DAO Bulletin Issue No. 13 Issued August 2007

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Case No.

  1. Assessment of Benefit and Privilege
  2. Habitual Residency Condition - Asylum Seeker
  3. Habitual Residency Condition - Irish National
  4. OPFP customer with occasional income other the statutory limit for disqualification
  5. OPFP - Assessment of Means and Rent Supplement/Mortgage Supplement
  6. Conditions for Pre-Retirement Credits
  7. State Pension (Contributory) OACP who alleges she was working for 5 years but no PRSI recorded
  8. Payment of Child Benefit (CB) - Who is entitled to payment where the parents are separated
  9. Earnings as a Home Help/Home Support Worker - Disability Allowance
  10. Carer's Allowance - means assessment for rented house
  11. Redundancy Payment - Does a disqualification apply to Jobseeker's Allowance

Case No. 140: Assessment of Benefit and Privilege

Q. I have received an application for Jobseeker's Allowance. Claimant is 20 years of age and lives with his mother and her cohabiting partner. They are not married. The mother's partner is working with gross earnings of €590 per week. The mother is in receipt of JB. How do I assess B&P on the claimants Jobseeker's Allowance claim?

A. The age prescribed for the purposes of Rule 1(10) of Part 2 of Schedule 3 to the Principal Act shall be 25 years. Therefore the claimant who is 20 years of age would be assessed with his parents' (mother's) income excluding any payment made by this Department or the Health Service Executive. As his mother is in receipt of a social welfare payment the claimant is only assessed with her partner's earnings.

Her partner's earnings are treated in the normal manner i.e. net income is calculated as the gross income less income tax, PRSI, VHI, BUPA, HSF, superannuation and union dues.

Calculation of weekly means

Gross earnings



Deductions (Income Tax €40 + PRSI €26 + VHI €20 + Union Dues €10)



Net Wages (€590 minus €96)



Partner's net earnings of



Less rent of



Net Amount



Less parentel Allowance (Two Parent Allowance)



Net amount



Divided by two non earners



Weekly means are €75.48 as there is a limitation on assessment i.e. (444 x 17% = €75.48)

Case No. 141: Habitual Residency Condition - Asylum Seeker

Q. I have an application for Jobseeker's Allowance from a person who is an asylum seeker. Can an asylum seeker meet the Habitual Residency Condition? I realise that the person cannot be considered available for work when they cannot legally work.

A. An asylum seeker is a person who has submitted an applicaton for asylum to the Minsiter for Justice, Equality and Law Reform and whose application has not yet been determined. S/he is allowed to reside in Ireland subject to certain conditions being met while his/her application is being examined. Such persons, while awaiting decisions on their applications or who have appealed a refusal of refugee status, do not satisfy the Habitual Residence Condition.

Where refugee status is granted, the person will immediately be treated as being habitually resident from the date of the decision.

In some circumstances a person can complete the asylum process without being granted refugee status, but with freedom to remain in Ireland. In these circumstances, if a claim is received from them, their habitual residency status must be determined.

A person seeking asylum cannot be considered to be resident in Ireland (or in another part of the Common Travel Area) during the period in which their asylum claim is being examined. This period cannot be taken into account when considering such factors as length, continuity and general nature of actual residence when arriving at a decision on habitual residence.

However, relationships developed during this period and/or other relevant factors that occur during that period may be taken into consideration in the normal way when assessing their centre of interest and future intentions.

Case No. 142: Habitual Residency Condition - Irish National

Q. A claim for State Pension (Non Contributory) has been received from a person who immigrated to the USA in 1962. He has now returned to Ireland and has no pension from the US. Must he meet the HRC in order to receive a State Pension (Non Contributory)?

A. There is a presumption that an applicant for the relevant payment, who has been in Ireland or the Common Travel Area for less than 2 years, is not habitually resident in the State at the time of making the application until the contrary is shown by him or her.

The onus is always on applicants to provide sufficent evidence to support their claim for a social welfare payment. In determining whether a person is habitually resident in Ireland, all relevant evidence is taken into account including the period before the person entered Ireland (and other parts of the Common Travel Area), the present period and the future intentions of the applicant as evidenced by his/her actions.

In practice, it should be accepted prima facie that persons who have lived all of their lives in the Common Travel Area satisfy the Habitual Residence Condition. In every other case the question should be examined on the basis of evidence supplied, in accordance with the prescribed criteria which are set out below:

  • Length and continuity of residence in Ireland or any other country
  • Length and purpose of any absence from Ireland
  • Nature and pattern of the employment
  • Applicant's main centre of interest
  • Future intentions of applicant concerned as they appear from all of the circumstances

The term "habitually resident" is not defined in Irish or EU law. Rather it is intended to convey a degree of permanence evidenced by a regualr physical presence. This is usually beginning at a date in the past and intended to continue for a period into the forseeable future. It implies a close association between the applicant and the country from which payment is claimed and relies heavily on fact.

The 2007 amendment to Section 246 of the Social Welfare Consolidation Act 2005 incorporates into Irish law 5 factors that have been set down in judgements given by the European Court of Justice (ECJ) as relevant to determining whether a person is habitually resident. The court emphasis that these factors are not exhaustive; the list should not be used as a means of scoring points for an against a person satisfying the condition. No sincle aspect is consistently likely to be the most important factor though some may be more persuasive in certain circumstances thatn other. The evidential weight to be attributed to each factor will depend on the circumstances of each case. It is necessary to weigh up all of the information and balance the evidence for an against an applicant satisfying the HRC and reach a secision based on the law, case law and available guidance.

Case No. 143: OPFP customer with occasional income over the statutory limit for disqualification

Q. Although the applicant has varying earnings, her work pattern is usually regular. She has unusually had to do cover for a person who was sick, and, as a result, has had several weeks over that period where earnings exceeded €400. How does this affect her payment?

A. Legislation provides for a disqualification from receiving OPFP where a customer's weekly income exceeds a certain amount, currently €400. Where this happens, they have an entitlement to a Transitional Payment (TP) at half the rate they would have been entitled to the week immediately preceding their earnings going over €400. A customer can only receive a TP for a maximum of 26 weeks irrespective of the number of OPFP claims made.

However, when calculating a customer's weekly earnings from employment, Article 152 of S.I. 142 of 2007 (previously Article 3 of S.I. 486 of 2006) provides for this to be calculated "by dividing the gross amount of such earnings in the last complete income tax year by 52". Where a deciding officer considers that this period would not suffice, they may have regard to any other period which they consider appropriate.

In the case above, a TP could be made for the weeks where the customer went over the EUR400, an OPFP continue for the other weeks. The rate of OPFP for the other weeks would be based on average earnings because the work pattern is regular,

or alternatively,

all earnings could be averaged including the weeks where the earnings were over €400 and OPFP entitlement based on this figure over al the weeks,

whichever, is most beneficial to the customer.

However, where a customer's weekly earnings have exceeded €400 as a result of a wage increase, increase in the number of hours worked, etc. and continue to do so, then applying an average will not bring the weekly earnings below €400. In these cases, a TP should be made. The length of time the TP is paid for will depend on whether any TP was previously paid to the customer, as there is a maximum of 26 TPs that can be paid to a customer over their OPFP claims.

Case No. 144: OPFP - Assessment of Means and Rent Supplement/Mortgage Supplement

Q. How do I assess rent supplement (payable for the Health Service Executive) and maintenance payments when calculating the means for a One Parent Family Payment claim?

A. The Guideline on Means Assessment states that "Any maintenance payment, whether a formal or an informal arrangement or whether procured by way of Court Order or otherwise is assessable as means.

In assessing the means, housing costs actually incurred by the claimant, (e.g. rent or mortgage payments and/or home improvement loan) up to a maximum of €95.23 per week may be offset against the maintenance payment, with half the balance of the maintenance being assessed as means in the determination of the rate of payment. Housing costs actually incurred by the customer refer solely to money paid for rent or mortgage or repayments of home improvement loan for the residence in which the customer is residing."

This is provided for in Rule 1 (2) (b) (ii) of Part 2 of Schedule 3 of the Social Welfare Condolidation Act 2005 which states that "any moneys received by way of maintenance payments (including maintenance payments made to or in respect of a qualified child) in so far as those payments do not exceed the annual housing costs actually incurred by the person subject to the maximum amount that may be prescribed, together with one half of any amount of maintenance payment in excess of the amount disregarded in respect of housing costs actually incurred (if any)," and in Article 130 of S.I. 142 of 2007 which stats "For the purposes of section 358, a person in receipt of one parent family payment shall be liable to transfer to the Minister payments made to that person in compliance with an order of the Court insofar as they exceed the lesser of €4,952 per annum in respect of housing costs or the annual housing costs actually incurred by the qualified parent." Office Notice 10/6 states that "Rent Allowance/Mortgage Supplement should not be taken into account when calculating means on a One Parent Family claim". This is provided for in Rule 1 (2) (a) of Part 3 of Schedule 3 of the Social Welfare Consolidation Act 2005. Therefore when calculating the means for OPFP the rent supplement should not be taken into account. Rent Supplement is a social welfare payment which is administered by the HSE on behalf of the Minister for Social and Family Affairs. The rate of rent supplement payable is determined by the person's total income, including their JA or OPFP payment.

(Rent Supplement which is administered by the HSE is not the same as Rent Allowance. Rent Allowance is only payable to tenants of certain dwellings affected by the de control of rents on 26th July 1982)

Case No. 145: Conditions for Pre-Retirement Credits

Q. A customer applied last year for Pre-Retirement Credits. At the time she met the requirements for being awarded these credits, she was over 55 years of age, was retired from the workforce and was no longer looking for work, and had been in receipt of Jobseeker's Benefit in respect of 390 days of continuous unemployment just before applying. However, recently she has taken up part-time work in a local school for several hours each week. Is she still entitled to receive these Pre-Retirement Credits? Are the Pre-Retirement Credits she received in respect of last year still valid or should they be removed from her record?

A. The Pre-Retirement Credits Scheme (PRECS) enables credited contributions 'credits' to be awarded to a person who is aged 55 years or older. The person must be retired from the workforce and no longer looking for work and, who, in the immediately preceding period, was in receipt of wither Jobseeker's Benefit/Allowance or credits in respect of 390 days of continuous unemployment.

Pre-Retirement credits can only be maintained through a signed annual declaration from the claimant (i.e. that confirms his or her unemployment and retirement from the workforce) and are reckonable for the following benefits:

  • Widow's/Widower's (Contributory) Pension
  • Deserted Wife's Benefit
  • Guardian's Payment (Contributory) and
  • Occupational Injuries Benefits

Where a person who is receiving Pre-Retirement Credits subsequently rejoins the workforce, even to undertake irregular part time work, then the award of these credits is discontinued for that period of employment in line with the aforementioned pre conditions for eligibility to the PRECS scheme.

However, the previously awarded credits remain on the person's social insurance record and are reckonable for the benefits listed above. It is open to the customer to re apply for Pre-Retirement Credits should they consider that they again meet the PRECS pre conditions.

It should be noted that this scheme has been clsoed to new applicants from July 4th 2007. However, people awarded PRECS before that date may re apply within 12 months of signing off.

Case No. 146: State Pension (Contributory) OACP who alleges she was working for 5 years but no PRSI recorded

Q. A claim was received for State Pension (Contributory). Claimant's contribution record showed that she had entered insurable employment at age 55 and had paid 430 PRSI contributions during the 11 year period from (age 55 - 66). Accordingly she was awarded a reduced rate SP (Contributory) based on a yearly average of 43 (between 20 & 47). The claimant has queried her contribution record and alleges that she worked for an additional 5 year period (age 50 - 55) but no PRSI contributions are recorded for this period. She is seeking the retrospective payment of PRSI contributions for a 5 year period where she was employed. If these were awarded she would be entitled to a full rate SP (Contributory). How do I proceed?

A. It is a matter for a Deciding Officer to determine,

  • whether employment is or was insurable employment
  • whether a person is or was employed in an insurable employment or insurable (occupational injuries) employment
  • who was the employer of an employed contributor and
  • whether a person is or was in insurable self employment.

Section 300 (2) (a) (iv), (v), (vii) and (xi) of the Social Welfare Consolidation Act 2005 refer. These decisions are made by a Deciding Officer based on all available evidence including the SWI report. (It may be necessary for the Deciding Officer to request a SWI report). If the Deciding Officer is unsure as to the insurability of the employment/class of contribution they should contact scope section. This may involve sending the file (including all relevant reports) to Scope Section. If the claimant had social welfare claims subsequent to the employment or during the employment then the claim papers for these might also be useful for the Deciding Officer in Scope Section.

If a Deciding Officer (Scheme Section/Scope Section) decides she was in insurable employment the claimant may be entitled to not only arrears of her State Pension (Contributory) but also for treating assistance claims (if she had any subsequent to the disputed employment) as claims for a related benefit payment. This would require a revised decision to be made by the Deciding Officer in the scheme area.

Further Considerations

Section 259 of the SW Consolidation Act 2005 which covers loss of benefit due to employer's default enables an employed contributor (or other person) to seek recovery from the employer via civil proceedings of the amount of benefit lost as a result of the non payment of contributions by an employer. If the person doesn't take proceedings then the Minister can take proceedings in the name of and on behalf of the contributor.

If the persioner was self employed during the alleged period then Section 110 of the SW Consolidation Act might apply which provides for the disregard in certain circumstances of self employment contributions which though due have not been paid on time. This provision was introduced to deter people paying self employment contributions well after the time they were payable in order to gain entitlement to SP (Contributory).

Case No. 147: Payment of Child Benefit (CB) - Who is entitled to payment where the parents are separated

Q. I have received a claim for CB from the father of a child aged 17 years of age who is in full time education. The parents are separated and the father has stated that the child stays with him every second week. He has sent in a copy of a joint equal custody order. The mother of the child is currently in receipt of the CB payment.

A. The issue here concerns the normal residence of the child and not the fact that a court order for joint equal custody exists. Section 220 of the Social Welfare Consolidation Act 2005 provides that "a person with whom a qualified child normally resides shall be qualified for child benefit in respect of that child and is in this Part referred to as "a qualified person"." However in this case the child resides with each parent on alternate weeks.

Article 159 (2) of S.I. 142 of 2007 provides for determining the normal residence of a child where the parents are separated i.e. "the qualified child shall be regarded as normally residing with the person with whom he or she resides for the majority of the time". Therefore CB is payable to the parent with whom the child resides the majority of the time. It would be unusual for the normal residence of a child to be divided exactly between both parents. However, if the child resides 50% of the time with each parent, then the mother is paid.

To qualify for Child Benefit the applicant must satisfy the Habitual Residence Condition.

Case No. 148: Earnings as a Home Help/Home Support Worker - Disability Allowance

Q. I have received correspondence from a claimant currently in receipt of a Disability Allowance (DA) payment which includes a reduced IQA payemnt (Spouse is employed as home help/home support worker) and full payment for two qualified children. Claimant states that he has recently started work as a home help/home support worker and has included a letter from the doctor to say that this work is of a rehabilitative nature. Claimant now earns the same as his spouse i.e. €200 per week. How do I proceed?

A. At present the DA claimant is in receipt of the maximum personal rate plus the appropriate tapered Increase Qualified Adult (IQA) rate and maximum Increase Qualified Child (IQC) rate for two children. Since earnings from home help are disregarded there is a nil means assessment. Therefore the personal rate of DA payable remains the same. The weekly rate of home help income earned by the sopuse/partner determines the IQA tapered rate payable or the eligibility for a qualified adult increase at all. As the spouses earnings are unchanged the IQA rate will remain the same (If the QA income is over €280 per week there would be no increase for a qualified adult payable and only half of the IQC would apply).

Before the claimant started work the family had DA at personal maximum rate, QA at tapered rate plus maximum IQC for two children and €200 per week income. The claimant then started work as a home help earning €200 per week. Claimant's earnings are disregarded from the means assessment giving the family DA at personal maximum rate, QA at a tapered rate, maximum IQC for two children plus €400 per week income.

Where a person is working as a Home Help it is not necessary for the DA claimant to supply a letter from a doctor stating that the work is rehabilitative. In other cases of DA applicants taking up employment it is necessary for them to supply a letter from a doctor stating that the work is rehabilitative if they wish to avail of a rehabilitative disregard of the first €120 of earnings and a further disregard of half of the weekly earnings between €120 and €350. (Rehabilitative employment can only be commenced with the prior agreement of DA section).

With the introduction of the new assessment of spouse's earnings commencing 26/09/2007 tapered IQA rates will be abolished. The maximum IQA rate would be payable in both instances above as thins stand at present.

It is proposed to set down, by regulation, designated limits for home help later this year.

Case No. 149: Carer's Allowance - means assessment for rented house

Q. I have received an application for Carer's Allowance. Claimant is residing with her mother and is providing full time care. The Claimant has a private pension for the UK and has her home in UK rented out. How do I assess her means?

A. From the 5th of April 2007, for a single Carer, the first €320 of income each week is disregarded. This disregard is not applied to any social welfare payment received from another state.

Income from property is assessed on its capital value. article 141 of S.I. 142 of 2007 provides that where a person vacates a principal residence (which is not rented):

  • on a temporary basis, or
  • as a consequence of old age or incapacity, or
  • where the property is for sale

then, the property is not part of the means of the person. However, in this case the property is rented and accordingly, the provision does not apply. Therefore the property is assessed on its capital value (minus any outstanding mortgage) in the normal manner i.e.

Assessing Capital

First €20,000


Next €10,000

€1 per €1,000

Next €10,000

€2 per €1,000

Excess of €40,000

€4 per €1,000


Case No. 150: Redundancy Payment - Does a disqualification apply to Jobseeker's Allowance

Q. I am dealing with a JA application. A redundancy payment was made to the applicant by the company he worked for. Does this affect his entitlement?

A. A person may be disqualified for receiving JA for up to 9 weeks from date of leaving employment is s/he has left the employment voluntarily and without good cause.

'Good cause' is not defined and it is for the Deciding Officer to apply a common sense meaning to the expression in considering the case. Factors that may be taken into account could include the circumstances surrounding any changes in working conditions, the financial situation of the firm; whether leaving the employment amounted to contstructive dismissal (i.e. the person left the employment following harassment/abuse from the employer). The Guideline 'JA/JOBSEEKER'S ALLOWANCE' has useful information that will assist a DO in determing 'Good Cause'.

Other reasons for a disqualification may include;

  • Loss of employment through misconduct
  • Refusal of an offer of suitable employment
  • Refusal or failure without good cause to avail of a reasonable opportunity to receive training provided or approved by FAS.
  • Failure or neglect to avail of any reasonable opportunity of obtaining suitable employment

Where any of the above disqualifications are imposed, the period must be calculated with reference to the day on which the loss or leaving of employment, refusal, failure, neglect or redundancy (as the case may be) occurred - See Guideline.

For JA cases the redundancy payment is treated as capital and assessed as means

Last modified:17/08/2010

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