recently when he retired at age 58. He had been paying PRSI at Class C rate which gives cover for Widow/er's and Orphan's Pension (only). He wants to know whether he can sign for credits at the local office until he reaches age 65.

A. Yes, a person who has been paying Class C contributions can sign for WOP's credits provided s/he does not have a two year gap since the last such contribution was paid. By signing for credits, Mr S will maintain his title to WOP's.

Case No 81: Becoming a Voluntary Contributor here following retirement in the UK

Q. Ms M is aged 52 years. She is living in the UK where she has been in employment for the last 22 years. She has been advised by the DSS that she will be entitled to a UK Retirement Pension when she retires after she reaches age 60. Before going to the UK she worked in Ireland for 10 years which means that she will be entitled to an EU pro rata Retirement Pension from DSP at age 65. She wants to know whether, if she continues to work in the UK after age 60, she can become a Voluntary Contributor under Irish Legislation during the period when she is aged between 60 and 65 and, if so, whether the VC contribution will give her a higher rate of Irish pension.

A. Under our social welfare legislation, a person who retires before pension age may pay Voluntary Contributions (VC) into the Irish Social Insurance Fund to increase his/her rate of Irish pension at age 65 Retirement Pension) or at age 66 (OACP) provided s/he applies within 12 months of the last social insurance contribution.

Two conditions apply: the person must have ceased insurable employment and s/he must not be tied to the VC system of another country. The fact that payment of social insurance contributions (apart from OIB and other special rate contributions) ceases at age 60 in the UK means that, even if she continues to work in the UK after age 60, Ms M will not be in insurable employment and can therefore pay (Irish) VC contributions. These contributions will be reckonable in due course in determining Ms M's yearly average over the period from entry into insurance to pension age and will result in a higher rate of EU pro rata pension being payable than would otherwise be the case.

Case No 82: Non-EU claimant and Restrictions on Working

Q. Mr F moved to Ireland recently and has claimed UA. He holds an American passport and a Visa which is endorsed to the effect that he is entitled to reside in Ireland for 6 months only for the purposes of tourism, education and training. However, as both his parents were Irish, he would be entitled to obtain an Irish passport in which case the above restriction on employment would not apply. Can UA be paid to him?

A. Having regard to the restrictions imposed by the immigration authorities, it is reasonable to conclude that he is not available for work in Ireland and to disallow his UA claim on those grounds. The position should be reviewed at such time as Mr F obtains an Irish passport and the restrictions no longer apply.

Case No. 83: Deliberate Failure to exhaust UB

Social welfare legislation provides for disallowance of a UB claim where the person concerned has deliberately ceased claiming UB in order to avoid the necessity of requalifying by securing 13 paid contributions. The following is a recent case where this issue arose. Deciding Officers should be alert to the possibility of this kind of case and have investigations made where suspicion arises.

Basic Facts:
Mr McM made a claim to UB on 23/9/96 and proved unemployment until 8/11/97 when he 'signed off', having exhausted 351 days. He renewed his claim on 9/2/98 (just over 13 weeks later). As he fulfilled the contribution conditions, in the normal way he would have been entitled to a fresh entitlement of 390 days. However, the Deciding Officer noticed that in June 1996 he had also signed off having drawn 369 days and had made a new claim just over 13 weeks later.

Decision:
The Deciding Officer concluded that the claimant had deliberately ceased claiming UB on 10/11/97 to avoid the need to requalify and imposed the following disallowance:
" I decide that the person is to be treated as having been entitled to unemployment benefit for the period 11/11/97 to 8/2/98 on the grounds that he failed to make or prosecute his claim for unemployment benefit in that period in order to avoid the necessity of requalifying for unemployment benefit under Section 46 of the Social Welfare (Consolidation) Act, 1993 as amended. I make this decision in accordance with Article 28 of the Social Welfare (Consolidated Payment Provisions) Regulations 1994".

Mr McM appealed this decision. In his appeal he vigorously refuted the basis of the decision and stated that he had broken his claim from 10/11/97 onwards solely to engage in employment. He also said that he taken a holiday in England during the break.

Deciding Officer's Submission:
In commenting on the grounds of appeal the Deciding Officer contended that the break of claim was solely for the purpose of ensuring requalification; that the employment the claimant had been engaged in would not have debarred him from 'signing on'; that he was well aware of the social welfare system as evidenced by the fact that during the break he contacted the Local Office to check that his contribution record (GCY) was in order; and that he could have applied for 2 weeks UB for the period on holidays in England (thus reducing the break to 11 weeks).

Appeal:
At the hearing the appellant pleaded ignorance of the social welfare system and stated that he was unsure of when he was entitled to declare himself unemployed. He stated that he had been engaged in self-employment during the break of claim, including the installing of a central heating system and repair of a sewage system in his sister's house as a favour to her and for which he received no payment. He also stated that he did considerable work on his own house during the period in question and that he did not regard himself as unemployed as a result.

Appeals Officer's Decision:
The Appeals Officer said that two elements must be present for the disallowance to stand:

  1. Whether the appellant would have been entitled to UB from 10/11/97 to 9/2/98 but for any delay or failure on his part to make or prosecute a claim; and if so,
  2. whether, by this delay or failure on his part to make or prosecute a claim, he had intended to avoid the necessity of requalifying for UB.

In relation to element 1, the Appeals Officer concluded on the basis of the evidence that the appellant had worked, as claimed, for the period in question but that the work was not of such a character as to have disentitled him to UB because it was activity which a person would ordinarily engage in as part of normal day-to-day family life.

In relation to element 2, the Appeals Officer concluded on the basis of the evidence that, despite his contention to the contrary, the appellant was aware of the requalifying conditions and that he intended, by failing to acquire or establish a right to UB for the period in question, to avoid the necessity for requalifying for UB.

The appeal was accordingly rejected.

Case No 84: No UA for mature student during Christmas/Easter holidays

Q. Ms O'M is aged 30. She claimed UA in May 1998 after being abroad for a number of years. She began a four year degree course at TCD in autumn 1998. She was refused TLA because she was not on UA long enough. She claimed and was paid UA for the Christmas 1998 college vacation. But when she claimed UA for the Easter 1999 vacation, she was disqualified for UA because the Deciding Officer considered that during the vacation she was following a course of study within the meaning of Section 126 of the Act. She appealed that decision and the Appeals Officer allowed the appeal on the basis that the provision invoked by the Deciding Officer did not apply in her case. Does this mean that mature students generally have to be paid for Christmas/Easter holiday periods?

A. No, in the normal way a mature student is not entitled to UA (or UB) during the short vacations i.e. Easter/Christmas, but the decision should be based on availability, not Section 126 of the Act.

Section 126 provides that a person who is following a course of study is disqualified for UA for the duration of the academic year including periods between academic years "other than in such circumstances and subject to such conditions as may be prescribed". However regulations made under that section provide that a person shall not be disqualified for receiving UA while attending a course of study "{within the meaning of section 126 where that person is a mature student}". [Article 74(4) of S.1.417/94].

This was the reasoning behind the Appeals Officer's decision to allow Ms O'M's appeal in this instance.

However, there is another provision that is relevant in these cases. It has long been held by Deciding Officers (and Appeals Officers) that persons following a full-time education course by day are not entitled to UA/UB during the short vacations on the grounds that they are not available for work within the meaning of Section 120 (1) (d) of the Act. The basis for this view is that the time restriction during these breaks effectively curtails a student's availability. So, this is the appropriate provision to be applied by Deciding Officers in the case of mature students who claim UA during the Easter /Christmas breaks.

Case No 85: Sub-Loss rule where there is a break in part-time working

Q. Ms L is in receipt of UB since April 1998 when she lost her part-time job (3 days a week). She was fully unemployed until December 1998 when she obtained part-time employment with another employer for 3 days a week. Should UB be disallowed on the grounds that she has not sustained a substantial loss of employment?

A. The question of a person's normal level of employment is decided at the point a fresh UB claim is made, and the decision made at that point holds good for the full PIE. In Ms L's case, her level of employment was determined in April as 3 days a week which means she is only entitled to UB in any week during the PIE where she works for 2 days or less. The fact that she was paid UB for 6 days a week for a period or that she is now working for a new employer, does not affect this situation i.e. she cannot be regarded as having sustained a substantial loss of employment in any week where she works for 3 days.

Basic Facts:
Mr McM made a claim to UB on 23/9/96 and proved unemployment until 8/11/97 when he 'signed-off', having exhausted 351 days. He renewed his claim on 9/2/98 (just over 13 weeks later). As he fulfilled the contribution conditions, in the normal way he would have been entitled to a fresh entitlement of 390 days. However, the Deciding Officer noticed that in June 1996 he had also signed off having drawn 369 days and had made a new claim just over 13 weeks later.

Decision:
The Deciding Officer concluded that the claimant had deliberately ceased claiming UB on 10/11/97 to avoid the need to requalify and imposed the following disallowance:
"I decide that the person is to be treated as having been entitled to unemployment benefit for the period 11/11/97 to 8/2/98 on the grounds that he failed to make or prosecute his claim for unemployment benefit in that period in order to avoid the necessity of requalifying for unemployment benefit under Section 46 of the Social Welfare (Consolidation) Act, 1993 as amended. I make this decision in accordance with Article 28 of the Social Welfare (Consolidated Payment Provisions) Regulations 1994".

Mr McM appealed this decision. In his appeal he vigorously refuted the basis of the decision and stated that he had broken his claim from 10/11/97 onwards solely to engage in employment. He also said that he taken a holiday in England during the break.

Deciding Officer's Submission:
In commenting on the grounds of appeal the Deciding Officer contended that the break of claim was solely for the purpose of ensuring requalification; that the employment the claimant had been engaged In would not have debarred him from 'signing-on'; that he was well aware of the social welfare system as evidenced by the fact that during the break he contacted the Local Office to check that his contribution record (GCY) was in order; and that he could have applied for 2 weeks UB for the period on holidays in England (thus reducing the break to 11 weeks).

Appeal:
At the hearing the appellant pleaded ignorance of the social welfare system and stated that he was unsure of when he was entitled to declare himself unemployed. He stated that he had been engaged in self-employment during the break of claim, including the installing of a central heating system and repair of a sewage system in his sister's house as a favour to her and for which he received no payment. He also stated that he did considerable work on his own house during the period in question and that he did not regard himself as unemployed as a result.

Appeals Officer's Decision:
The Appeals Officer said that two elements must be present for the disallowance to stand:

  1. Whether the appellant would have been entitled to UB from 10/11/97 to 9/2/98 but for any delay or failure on his part to make or prosecute a claim; and if so,
  2. whether, by this delay or failure on his part to make or prosecute a claim, he had intended to avoid the necessity of requalifying for UB.

In relation to element 1, the Appeals Officer concluded on the basis of the evidence that the appellant had worked, as claimed, for the period in question but that the work was not of such a character as to have disentitled him to UB because it was activity which a person would ordinarily engage in as part of normal day-to-day family life.

In relation to element 2, the Appeals Officer concluded on the basis of the evidence that, despite his contention to the contrary, the appellant was aware of the requalifying conditions and that he intended, by failing to acquire or establish a right to UB for the period in question, to avoid the necessity for requalifying for UB.

The appeal was accordingly rejected.

Case No 86: UA 'saver clause' for casuals

Q. Mr T is a casual worker on UA. When the revised method of assessing means for casuals came into operation in November 1996, his means were not reviewed because of the Saver Clause. Following a recent review, his weekly means were increased by £1.00. Because this change meant that the saver clause no longer applied, his UA was reduced by £7.80. Was this decision in order? Can he appeal the loss of the saver clause?

A. The legislation on the revised manner of assessment of means of persons engaged in casual employment which came into effect in November 1996 included a provision ['saver clause'] that persons in receipt of UA on the operative date would not have their UA reduced as a result of the new means assessment arrangements. As stated in the UA Guidelines, the 'saver clause' continues in operation until there is a change of circumstances which results in a change in the rate of payment. A 'change of circumstances' for this purpose includes a change in dependants, a child reaching age 18/22, transfer from short-term to long-term UA, change in means following review etc. [section 22(12) of the Social Welfare Act, 1996.] In this case the fact that, following review, Mr T's means changed, even though by an increase of only £1.00 a week, meant that the saver clause no longer applied and his means had to be increased.

Mr T has the right of appeal against the decision. The questions to be decided by Deciding Officers are set out in legislation and include questions in relation to claims for benefit and assistance. [Section 247(2)(a)(i).] This would include any question of the correct rate of means and whether the 'saver clause' should continue to apply. Any decisions made by a Deciding Officer can be appealed to an Appeals Officer.

Case No 87: C45 worker and entitlement to UB/UA

Q. Mr McB is a construction worker who has been paying tax under the C45 system. He has recently claimed UB saying that he is not going to work any more at C45 work. (i) Can he be paid UB? (ii) If he were to claim UA instead, would his C45 employment earnings over the last year be assessed against him?

In dealing with claims from C45 workers the circumstances of each case need to be carefully checked in the light of local conditions and the relevant trade. In this case, if you are satisfied that Mr McB's C45 employment has ceased and that he is looking for work, payment of UB can be authorised provided he satisfies the other conditions. As regards the UA question, the assessment of his means would normally be based on his income over the last 12 months, unless there is reason to show that the income would be different over the coming year. If you were satisfied that Mr McB had ceased to be a C45 worker and that he is not likely to engage in such work in the following year, then his income in the previous year from C45 employment should not be assessed as means.

Last modified:17/08/2010
 

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