Case Studies » Guardian’s Payment » Guardian’s Payment (Contributory) - 2016 Annual Report (2016/06)

2016/06 Guardian’s Payment (Contributory)

Oral hearing Question at issue: Whether the eligibility criteria are met

Background: The appellant’s daughter was living with her when her daughter’s children were born and they remained living with her for some years. Their father’s identity was not known. When the children were still very young, their mother became involved in another relationship and moved out of the family home. Problems emerged, including issues in relation to addiction, and the appellant took the children back to live with her. She was granted guardianship in 2009. The appellant was in receipt of State Pension and child dependent increases were paid in respect of the children. She was also in receipt of Child Benefit. She made a claim for Guardian’s Payment in 2015 and the case was referred to a Social Welfare Inspector for investigation. He interviewed the appellant and the children’s mother. Subsequently, the Deciding Officer wrote to the appellant requesting independent written confirmation as to why her daughter was not in a position to care for the children. Ultimately, the claim was refused on grounds that the children were held not to be ‘orphans’, according to the definition outlined in Section 2(1) of the Social Welfare Consolidation Act 2005.

In outlining reasons for the decision, the Deciding Officer stated that she was satisfied that the care arrangement for the children was the result of a private, mutual agreement between their mother and the appellant and that the children were in regular contact with their mother. In her appeal against that decision, the appellant submitted that her grandchildren had been abandoned by their mother and that they should be considered orphans, and she requested an oral hearing.

Oral hearing: The appellant was accompanied by a family member, and an advocate. The Social Welfare Inspector who had investigated the case attended and, at the request of the Appeals Officer, outlined details of his investigation into the case. He referred to an interview with the children’s mother and reported her account of having lived with the appellant until she was re-housed by the local authority, and then finding herself unable to cope with the responsibility of looking after the children. She said it had been agreed that it would be best if they stayed with their grandmother. She had also advised that there was insufficient space to accommodate them.

The Appeals Officer reviewed the Deciding Officer’s request for an independent statement about the care of the children, the nature of the contact between the children and their mother, and details of maintenance paid. The appellant referred to the letter from the school principal which she had submitted in support of her claim and a letter written by the children, indicating that they would not live with their mother. She referred to the involvement of social workers in the case and their approval of the arrangements put in place. She advised that she had requested a letter from social workers but was told that the case had been closed since the children were resident with her and were no longer deemed to be at risk. She stated that the children see their mother as often as they like but do not stay overnight. On the question of maintenance, she stated that the children’s mother was in receipt of a social welfare payment and was not in a position to pay maintenance.

The family member who had accompanied the appellant submitted that if she had not taken the children in, they would have ended up in care due to their mother’s chaotic lifestyle and her addiction. The appellant submitted that her daughter could not cope with the responsibility of caring for her children properly.

On behalf of the appellant, her advocate submitted that the decision appeared to indicate that there was no abandonment on the basis of the contact between the mother and children, whereas abandonment did not necessarily mean that a parent had no contact at all with the child. He went on to suggest that some interpretations of abandonment included cases where a child lives with a parent but the parent has failed to provide for their financial, emotional or physical security. He made reference also to a Guardian’s Payment case study included in the Social Welfare Appeals Office, Annual Report 2015 (2015/04), where the Appeals Officer had accepted that abandonment must not be considered in isolation from the failure of duty by a parent as indicated by McGuinness J. in Northern Area Health Board & ors -v- An Bord Uchtlala & anor [2002] IESC 75.

Consideration: The Appeals Officer noted that the appellant’s evidence had been credible and he accepted that she had taken the children into her care to ensure their wellbeing and protection following their brief move to alternative accommodation with their mother. He noted the involvement of social workers in the case at an early stage and the evidence which indicated that their mother had failed to provide financially for the children. He noted some contradictions in the evidence in relation to the extent of contact between the children and their mother but considered that this should not take away from the evidence indicating that they had been raised and cared for by their grandmother. He made reference to the letter of support which the school principal had written and to the children’s own letter.

He examined the assertion that the care arrangement for the children had resulted from a private mutual agreement between their mother and the appellant. He considered, however, that the evidence did not support this view. On the contrary, it indicated that the children’s mother had a chaotic lifestyle in which their care was not the priority it should have been and that the appellant had intervened to ensure that they were given a secure home and stable upbringing. He made reference to the Supreme Court judgment cited and, in the absence of a legal definition of ‘abandonment’, accepted that it constitutes more that the failure to provide financially for the child but includes failure of a parent’s duty to provide for the child’s emotional and physical necessities of life. He concluded that the evidence had shown that it was the appellant who had been exercising this parental duty, and had established that the children had been abandoned and as such could be deemed to be qualified children for the purposes of Guardian’s Payment.

Outcome: Appeal allowed.