Case Studies » Child Benefit » Child Benefit - Case from 2016 Annual Report (ref. 2016/01)

2016/01 Child Benefit

Oral Hearing Question at issue: Normal residence of qualified child

Background: The appellant had been in receipt of Child Benefit in respect of her child with effect from a date in 1999. Following an application from the child’s sister for payment in respect of that child, her entitlement was reviewed and the claim referred to a Social Welfare Inspector for investigation. Ultimately, it was determined that the child was residing with her sister for the majority of the time and the appellant’s claim for Child Benefit was disallowed.

Oral hearing: The appellant was accompanied by legal representatives from Community Law & Mediation (formerly Northside Community Law and Mediation Centre). The Social Welfare Inspector attended at the request of the Appeals Officer. The child’s sister had been called to the hearing but had failed to attend.

The Appeals Officer noted that the child was deemed to be a qualified child for the purpose of Child Benefit. Therefore, the question at issue concerned the child’s normal residence as provided for in legislation. The Social Welfare Inspector outlined the details of the investigation and advised that a social worker had been assigned to the child’s case. The appellant confirmed that her primary social welfare payment continued to include an increase in respect of the child. She indicated that she had sole custody of the child, while the Inspector advised that she was not aware of any Court Order in relation to custody. The question of abandonment was discussed and the Inspector confirmed that she had no evidence which might suggest that the child had been abandoned by the appellant. The appellant stated that she maintains responsibility for the child’s primary care; she retains the child’s medical card and takes responsibility for medical matters; she is responsible for the school uniform and school expenses, and she submitted proofs of expenditure. It was also confirmed that the child had not been placed in foster care or placed with a relative under Section 36 of the Child Care Act, 1991. On the question as to residence, the appellant stated that the child had returned to her home some four weeks previously as her sister had become homeless.

The appellant’s legal representatives submitted that, as payment was being withdrawn, the burden of proof lay with the Deciding Officer to establish the case for disallowance. The point was made also that the claim had been suspended from a date which preceded the Social Welfare Inspector’s report. It was submitted that there was no evidence available prior to that report which would provide a basis to disallow payment. In addition, it was asserted that the appellant had not been given an opportunity to comment on the information available to the Department prior to the decision, in line with the requirements of natural justice. Reference was made to a Freedom of Information (FOI) request, where some of the information provided had been redacted. It was asserted that, as a consequence, the appellant had been unable to address all of the details on which the Deciding Officer had relied in making the decision. In conclusion, it was stated that an internal review had been sought under the FOI provisions and that an appeal would be made to the Information Commissioner.

Consideration: The Appeals Officer noted that the governing legislation provides that the person with whom a child normally resides is qualified to receive Child Benefit. Article 159 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142 of 2007) outlines rules for determining the person with whom a child may be regarded as ‘normally residing’ (outlined at the end of this case study).

The Appeals Officer noted that the Deciding Officer appeared to have relied solely on Rule 1 and Rule 2. She observed that, where a child is living with more than one of the following: mother, step-mother, father or step-father, he or she is regarded as normally residing with the person with whom they reside for the majority of the time. She concluded that there was no evidence to suggest that the appellant did not have custody of the child and, even if the child was residing elsewhere, that her mother would remain the person entitled to receive Child Benefit under Rule 4. She observed that the only circumstances where the normal residency of a qualified child would fall to be determined in a manner not in accordance with Rule 4 would be those provided for in Rule 7, where the qualified child has been abandoned or deserted. She was satisfied that the evidence available indicated that the child had not been abandoned or deserted. She noted that the provisions of Rule 8 did not apply in this case; they refer to circumstances in which a child is placed in foster care, or with a relative, under Section 36 of the Child Care Act, 1991.

The Appeals Officer noted the points made in the submission regarding the burden of proof, as well as those in relation to the retrospective aspect of the decision. She noted that there is an onus on the Department to make a satisfactory case for disallowance where an existing payment is being reviewed, and she regarded as valid the point made concerning the fact that the appellant's Child Benefit had been suspended prior to receipt of the Social Welfare Inspector’s report. While noting the points made with reference to the release of documents under the FOI provisions, the Appeals Officer pointed out that she has no role in the matter. The Appeals Officer concluded that the appellant was the qualified person to receive Child Benefit in respect of the child and that this decision should take effect from the date on which the payment had been suspended.

Outcome: Appeal allowed.

Extract from S.I. No. 142 of 2007:

159. For the purposes of Part 4 [Social Welfare Consolidation Act 2005], the person with whom a qualified child shall be regarded as normally residing shall be determined in accordance with the following Rules:

1. Subject to Rule 2, a qualified child, who is resident with more than one of the following persons, his or her –

mother,

step-mother,

father,

step-father,

shall be regarded as normally residing with the person first so mentioned and with no other person.

2. Where the persons referred to in Rule 1 are resident in separate households, the qualified child shall be regarded as normally residing with the person with whom he or she resides for the majority of the time.

3. A qualified child who is resident with one only of the persons mentioned in Rule 1, shall be regarded as normally residing with that person and with no other person provided that, where that person is the father and he is cohabiting with a woman as husband and wife, this Rule shall not apply in respect of the child where the father so elects and, on such an election, the child shall be regarded as normally residing with the woman with whom the father is cohabiting.

4. Subject to Rule 8, a qualified child, who is resident elsewhere than with a parent or a step-parent and whose mother is alive, shall, where his or her mother is entitled to his or her custody whether solely or jointly with any other person, be regarded as normally residing with his or her mother and with no other person.

5. Subject to Rule 8, a qualified child, who is resident elsewhere than with a parent or step-parent and whose father is alive, shall, where his or her father is entitled to his or her custody whether solely or jointly with any person other than his or her mother, be regarded as normally residing with his or her father and with on other person.

6. A qualified child, to whom none of the foregoing Rules apply, shall be regarded as normally residing with the woman who has care and charge of him or her in the household of which he or she is normally a member and with no other person provided that where there is no such woman in that household he or she shall be regarded as normally residing with the head of that household and with no other person.

7. Where the normal residence of a qualified child falls to be determined under Rule 4 or 5 and the person with whom he or she would thus be regarded as normally residing has abandoned or deserted him or her or has failed to contribute to his or her support, the relevant Rule shall cease to apply in respect of that child and the person with whom the child shall be regarded as normally residing shall be determined in accordance with Rule 6.

8. Where normal residence would fall to be decided under Rule 4 or 5 above and where a qualified child has been placed in foster care, or with a relative by the Health Service Executive under section 36 of the Child Care Act 1991 (No. 17 of 1991), and has been in such care for a continuous period of 6 months he or she shall, on the 1st day of the following month or the 1st day of the 6th month following the first day of October 2007, whichever is the later, be regarded as normally residing with the woman who has care and charge of him or her in the household of which he or she is normally a member and with no other person provided that where there is no such woman in that household he or she shall be regarded as normally residing with the head of that household and with no other person.