DAO Bulletin Issue No. 11 Issued June 2006


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Case No.

  1. Income assessment of second property owned by claimant's spouse is increase for a qualified adult (IQA) payable?
  2. Income assessment - IQA on UA - Rental income
  3. Means assessment - Farm consisting of bogland
  4. Means assessment - SSIAs
  5. Clarification of Appeals Officer's decision
  6. Efforts to seek maintenance - Divorced person
  7. Increase for a qualified adult under 18 years of age
  8. Normal residence of a child - payment of an increase for a qualified child
  9. Island Allowance
  10. FIS and County Councillors
  11. Export of Carer's Benefit
  12. Redundancy - UB
  13. Accrued holiday pay - UB

Case No. 127: Income assessment of second property owned by claimant's spouse - is increase for a qualified adult (IQA) payable?

Q. The spouse of an Old Age Contributory Pension recipient is the sole owner of a second house being rented out at €300 per week. When determining whether an increase for a qualified adult should be paid, should the rental income be taken or the capital value of the property?

A. The actual rental income received should be assessed as income in this case. Article 6B(1) of the Social Welfare (Consolidated Payments Provisions) Regulations, 1994 (S.I. 417 of 1994) provides that, where rent or any other periodical payment is receivable for the possession and use of property, then this income is assessed by reference to the normal weekly amount of such income.

In the example above, the spouse is the sole owner of the second property and is assessed with the full rental income, the spouse would be assessed with half the rental income only.

The income assessment differs to that which is used for an IQA on Old Age Non Contributory Pension.

Case No. 128: Income assessment - IQA on UA - Rental income

Q. The spouse of a claimant for Unemployment Assistance is the sole owner of a second property which is being rented out at €300 per week. This amount has been set by the Rent Tribunal. This rental income is much less than the market rental income for similar properties in the area. Should the market rental income, the actual rental income or the capital value of the property be taken into account when assessing the means for qualified adult purposes?

A. The income assessment for a qualified adult in this case is set out in article 6B(1) of S.I. 417 of 1994. This article states that the weekly income shall include "income from any other source (including rent or any other periodical payment receivable for the possession and use of property...) by reference to the normal weekly amount of such income". Therefore, the actual rental income received is assessed in this case.

A capital assessment of the second property owned by the claimant's spouse is only done if there is no rental income.

Case No. 129: Means assessment - Farm consisting of bogland

Q. I am carrying out a means assessment for Old Age Non Contributory Pension purposes. The claimant has a smallholding of 20 acres that the SWI has stated is lying idle and has only ever generated a very small annual income which is now very much reduced as it is no longer possible to cut turf. The land is of very poor quality and mostly bogland. The SWI has recommended that a yearly value based on the income from the land should be assessed as means. Is this the case or should I assess the capital value of the land?

A. Under Rule 1(1) of Part 3 of Schedule 3 of the Act, the capital value of property is assessed as means where the property is invested or otherwise put to profitable use by the person or is capable of being put to profitable use. In the case outlined, the SWI is satisfied that the land held by the claimants of very poor standard and incapable of being put to profitable use. Therefore, in this case, a capital value should not be assessed. The assessment to use is the yearly value of income from the land.

Case No. 130: Means assessment - SSIAs

Q. I have two claims for One Parent Family Payment for decision. In addition to other amounts of capital, both claimants each opened an SSIA in 2001. Due to their change in circumstances, Claimant (A) and Claimant (B) ceased paying their monthly subscription in September 2005. Both accounts had a total current value of €8,000. Claimant (A) has left the balance of €8,000 to mature in the account until later this year (2006), whereas Claimant (B) has transferred €2,000 to a credit union account and retains a balance of €6,000 in her SSIA account. Should both claimants be assessed similarly with the capital of €8,000?

A. No both claimants should not be assessed with the same capital amount. Claimant (A) will be assessed with means from capital of €8,000. However, Claimant (B) will now only have capital value of €7,540 as by withdrawing €2,000 from the account, she has incurred a financial penalty of €460 on the amount withdrawn (€2,000 x 23% results in a penalty of €460).

Case No. 131: Clarification of Appeals Officer's decision

Q. The AO has allowed an UA appeal in relation to a decision I made on GSW. I cannot understand how the AO came to his decision and wonder whether his decision contradicts the UA guidelines. Can I refer the decision to the SWAO for clarification?

A. Requests for clarification of an AOs decision should not be sent directly to the SWAO. In the first instance it should be raised with the Regional Decisions Adviser (RDA) for your area. If the RDA considers that clarification is necessary, the case should be sent to the DAO, clearly stating the issue which requires clarification. One of the functions of the DAO is as the Department's liaison with the SWAO. All requests for clarification in relation to an AO's decision should be channelled through the DAO which will, if necessary, raise the issue with the SWAO at one of the regular meetings between the DAO and the SWAO.

Case No. 132: Efforts to seek maintenance - Divorced person

Q. I am currently reviewing a claim for OPFP. The claimant is divorced and states that she is not receiving maintenance from her ex spouse. A copy of the divorce settlement (dated 1998) is on file and shows that her ex spouse was not in a position at that time to provide maintenance. On Infosys, it would appear that her ex spouse has earnings in excess of €50,000 for 2003. This would seem to indicate that there has been a change in his circumstances since 1998. Should she be advised to make effort to seek maintenance or does the divorce agreement stand?

A. One of the conditions for receipt of One Parent Family Payment for separated claimants is that they must have made and continue to make appropriate efforts to obtain maintenance from their ex spouses (Article 80(b) of S.I. 417 of 1994 applies).

Although the claimant has a divorce settlement, she continues to be obliged to make ongoing efforts to seek maintenance from her ex spouse.

Divorce law in Ireland allows for reconsideration of settlements reached if there is a change in circumstances of the parties involved.

For further information in relation to this issue, contact the Maintenance Recovery Unit, Social Welfare Local Office, Mellowes Road, Finglas, Dublin 11.

Case No. 133: Increase for a qualified adult under 18 years of age

Q. A UA claimant has made an application for an increase in respect of a qualified adult. He states that he is cohabiting with his partner who is 17 years of age. Should he be awarded an increase for a qualified adult?

A. No. As provided for under Section 2(2) of the Social Welfare Consolidation Act 2005 and article 6 of S.I. 417 of 1994, a qualified adult increase is payable in respect of a spouse who is wholly or mainly maintained by a person. Article 6 defines a 'spouse' as one of a married couple who are living together or one of a couple who are not married to each other but cohabiting as husband and wife.

In this case, the couple is not married and, without the necessary court order, cannot marry. The partner in this case is under 18 years of age. The minimum age at which a person can marry in Ireland is 18 years of age unless a Court Exemption Order is obtained through the Circuit Family Court or the High Court. Therefore, for the purpose of the increase for a qualified adult, the couple cannot be considered as cohabiting as husband and wife.

Case No. 134: Normal residence of child - payment of an increase for a qualified child

Q. A UA claimant is divorced and is paying maintenance for his children. The children are living with his ex spouse who is employed and in receipt of FIS. Is CDI payable with UA? If so, should it be half or full rate CDI?

A. Section 2 of the Social Welfare Consolidation Act 2005 sets out the conditions for receipt of an increase for a qualified child, one of which is that the child must normally b resident with the claimant.

Normal residence of the child is set out in article 7 of S.I. 417 of 1994. This article 7(4) it provides that where the child is living with one parent only, s/he will be considered 'normally residing' with that parent and no other.

However, article 7(6) provides that a qualified child resident with one parent who is living apart from the other parent, who is not claiming or in receipt of any benefit or assistance, excluding those listed below, is regarded as residing with the other parent if that other parent is contributing substantially to the child's maintenance.

  • Orphan's Contributory Allowance
  • Death Benefit by way of Orphan's Pension
  • Orphan's Non Contributory Pension
  • One Parent Family Payment
  • Supplementary Welfare Allowance
  • Child Benefit
  • Respite Care Grant
  • Family Income Supplement
  • Continued Payment for Qualified Children

Therefore, in this case, if the UA claimant is contributing substantially to the child's maintenance (the guiding figure is where he is paying at least the equivalent of the increase for qualified child rate), he may be awarded the increase for a qualified child on his UA.

A full rate increase for the qualified child should be awarded as the claimant and the spouse are not living together (Section 146 of the Principal Act refers).

Case No. 135: Island Allowance

Q. I have received a claim for an Island Allowance from a person who is in receipt of Old Age Retirement Pension from the UK. From what date can the Island Allowance be awarded?

A. The provision to extend the Island Allowance to recipients of corresponding payments from other EEA States is effective from 14 March 2005 it was introduced under Section 10(1)(b) of the Social Welfare & Pensions Act 2005.

Case No. 136: FIS and County Councillors

Q. I have received a claim for FIS from a person who is a County Councillor. He is not in any other form of employment. The County Council has advised that it is not in a position to verify the number of hours he works but states that, while he has no set hours, he works in excess of 19 hours per week on council business in the community. He has submitted documentation indicating that he has an annual income of €14,500. He also receives expenses on a quarterly basis. Does he qualify for FIS?

A. In order to qualify for FIS a person must be engaged in remunerative employment as an employee. This requirement is set out in Section 227 of the Social Welfare Consolidation Act 2005. As County Councillors are not engaged in remunerative employment as employees they do not qualify for payment of FIS.

Case No. 137: Export of Carer's Benefit

Q. An application for Carer's Benefit has been received from a person who is normally resident in Northern Ireland (Co. Tyrone). He is employed in Co. Monaghan and satisfies the PRSI contribution conditions for Carer's Benefit. He looks after his mother who is resident in Co. Monaghan. He proposes to give full time care to his mother when he leaves work and to stay all night with her, if and when necessary. Can Carer's Benefit be paid to someone who is resident outside the State?

A. Carer's Benefit is a benefit covered by the EU Social Security Regulations 1408/71 and 574/72 as amended by Regulation 647/05. These regulations are applicable to EU migrant workers and members of their families. These EU regulations prohibit national rules/legislation concerning the non export of certain payments including Carer's Benefit.

Our national law (i.e. the Social Welfare Consolidation Act 2005) prohibits the export of Carer's Benefit. However, where there is conflict between our national legislation and EU legislation, EU law must be applied as it takes precedence over national law.

In this instance, Ireland is the State of employment and therefore is the competent State. If all other conditions for receipt of Carer's Benefit are satisfied, payment can be exported to this claimant.

Case No. 138:Redundancy - UB

Q. A customer has made a claim for Unemployment Benefit as he has been made redundant. He has received a redundancy lump sum of €45,000 but states that he intends to pay off his outstanding mortgage of €30,000. He is not in arrears with his mortgage. Should I impose a disqualification and if so, for what number of weeks?

A. Where a person under the age of 55 years has been made redundant and has received a payment in excess of €19,046.07 under the Redundancy Payments Acts or under an agreement with his/her employer, s/he is disqualified from payment of unemployment benefit for a period of up to 9 weeks. In considering the amount received it should be noted that the €1,046.07 includes the gross amount of all payments in respect of redundancy, e.g. statutory redundancy, top up or ex gratia payments related to weeks of service, early encashment or pension entitlements (if from an employer's fund) and any other money received under an agreement with the employer. [Section 68(6)(e) of the Social Welfare Consolidation Act 2005 refers].

The imposition of the disqualification is mandatory but the duration of the disqualification is discretionary and may range from 1 day up to 9 weeks. In order to achieve consistency throughout the Department in the application of this disqualification, an administrative guide to what might be considered to be an appropriate period of disqualification has been drawn up. Full details can be obtained in the Unemployment Benefit guidelines in the Shared Guidelines drawer.

Where the claimant intends to use some of the redundancy payment to clear or reduce debts that have accrued, it is reasonable for a Deciding Officer to offset the debts against the amount received before determining an appropriate period for disqualification. However, in this context, debts refer only to arrears of mortgage or other bills that have accumulated.

In this particular case, the full redundancy payment received which amounted to €45,000 would be considered when deciding on the disqualification. The relevant administrative guideline figure for disqualification would be 5 weeks. However, a DO should examine each case on it's own merits and may take into account other factors, e.g. age of customer and exceptional needs costs.

The date of disqualification commences from the date on which the person became redundant and in all circumstances, the period of disqualification is treated as if UB had been paid throughout, i.e. the cumulative total of days of UB paid includes the duration of the disqualification. Credited contributions are awarded for the duration of the above disqualification subject to the other conditions for UB being fulfilled, i.e. being available, capable of and genuinely seeking work.

Case No. 139: Accrued Holiday Pay

Q. Two school related workers made a claim for unemployment benefit for the temporary lay off at the Easter break. One was a part time teacher who receives an hourly rate of payment that was increased by 56% to cover holiday entitlements and the other is a school warden who receives his full holiday pay entitlement at the summer lay off. Both were laid off from the 24th March. Can both be considered unemployed from 24th March as neither received any holiday pay?

A. No - UA or UB is not payable in respect of any day on which a person has received his/her holiday pay entitlement. The circumstances of these two workers differed at the Easter lay off.

One is a part time teacher who is being paid in respect of his holiday entitlement, on an ongoing basis with his hourly wages (the 56% increase). Therefore, he had received his holiday pay entitlement at the time of the Easter lay off and cannot be considered unemployed for the number of days for which he has received holiday pay.

Details obtained on the form UP2(d) will enable you to calculate the number of day's holiday pay he has received. The number of hours for which he has been paid the increase of 56% should be divided by the number of hours worked per day in order to determine the number of day's holidays for which he received wages. This is the number of days for which UB is not payable. When calculating the number of days for which holiday pay has been received, a part of a day should be rounded up or down to the nearest day, as appropriate. Where the number of hours worked per day varies, the total number of hours holiday pay should be divided by the average number of hours worked per day. In most cases, the average should be based on the 13 week period immediately prior to the date of claim, or a more representative period may be used.

The other claimant, the school warden, has not taken holidays and has opted to receive all holiday pay that will have accrued at the summer lay off. Therefore, this claimant is, during the Easter break, on a temporary lay off and is unemployed from 24th March.

Full details of accrued holiday entitlements and unemployment payments can be found in the UA or UB guidelines on the Shared Guidelines drawer and in RDO Memo 25/05 in the Shared drawer.

Last modified:17/08/2010
 

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