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Index

  1. Overview
  2. Power to Revise DO Decision
  3. Power to Revise AO Decision
    1. 3a. Change of Circumstances
    2. 3b. New Evidence
    3. 3c. Review of AO decision by AO and Chief Appeals Officer (CAO):
  4. Date of Effect of Revised Decisions
  5. Composition of Revised Decisions
  6. Example of Wording of Revised Decision
  7. Further Reading

1. Overview

A Deciding Officer (D.O.) may revise a previous decision of a D.O. Having decided to revise the decision, the DO must then determine from what date the revised decision should have effect.

IMPORTANT: Principles of Natural Justice (NJ):

DO's and Appeals Officers (AO's) are performing administrative functions but must act quasi judicially i.e. government officials, in their decision-making process, are subject to the rules of natural justice.

Every claimant is entitled to have their claim considered in accordance with the principles of NJ including:

  1. The right to know the information upon which a decision is being made,
  2. The opportunity to comment upon any reports or documents being used in reaching the decision and generally to present his or her case,
  3. The right to know the reasons for any adverse decision,
  4. The right to have all relevant evidence considered and irrelevant evidence not taken into account,
  5. To have the decision made by an impartial person and,
  6. Where it is necessary for a fair determination of the issues, an oral hearing.

NOTE: Failure to observe the principles of NJ leave the decision liable to be overturned.


2. Power to Revise DO Decision

Legislation

The legislation on revised decisions and their date of effect is covered under Sections 301 and 302 of the Social Welfare Consolidation Act, 2005 (as amended).

Section 301(1) of the Social Welfare Consolidation Act 2005 (as amended) provides that:

�A deciding officer may, at any time-
(a) revise any decision of a deciding officer, where it appears to him or her that the decision was erroneous in the light of new evidence or of new facts which have been brought to the notice of the deciding officer since the date on which it was given or by reason of some mistake having been made in relation to the law or the facts, or where it appears to the deciding officer that there has been any relevant change of circumstances since the decision was given,

Section 301(1) (a) of the Social Welfare Consolidation Act, 2005 (as amended) deals with the power to revise the decision of a DO.

A DO may revise the decision of a DO if:

  • new evidence or new facts come to light;
  • a mistake was made in relation to the law or the facts or
  • there has been a relevant change of circumstances since the decision was given.

Favourable Appeal:

Legislation

Section 301(3) of the Social Welfare Consolidation Act 2005 (as amended) provides that:

Subsection (1)(a) shall not apply to a decision relating to a matter which is on appeal or reference under section 303 or 311 unless the revised decision would be in favour of a claimant.

When a DO's decision is under appeal, Section 301(3) stipulates that the decision can be revised by a DO only if the revision would be in favour of the claimant. This means, for example, that additional grounds for disallowance or additional retrospection cannot be included.


3. Power to Revise Appeals Officer (AO) Decision

Change of Circumstances

Legislation

Section 301(1) (b) of the Social Welfare Consolidation Act, 2005 (as amended) deals with the power to revise the decision of an AO where there has been a relevant change of circumstances since the AO's decision was given.

301.�(1) A deciding officer may, at any time�
(b) revise any decision of an appeals officer where it appears to him or her that there has been any relevant change of circumstances which has come to notice since the decision was given, and the provisions of this Part as to appeals apply to the revised decision in the same manner as they apply to an original decision of a deciding officer.

It is confined to cases where there has been a relevant change of circumstances which has come to notice since the original AO decision was given.

An example of a change in circumstance is where a claimant got married.

New Evidence

Legislation:

Section 317 of the Social Welfare Consolidation Act 2005 (as amended) provides that:

An appeals officer may, at any time revise any decision of an appeals officer, where it appears to the appeals officer that the decision was erroneous in the light of new evidence or of new facts brought to his or her notice since the date on which it was given, or where it appears to the appeals officer that there has been any relevant change of circumstances since the decision was given.

A DO does NOT have power to revise an AO's decision where the decision is erroneous in the light of new evidence or of new facts. An example of new evidence/facts would be details of a bank account.

Where new evidence comes to light that relates to a period covered by the AO's decision, the DO should refer the file back to the SWAO for a fresh decision to be made by an Appeals Officer (under S 317 of the SWCA 2005 (as amended)) � See 3(c) below.

Where new evidence comes to light that relates to a period not covered by the AO's decision, the DO should give a fresh decision (under S 301 of the SWCA 2005 (as amended)).

Mistake in law

Review of AO decision by AO and Chief Appeals Officer (CAO):

Legislation:

Section 318 of the Social Welfare Consolidation Act 2005 (as amended) provides that:

318. � The Chief Appeals Officer may, at any time, revise any decision of an appeals officer, where it appears to the Chief Appeals Officer that the decision was erroneous by reason of some mistake having been made in relation to the law or the facts.

A DO does NOT have power to revise an AO's decision where a mistake has been made in relation to the law or the facts.

Chief Appeals Officer Review
If an error has been made by an AO in relation to the law or the facts the CAO may revise the decision under S 318 of the SWCA 2005. If a DO considers that such an error has occurred s/he should make a submission to DSP management with a view to having a review carried out by the CAO.

See separate guideline � Appeals Office Section 318 CAO Reviews


4. Date of Effect of Revised Decisions

A revised decision must include reference to the relevant provision in the legislation under which payment is being disallowed or reduced.

Section 302 of the Social Welfare Consolidation Act, 2005 (as amended) sets out the date from which a revised decision should take effect. It is for the DO to determine the appropriate date having regard to the legislation and the circumstances of the case.

  • False or misleading statement / wilful concealment of material evidence

Legislation:

Section 302 of the Social Welfare Consolidation Act 2005 (as amended) provides that:

302.�A revised decision given by a deciding officer shall take effect as follows:
(a) where any benefit, assistance, child benefit, family income supplement or continued payment for qualified children will, by virtue of the revised decision be disallowed or reduced and the revised decision is given owing to the original decision or determination having been given, or having continued in effect, by reason of any statement or representation (whether written or verbal) which was to the knowledge of the person making it false or misleading in a material respect or by reason of the wilful concealment of any material fact, it shall take effect from the date on which the original decision or determination took effect, but the original decision or determination may, in the discretion of the deciding officer, continue to apply to any period covered by the original decision or determination to which the false or misleading statement or representation or the wilful concealment of any material fact does not relate;

  • New evidence of facts
    302 (b) where any benefit, assistance, child benefit, family income supplement or continued payment for qualified children will, by virtue of the revised decision be disallowed or reduced and the revised decision is given in the light of new evidence or new facts (relating to periods before and after the commencement of this Act) which have been brought to the notice of the deciding officer since the original decision or determination was given, it shall take effect from the date that the deciding officer shall determine having regard to the new facts or new evidence and the circumstances of the case;
  • Neither 302 (a) or 302 (b) above.
    302(c) in any other case, it shall take effect as from the date considered appropriate by the deciding officer having regard to the circumstances of the case.

The effective date may be

  • the date of the original decision,
  • the date of the new fact or new evidence or
  • a current date.

Sub-Section 302(a)

Sub-section 302(a) applies where.

  1. There is evidence of deliberate false or misleading information
  2. It is established there was a deliberate failure to disclose relevant information

Example of scheme cases which may be considered under 302(a):

  • A customer who made a false declaration at claim stage e.g.
    1. client didn't disclose full means or
    2. client claimed for an adult and or child dependant who was not residing with him/her or
    3. client failed to disclose that spouse/partner was working or getting a welfare payment from another country.
  • A customer in receipt of OFP or Widow(er)'s pension fails to notify the DSP of his/ her marriage or co-habitation and continues to receive his/ her welfare payment.
  • A customer who claims for child dependant(s) on main welfare payment and/or Child Benefit for children who are no longer residing with him/her.
  • A customer who fails to notify the Department that his spouse/civil partner/co-habitant has taken up employment
  • A customer in receipt of an illness type payment e.g. Disability Allowance, Invalidity Pension, OIB or Illness Benefit who fails to notify the Department that s/he has taken up employment.
  • A customer in receipt of Carers Allowance to takes up employment and fails to notify the Department.
  • A customer in receipt of Carers Allowance continues to claim the payment where the caree is deceased or has moved to a nursing home.

Note: A criminal prosecution can only be taken where a revised decision is made under 302(a) of SWCA 2005.

Sub-Section 302(b)

Sub-section 302(b) applies where the DO is satisfied that the claimant did not wilfully conceal facts

or

deliberately give false or misleading information.

Note: Section 302(b) allows a DO, in making a revised decision in the light of new facts or new evidence to decide that it shall take effect either from a current or from a retrospective date.

Section 302(b) may be applied with retrospective effect if:

  • new facts have occurred since the person claimed the social welfare payment in question, or
  • if new evidence has come to light which was not available at claim stage and the person was aware of the new facts or evidence but failed to report this information to the Department, or
  • it is not possible for the DO to establish that the person wilfully concealed the facts on a previous interview or enquiry but the DO is satisfied that the person could reasonably have been expected to be aware of the new facts (or evidence) and their relevance.

Section 302(b) may be applied with effect from current date if the DO is satisfied that:

  • the person could not reasonably have been expected to know the relevance of the new fact,
  1. or
  • the person was not aware of the undisclosed evidence at the point when s/he made the claim or subsequently,

Sub-Section 302(c)

Sub-section 302(c) applies where for example a DO originally made an error or information was given to the Department but not acted on.

Where a customer was underpaid because of

  1. a wrong calculation by the DO or
  2. a mis-interpretation of the guidelines or legislation by the DO or
  3. an oversight by the DO

the position must be rectified by way of a revised decision awarding the correct entitlement from a retrospective date.

S302(c) with retrospective effect
In cases where a person has been overpaid on foot of a decision which was wrong and the DO is satisfied that the person knew the decision was wrong but deliberately omitted to bring the matter to the attention of the Department, it may be appropriate to apply the decision with retrospective effect.

Example Cases

Case 1
Ms E has been in receipt of OFP since 2008. In October 2010 it is established following investigation that she had married in June 2010 and is residing with her spouse. She alleges that she was not aware she was no longer entitled to OFP. However, evidence is available that she had returned a declaration (OFP40) to state she has no change in circumstances in relation to her claim for OFP.
Ms E should be disqualified for payment of OFP in accordance with Section 302(a) of the Act

Case 2
Mr C had been in receipt of full-rate SPNC since 1999 on the basis of nil means. Following his death in September 2007 it came to light that he had received an inheritance of �55,000 in July 2005 which he had lodged to a bank account. The bank account shows regular lodgements and withdrawals by him. He had not notified the Department of this change in his circumstances.

Mr C's means should be reassessed having regard to the undisclosed capital from 2005. As he was not reviewed between 2001 and his death, there was no fraudulent statement and therefore wilful concealment cannot be proved, so section 302(a) is not appropriate.

The receipt of the inheritance is a new fact, so the decision should be made in accordance with Section 302(b). The decision should be applied with effect from 2005 on the basis of the available evidence that Mr C was aware of his increased means and should have notified the Department about the position.

Case 3
Ms F has been in receipt of IB since February 2006. Her claim was authorised for payment on the basis that she satisfied the contribution conditions. It has now been discovered, however, that the DO misread the contribution record and that Ms F has only 37 (and not 39) contributions paid since her entry to insurance.
Payment of IB to Ms F should be disallowed on the grounds that she does not satisfy the first contribution condition. As the need for a revised decision in this case arises from an error by the DO and the DO is satisfied that the person did not know the decision was wrong and there is no reason for believing that she was aware she was being paid IB in error, the revision should, in accordance with section 302(c), be applied with effect from a current date.


5. Composition of Revised Decisions

A revised decision should include reference to:

  • the relevant provision in the legislation under which payment is being disallowed or reduced.
  • the Sub-Section of Section 302 which the DO has applied in determining the effective date of the revised decision.

6. Example of Wording of Revised Decision

If payment of an Increase for Qualified Adult is being discontinued because the spouse is in receipt of a specified Social Welfare payment in his/her own right and the DO considers that Section 302(b) is appropriate, the revised decision should include:

Disallowance: An increase of benefit is not payable in respect of (the claimant's spouse) from (date) because he or she is (state circumstances) and, therefore, is not a Qualified Adult within the meaning of the Social Welfare legislation.
Legislation: [Part 1, Section 2(2)(a)(iii)]
Effective date: This decision is made in accordance with section 302(b) and has effect from (date).


7. Further Reading

  • To access Scheme Guidelines on the Department's website proceed as follows:
    •  Type /EN/Pages/Default.aspx in your web browser (or click on the blue underlined link here);
    •  Click on A �Z in the blue banner below the Department's logo
    •  Click on the "Operational Guidelines" tab
    •  Click on the alphabetical character appropriate to your Guideline i.e. if your Guideline is Carer's Allowance click "C"
    •  Place the cursor on the Guideline you wish to access and click to open it
  • To access Scheme Guidelines or DAO Bulletins on ST�R proceed as follows:
    •  Open the ST�R Home Page by clicking on the Internet Explorer icon on your toolbar;
    •  Click on "Top Sites";
    •  Click on the Decisions Advisory Office / FOI Unit link;
    •  Click on the guidelines link in the bottom right web part called "Scheme Guidelines" or "DAO Bulletins"
    •  On the relevant list, scroll down and click on the desired guideline/bulletin
         � Reasons for Decisions Guidelines
         � Appeal Submission Guidelines
         � DAO Bulletin no 14 cases 85 to 96
  • Control Guidelines:
    1.   Guidelines on Controls, Overpayments and Prosecutions can be accessed on ST�R or on 'www.welfare.ie' as outlined above at Point 7.
Last modified:11/01/2012
 

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