DAO Bulletin Issue No. 15 Issued November 2009


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"APPEAL" FROM THE SOCIAL WELFARE APPEALS OFFICE

As a result of the downturn in the economy in the last year, there has been a major impact on everyone involved in the adjudication of entitlement to social welfare payments. The Social Welfare Appeals Office (SWAO) is no different.

The number of appeals we received has increased from 14,000 in 2007, to 18,000 in 2008 and a likely 26,000 in 2009. The effect of this is that the numbers on hand (or backlog) has increased from 5,700 at the end of 2007 to almost 8,000 at the end of 2008.

Unfortunately, our backlog is rising rapidly and the current number is 16,000 which we expect to continue rising into the immediate future.

In line with all other areas involved with the adjudication of entitlement to social welfare payments, the SWAO is keeping its processes under continuous review with a view to achieving a more effective throughput of appeals.

Deciding officers in the Department can play a very significant part in helping us to achieve that objective by –

  • dealing speedily with cases which are sent to them by the SWAO for their comments on the grounds of appeal and for the submission of case papers, and
  • ensuring that the submissions and documentation returned is of a high quality which doesn't require further work in the SWAO.

Speedy return of files/submissions

Under social welfare legislation, every person who is dissatisfied with a formal decision made by a deciding officer is entitled to appeal that decision and on receipt of such an appeal, the SWAO is obliged to forward the grounds submitted by an appellant in support of an appeal to the deciding officer to give him or her an opportunity to comment on or refute these grounds and to forward the claim papers in each case.

The SWAO acknowledges the pressures that local offices and scheme sections are under at the present time. Nevertheless, we are asking that priority be given to dealing with our requests to enable the appeals process to operate in an efficient and effective manner.

Quality of submissions

The submissions and documentation being sent to us are normally of a very good standard. However, we have been concerned for some time past about the level of errors and other deficiencies in appeal submissions coming to us from a small but, nonetheless, significant number of scheme sections and local offices.

Our basic concern relates to the fact that appeals officers' decisions are quasi-judicial in nature and as such are subject to challenge in the courts where shortcomings and deficiencies in the original decision making process have the potential to undermine the entire decisions and appeals process.

Appeals Survey

In order to quantify the extent of the problems we were having, a detailed survey of appeals submitted to the SWAO was undertaken during the early part of 2008 in co-operation with the Decisions Advisory Office (DAO). In all, we surveyed 1,686 live appeals of which some 8% revealed shortcomings and deficiencies of varying degrees in relation to the deciding officer's decision or the appeal submission on the grounds of appeal. Among the type of deficiencies the survey revealed were no formal decision on file, failure to comment adequately on the grounds of appeal, relevant evidence and reports unclear or not on file, file papers not in sequence and not tabbed, and the deciding officer's decision not properly explained to the claimant.

The survey showed that, in the context of 24,000 appeals being received this year, we will not be able to process almost 2,000 appeals without referring them back to the Department under query. As you can appreciate, dealing with those shortcomings and deficiencies can be very time consuming resulting in considerable delays in determining appeals.

Revised Appeals Guidelines

By way of a response to the survey findings, the SWAO prepared a new set of updated guidelines for deciding officers dealing with appeals with the co-operation of the DAO. Those guidelines were promulgated by the DAO throughout the Department in July 2008.

The guidelines set down in detail the correct approach to be adopted by deciding officers in preparing their submissions to the SWAO. A checklist was also circulated with these guidelines and that checklist is included again in this Bulletin. We urge all deciding officers and other staff dealing with appeal submissions to take the time to acquaint themselves with the updated guidelines and checklist. Remember, our aim is to reduce appeal processing times and your assistance with appeal submissions can help greatly in that regard.

If you need clarification about any aspect of preparing appeal submissions, please don't hesitate to contact Dan Kavanagh of the SWAO (01-6732817, 086 8500704 or e-mail kavanagh_d).

Training Courses

As part of its training function, the DAO organises a range of formal training courses aimed at the needs of deciding officers. The SWAO contributes an appeals module to each of those courses and we are committed to continuing that level of involvement into the future.

Checklist for Deciding Officers preparing appeal submissions.

This checklist should be completed for each appeals file.

  • Formal decision on file
  • Decision reason given to appellant
  • Relevant legislation cited
  • Decision reviewed in light of appeal
  • All supporting evidence on file
  • All documents legible (or typed)
  • Documents tabbed
  • Comments on appellant's contentions
  • Request to attend hearing [yes/no]
  • File checked & signed off by experienced officer
  • For cases involving Habitual Residence, include HRC1

CENTRAL OVERPAYMENTS & DEBT MANAGEMENT SYSTEM

There may be confusion among some Deciding Officers between writing off an overpayment and cancelling an overpayment.

When should an overpayment be cancelled?

An overpayment should be cancelled where it is clear that the overpayment does not exist. The following are examples of cases where the overpayment should be cancelled:

  • the overpayment was entered in error on the payment/ ODM system,
  • there is a decision by an appeals officer the effect of which is that no overpayment has occurred,
  • there is a decision by a deciding officer the effect of which is that no overpayment has occurred.

It is important to distinguish between the cancellation of an overpayment and the cancellation of the repayment of an overpayment (write off). An overpayment is cancelled in the situations outlined above. The repayment of an overpayment is cancelled where there is no prospect of recovery of the amount due.

Cancelling the repayment of an overpayment (write off)

The repayment of an overpayment may be cancelled where there is no realistic prospect of repaying the overpayment or where there is no reasonable prospect of recovering the debt within a reasonable timescale without incurring considerable administrative costs.

The following are some examples of cases of where this may apply:

  • the person overpaid has died without estate,
  • the Statute of Limitations applies i.e. person was not informed within 6 years of the discovery of the overpayment,
  • the cause of the overpayment was Departmental error and the amount was not significant.

What does cancelling the repayment of an overpayment mean?

Cancelling the repayment means the cancelling of all or part of the overpayment. Under Article 246 of S.I. 142 of 2007 the repayment of all or part of an overpayment may be cancelled. This means that the overpayment or the part of the overpayment cancelled cannot be pursued and no (further) recoveries may be made.

Where it is decided that the repayment of an overpayment should be cancelled fully or in part, the amount cancelled should be entered onto the ODM system and the reason for the cancellation recorded on ODM. This is done by selecting the "write off part or all of the overpayment" option on ODM.

Example of cancelling an overpayment

Mr A claimed Jobseeker's Allowance with nil means. Following a means review it was discovered that he had received an inheritance 3 years ago which resulted in him being assessed with means from capital of €50 per week. Mr A said that he thought he only had to inform the Local Office if he found work. The deciding officer decided to revise the decision on his entitlement retrospectively to the date of his inheritance as he failed to notify a change in his circumstances (Section 302(b) of the Consolidation Act). As a result the customer is assessed with an overpayment of €7,800 (€50 x 156 weeks).

He subsequently appealed the decision and the appeals officer decided that the means should be applied from a current date arguing that the means were not reviewed for years and if they were Mr A would have disclosed the inheritance as he did when his means were reviewed. The result of the appeals officer's decision is that the overpayment should be cancelled because it no longer exists.

Example of writing off an overpayment

Mr B had been concurrently working and claiming Jobseeker's Allowance and was assessed with an overpayment of €20,000. He agreed to repay €20 per week and continued to do this when he claimed State Pension (Non-Contributory). He dies and has a balance of €10,000 outstanding on his overpayment. He has no assets or estate at the time of his death. There is no prospect of recovering the remaining overpayment sum so it should be written off.

Can an overpayment on one scheme be recovered from any other scheme?

Overpayments under any scheme may be recovered from any other social welfare payment with the exception of Child Benefit. Recovery deductions may only be made from Child Benefit payments for Child Benefit overpayments. However, Child Benefit overpayments may be recovered from all other payments.

Can an overpayment from another scheme be recovered from a Bereavement Grant?

In order not to impose undue hardship on the bereaved person, it is the practice within the Department that overpayments from any other scheme should not be recovered from Bereavement Grant, Widowed Parent Grant and Respite Care Grant.

When would an overpayment be recovered by withholding arrears?

When arrears are due to a person, all or part of the arrears due are normally withheld to repay an overpayment due to the Department. The circumstances of the case should be considered in order to determine whether it is appropriate to withhold arrears and if so what amount should be withheld. In all cases, the person must be informed of the Department's intention to withhold the arrears and offered the opportunity to give his/her views on the proposal.

Any views offered by the person should be considered before arrears are withheld.

However, arrears may be withheld without the agreement of the person.


CLASSIFICATION OF ATYPICAL WORKERS

There has been an increase of late in the number of people who are not working a traditional 5 day week. This is termed atypical employment. There are various types of such employment, but for the purposes of Jobseeker's Benefit they are classified as follows:

  1. Systematic Short-Time (SST) workers,
  2. Week on/Week off workers, and
  3. Casual/Part-Time workers.

As the entitlements for each group are different it is important that they are correctly classified at the time of claim to ensure consistency between Local Offices.

Systematic Short-Time (SST) workers

Short-time employment means employment in which, for the time being, a number of days are systematically worked (in a working week) that is less than the number of days which is normal in a working week in the employment concerned. For short-time workers, their normal level of employment is calculated at the start of each Jobseeker's Benefit claim.

The days of Jobseeker's Benefit payable are limited to ensure that the combined days paid and the number of days worked do not exceed five. The amount payable is one-fifth of the appropriate weekly rate. PRSI continues to be paid in the normal way. However, Jobseeker's Benefit is not taxable where a person is working systematic short-time.

A person would be expected to have a history of full-time work with the same employer for at least 6 months before being considered as SST, and short-time working must be imposed by the employer, not voluntary.

There must also be an expectation to a return to full-time work. Where it becomes apparent that there can be no expectation of returning to full-time work with that employer, for example where the employer took on new staff or put staff on overtime, such customers must be re-classified as part-time workers, and JB would then be taxable.

There should also be a clear repetitive pattern of employment. Customers must work at least one day in each week that they normally worked when full-time.

Where other Local Offices are dealing with employees from the same company, deciding officers should check what approach is being taken in these offices in order to ensure consistency of decision-making.

Week on/Week off workers

While customers who work week on/week off (WoWo) are working a systematic pattern, they are not categorised as SST and are paid one-sixth of the appropriate weekly rate of Jobseeker's Benefit for each day of unemployment.

Casual /Part-Time workers

While the ISTS system category code 'CAS' encompasses both casual and part-time workers, in determining whether a claimant for Jobseeker's Benefit is 'casual' or 'part-time', the following criteria should be considered.

Casual workers

Generally speaking, a person is considered to be a casual worker where they do not know when they will be taken on again by an employer. Such worker's employment is usually in areas where the amount of work available constantly fluctuates. The number of days worked would vary from week to week, and the particular days worked each week would also vary. Such workers do not have to satisfy the 'substantial loss' condition.

Workers classified as casual must continue to meet the requirements of genuinely seeking full-time employment and availability for work. There are very few workers who work on a casual basis, as most atypical workers would be regarded as part-time workers.

Part-time workers

Where a person is considered to be working part-time, they will work less than the number of days and hours a full-time person works in a similar job. They will expect to have work on an ongoing basis, but there may be no clear, repetitive pattern. They will have the same privileges as full-time employees, e.g. pro-rata pension and holiday entitlements. Such workers must satisfy the 'substantial loss' condition and their normal level of employment is calculated at the start of the Jobseeker's Benefit claim.

Where a person normally works full-time but the employer reduces the number of days worked on a permanent basis, Jobseeker's Benefit may be payable for the days not worked. Such a person is assessed for Jobseeker's Benefit as a part-time worker. The requirements to be available and to look for full-work must be met.

Classification of Casual/Part-Time Workers for Jobseeker's Benefit purposes

The determination of classification must be made by examining each case on its own merits. In determining whether a person is engaged in casual employment, deciding officers should have regard to the following:

  • the claimant's employment history,
  • any fluctuation in the number of days worked,
  • the existence of a written contract of employment or an unwritten understanding between the employer and employee,
  • the claimant's commitment to a specific employer, e.g. membership of the company's pension scheme or membership of a trade union,
  • if an employee is in receipt of a set wage, it is a strong indicator that his/her days of employment do not vary in line with fluctuations in his/her employer's business.

Information is given in more detail in the Jobseeker's Benefit guidelines for Deciding Officers which is available on the Department's website and also on the DAO site on Solas.


FREQUESTLY ASKED QUESTIONS

Case No. 151: Academic Year

Q. Mr K is in receipt of JB with an increase for a qualified child (IQC). His daughter commenced her 4th and final year in college in September 2008. She reached 22 years of age on 12th December 2008. Part of her final year includes an internship. She cannot graduate without completing the internship which starts on the 3rd August and finishes on the16th October, 2009. What date should the IQC be paid to?

A. Section 2(5)(a) of the Consolidation Act provides that; "Notwithstanding subsection (3)(b)(v)(II), a person receiving full-time education, in accordance with that provision, who attains the age of 22 years during an academic year shall continue to be regarded as a qualified child for the purposes of that provision, while receiving full-time education for the duration of that academic year".

Section 2(5)(b) provides that; "in this subsection "academic year" has the meaning given to it by section 148(2)" and Section 148(2) provides that; "academic year" means a period in which a course of study begins in one year and finishes in the following year and includes term vacations;".

Article 3 of S.I. 142 of 2007 provides that;
"academic year" means a period in which a course of instruction or part of a cycle of education takes place in a calendar year or a period in which a course of instruction or part of a cycle of education commences in one calendar year and finishes in the next following calendar year;".

Therefore, an academic year is a period in which a course of instruction or part of a cycle of education commences in one calendar year and finishes in the next following calendar year. Where a person receiving fulltime education reaches 22 during an academic year s/he continues to be regarded as a qualified child for the duration of that academic year. As Mr K's daughter cannot graduate if she does not complete her internship this is therefore part of the final year of the 4 year cycle of education i.e. "part of a cycle of education commences in one calendar year and finishes in the next following calendar year".

As Mr K's daughter reached 22 years of age on 12th December 2008 during the final academic year, an IQC is payable to the end of that year which in this case is the date she finishes her internship in 2009.

Case No. 152: Backdating a claim for State Pension (Contributory)

Q. Ms D reached 66 years of age on 13th October 2006. She had been a qualified adult on her husband's pension before she reached 66 and has only now made a claim for State Pension (Contributory) (SPC) in her own right on the 9th October 2009. She states that the reason for the delay in making her claim was that she did not know she would be better off by receiving a SPC in her own right. How do I treat the backdating of the claim?

A. Section 241 of the Consolidation Act provides that;

" (1) It shall be a condition of any person's right to any benefit that he or she makes a claim for that benefit in the prescribed manner.

(2) Where a person fails to make a claim for benefit (including any increases of that benefit) within the prescribed time, he or she shall be disqualified for payment—

  1. in the case of State pension (contributory), State pension (transition), widow's (contributory) pension, widower's (contributory) pension or guardian's payment (contributory), in respect of any period more than 12 months before the date on which the claim is made,".

The prescribed time for making a claim for SPC is provided for in Article 182 of S.I. 142 of 2007 which states:

"The prescribed time for making a claim shall be –

  1. in the case of State pension (contributory), State pension (transition) and invalidity pension, the period commencing 3 months before and ending 3 months after the date on which, apart from satisfying the condition of making a claim, the claimant becomes entitled thereto,".

As Ms D has made a claim for SPC outside of the prescribed time, her claim can only be backdated for a period of 12 months i.e. to the 9th October 2008. However, Article 185 of S.I. 142 of 2007 provides for the payment of claims made more than 12 months after the due date with Article 185 (2) providing that;

"(2) For the purposes of sub-article (1), where the period from the date on which the person establishes entitlement to the date on which the claim was made is a period specified in column (1) of Schedule 15, the period by which payment shall be extended is that shown opposite the aforementioned period in column (2) of the said Schedule.".

Schedule 15 provides as follows:

Extension of period for payment of claims made more than 12 months after the due date
Period from date of establishment of entitlement to the date the claim was made (1) Period by which payment shall be extended beyond thatspecified in section 241(2) (2)
Exceeds 1 year but not 2 years 50% of the number of weeks exceeding 1 year from the date claim was made
Exceeds 2 years but not 3 years 40% of the number of weeks exceeding 2 years from the date claim was made plus 26 weeks
Exceeds 3 years but not 4 years 30% of the number of weeks exceeding 3 years from the date claim was made plus 47 weeks
Exceeds 4 years but not 5 years 20% of the number of weeks exceeding 4 years from the date claim was made plus 63 weeks
Exceeds 5 years 10% of the number of weeks exceeding 5 years from the date claim was made plus 73 weeks

As Ms D's claim is made more than 12 months after the due date it should be calculated from a period which exceeds 2 years but not 3 years according to Schedule 15 as; "40% of the number of weeks exceeding 2 years from the date claim was made plus 26 weeks".

Case No. 153: Assessment of mortgage payments in respect of a separated spouse

Q. Should half the mortgage payment in the following scenario be assessed as maintenance on a One-Parent Family Payment (OFP) claim?

A couple with two children have separated and the mother and two children have left the family home and are living in rented accommodation. The mother has made a claim for OFP. The father is still living in the family home and is paying the full mortgage directly to the lending institution. The house is in joint names. Should half the mortgage payment be assessed as maintenance on the OFP claim?

A. As the mortgage payment is paid directly by the father to the lending institution it cannot be treated as income in cash for the OPF claim. The mother does not receive this as income and therefore it cannot be treated as such - Rule 1 of Part 5 of Schedule 3 of the Consolidation Act refers and provides that;

"Subject to paragraphs (2) and (3), in calculating the means of a person, account shall be taken of the following —

(2) all income in cash (including, in the case of widow (non-contributory) pension, widower's (non-contributory) pension, guardian's payment (non-contributory) and one-parent family payment, the net cash value of such non-cash benefits as may be prescribed), and the income received by a qualified child or qualified children that may be prescribed which the person may reasonably expect to receive during the year succeeding the date of calculation…". Article 142(a) of S.I. 142 of 2007 provides that the non-cash benefits prescribed for the purposes of Rule 1(2) of Part 5 of Schedule 3 to the Consolidation Act shall be:

  • " the net cash value to the person of his or her annual housing costs actually incurred and paid by a liable relative insofar as the cash value exceeds €4,952 per annum..".

The mortgage payment paid by the father does not relate to the mother's "annual housing costs actually incurred" as she lives in another household and is paying rent. This provision would only relate to a scenario where the mother was living in the house on which the mortgage payments (usually the family home) were being made and therefore could be attributed to the household costs. The distinction here is that the mother is not living in the household to which the mortgage is being paid and therefore that money is not going towards her household costs but rather towards the family home.

If the mother was living in the house where her half of the mortgage was being paid i.e. towards "annual costs actually incurred" then Article 142 (a) would apply.

Case No. 154: Removed following clarification from Planning.

Case No. 155: Substantial Loss (Jobseeker's Benefit)

Q. Would the claimant in each of the following scenarios satisfy the substantial loss condition for the purposes of claiming Jobseeker's Benefit (JB)?

  1. Claimant for JB has been a full-time student for some years and has now completed their course and has made a claim for JB (contribution condition satisfied due to weekly part-time work).
  2. Claimant for JB was on Illness Benefit for 2 years approx and is now claiming JB.

A. The Consolidation Act provides that a person must have sustained a substantial loss of employment in order to qualify for JB when it provides at Section 62(1)(d) that;

"other than in the case of a person engaged in casual employment, he or she has sustained a substantial loss of employment in any period of 6 consecutive days.".

In addition, Section 62(3) of the Consolidation Act provides that:

"The circumstances in which a person is to be regarded, for the purposes of this Chapter, as having sustained a substantial loss of employment shall be specified in regulations, and different circumstances may be specified for different provisions of this Chapter.".

These circumstances are specified in Article 49 of S.I. 142 of 2007 which provides that;

"Where a claimant's reckonable earnings or reckonable income are reduced as a consequence of the loss of employment a claimant shall be regarded, for the purposes of section 62(1)(d), as having sustained a substantial loss of employment in any period of 6 consecutive days as an officer of the Minister may determine, where he or she has lost 1 day of insurable employment."

Therefore, the substantial loss condition must be satisfied at the start of all new JB claims, except for "Casuals". Deciding officers should establish the normal level of employment. The period over which the normal level of employment is to be measured is determined by reference to a representative period preceding the date of the claim. It is usual for the 13 week period immediately preceding the date of the claim to be used for this purpose, where it is an accurate reflection of the normal employment pattern. However it may be more appropriate for the deciding officer to choose an alternative period. For example, where the person's level of employment fluctuated because of annual workflow patterns or unusual circumstances, the deciding officer should look at the record of employment over a period that would establish the normal level of employment for them. This period could be the previous 26, 52 or 104 weeks.

Where the person had no employment during the preceding 13 week period, e.g. where s/he lost employment while in receipt of Illness Benefit, the normal level of employment should be determined by reference to a representative period before the period on Illness Benefit or as in Case 1 above, before they were a student.

Therefore in establishing the normal level of employment in both of the above cases, the representative period to be used would be, in Case 1, the period before the claimant became a full-time student, and in Case 2, the period before the person claimed JB before going on Illness Benefit.

Case No. 156: JB Claimant who jointly owns second and third properties claims IQA.

Q. Mr. B has made a claim for JB for himself, his wife and their two children. He owns two properties jointly with his wife in addition to the family home. The first such property has a market value of €280,000 with an outstanding mortgage of €250,000. It is rented for €1,000 per month. The second such property has a market value of €250,000 with an outstanding mortgage of €200,000 and generates a rental income of €800 per month. How do I proceed with his JB claim?

A. The customer is claiming JB which is not means tested so he is entitled to a personal rate for himself. It is necessary to determine if he has an entitlement to qualified adult and qualified child increases so the spouse's income from the additional properties must be ascertained. For qualified adult increase purposes, if a spouse or partner has property that is rented, it is the rental income from that property that is used to determine income rather than its capital value. In this case, the spouse jointly owns each of the two properties with the JB claimant so half the rental income from each property is calculated as the spouse's income as follows;

€1000 divided by 2 = €500
€800 divided by 2 = €400
Total Monthly Income €900

€900 x 12 = €10,800 per annum
€10,800 divided by 52 = €207.69 per week.

The spouse's total weekly rental income from both properties is €207.69 and when this income is compared to the table of tapered rates for JB qualified adults, the income falls between the €200.01 and €210.00 earnings band, therefore, the customer will qualify for a tapered QA rate of €68.10 per week. The customer will also qualify for the full rate qualified child increase of €26 per week for each child because he qualifies for a tapered qualified adult rate.

Case No. 157: Pre-entry Credits

Q. I have received a claim for Bereavement Grant in respect of a person who has died aged 18. She had been in insurable employment for a year but had not the necessary minimum contributions paid. Can pre-entry credits be awarded to her to bring the contributions paid and credited up to the necessary level?

A. A person may be awarded pre-entry credits from the beginning of the tax year in which s/he started work, and for the two previous tax years. However, it should be noted that pre-entry credits may not be awarded for any period before a person's 16th birthday. In this case, as she had taken up insurable employment when 17, pre-entry credits are only allowable from that date back to her 16th birthday.

Case No. 158: Can a person disallowed Jobseeker's Allowance on HRC grounds sign for credits?

Q. I have decided to disallow a claim for Jobseeker's Allowance on the grounds of the claimant not satisfying the habitual residence condition. The customer has now asked whether he can sign for credits in order to maintain his record. Is there a requirement for a customer to meet the habitual residence condition before he or she can sign for credits?

A. Article 58(1) of the Social Welfare (Consolidated Contributions and Insurability) Regulations, 1996 states that; "Subject to these Regulations, an employment contribution shall be credited to an insured person –

  1. in respect of a day of duly notified incapacity for work or of proven unemployment in any contribution year in accordance with sub-article (2),"

Article 58(2) states that; "The number of contributions to be credited under sub-article (1) (a) to a person in any contribution year shall be one-sixth of the total number days of incapacity or of proved unemployment, or of both, as the case may be, in that year.".

Had the person made a claim for Jobseeker's Benefit, for which there is no habitual residence requirement, and been disallowed, he would have been allowed to sign for credits. In this case, while the customer has been disallowed Jobseeker's Allowance, provided he proves unemployment, he must be allowed to sign for credits.

Case No. 159: Late claims in other EU state

Q: I have received a claim for Child Benefit from a family who live in Northern Ireland. The father started work in this State in 2005. In December 2007 their son was born, and a claim was made at that time for Child Benefit to the DSS in the UK. In March 2008, the family received notification from the DSS that this State was the competent authority as the husband was employed here. In February 2009 a claim for Child Benefit was received in Child Benefit section and the claim was put into payment from March 2009. However, the family are requesting that the claim be backdated to the date they claimed Child Benefit from the DSS. From what date is Child Benefit payable?

A. In cases involving family benefits such as Child Benefit, EU law must also be taken into account. Article 86(2) of EU Regulation 1408 of 1971 endeavours to ensure that a person is not penalised as a result of exercising their right to freedom of movement between EU member states.

Where a person makes a claim in his or her country of residence, and another country is the competent state because of employment there, the country of residence must let the person know of this. Article 86(2) puts the onus onto the customer to make a claim to the competent state within 12 months of being notified of this decision. Subsequently, when a claim is made in the competent state, the date of claim in the country of residence will be taken as the date of claim in the competent state.

In this instance, Child Benefit is payable from January 2008.

Case No. 160: Payment after death

Q. Mr K, who was in receipt of Invalidity Pension and who had been living with his partner, Ms L, herself receiving Illness Benefit, has died. I have received a request for 6 weeks payment after death from Ms L. Is she entitled to receive this payment?

A. Section 248(2)(a) of the Consolidation Act states that;
"where a person who is in receipt of a benefit which includes an increase for a qualified adult, or where the spouse is in receipt of any benefit in his or her own right, dies, payment of the benefit shall continue to be made for 6 weeks after the date of death and shall, during that period, be made to the person and subject to the conditions that may be prescribed,".

Article 208(1) of S.I. 142 of 2007 defines "related person" for the purposes of payments after death as a person;

  1. "in respect of whom the deceased beneficiary was receiving an increase in respect of a qualified adult, or in respect of whom such an increase would have been payable but for the receipt by the deceased beneficiary's spouse of State pension (non-contributory), blind pension, carer's benefit or carer's allowance in his or her own right, or
  2. in respect of whom the deceased beneficiary was receiving an increase under section 157(1)(a).".

In this case, as Mr K had not been in receipt of a qualified adult increase in respect of Ms L on his Invalidity Pension, and Ms L is not his spouse, nor in receipt of State Pension (Non-Contributory), Blind Pension, or Carer's Benefit or Allowance herself, she has no entitlement to the 6 weeks payment.

Last modified:26/01/2011
 

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