DAO Bulletin Issue No. 9 Issued Novemeber 2003


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Case No.

  1. Payment after Death (Carer's Allowance/Disability Allowance)
  2. Payment after Death (Unemployment Benefit/Disability Benefit)
  3. Assessment of Maintenance Payments for One Parent Family Payment
  4. Employed Contributor/Carer's Benefit
  5. Means from Land let under Afforestation agreements
  6. Subsidiary Occupation/Entitlement to UB
  7. Substantial Loss of Employment/UB
  8. Treatment Benefit/Retired Person
  9. CDI payable with One Parent Family Payment and Blind Pension
  10. Competent State for Payment of DB
  11. CDI/Reaching 22 Years during Academic Year
  12. CDI/Student Nurse

Case No. 115: Payment After Death (Carer's Allowance/Disability Allowance)

Q. Mrs. E is in receipt of a Carer's Allowance payment in respect of the care and \attention she is providing for her spouse, who is in receipt of Disability Allowance. Mr. E dies. Can Mrs. E continue to receive the Carer's Allowance payment and also her late husband's Disability Allowance payment for 6 weeks after the date of his death?

A. No. The legislation provides that where a person who is in receipt of Disability Allowance dies and his/her survivor is a qualified adult or would be a qualified adult but for the fact that s/he was in receipt of Carer's Allowance or Carer's Benefit or Old Age (non Contributory) Pension or Blind Pension, the survivor has an entitlement to payment of the spouses Disability Allowance for a period of 6 weeks after death.

The legislation also provides for the payment of an increase in respect of a qualified adult to be included with the personal rate of Disability Allowance, in situations where the survivor is in receipt of Carer's Allowance or Carer's Benefit in respect of care and attention s/he was providing for the deceased spouse.

In this case Mrs. E has an entitlement to payment of Disability Allowance at the rate her late husband was receiving at the time of his death plus an adult dependant increase for a period of 6 weeks after her husband's death.

Mrs. E does not have an entitlement to a continuation of the Carer's Allowance payment after the death of her husband who was the caree.

Section 210(2)(a) of the Social Welfare (Consolidation) Act, 1993 provides for the payment of deceased spouse/partner's Disability Allowance to the surviving spouse/partner for a period of 6 weeks after the date of death. Section 210(2)(e) provides for the payment payable under the first mentioned section of the legislation to include an adult dependant increase.

Case No. 116: Payment After Death (Unemployment Benefit/Disability Benefit)

Q. Mr. F is in receipt of Unemployment Benefit and his partner Ms. F with whom he is co habiting as husband and wife is in receipt of Disability Benefit. Ms. F dies. Has Mr. F entitlement to payment of his partner's Disability Benefit for the 6 weeks period after her death?

A. Yes. Section 210(2)(aaa) of the Social Welfare (Consolidation) Act, 1993 as inserted by Section 7 of the Social Welfare (Miscellaneous Provisions) Act, 2003 allows for the deceased person's benefit to continue for a period of 6 weeks after the date of death and also for payment to be made to such a person as may be prescribed.

The persons prescribed include a person who was living and co habiting as husband or wife with the deceased at the time of death.

Case No. 117: Assessment of Maintenance Payments for One Parent Family Payment

Q. Mrs. G has applied for a One Parent Family Payment. She is in receipt of a maintenance payment of €250.00 per week from her estranged husband of which €75.00 is in respect of their child. The child is in receipt of a Disability Allowance payment. Mrs. G has mortgage repayments of €125.00 per week. In determining Mrs. G's One Parent Family Payment entitlement, is the maintenance paid in respect of her child assessed against her?

A. Yes. In this case Mrs. G is in receipt of the full amount of €250.00. It is assessed in full, less mortgage up to a maximum of €95.23 per week and half of the remaining maintenance is assessed as means. This leaves Mrs. G with a means assessment of €77.38 per week. Maintenance cannot be assessed against the child unless the child is actually in receipt of it. Where a child qualifies for Disability Allowance, any cash income received is assessable as means. If maintenance payments take the form of direct cash payment to the child by either parent then it is treated as cash income for Disability Allowance purposes and is assessable as means against the Disability Allowance payment.

Case No. 118: Employed Contributor/Carer's Benefit

Q. Mr. H made a claim for Carer's Benefit in July 2003. He was in insurable employment until the end of April 2003 at which time he became self employed. He set up a business with a partner. Mr. H has now given up the self employment in order to care for his mother.

Does the period of self employment satisfy the condition of being an employed contributor for 18 hours a week/38 hours a fortnight for the period prior to the date of the Carer's Benefit claim?

A. No. Periods of self employment do not satisfy the legislative requirement as laid down for Carer's Benefit. Mr. H was not engaged in remunerative full time employment as an employed contributor. Persons engaged in self employment are NOT included in the legislative definition of an employed contributor.

Legislation which relates to Case No. 118

The legislative provisions governing entitlement to Carer's Benefit are contained in Section 82 B of the Social Welfare (Consolidation) Act, 1993 as inserted by Section 10 of the Social Welfare Act 2000. These specify in subsection (1) that Carer's Benefit shall be payable to a carer if he or she

  1. was engaged in remunerative full time employment as an employed contributor for the three month period immediately prior to the first day in respect of which a claim to Carer's Benefit is made;
  2. does not engage in employment or self employment;
  3. (c) satisfies the contribution conditions.

The claimant must satisfy (a), (b) & (c).

The phrase 'remunerative full time employment' is defined in subsection (5) of Section 82 B as "employment for an aggregate of not less than 38 hours in each period of a fortnight within the three month period immediately prior to the first day in respect of which a claim to Carer's Benefit is made".

The term 'employed contributor' is defined in Section 2 of the Social Welfare (Consolidation) Act, 1993 as having the meaning assigned in Section 9 of the Social Welfare (Consolidation) Act, 1993 which refers to "every person who, being over the age of 16 years and under pension age, is employed in any of the employments specified in Part 1 of the First Schedule of the Social Welfare (Consolidation) Act, 1993 shall be an employed contributor for the purposes of the Act".

This definition does not extend to or include self employed contributors. The term self employed contributor is defined in Section 2 of the Act.

Paragraph (g) of Section 18(1) of the Act details the Social Welfare benefit for which Class S contributions provide cover. Carer's Benefit is not included.

Case No. 119: Means from Land Let under Afforestation Agreements

Q. Mr. J has applied for Unemployment Assistance. He is the owner of 55 acres of land.

  1. He has let 42 acres under the Coillte Farm Forestry Partnership scheme.
  2. He is in receipt of an Afforestation Grant from the Forest Service in the Department of Marine and Natural Resources in respect of another 6 acres, which has been planted.
  3. The remaining 7 acres are lying idle.

Should he be assessed with the capital value of the 55 acres?

A. The income from the land let under the Farm Forestry Partnership is assessable as cash income. Land let under the Farm Forestry Partnership is let for a 40 year term. The landowner retains ownership of the land. Coillte Teoranta (The Irish Forestry Board) plants, maintains and sells the crop. Under this scheme the leasor is given an advance payment for 20 years, which is based on the size of the plantation, 80% of the thinning profit for 17 years, 60% of clear fell profits at year 40. If the landowner dies or retires or if he sells the 42 acres, the successor takes over the ownership and the partnership with Coillte continues until the full 40 years has expired.

In general, if land is let and the legal possession of the land is not passed to the person or body leasing it, capital value is not assessed.

The monies paid to Mr. K by the Department of Marine and Natural Resources, under it's Afforestation Grant Scheme are not assessable as means.

A capital assessment may be applied to the remaining 7 acres, which Mr. K has left lying idle. Rule 1 (a) of Part 1 of the Third Schedule provides that the weekly value of property, which is not personally used by the claimant or his spouse and that property is invested or put to profitable use or is capable of being, but is not, invested or put to profitable use, the capital value of such property constitutes the weekly means of the claimant. If this land is capable of being put to profitable use, the capital value is assessable as means.

The assessment in this case is as follows:

  1. Income received from the 42 acres let under the Farm Forestry Partnership with Coillte Teoranta and
  2. Capital Value of the 7 acres that are lying idle.

Case No. 120: Subsidiary Occupation/Entitlement to UB

Q. Mr. L claims Unemployment Benefit. He had been employed on a full time basis paying Class A contributions for the past 10 years. He was also farming 30 acres of land. He continues to engage in farming, from which he derives an income of €30.00 per week. Is he entitled to Unemployment Benefit?

A. Yes. UB can be paid for the full period of interruption of employment. Under the legislation a day is treated as a day of unemployment if the claimant is following an occupation, which could ordinarily have been followed by him/her in addition to his usual employment and outside the ordinary hours of that employment and either (a) the remuneration or profit does not exceed €12.70 per day or (b) not less than 117 contributions have been paid in respect of the person in either the last 3 years immediately preceding the date of the claim for UB or in the 3 contribution years immediately preceding that date.

Given his contribution record, Mr. L would qualify for Unemployment Benefit under (b).

Note:
It should be noted that the above conditions relate only to the condition of being unemployed. All other conditions which pertain to entitlement to UB must also be satisfied. The person must be available for full time work and genuinely seeking work. Self employment can only be continue to be considered as subsidiary , where the person remains available for the same level of insurable employment as before the UB claim. Subsequent increases in the level of engagement in a subsidiary occupation may affect its status. The person must not extend activities associated with the self employment into the time when s/he would normally have been in insurable employment. If this happens, the self employment becomes the main occupation and cannot be considered to be subsidiary.

Case No. 121: Substantial Loss of Employment/UB

Q. Ms. M claims Unemployment Benefit. She has been in insurable employment for 3 days each week for the 13 weeks prior to her claim and continues to be so employed. She had been employed on a full time basis for a number of years prior to the reduction in her working week. In determining if she satisfies the condition of having suffered a substantial loss of employment, what period should be examined in determining the normal level of employment?

A. In establishing the normal level of employment, it is unusual for the 13 week period immediately preceding the date of claim to be used, where it is an accurate reflection of the normal employment pattern. Where the level of employment during the preceding 13 weeks differed temporarily but significantly from the person's previous level of employment, it may be more appropriate for the Deciding Officer to choose an alternative period. On that basis, the determination in this case may be based on a 26 week or 52 week period prior to the date of claim.

Article 31 of S.I. 417 of 1994 refers.

Case No. 122: Treatment Benefit/Retired Person

Q. Mr. N applied for Optical Benefit. He is 69 years of age. He retired from insurable employment at age 60. He was employed for 30 years. Does he qualify for payment of Optical Benefit?

A. Yes. This man has been in insurable employment up to age 60 and paying the necessary contributions. As Mr. N satisfied the qualifying conditions for Optical Benefit at the time he reached age 60, he will continue to be entitled to the benefit for the rest of his life. This applies in the case of all Treatment Benefits and is provided for in Article 67H of S.I. 417 of 1994.

Case No. 123: CDI Payable with One Parent Family Payment and Blind Pension

Q. Ms. O is in receipt of One Parent Family Payment with an increase for two qualified children. She is also in receipt of a Blind Pension. Can she qualify for Child Dependant Increase on her Blind Pension?

A. Yes. Under the overlapping provisions a person who has not attained pension age is entitled to receive a Blind Persons Pension and an increase in respect of child dependants together with any benefit other than Carer's Benefit, Old Age Contributory Pension, Retirement Pension or Invalidity Pension and any assistance other than Unemployment Assistance, Pre Retirement Allowance, Old Age (Non Contributory) Pension, Carer's Allowance, Disability Allowance or Farm Assist.

In other words the child dependant increase is payable simultaneously on both a Blind Pension and any of the following:

One Parent Family Payment, Disability Benefit, Unemployment Benefit, Maternity Benefit, Adoptive Benefit, Health and Safety Benefit, Injury Benefit, Widow/er's (Non Contributory) Pension, Article 128 of S.I. 417 of 1994 refers.

Case No. 124: Competent state for payment of UB

Q. Mr. P applied for Disability Benefit on 12 May 2003, having worked in the UK for 8 months to 7 May 2003. Prior to his work in the UK he had worked in Ireland for 10 years. He is incapable of work and has sufficient Irish contributions to satisfy the Governing Contribution Year condition. Can he choose to claim Irish DB rather than UK Incapacity Benefit?

A. No. The UK is the state in which Mr. P was last employed and whose legislation he was last subject to. Therefore, UK is the competent state for payment of the benefit to him during sickness.

As the UK is the competent state he can only claim sickness benefit from the UK, even though he has an underlying entitlement to DB from Ireland.

His Irish insurance record will be taken into account by the UK authorities in order to satisfy the contribution conditions attached to their Incapacity Benefit.

Article 8 of Regulation EEC No 574/72 specifically covers this situation and provides that:"If an employed person or self employed person is entitled to claim sickness benefits under the legislation of Ireland and the United Kingdom for the same period of incapacity for work, those benefits shall be granted exclusively under the legislation of the Member State to which the person concerned was last subject".

Case No. 125: CDI/Reaching 22 years during academic year

Q. Mr. Q is an Invalidity Pensioner and he is in receipt of an increase in respect of his daughter Jean, who is receiving full time education at a university. She completed the third year of a four year course on 15 June 2003. She was 22 on 14 July 2003. She returned to college, for her final year, on 29 September 2003. To what date is CDI payable?

A. Jean is attending on a full time basis a course of full time instruction by day at an institution of education for the full academic year which includes the university summer holiday period between completing third year and starting fourth year. The CDI for her is payable to 28 September 2003, i.e. the end of the academic year in which Jean attained the age of 22 years.

For the purpose of CDI in this case, 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. Article 3 of S.I. 417 of 1994 refers. A person continues to receive full time education during term vacations except the summer vacation of their final year. Article 8 of S.I. 417 of 1994 refers.

Where the person receiving full time education reaches age 22 during an academic year s/he continues to be regarded as a qualified child for the duration of that academic year. Section 2(4) of the Social Welfare (Consolidation) Act, 1993 as amended by section 38 of the Social Welfare Act, 1996 refers.

Case No. 126: CDI/Student Nurse

Q. Mrs. R is in receipt of a Disability Allowance. She wishes to claim an increase in respect of her daughter Joan, who is 19 years old and is a student nurse in one of the Irish Training Hospitals. Joan also attends lectures in University College Galway. Does Mrs. R qualify for the increase?

A. Mrs. R may qualify for a CDI in respect of her daughter Joan if she is regarded as receiving full time education. Joan will be regarded as receiving full time education if the period of paid work experience at the hospital does not exceed the period of full time tuition or instruction at UCG.

A course of training or instruction which, in an academic year, consists of a period of paid work experience which exceeds the time spent receiving instruction or tuition at a university is not regarded as full time education. The relevant legislative provision is contained in Article 8(2)(d) of S.I. 417 of 1994.

Therefore, no CDI would be payable in respect of Joan if the period she spends on paid work experience at the hospital or elsewhere exceeds the time spent receiving full time tuition or instruction at UCG.

Last modified:17/08/2010
 

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