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Carers Allowance Case 2

Question At Issue:

Maintenance payments made by the appellant’s spouse for support of his first family included in the assessment of means.

Background:

The appellant, who is providing full-time care and attention for her son, was assessed with means based on the ‘benefit from employment’ of her spouse’s earnings. In line with that assessment, the Deciding Officer awarded a reduced rate of Carer’s Allowance.

Oral Hearing:

The appellant was accompanied by her husband. The question at issue was outlined by the Appeals Officer, with particular attention paid to the details of the means assessment.

The appellant put forward as her grounds of appeal the fact that all of her husband’s earnings are not available to her as he must pay maintenance (amount specified) every week for the support of the children from his first marriage. The Appeals Officer sought clarification as to the status of the maintenance agreement. The appellant’s husband stated that it had been drawn up privately been the two parties initially, and subsequently accepted as legally binding by the Court; it now forms part of the divorce settlement. The Appeals Officer asked him whether he had considered returning to Court and renegotiating the amount agreed and he acknowledged that this was an option. He argued, however, that he is committed to the care and support of all of his children and that he does not want the children of his first marriage to suffer because of the circumstances in which he and his wife now find themselves. He maintained that at the time he and the appellant got married and took on financial commitments, such as a mortgage, they could not have foreseen the situation in which they now find themselves. They had expected that the appellant could have remained in work but in view of the extent of their son’s disability, that it was not an option. The appellant and her husband reported that they have built an extension to their house so that their son has accommodation on the ground floor and that, in view of their circumstances, they have increased significantly the amount of their life insurance cover.

Consideration of the Appeals Officer:

The Appeals Officer examined the Deciding Officer’s submission, which stated that all the deductions allowable had been applied and that means were calculated in accordance with the provisions of the governing legislation. Having carefully examined that legislation, she concluded that it contained no provision for the disregard of maintenance paid to a third party. She considered that it was inequitable to assess the appellant with the amount paid in maintenance to the children of her husband’s first marriage. In this regard, she referred to the provisions of the Social Welfare Consolidation Act, 1993, (Part II, Third Schedule) which state that account is to be taken of all income in cash ‘which the person may reasonably expect to receive’ during the year succeeding the date of calculation of means. The Appeals Officer concluded that the sum paid in maintenance by the appellant’s husband should not be regarded as income that she may reasonably expect to receive. The Appeals Officer revised the means assessment on this basis and determined that the corresponding rate of Carer’s Allowance should be awarded.

The Appeals Officer noted that other provisions contained in social welfare legislation require a father to contribute to the financial support of his children. In view of these requirements, she considered that failure to take account of such a contribution in assessing the means of a second family must be regarded as inequitable. In the event of a claim to social assistance by his former wife, the sum involved could be the subject of double counting, effectively assessed as means against two families. She considered that this situation was one that might not have been envisaged in the context of amendments made to the social welfare code on the introduction of divorce. She recommended that the situation be brought to the attention of the Department of Social and Family Affairs.

Outcome:

Appeal allowed.

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