Case Studies » Guardian’s Payment » Guardian's Payment (Contributory) - Case from 2017 Annual Report (ref: 2017/07)

Background: The appellant applied for a Guardian’s Payment in respect of her grandson. The application was rejected on the grounds that the child did not satisfy the definition of an orphan under Section 2(1) of the Social Welfare Consolidation Act 2005: “orphan” means a qualified child –(a) both of whose parents are dead, or (b) one of the parents is dead or unknown

or has abandoned and failed to provide for the child, as the case may be and whose other parent –

(i)         is unknown, or (ii) has abandoned and failed to provide for the child.

The Deciding Officer noted that the child’s father maintained contact with his son and stays overnight with him every weekend. The child’s father provides school uniforms, books, clothes and footwear for his son. The child’s father had stated that he could not care for his son due to his medical problems and that the child’s best interests are served by being in the care of the appellant, the child’s grandmother.

The child’s grandmother appealed the decision not to grant her a Guardian’s Payment and made a statutory declaration stating that her grandson had been in her care since the death of his mother in May 2016. She stated that the child had never lived with his father because of his mental health difficulties and that he is not capable of caring for the child. While the child stays with his father over weekends, this arrangement can and often is cancelled at short notice when the father is unable to cope. The appellant asserted that she was acting in loco parentis and her son, the child’s father, was not providing for the child.

Oral Hearing: An oral hearing was held and the appellant attended with a solicitor from an independent law centre. It emerged that the appellant had been appointed legal guardian of the child. The appellant stated that even before the death of the child’s mother, the child mostly stayed with her. Child Benefit had been granted to the appellant. The solicitor for the appellant argued that the case turned on the definition of abandonment and examined the Department’s guidelines on the question. It was unlikely that the child’s father would assume care of the child due to his mental health problems. While contact was maintained, the level of contact was not consistent or dependable and was subject to the father’s wellbeing at any one time. The solicitor contended that once a week contact is not a substitute for day-to-day care and responsibility. It was argued that the lack of involvement by the father in the child’s welfare had to be taken into account. The appellant attended to all of the child’s medical, educational and financial needs. The solicitor referred to a previous Appeals Officer’s decision, highlighted in the Social Welfare Appeals Office Annual Report 2015 (2015/04 Appendix 1), which also looked at the issue of abandonment and failure of duty. She argued that occasional financial contributions do not constitute financial support. The evidence was that the child’s father only provided some contributions towards school uniform, school books and footwear. She also stated that contact and staying overnight once a week was insufficient grounds for rejecting the application.

Consideration: The Appeals Officer accepted that the child’s father had made no real financial support available for him and was unable to provide the child with appropriate care and attention. The Appeals Officer noted the Supreme Court ruling [2002] IESC 75 in which that Court held that failure of duty towards a child does not necessarily or invariably amount to abandonment but that the requirement of abandonment is not to be considered in isolation, separate from the failure of duty. ‘It is ‘such failure’ of duty that may amount to abandonment.’ The Appeals Officer took into account the death of the child’s mother, the lack of any adequate financial provision by the child’s father, the father’s mental health problems and the child’s ongoing reliance on his grandmother for all his needs as evidenced by her appointment as legal guardian. He concluded that occasional contact and intermittent financial support cannot be taken to counteract what amounts to abandonment and failure to provide. The Appeals Officer held that the appellant had taken over the rights and duties of a parent in respect of the upbringing of the child. The appellant had the right to make all major decisions affecting the child's upbringing. The Appeals Officer found that the appellant was responsible for the overall welfare of the child and the child’s surviving parent was not fulfilling any such role.

Outcome: Appeal allowed.