Case Studies » Sickness » Disability Allowance - Case from 2016 Annual Report (ref: 2016/17)

2016/17 Disability Allowance

Oral hearing

Question at issue: Eligibility (medical)

Background: The appellant, in his mid-30s, had been in receipt of Disability Allowance from 2002. A review of his claim was carried out in 2013, when the Department of Social Protection received information from the Revenue Commissioners under a Protocol for Consultation, Information and Data Exchange. The data provided referred to Deposit Interest Retention Tax, and outlined interest earned on accounts held by the appellant. An investigation indicated that he had been awarded compensation for injuries sustained in a road traffic accident in 2003. The amount at issue was of the order of €1.75 million and it was held that he had failed to notify the Department. His claim was disallowed with effect from a date in 2003 and an overpayment in the amount of €108,000 was assessed under Section 302(a) of the Social Welfare Consolidation Act 2005. In an appeal against the decision made on the appellant’s behalf, it was submitted the Department had been fully informed about the nature of his injuries and the fact that a claim was pending and its duty of care to him was questioned.

Oral hearing: The appellant was accompanied by a relative. The Deciding Officer, who attended at the request of the Appeals Officer, outlined the decision. She made reference to the significance of applying the provisions of Section 302(a), that is, that it had been held that there had been wilful concealment of a material fact. She presented details of the appellant’s claim and an account of the review process. She concluded that he had failed to advise the Department of a major change to his financial circumstances in connection with an award made by the Court in 2003.

It was submitted that the appellant was just 18 years of age when interviewed by the Social Welfare Inspector in connection with his claim, that he was still receiving rehabilitative care after a catastrophic accident and he had little recollection of that time or what was asked of him. A request for access to his personal data had been made under the Freedom of Information (FOI) Acts. It was pointed out that the evidence indicated that the Inspector had noted that a personal injuries compensation claim was pending and was expected to be finalised within two years. In addition, reference was made to a request made by the same Inspector for the claim to be reviewed again in the following year, while an officer within the Disability Allowance area had indicated that a review should be undertaken by a date in 2002. It was noted that no review had been undertaken and it was submitted that this constituted negligence and a failure to implement a duty of care to the appellant. It was contended that there was no intent to deceive and that an overpayment should not be assessed.

The Deciding Officer acknowledged that a review should have been conducted but advised it had been overlooked due to staff shortages and pressure of work. She suggested that there may not have been fraudulent intent but she reiterated that there was an onus on the appellant to have notified the Department. She advised that the appellant had been informed both verbally and in writing of this obligation.

Consideration: The Appeals Officer observed that he had some sympathy with the points submitted on the appellant’s behalf and he noted the extent of the injuries he had sustained. He noted also the Deciding Officer’s evidence and her statement as to why the case had not been reviewed early in 2000 and he considered that the oral hearing had served to indicate that there had been no real intent by the appellant to defraud the Department. He considered that there were faults on both sides but that, ultimately, the primary responsibility rested with the appellant who should have notified the Department of the very significant compensation award made. He noted that the evidence confirmed that the appellant had been advised verbally of his requirement to inform the Department of any change to his circumstances at the application interview stage, and that he had been advised again in writing at the date of award and that reminders were also available on his Disability Allowance payment books. He noted that there was no medical evidence to the effect that the appellant was incapable of managing his own affairs.

He concluded that the decision to disallow the application with effect from a date in 2003 was correct, with the overpayment assessed being fully recoverable. Having regard to the circumstances of the case, however, he applied the provisions of Section 302(b) of the Social Welfare Consolidation Act 2005, which refers to a revised decision given in the light of new evidence or facts, accepting that there was no wilful intent to defraud. He noted that the amount assessed as overpaid was substantial and advised the appellant that it was open to him to contact the Department of Social Protection and to comment on any proposals for recovery or to challenge any recovery plan outlined.

Outcome: Appeal disallowed.