Moya de Paor is a Solicitor with Community Law and Mediation.
Community Law & Mediation (CLM) added 10 new case reports to the Casebase database in 2015. Three of those cases were taken by Community Law & Mediation Northside and seven from other organisations working in the area of welfare rights. The Casebase was launched in 2006 with the aim of providing the public, and in particular community organisations, with access to decisions of the Social Welfare Appeals Office. Casebase is the only database of Social Welfare Appeals decisions in the Republic of Ireland. Over 70 cases have been published to date.
The Social Welfare Appeals Office does not publish its decisions, apart from a selection of case studies published in its Annual Report. CLM aims to promote greater transparency and consistency within the Social Welfare Appeals system through the Casebase project.
The decisions published on Casebase cover a range of social welfare benefits, and are classified under the various types of payments. All decisions published on Casebase are anonymous.
Casebase was expanded in 2014 to include cases taken by other organisations and in 2015 seven case reports were published from the following organisations: Kerry MABS, Community Law and Mediation Limerick, Sligo MABS, North Donegal MABS, Waterford MABS, Citizens Information Centre Dublin City Centre and Kilkenny MABS. Four of the case reports published this year concern decisions of the Chief Appeals Officer (CAO) under section 318 of the Social Welfare Consolidation Act 2005 (as amended) relating to findings of errors of law by Appeals Officers. Decisions under section 318 are binding upon Appeals Officers and can be relied upon at appeal hearings.
Case report G0058 taken by Community Law and Mediation Limerick concerns a decision by the CAO under Section 318 of the 2005 Act overturning an Appeals Officer’s decision. The claimant’s entitlement to One Parent Family Payment (OPFP) and Family Income Supplement had been disallowed by the Appeals Officer as she was regarded as cohabiting with the father of her three eldest children. The decision is an important one in that the Chief Appeals Officer found that the onus of proof lay with the Department when reviewing an entitlement to an existing payment. The Chief Appeals Officer stated in her decision, “In a situation where an existing payment is being reviewed, the onus is on the Department to make a satisfactory case for disallowance.” This is in contrast to the process of making a new application, where the burden shifts to the applicant to provide evidence that they meet the relevant statutory criteria.
Case report G0071 taken by Waterford MABS also concerned a decision by the Chief Appeals Officer under Section 318 of the 2005 Act. The Appeals Officer found the claimant was not entitlement to OPFP on the grounds of cohabitation resulting in a significant overpayment claim against the claimant (€48,766.80). The CAO emphasised the onus of proof test which she stated was placed on the Department and that the Department was obliged to follow its own guidelines on investigating cohabitation. The CAO concluded that the Department had failed to follow its’ own guidelines by grounding it’s decision on one piece of factual evidence supporting the contention of cohabitation and therefore concluded that the Appeals Officer had erred in law.
Case report G0073 taken by Dublin City Centre Citizens Information Service concerned an appeal by a father of two children who was refused Family Income Supplement (FIS) on the basis he was not maintaining his former spouse/partner and therefore could not be regarded as falling within the statutory definition of “family” for FIS purposes. The case was reviewed by the CAO under Section 318 who revised the decision of the Appeals Officer on the basis of an error of law and allowed the appeal. The case centred on an incorrect statutory interpretation by the Deciding Officer and Appeals Officer of Section 227 of the 2005 Act (as amended) and their failure to apply Article 13(6) of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 Regulations (S.I. No. 142 of 2007) which was highlighted by the CAO in her decision. This case is particularly noteworthy in that it clearly highlights the need for transparency and consistency in decision making. Earlier cases concerning the same question of statutory interpretation had been allowed and were even referred to in the Social Welfare Appeals Office Annual Report 2011. It was argued therefore that this particular case should have been determined in a manner consistent with the previous Appeals Office decisions.
These cases and others highlight the need for greater consistency in the decision making process both at first instance by the Department and by Appeals Officers of the Social Welfare Appeals Office and the underlines the need for the Social Welfare Appeals Office to publish their decisions.
A full report of the above cases and other cases added to Casebase in 2015 can be accessed on our website here.
If any individuals or NGOs working in the area of social welfare law wish to have a case published on Casebase please contact Moya de Paor at CLM on (01) 8477804.