State Pension (Non-Contributory) - Case 10

Background:

The appellant, who was in her mid-eighties, had been in receipt of a pension but payment was terminated in 2000, when she received capital following the sale of the family home. No appeal had been made against that decision. In 2005, however, she requested a review of possible pension entitlement as she relied for an income on drawing down the capital which had been invested following the sale of the family home. Her entitlement was reviewed and means were assessed as being in excess of the statutory limit. She made an appeal against that decision, submitting that she should qualify for the exemption which provides that a pensioner who sells their home does not have the proceeds, up to a prescribed amount, assessed as means.

Oral Hearing:

The appellant was accompanied by her daughter and son-in-law. The Social Welfare Inspector attended at the request of the Appeals Officer.

The appellant said that she had separated from her late husband in 1988 due to marital difficulties but that no separation agreement was put in place and no maintenance had been paid. She had lived in rented accommodation for a number of years and had been in receipt of pension and a rent supplement under the supplementary welfare allowance scheme. She moved subsequently to other rented accommodation, where she has remained, but receives no rent supplement. Following her husband’s death in 1999, she inherited the family home. She said that her late husband had been in a nursing home for some time before he died and that the family home had been vacant and was in very poor condition. She submitted that she could not return to live there as there was no family support locally and that the house was, in effect, uninhabitable. (A letter from a local auctioneer was submitted in evidence on this point.) The house had been sold and her late husband’s debts cleared, leaving the appellant with the balance of the capital.

The Social Welfare Inspector reported the details of her investigation and confirmed that the appellant had moved out of the family home in 1988. She stated that the appellant had lived elsewhere ever since and did not, therefore, regard the house as her principal residence.

In line with the written appeal submission, the appellant’s daughter contended that unavoidable circumstances had led to her having to leave the family home and that it had not been appropriate for her to return subsequently. She argued that capital from sale of the family home should, in the circumstances, have been exempt from assessment as means.

Consideration of the Appeals Officer:

The Appeals Officer considered the appellant’s oral evidence to be credible. He noted that the main facts of the case were not in dispute but that the question at issue was whether the capital received by the appellant from the sale of the former family home should be taken into account as means. He examined the relevant legislation [1] which provides for a disregard in calculating a person’s means in circumstances where ‘the gross proceeds are derived from the sale of a dwelling house which is or has been occupied by the claimant as his principal residence’. With this in mind, he considered that the core issue was whether the family home represented the appellant’s principal residence at the time of its sale. He noted that the term ‘principal residence’ is not specifically defined in legislation. He took the view that although the appellant had not lived in the house for some years, she had in the past resided there with her late husband and had reared the family there. He noted that she would always have had an interest in the property under the Family Home Protection Act, 1976 [2] and that she had moved out due to marital difficulties, living in rented accommodation since that time. He took account also of the fact that she had not owned any other house.

Having considered all the available evidence, he concluded that there was reason to regard the family home as the appellant’s principal residence in this case and to consider its sale as coming within the provisions of the relevant legislation. Accordingly, he determined that the appellant should be exempt from a means assessment in respect of the proceeds of the sale of the property at issue, up to the prescribed limit, and that she was entitled to pension, the rate of which should be calculated on that basis (and from the date specified).

[1] (Social Welfare (Consolidation) Act, 2005 (Schedule 2, Part 3) and S.I. 417 of 1994 (Article 90)
[2] The Act prohibits the sale, mortgage, or re-mortgage of the family home without the express written consent of
both spouses, even where the home is the sole property of one of the spouses.

Outcome:

Appeal allowed.