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Child Benefit Case 2

Question At Issue:

Appellant is appealing the decision to withdraw her Child Benefit in respect of her two children as they no longer reside with her.

Background:

Child Benefit Section informed the appellant that her entitlement to Child Benefit had been disallowed. Her Child Benefit had been withdrawn retrospectively and an overpayment had been assessed. The Deciding Officer relied upon a letter from a Social Worker which advised that the appellant had left the family home and that the father was the primary carer.

The appellant contested the decision to withdraw Child Benefit. She argued that she still cared for her children. Appellant and her husband were involved in an extremely acrimonious separation and, as this was taking a toll on her health, she was advised by her GP to leave the family home.

Due to an oversight the payment continued and the appellant reasonably assumed that she had been successful in her appeal. The Department has described this continued payment as a “further overpayment”.

Oral Hearing:

The Appellant attended on her own. The Appeals Officer explained the question at issue. The Appellant denied that she had in any way abandoned her children. She continued to support and maintain them. She provided clothes, pocket money and paid their VHI subscription. She alleged that her husband refused to pay that subscription. Appellant accepted that her husband paid the children’s annual school fees.

The children visited Appellant every weekend. She collected them on Saturday morning and, although they have slept over, she normally returned them that night. She again collected them on Sunday morning and they stayed with her until the evening. Appellant resides with a friend.

Judicial proceedings have commenced and at the last hearing Appellant’s husband paid money to the court in respect of her weekly maintenance payments. The children are in joint custody. Appellant has been granted free legal aid.

Consideration of the Appeals Officer:

The Department has described the continued payment of Child Benefit as “a further overpayment”. It is not. It is an over-issue due to an error by the Department. As such it is not appealable nor can it be treated as an overpayment.

Child Benefit is payable to the parent with whom the children reside. In this case, the children can only be described as resident with their father. Despite the support and care being provided by the mother, the prevailing legislation clearly requires that the children reside with the parent. The children sleep in the family home and only see their mother at weekends but not overnight. The decision of the Deciding Officer is therefore confirmed and the appeal is disallowed.

Outcome:

Appeal disallowed.

End of Document