Case Studies » Pensions » State Pension (Non-Contributory) - from 2016 Annual Report (ref: 2016/28)

2016/28 State Pension (Non-Contributory)

Oral hearing

Question at issue: Eligibility (revised decision as to means)

Background: The appellant had retired from farming and had been in receipt of a Farm Retirement Scheme payment after which she had then let the land to her son for £800 (at that time) per annum on a long term lease. This letting had previously been accepted by the Department of Agriculture when she had received a pension under the Farm Retirement Scheme. She applied for a State Pension in 2009 when the Farm Retirement Scheme had ceased and land had been transferred to her son. When her husband applied for pension some years later, it emerged that the couple had retained 42 acres of land. The holding was assessed on a capital value basis and the appellant was held to have weekly means of €170. This assessment was applied retrospectively and an overpayment was assessed in the amount of €64,000.

Oral hearing: The appellant attended with her husband and a legal representative. The Deciding Officer, who attended at the request of the Appeals Officer, read the decision and sought to clarify the manner in which the means assessment had been revised and applied retrospectively.

On behalf of the appellant, her legal representative outlined the family circumstances. He made reference to the decision to retire from farming and apply for a pension under the Farm Retirement Scheme, the letting of land to her son on a long term lease and, ultimately, the transfer of land and retention of a holding by the appellant and her husband. It was stated that hay and grass from the holding had been sold to neighbouring farmers for €1,000 and it was submitted that this was consistent with the previous letting value of £800 per annum and reflected the couple’s limited capacity due to declining health. It was submitted also that it was inappropriate to assess the capital valuation as the land was being used and, apart from the grass/hay being harvested, the couple kept some donkeys on the holding. (The keeping of animals such as donkeys is the minimum stock levels accepted for Single Farm Payment). It was contended that the assessment was incompatible with a holding that generated €1,000 per annum and that no consideration appeared to have been given to the use being made of the land.

The appellant’s legal representative asserted that the capital value option was the most punitive assessment to have applied and that other options appeared not to have been explored, such as the actual income or perhaps a letting value. He submitted that there was hardship involved in the case and that the overpayment assessed had been excessive. He noted that the application of Section 302(a) of the Social Welfare Consolidation Act 2005 (which refers essentially to fraud) carries with it a high burden of proof. He submitted that while Section 302(b) had been applied in the appellant’s case, the burden of proof was no less stringent when a pensioner was left to face such a substantial overpayment and that it had not been met in this case.

The Deciding Officer acknowledged that he had been aware of the income of €1,000 per annum but stated that he had not known that the land was being used. He referred to the letter issued to the appellant prior to the decision and in line with the requirements of natural justice, advising as to the information which was before him. He stated that the appellant had made no reference to the holding being in use. He referred to the auctioneer’s valuation which had been supplied by the appellant’s husband, and said he had accepted that valuation for purposes of assessing the capital value of the land. He made reference to repayments and it emerged that the appellant had commenced repaying the overpayment which had been assessed. The Appeals Officer reminded him that no recovery should commence until the appeal was decided.

Consideration: The Appeals Officer considered it significant that the land at issue had been let under a scheme approved by the Department of Agriculture. The Officer was satisfied that the evidence served to establish that the retained holding could not be assessed under Part 3.1(1) of Schedule 3 of the Social Welfare Consolidation Act 2005 as the appellant and her husband were using the land. He referred to evidence submitted which indicated that the holding generates approximately €1,000 per annum. Allowing €100 for necessary expenses, he assessed the net value at €900 per annum.

The Appeals Officer accepted that overpayments, arising from a revised decision under Section 302(a) or 302(b), must be individually justified and considered that the larger the overpayment the greater the burden of proof and justification was required. It was noted that there was no indication as to why the Deciding Officer had chosen not to apply the discretion available in the legislation under Section 302(b) and that that it had not been shown why a capital value assessment was deemed appropriate in the circumstances of the case. It was considered that insufficient grounds had been provided for the decision. Having regard to the points submitted on her behalf, including the distress caused to the appellant and what the Appeals Officer regarded as the incorrect application of the legislation, it was concluded that the decision should not apply retrospectively and that the revised means should apply from a date in 2014.

Outcome: Appeal allowed.