Case Studies » Guardian’s Payment » Guardian’s Payment (Contributory) - 2016 Annual Report (ref: 2016/07)

Question at issue: Whether the eligibility criteria are met

Background: The appellant’s grandchildren came to live with her 2011, having lived with their mother prior to that. In the same year, she was granted joint guardianship. She made a claim for Guardian’s Payment which was refused on grounds that the children did not satisfy the definition of ‘orphan’ as defined in legislation. She made an appeal against that decision, submitting that both of the children’s parents were in new relationships and were not in a position to care for them.

Oral hearing: The appellant was accompanied by her local political representative. She outlined the background cicumstances, saying that the children had been born when their parents were very young. The relationship had come to an end and the children lived with their mother until 2011, when difficulties emerged.

The appellant stated that the children’s father had applied to the Court for guardianship in 2011, which was granted to him, and then granted to the appellant also. The appellant reported that the children’s mother had been instructed to pay maintenance, by way of a Court Order, but that she had not received any payment from her until 2015. She stated that the children’s father was not paying maintenance and that he was not in a position to

56

do so. The appellant confirmed that she was in receipt of Child Benefit and a discretionary payment of €29.80 per child per week under the Supplementary Welfare Allowance scheme. She said that she worked hard to earn extra to provide for the children and sees them as her own. She went on to say that she felt exhausted and was no longer able to work the same number of hours, and that she needed financial assistance.

On the question as to parental contact, the appellant reported that their mother sees the children for an hour on one day each week, and that she takes them out to eat on occasions or at weekends. She reported that visits are organised with their mother only and do not include her partner. The appellant reported that their father has a good relationship with the children, that there is a good atmosphere when he visits with his other children, and that he buys presents for birthdays and at Christmas. She advised that he takes the children to sports training and stated that he is very much involved in their lives. She confirmed that he had not paid maintenance but advised that he had paid legal costs associated with the guardianship process, as well as dental bills.

On behalf of the appellant, her political representative submitted that the appellant is doing her best to provide for the children and that they are doing well at school. He contended that the governing legislation appears not to cater for the circumstances at issue and requested that the matter be dealt with as a unique case.

Consideration: The Appeals Officer noted that social services had been involved in the case only as part of the guardianship process, following the Court’s instruction that the children be afforded counselling. This was provided through the Health Service Executive. She noted that both parents had failed to provide financially for the children, although legal costs in relation to guardianship had been met by their father, as had dental expenses. She observed that parental contact between the children and their parents was still intact, that an access arrangement was in place in respect of their mother, while their father had open access and visited regularly. She noted that the Social Welfare Inspector who had investigated the circumstances of the case reported that the children’s father was emotionally and materially involved with them and that he has a keen interest in their development.

The Appeals Officer noted the appellant’s role in providing ongoing support for her grandchildren both financially and emotionally, acknowledging that she had played a significant part in their overall development and wellbeing. On the question as to financial provision, she considered that the evidence had established that this had not been fully addressed by all of the parties involved in the case. She noted that the children’s parents were very much a part of their lives, that there was evidence of regular contact with both parents and strong evidence that their father participated to a large degree in their lives. She concluded, therefore, that the children could not be held to be ‘orphans’ within the meaning of the legislation governing Guardian’s Payment.

Outcome: Appeal disallowed.