Case Studies » Pensions » State Pension (Non-Contributory) - from 2016 Annual Report (ref: 2016/27)

2016/27 State Pension (Non-Contributory)

Oral hearing

Question at issue: Eligibility (means)

Background: The appellant made a claim for State Pension (Non-Contributory) in 2016, which was refused on grounds that her means were held to have been in excess of the statutory limit. The assessment of means included income derived from a Residence Order Allowance which she was receiving from the United Kingdom in relation to her grandson who was living with her.

Oral hearing: The appellant advised that she had the care of her grandson from the time he was a baby. She outlined the background to the granting of the Residence Order in the United Kingdom, where the Court determined that she was the person with whom he should live. She stated that she had been receiving £189 sterling per week in respect of his maintenance, by way of a Residence Order Allowance, and that this had recently been increased to £222.00 sterling. She said that, when it is converted to euro, she receives between €255.00 and €258.00 each week. She submitted that the allowance is for the maintenance and upkeep of her grandson and that she should not be expected to live on it.

Consideration: The Appeals Officer made reference to the provisions of the Social Welfare Consolidation Act 2005 which specifies under Table 2 of Schedule 3 the payments that are exempted for means test purposes. She noted that this legislation specifies the exemption of payments by the Health Services Executive (HSE) in respect of a child who is ‘boarded out’, but that it does not specify the exemption of the Residence Order Allowance paid by the United Kingdom. However, she considered that the equality provisions of Regulation (EC) No. 883/2004 fell to be considered in this instance. This Regulation coordinates social security systems across the EU although the design, coverage and qualifying conditions of the various schemes are a matter for the individual Member States. In order that the Regulation would apply, the situation under consideration must not be confined in all respects to a single Member State. In this case, the Appeals Officer noted that the appellant was in receipt of payment in respect of her grandson and that this was being made by a local authority in the United Kingdom. Accordingly, the Appeals Officer was satisfied that the Regulation could be held to apply in this case and noted the following:

Article 5 of the Regulation, paragraph (a) states that:

where, under the legislation of the competent Member State, the receipt of social security benefits and other income has certain legal effects, the relevant provisions of that legislation shall also apply to the receipt of equivalent benefits acquired under the legislation of another Member State or to income acquired in another Member State.

The Appeals Officer considered that the Residence Order Allowance is a payment similar to an Irish Foster Care Allowance in that it is intended to assist a person with the costs of caring for a child placed with them by order of a court. In the circumstances, it was considered that Article 5 of the Regulation should be applied and the payment at issue treated in the same way as a similar Irish payment.

The Appeals Officer then examined the question as to how the allowance should be accounted for in the means test. They noted that Article 4 of the Regulation is a general provision under which persons to whom it applies must ‘enjoy the same benefits and be subject to the same obligations under the legislation of any Member State as the nationals thereof’. They concluded that in accounting for the Residence Order Allowance a disregard should be applied which is equivalent to the Irish Foster Allowance payment. In the circumstances, the appeal was allowed on the basis that means should be assessed allowing a disregard up to the level of an Irish Foster Allowance.

Outcome: Appeal allowed.