State Pension (Non-contributory) - Case 8

Background:

The pensioner was 93 years of age when he died. He had been awarded the maximum rate of pension in 1976 and a Living Alone Allowance in 1997. After his death in 2003, solicitors contacted the Department in connection with the administration of his estate. Following detailed correspondence between the executor (the pensioner’s nephew), the solicitors in the case and the Deciding Officer, a revised decision was made in relation to the late pensioner’s entitlement. The Deciding Officer concluded that pension of some €34,000 had been overpaid on the basis of ‘unreported capital’.

Oral Hearing:

The appellant (the late pensioner’s nephew and his executor) was accompanied by a relative at the oral hearing. The Deciding Officer and the Social Welfare Inspector attended at the request of the Appeals Officer. A manager from the Department’s Pension Services Office was present with the agreement of the Appeals Officer and the appellant.

The appellant outlined the late pensioner’s family background and poor circumstances, contributing to his low standard of education and lack of literacy skills. He asserted that he had always helped him with his financial affairs and that he had personal knowledge of those financial affairs for almost 40 years. He stated that this was always done in an open and transparent manner, with absolutely no knowledge that the amount of his means-tested pension savings would have implications afterwards.

In disputing the amount of the overpayment determined by the Deciding Officer, the appellant made particular reference to the period during which his late uncle was in a nursing home, in the care of his local Health Board. He pointed out that, at the time, his pension book had been held by the Health Board authorities in a practice since ruled to have been illegal.

The appellant read from a written submission, and spoke at length on a number of points. He argued that there had been a lack of transparency in relation to the legislative provisions relied upon in this case. In particular, he contended that the Department of Social and Family Affairs and Comhairle, the agency charged with responsibility for providing information to citizens, did not provide information about the rules in question. He referred to the principles of proportionality and equality before the law and argued that where rigid adherence to the letter of the law results in manifestly inequitable treatment, then steps should be taken to mitigate the consequent effect on citizens.

The appellant asserted that there was administrative bias in dealing with the case. He referred to a statement made by the Department to the Joint Oireachtas Committee in May 2005 in relation to its policy on overpayments in cases such as this. It had been stated to be the Department’s policy to adopt a flexible approach, so as to take account of funeral and legal expenses for which the estate is liable. He argued that in the case of his late uncle, no such flexibility had been afforded. He provided an outline of his late uncle’s frugal lifestyle, in a two-roomed house without running water and only a turf fire for heat. In conclusion, the appellant submitted that there was no deliberate wrongdoing by his late uncle and he sought to have the overpayment cancelled.

In response, the Pensions Services Office manager stated that savings are assessable for pension purposes and that such savings may be attributed to a number of sources. He argued that the claim form, signed by the late pensioner in 1976, had set out clearly the relevance of cash income and property as means for pension purposes. He said also that a newsletter issued by the Department in 1999 had indicated that it was required under law that increases in means be notified. The appellant, in response, contended that the Department was categorising in the same way both those who conceal means and those who save from pension and do not consider that they have increased means. He argued that this policy contributes to elderly people hiding money in shoeboxes and under mattresses.

Consideration of the Appeals Officer:

The Appeals Officer noted the appellant’s reference to the Department’s statement to the Joint Oireachtas Committee. He found that there was no evidence of consideration having been given in this case to the matter of funeral and legal expenses. He considered the appellant’s contention regarding the difficulty he had in finding the information that would have made clear that pension savings are assessable as means. While he accepted the Department’s point that the legislation does not distinguish between the types of capital to be assessed, and that savings may come from a number of sources, he took account also of the appellant’s assertion that the late pensioner’s savings were from pension only. He referred to the appellant’s contention that his late uncle was not literate and was infirm, and noted that no officer of the Department had visited the late pensioner in the period between January 1977 and July 2003.

In terms of the appellant’s assertion as to proportionality and equality, the Appeals Officer examined the legislative provisions under which the decision to revise entitlement had been made (Section 249(b) of the Social Welfare (Consolidation) Act, 1993). He referred, in particular, to the provision which states that where new evidence comes to light, a decision with regard to that evidence should be made with reference to the new facts ‘and the circumstances of the case’. He did not find any significant reference by the Deciding Officer to the appellant’s submissions regarding the special circumstances of the case.

The Appeals Officer examined the question, which was also addressed by the Deciding Officer, as to whether the capital did indeed represent savings from pension only or whether it might be attributed to a variety of sources. He noted that the kernel of the appeal was that the appellant’s late uncle had saved his pension. The appellant had argued that this had been done in order to make some provision for his care in extreme old age and so that his sister would have the benefit of the money after his death. On balance, the Appeals Officer concluded that the appellant’s firmly held conviction that the pension was the source of the savings could be taken as the factual reality. Having assessed all of the evidence, he concluded that the decision was made principally and solely on the discovery of the new facts. He found that there was no evidence that consideration had been given to the circumstances of the case. He was satisfied that consideration must be given to the source of the savings, and the reason such savings were made, as well as to the circumstances of the case. He regarded as noteworthy the fact that the late pensioner’s neighbour, who had provided him with fuel, was rewarded with the transfer of land, and that it was the intention that his sister, who had provided him with care, was due to receive capital from the estate. He concluded in relation to the issues raised that there were very reasonable grounds, having regard to the new facts and to the circumstances of the case, that the decision should take effect from the date of the late pensioner’s death, with the effect that the overpayment was not refundable.

Outcome:

Appeal allowed.