DAO Bulletin Issue No. 7 Issued February 2002


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Case No.

  1. IQA for Spouse with Income from Property
  2. UA for Foreign Worker on Fixed Work Contract
  3. 'Disadvantaged' UA Claimants
  4. DWB Limit and Superannuation Contributions
  5. Person who made himself unavailable for work by moving to a remote area
  6. Means of a UA claimant where spouse in receipt of Student Nurse Maintenance Grant from Health Board
  7. Assessment of Second House
  8. Payment after death where both spouses die
  9. UA/UB Pending Disability Benefit Appeal
  10. Expenses related to Self-Employment
  11. Disability Benefit while on Career Break
  12. Full CDI payable to separated spouse who contributes substantially towards cost of maintenance of children
  • Case No 73 (Revised): CDI is NOT payable simultaneously with Orphans Pension/Allowance

Case No. 103: IQA for Spouse with income from property

Q. Mrs W is in receipt of Disability Benefit. She has applied for an increase in respect of her husband as a Qualified Adult.He owns a building, which he has let for a rental of €75.00 a week to a neighbour who runs a business from it. The capital value of the building is €50,800. He has no other income. In determining whether he is a Qualified Adult, should we assess (a) the rental he receives for letting the building or (b) the capital value of the building?

A. The capital value of the building is not relevant to the question because it does not constitute income. Article 6A of S.1. 417 of 1994 provides that an increase for a Qualified Adult (IQA) may be paid in respect of a spouse whose income is below a specified limit calculated or estimated in accordance with Article 6(B) - in these circumstances the spouse is regarded as being wholly or mainly maintained by the claimant. Article 6 (B)(1)(d) provides for the calculation of income "insofar as it consists of income from any other source (including rent or any other periodical payment receivable for the possession and use of property in all lands, tenements and hereditaments), by reference to the normal weekly amount of such income".

In the case of Mr W, his income should be taken to be the money he receives from renting the building (i.e. €75.00 a week). As his income is below €88.88, Mrs W is entitled to a full IQA in

Case No. 104: UA for foreign worker on fixed work contract.

Q. Mr Z is from Zanzibar and came to Ireland to work in a meat factory, having secured a 12-month work permit in respect of that employer from the Department of Enterprise, Trade and Employment. However, because of a downturn in business, Mr Z was recently laid off work by the employer who says that he may employ him again, if business picks up. In the meantime Mr Z has claimed UA. Can he be regarded as available for work for UA purposes?

A. As he is from Zanzibar, for visa purposes Mr Z falls into the category of a national from the non-European Economic Area (EEA). Such nationals may be issued with a visa, which allows them to work in this State for a fixed period with a named employer. Following discussions with the Department of Enterprise, Trade and Employment and also with the Department of Justice and Law Reform, it has been confirmed that non-EEA Nationals are legally allowed to reside in the State until the expiry of their visa, even if they have lost their employment prior to the expiry date. There is no restriction, therefore, preventing a non-EEA national who suffers a loss of employment (including being put on short-time) from being able to demonstrate availability for full-time employment for the period up to the expiry of the visa.

Subject to satisfying the other conditions, Mr Z may accordingly be paid UA up to the expiry date of his visa. Thereafter, as a non-EEA national he will not have his permission to stay in Ireland renewed unless he is in possession of a valid work permit at the time of renewal.

Case No. 105: 'Disadvantaged' UA claimants

Q. In a report on a recent appeal case where a UA claimant had appealed against a 'Genuinely Seeking Work' disallowance, the Appeals Officer referred to the appellant as "disadvantaged". Could you explain what the Appeals Officer meant by this?

A. The Chief Appeals Officer referred to this matter in his Annual Report for 2000 as follows: Note in particular the need for Deciding Officers, in giving their comments on the grounds put forward by appellants in such cases, to refer to any measures that have been taken to help the person to become job ready.

"Of particular concern to Appeals Officers - as indeed it is to the Department - are claimants who, because of factors such as illiteracy, some impaired physical or mental abilities, or a socially deprived background, are at a real disadvantage in securing employment. Where there are indications that an appellant is disadvantaged, Appeals Officers have asked that the Department's comments (obligatory on all appeals) include full briefing on measures which have been taken to help the person to become job ready. Such measures would include availing of the Department's local job facilitator or of assessment/training by FAS. Consideration of the appeal by Appeals Officers is greatly facilitated where such documentation is available, particularly where the Deciding Officer may not be available to present the Department's case at the hearing".

Case No. 106: DWB Limit and Superannuation Contributions

Q. We are currently reviewing the claim of Mrs W who has been on Deserted Wife's Benefit since 1995 and who works in the local Health Board. Her total earnings for the year ended 5 April 2001 were €19,250, which is in excess of the ceiling of €17,776.33. However, her earnings included Superannuation Contributions amounting in total to €1,727 for the year and we wonder whether this amount should be disregarded when determining whether she is over the limit or not for DWB purposes.

A. The short answer is YES. The rule is that in the case of DWB claims made after 31 August 1992, a person may qualify for payment if she does not have an aggregate of reckonable income or earnings in excess of €17,776.33 in the last complete tax year or in a subsequent period as the Deciding Officer or Appeals Officer may consider appropriate. Reckonable earnings are defined in SI 312/96 as "(i) in the case of an unemployed contributor, not being a special contributor, emoluments derived from insurable employment or insurable (occupational injuries) employment, to which Chapter IV of part V of the Act of 1967 applies, but without regard to section 192 of that Act, (other than non-pecuniary emoluments), reduced by so much of the allowable contribution referred to in Regulations 59 and 60 (inserted by the Income Tax (Employments) Regulations, 1972 (S.I. No. 260 of 1972)) of the Regulations of 1960 as is deducted on payment of those emoluments".

Regulations 59 & 60 of the Income Tax (Employment) Regulations above refer to Superannuation and Permanent Health Insurance contributions. Ordinary Superannuation contributions made by an employee up to the amount approved by the Revenue Commissioners and which are deducted from wages by the employer are therefore disregarded for the purposes of determining the €17,776.33 limit for Deserted Wife's Benefit.

In Mrs M's case her reckonable earnings were her gross earnings (€19,250) less Superannuation Contributions (€1,727) which were approved by the Revenue Commissioners and were deducted by her employer, leaving her reckonable earnings as €17,523. As this is less than the prescribed amount of €17,776.33 she may continue to qualify for the Deserted Wife's Benefit provided she satisfies all of the other conditions.

Case No. 107: Person who made himself unavailable for work by moving to a remote area

Q. Mr H is single and was working in a factory in this area until recently when he opted to go to live about 40 miles away in a rural area where there are no factories. He has made a postal claim for UB and in response to a question about the efforts he had made to get work since coming here, he said that he was looking for work but that there was no suitable work available in the area. Is he entitled to be paid UB?

A. From what you say, Mr H has removed himself from a place of good job opportunities to an area in which there is little or no work to be found. He is accordingly placing limitations of distance on his availability for employment, such that he has deprived himself of a reasonable opportunity of getting employment. In these circumstances we would consider that there are good grounds for disallowance of Mr H's claim to UB, as he does not appear to satisfy the 'available for work' condition.

Case No 108: Means of UA claimant where spouse in receipt of Student Nurse Maintenance Grant from Health Board

Q. Mr E has applied for UA. His wife is a student nurse who is in receipt of a Student Nurse's Maintenance Grant from the Health Board. Is the grant payable to Mrs E assessable as means on her husband's UA claim?

A. A Maintenance Grant is payable by Health Boards to persons who are participating on a three-year student nurse training programme. At present the amount of this non-means tested grant is €4,532.96 a year. In addition the student nurse is entitled to certain allowances in respect of expenses e.g. Book Allowance, Uniform Allowance, free meals, fee paid by relevant agency, and free travel during period of placement.

Social Welfare legislation provides that all income that a person or his/her spouse receives is assessable as means with certain specified exclusions. However, grants to nurses by Health Boards are not specifically excluded and are accordingly assessable. Mr E should therefore be assessed with the value of Mrs E's maintenance grant. But the allowances payable in respect of expenses, as mentioned above, should not be assessed.

Case No. 109: Assessment of Second House

Q. Ms Q is in receipt of Carer's Allowance. She has inherited a half-share in a cottage from her uncle. At present her three elderly aunts are resident in the house. Under the terms of their brother's will, they have right of residency in the cottage for their lifetime. Should she be assessed with the capital value or possible letting value of the house?

A. No, a second house is only assessable if it is not being personally used or enjoyed by the claimant and either (a) it is invested or is otherwise put to profitable use by the person or (b) although not invested or put to profitable use, it is capable of being invested or put to profitable use. Neither of these conditions apply in this case because, owing to the legal rights of the present occupants, Ms Q's second house is not capable of being put to profitable use. In the circumstances, no means assessment should be made in respect of Ms Q's half-share in the cottage.

Case No. 110: Payment after Death where both spouses die

Q. Mr H was in receipt of retirement pension until he died recently. His wife, who was in receipt of Old Age non-contributory pension in her own right, died a week later. They were not in receipt of an increase for a child dependant. We paid Payment after Death to the next of kin for one week only on the basis that entitlement to Payment after Death ceased with the death of Mrs H. However, the next of kin is seeking payment for the full six-week period after the death of Mr H. Who is right?

A. The legislation provides that "where the related person entitled to a continued payment dies and the continued payment does not include an increase in respect of a qualified child the right to the continued payment shall be extinguished" [Article 121(3)(c) of SI 417 of 1994]. So, you were correct in holding that the payment after death ceased on the death of Mrs H.

Note:
However, that if Mr H had been in receipt of CDI in respect of a dependant child, the full 6 weeks would have been payable to that child.

Case No. 111: UA/UB Pending Disability Benefit Appeal

Q. Following examination by a Medical Assessor, Mrs B was disallowed Disability Benefit on the grounds that she was capable of work. She appealed the decision and continued to submit medical certificates. Pending the outcome of her appeal, she lodged a claim for Unemployment Benefit. The local office has learned from her previous employer that Mrs B's position is still vacant and that it is open to her to return to work. However, she refuses to go back to work on the grounds that she still considers herself incapable of work. Should she be paid UB pending the outcome of DB Appeal or should a disallowance be imposed on the grounds that she is not available/genuinely seeking work?

A. In cases of this kind it is normal for Deciding Officers to await the outcome of the DB appeal before pursuing the question of availability/GSW. So, UB may be paid to Mrs B until then. However, if the 'capable' decision is upheld by the Appeals Officer, all of the conditions for receipt of UA/UB should be applied within a reasonable period and if she were to persist in refusing to return to her job without good reason, disallowance on grounds of being Not Available/not GSW would be indicated.

Case No. 112: Expenses related to self-employment.

Q. Mr R is in receipt of UA. He is a self-employed carpenter and has recently purchased a van at a cost of €25,400 for use in his business. In assessing his means should this cost be set off against his income?

A. The van is a business asset, the purchase of which increases Mr R's capital. But since the capital value of a business is not taken into account in the assessment of means, increases or decreases in the capital value are ignored. However, it is normal practice in assessing the means of persons who are self-employed to allow for depreciation and running costs of machinery or equipment that is directly related to the running of the business. In assessing Mr R's means, therefore, allowance should be made for depreciation of the van and the running costs of the vehicle (insofar as the costs were incurred on the business).

Note:
(1) if Mr R had taken out a bank loan to buy the van, interest payable on the loan would be allowable; (2) if he had instead bought the van by hire-purchase, the repayments would be allowed in full as an outgoing.

Case No. 113: Disability Benefit while on Career break

Q. Mr O'N is a civil servant who is on a career break for study purposes. He became ill recently and made a claim a claim for DB. Is he entitled to payment?

A. Yes, provided he satisfies the contribution conditions and is incapable of work, there is no reason why Mr O'N should not be paid DB. The fact that he is on a career break is not relevant to the question of entitlement to DB (unlike UB where a person on a career break may be disallowed 'not unemployed'). If there are grounds for suspecting that he is not incapable of work, early examination by a Medical Assessor should be arranged.

Case No. 114: Full CDI payable to separated spouse who contributes substantially towards cost of maintenance of children

Q. Mr C has claimed UA. He is separated from his wife and is living with another woman who is in employment. He pays €50 a week to Mrs C in respect of maintenance for his 2 children who reside with her. She is not in receipt of a social welfare payment. Is he entitled to CDI for the 2 children and, if so, at what rate?

A. Yes, CDI at full rate is payable to Mr C. The Normal Residence Regulations provide that if the parent with whom a child is living is not claiming or in receipt of a social welfare payment, the child shall be regarded as normally resident with the other parent [on claiming a social welfare payment] provided he or she is contributing substantially to the child's maintenance. In these circumstances CDI at the full-rate is payable.

The term 'contributing substantially' is not defined in legislation but it is reasonable to take it to mean at least the equivalent of the CDI rate (currently €16.80 a week). In this case, as Mr C is paying in excess of that amount, it can be taken that he is contributing substantially to the children's maintenance and full-rate CDI may be paid to him in respect of them. The fact that his new partner is in employment is not relevant to the question.

Note:
that if Mr C's wife were to claim a social welfare payment in her own right, she would be entitled to full CDI in respect of the 2 children (and payment of CDI to Mr C would cease) notwithstanding the receipt of maintenance from her husband.

Case No 73 Revised: CDI is NOT payable simultaneously with Orphans Pension/Allowance

In Case No. 73 in DAO Bulletin No. 4, which issued in July 1998, we advised that a claimant may be paid CDI in respect of a child who is in receipt of Orphans Pension/Allowance in his/her own right. This was in line with the Dependants' guidelines at that time. However, following review by Planning Unit and Scheme Management, it has been concluded that social welfare legislation does not allow both payments to be made simultaneously. The position now is, therefore, that any claim for CDI in respect of a child who is in receipt of Orphans Pension or Allowance should be refused.The Guidelines on Dependants have been amended accordingly.

Case No 73 in the DAO Bulletin folder within the Guidelines Shared Drawer has been revised as follows:

Q. A woman named Mary is in receipt of One-Parent Family Payment for herself and 3 children. Her younger sister Anne, aged 17, lives with her. Both of their parents are dead and Anne is in receipt of Orphan's Contributory Allowance. Mary has now claimed for Anne as her child dependant. Is she entitled to CDI for her as part of her OFP? If so, can Anne retain entitlement to Orphan's Allowance?

A. No, under the overlapping payments legislation, child dependant's increase and orphan's contributory allowance cannot both be paid in respect of the same child. [Section 209(2) of the Social Welfare (Consolidation) Act, 1993 refers]

Note:
If the orphan (Anne in the above example) was personally entitled to receive One-Parent Family Payment or one of certain other benefits, this may be paid simultaneously with orphan's contributory allowance, with orphan's non-contributory pension and with orphan's pension under OIB Scheme. [Article 126 of S.I 417/94 refers]. See guidelines on Overlapping Payments for fuller detail.

Last modified:17/08/2010
 

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