State Pension (Non-Contributory) - Case 4

Background:

The appellant, a farmer, was in receipt of an Old Age Pension based on an assessment of his means. When his wife claimed Unemployment Benefit in 2000, it emerged that she had been employed in the years 1993 to 1999, during which time his pension had included a qualified adult payment for her. Following investigation, the Deciding Officer revised the assessment of his means and the corresponding rate of pension to take account of his wife’s earnings and assessed an overpayment of some €21,000. It was alleged that the appellant had failed to disclose the fact that his wife had commenced employment.

Oral Hearing:

The appellant attended alone and the Social Welfare Inspector attended at the request of the Appeals Officer.
In her evidence, the Social Welfare Inspector reported that the Department’s computer-held records showed that the appellant’s wife had earnings from employment in the years 1993 to 1999 and that she had been on a FÁS return-to-work programme with effect from March 2000. She had submitted a report to that effect to the Deciding Officer who then made a revised decision, reducing the rate of the appellant’s pension with effect from a date in 1993.

In relation to the assessment of his means by the Department of Social and Family Affairs, the appellant referred to the lower farm assessments accepted by the Revenue Commissioners for income tax purposes. The Appeals Officer explained that assessments for income tax purposes could differ from those undertaken for social welfare purposes but the appellant was unwilling to accept this. The appellant asked why the revised assessment was not made in 2000 when he had a full review of his means carried out. The Appeals Officer read from a report on the file and pointed out that the Social Welfare Inspector who interviewed the appellant at the time had asked whether his wife was in employment. The appellant offered no explanation as to why he had not told the Inspector about his wife’s employment. The Appeals Officer went through all the figures on the means assessment form completed in 2000 and asked the appellant if he wanted to challenge any of them. The appellant accepted that the figures were correct but contended that they did not represent a typical year and said that it might even have been the best year he ever had. He asked for some time in order to get more detailed information from the Revenue Commissioners and the Appeals Officer gave him a month in which to do so.

Consideration of the Appeals Officer:

The Appeals Officer noted that the additional information which the appellant hoped to submit might not be of much help as it consisted of very basic farm accounts which he had completed himself. He considered, however, that there were two other important points in the case which the Deciding Officer had overlooked. The first was that in March 2000, the Department was required to certify that the appellant’s wife was in receipt of an unemployment payment before she could participate in a FÁS scheme. On this basis, the Appeals Officer concluded that the Department could not have been unaware of the employment in 2000, or before that. Secondly, he noted that no allowance had been made for family labour when assessing farm income and he regarded this as a fundamental error. As the appellant was almost 78 years of age, the Appeals Officer considered that his capacity to run the farm unaided had to be taken into account. He was satisfied that, in the circumstances, allowance must be made for family labour and concluded that a sum in the region of €76.50 per week was appropriate. As this was close to what the appellant’s wife had earned, he set the offset for labour at a sum equivalent to her earnings, with effect from the date on which his pension was reduced. Accordingly, the appeal was successful.

Outcome:

Appeal allowed.