Case Studies » Pensions » State Pension (Non-Contributory) - from 2015 Annual Report (ref: 2015/21)

Background: Following a review of his means, it came to light that the appellant had capital which had not been disclosed.  The Deciding Officer made a revised decision and determined that the appellant had means which affected the rate of pension he received between 2009 and 2014.  Arising from that decision, an overpayment of some €22,000 was assessed.  The Deciding Officer relied on the provisions of the Social Welfare Consolidation Act, 2005, Section 302 (a), as a basis for the decision.  An appeal was made on the appellant’s behalf by an Information Officer/Advocate with his local Citizens Information Service.  It was submitted that the appellant had a diagnosis of Parkinson’s disease and that he never opened or read any correspondence that came in the post.  The appeal was determined by way of summary decision.

Consideration: The Appeals Officer referred to the submission made on the appellant’s behalf, including details of the appellant’s medical diagnosis, noting that his sister had assisted in acquiring the information requested by the Social Welfare Inspector during the review process.  She noted that it had been submitted that he had an entitlement to Widower’s Pension (Contributory) with effect from 2008, when his wife died, and that he need not have made a claim for State Pension (Non-Contributory) had he received a Widower’s Pension. It was pointed out that he had been in receipt of Disability Allowance and that, in line with advice given by staff of the Department of Social Protection, he had applied for State Pension (Non-Contributory) on reaching 66 years of age.  The Information Officer/Advocate advised that she had assisted in having a claim completed by the appellant and that an award of Widower’s Pension (Contributory) had been made with effect from a date in 2015. 

The Appeals Officer noted the Deciding Officer’s conclusion that retrospective payment of Widower’s Pension (Contributory), with an offset against the overpayment assessed in relation to State Pension (Non-Contributory), could not be provided for as the revised decision was made with reference to Section 302 (a) of the Act.  Those legislative provisions outline the manner in which revised decisions are to take effect where the original decision was given, or had continued in effect, by reason of any statement or representation which was to the knowledge of the person making it false or misleading or by reason of the wilful conceal­ment of any material fact.  The Deciding Officer was satisfied that this was the appropriate legislative provision to apply as the appellant had failed to notify a change in his circumstances, that is, the lodgement of €40,000 to his bank account in 2009. 

The Appeals Officer observed that a high standard of proof must be held to be required where Section 302 (a) is deemed to apply, not least because of the additional penalties which it entails, such as the restriction on offsetting other entitlements against overpayments assessed, as provided for under Section 342A.  In this regard, she noted that the Social Welfare Inspector who interviewed the appellant and noted his circumstances, had made no reference to the possibility of fraudulent intent and that the Deciding Officer had not indicated the basis for his assertion in this regard.  In addition, she noted that the appellant had a diagnosis which imposes limitations in relation to managing his affairs and that, while he had not notified the Department about the bank lodgement, neither had he advised as to his wife’s death.  While it might be argued that the former would have affected his pension adversely, the latter would have provided the basis for a claim. 

The Appeals Officer concluded that while it had been established that the appellant had capital that was not disclosed, there was no evidence to suggest that there had been fraudulent intent.  Accordingly, she determined that the revised decision should apply for the dates specified but with reference to the provisions of the Social Welfare (Consolidation) Act, 2005, Section 302 (b), allowing for the retrospective award of Widower’s Pension (Contributory) to be offset against the overpayment assessed in relation to State Pension (Contributory). 

Outcome: Appeal partially allowed.