Case Studies » Guardian’s Payment » Guardian’s Payment, Widow’s Pension & Carer’s Allowance -2015 Annual Report (ref: 2015/05)

Background: The appellant had been caring for her two grandchildren since 2000.  Her daughter, the children’s mother, had a serious drug addiction and their father did not support them.  She applied for a Foster Care Allowance but was held to be ineligible as she was related to the children and they were not, nor had they been, in the care of the HSE.  She made a claim for Guardian’s Payment in 2002 and this was backdated for two years.  However, following a review in 2014, it was held that the qualifying conditions of abandonment and failure to provide no longer applied.  The Deciding Officer relied on the report of a Social Welfare Inspector, which indicated that the children’s father had regular contact with them and was providing weekly payments of €140 in line with a Court Order granted in 2007.  The appellant denied this version of events and made an appeal against the decision. 

Oral Hearing: The appellant was accompanied by a local public representative, and the Deciding Officer attended at the request of the Appeals Officer.  At the Appeals Officer’s invitation, the Deciding Officer outlined the background to the case and the reasons for her decision, including reference to interviews conducted by the Social Welfare Inspector where the children’s father advised that he was paying maintenance of €140 per week, on foot of a Court Order sought by the appellant.

For her part, the appellant stated that she had to break down the door of her daughter’s flat in 2000 so that she could take the children, who were in a state of neglect. She said that she had encountered hardship in raising them, as she had received no support from the HSE.  She expressed concern that a Foster Care Allowance was not payable as it is set at a higher rate and would have been accompanied by a formal care plan.  She stated that no one had ever contacted her to know if she was doing an adequate job in raising the children.  She said that, in addition, because she was in receipt of Guardian’s Payment, rather than a Foster Care Allowance, she was not entitled to get any grants for extending her family home to accommodate two young children and so had no option but to get another mortgage, which had placed her under additional financial pressure.

The appellant advised that the two children have lived with her since they were babies and that her daughter had not recovered from her addiction despite numerous attempts.  In relation to their father, she stated that he never had any hand in bringing up the children.  He had contributed towards their crèche fees but, when he stopped paying, she was advised to take legal action and she obtained a Maintenance Order for €140 per week.  She stated that when they were younger, he took them occasionally to the cinema or for an overnight stay but had not done this for a number of years.  She stated that she had proposed that he seek full custody of the children but that he had continuously refused to take any responsibility for them.  She advised that he discontinued paying maintenance when he lost his job in 2015 and is currently making no contribution.  She said that he had never partaken in their health or education choices or disciplinary issues, nor asked to be consulted in any way, that he had no responsibility for school matters and was not listed anywhere as their next-of-kin. Whilst he became their joint guardian in 2007, he has never exercised guardianship nor availed of the custody agreement made at the time. 

Conclusion: The Appeals Officer made reference to the provisions of Section 2 (1) of the Social Welfare (Consolidation) Act, 2005 which defines an ‘orphan’ as a qualified child –

1. Both of whose parents are dead, or

2. One of whose parents is dead or unknown or has abandoned and failed to provide for the child, as the case may be, and whose other parent

3. is unknown, or

4. has abandoned and failed to provide for the child where that child is not residing with a parent, adoptive parent or step-parent.

   While there is no legal definition of ‘abandonment’ or ‘failure to provide’, the Appeals Officer noted dictionary definitions of abandon as being ‘to leave completely and finally; to forsake utterly; to give up control of’ or ‘a subjective emotional state in which people feel undesired, left behind, insecure or discarded’.  Legally, in the Supreme Court, McGuinness J. has held that failure of duty towards a child does not necessarily or invariably amount to abandonment, but that the requirement of abandonment is not to be considered in isolation, separate from the failure of duty. It is ‘such a failure’ of duty that may amount to abandonment [2002] IESC 75.  In re Justice, Levin J. wrote ‘A parent abandons a child if the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child’.  Tusla, the Child and Family Agency, states on its website that: ‘Child abandonment occurs when a child’s parent or guardian wilfully withholds emotional, physical, and financial support, with no regard for the child’s safety and welfare. This may include physical abandonment, such as leaving a child somewhere with no intent to return for him, or it may include failure to provide physical supervision, emotional support, and other necessities of life for a child living in the home’.  The Appeals Officer considered that abandonment and failure to provide must be held to be more than merely financial, as in this case, with the provision of maintenance via the courts; it includes the failure of a parent’s duty to provide for the emotional and physical necessities of life which the appellant had evidenced in her oral testimony regarding both parents.

   She noted that the Department had accepted initially that the children had been abandoned and as such met the legislative conditions which define an orphan for purposes of the Guardian’s Payment scheme.  In addition, it had been accepted that there were family arrangements in place at the time and that the appellant was the main carer and provider for the children.  She noted that this arrangement had continued, with the only change being in 2007 when the appellant sought formally to obtain maintenance for the children.  She concluded that the evidence available served to establish that there had been no fundamental change in circumstances which would warrant withdrawal of the payment and accordingly that the appeal should succeed.

   Outcome: Appeal allowed.

2015/05 Guardian’s Payment, Widow’s Pension & Carer’s Allowance

Summary decision and Section 318 review

Question at issue: Concurrent payment

Background: The appellant, who was in receipt of a Guardian’s Payment and Widow’s Pension (Non-Contributory), made a claim for half-rate Carer’s Allowance.  This was refused on grounds that she was already in receipt of two payments.  It was held that the legislative provisions which refer to overlapping payments applied.  As a full-rate Carer’s Allowance is payable with Guardian’s Payment, but only half-rate may be paid with Widow’s Pension, an assessment was made as to the highest combination of the payments at issue.  On that basis, the Guardian’s Payment continued in payment and full-rate Carer’s Allowance was awarded.  The appellant made an appeal, submitting that the Guardian’s Payment should not be subject to the overlapping payment provisions as it was paid in respect of her niece.

Consideration: The Appeals Officer referred to Section 247(5A) of the Social Welfare (Consolidation) Act, 2005 which provides that Carer’s Allowance is not payable where a person is in receipt of more than one other social welfare payment.  He noted that the appellant was already in receipt of two payments when she applied for Carer’s Allowance and, on that basis, he concluded that the appeal could not succeed.

Request for review: The appellant sought a review by the Appeals Officer of his decision and, ultimately, requested a review by the Chief Appeals Officer under Section 318 of the Social Welfare (Consolidation) Act, 2005.

Review by the Chief Appeals Officer: The Chief Appeals Officer undertook a review, indicating that her role was a revising one under the terms of the legislation, rather than another avenue of appeal.

Grounds for Review: Solicitors acting for the appellant submitted that there were errors in fact and law in interpreting the legislation governing concurrent payment.  They referred also to Section 133 (3) of the Social Welfare Act, 2005 which provides that a Guardian’s Payment be paid to a person other than the guardian in whose care the orphan normally lives or, subject to any conditions that may be prescribed, directly to an orphan who is at least 18 years of age and is not normally living with a guardian.  They indicated that this provision was not brought to the appellant’s attention and advised that her niece had recently attained 18 years. 

In connection with the review, and while not specifically requested, the Chief Appeals Officer examined the application of the provisions relating to multiple payments set out in the Social Welfare Consolidation Act, 2005 and the accompanying Regulations.  She noted that Section 247(5A) of the Act provides that –

“A payment under section 186A shall not be payable where a person is in receipt of more than one payment by virtue of regulations made under subsection (4)”,

while Section 247(1) provides that –

“Where, but for this subsection, more than one of the following would be payable to or in respect of a person in respect of the same period, only one shall be paid—

(a) any benefit specified in section 39(1) other than death benefit by way of a grant in respect of funeral expenses, bereavement grant or widowed or surviving civil partner grant, or

 (b) any assistance specified in section 139(1) other than a payment under section 186A, domiciliary care allowance, supplementary welfare allowance or widowed or surviving civil partner grant”.

She noted that the general rule created by this provision is that only one payment can be paid, irrespective of whether a claimant can establish a qualifying entitlement under two or more schemes.  In addition to certain exceptions set out in the Act, Section 247(4) confers power on the Minister to make Regulations in the following terms:
 

“Notwithstanding subsections (1) and (2), the Minister may make regulations enabling more than one of the payments specified in those subsections to be paid to or in respect of a person in respect of the same period”.

She noted that Regulations had been made pursuant to that provision, as outlined in the Social Welfare (Consolidated) Claims, Payments and Control Regulations, 2007 (S.I. No. 142 of 2007), where Chapter 5 of Part 7 contains provisions in relation to ‘overlapping benefits’ and Article 222 specifically provides for ‘Payment of guardian’s payment with other social welfare payments’.

The Chief Appeals Officer noted that pursuant to this Article, where Guardian’s Payment and a number of specified payments set out in Article 222(3) are payable ‘to or in respect of’ a person ‘in respect of the same period’, both such payments may be paid ‘to or in respect of that person in respect of that period’.  She considered that this was noteworthy in relation to the provisions of Section 247(3) of the 2005 Act which states that for the purpose of this section:

“….any payment specified in subsection (1) (a) or (b) payable in respect of a person shall be regarded as such specified payment payable to that person”.

Accordingly, Guardian’s Payment, being a payment in respect of an orphan, is not regarded as a payment to the guardian but as a payment to the orphan. Thus, a guardian can receive a Guardian’s Payment and a payment in their own right, such as a Widows Pension, without offending Section 247. 

In the circumstances, the Chief Appeals Officer concluded that Section 247 (5A) did not preclude the appellant from receiving half-rate Carer’s Allowance and Widow’s Pension (Non-Contributory) by virtue of having been in receipt of Guardian’s Payment, this latter payment being a payment to the orphan.  Accordingly, she asked the Department to review the appellant’s entitlement and to make the necessary adjustment to her payments for the period in question.  In addition, she noted that it was open to the appellant to apply to the Department for a decision as to whether the Guardian’s Payment might be paid to some other person or directly to her niece.  Accordingly, she revised the decision of the Appeals Officer under Section 318 of the Social Welfare Consolidation Act, 2005 and allowed the appeal.

Outcome: Appeal allowed.