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One Parent Family Payment  Case 1

Question At Issue:

Assessment of capital value of house formerly shared by appellant and her partner in determining means.

Background:

The appellant and her former partner bought a house in which they lived together with their child. Following their separation, the house remained registered in their joint names. The appellant claimed a One Parent Family Payment. The net capital value of the house was determined as the capital value estimated by the Valuation Commissioners, less the amount outstanding on the mortgage. In calculating means, the Deciding Officer assessed the appellant’s share as half of this sum.

Oral Hearing:

The appellant attended unaccompanied. She outlined the background to her relationship with her former partner, and provided details of their purchase of a house from the local authority under the tenant purchase scheme. She stated that they had been living together before their child was born but, following the death of a family member, her partner had started drinking heavily and became violent towards her. Ultimately, she ended the relationship, and went to live elsewhere.

The appellant stated that she was unhappy about the decision to assess the capital value of the house in calculating her means. She asserted that she had no income from the house and no access to the capital sum, as her former partner was still living there. She took issue with the Social Welfare Inspector’s report, details of which had been outlined by the Appeals Officer, as it indicated that she had paid the deposit for the house. She stated that she had paid no more than a quarter of the deposit but was unable to indicate how much was involved. She agreed that her former partner had been making the mortgage repayments since they separated. When asked by the Appeals Officer why she was not protecting her interest in the house by making some contribution towards the repayments, the appellant indicated that she was satisfied that the house represents an investment for their child. In evidence to the Social Welfare Inspector, as outlined in his report, her former partner had indicated that he held a similar view.

Consideration of the Appeals Officer:

The Appeals Officer concluded that the appellant’s assertion that she did not know how much was paid as a deposit for the house was not credible. He considered that there was no legal reason as to why the appellant could not force a sale to realise her interest in the property. He noted, however, that she had argued that there was a risk of her former partner becoming homeless in such an event, and that she had indicated also that he had health problems which might leave him vulnerable in such a scenario. While he considered that the appellant’s fears in this regard might be groundless, the Appeals Officer noted that a court could take the view that there would be a risk to his life if he were to be put under threat of eviction, particularly if he produced medical evidence to that effect. He concluded that it could be argued that the house was home to the child when she was with her father, and that any further estrangement could adversely affect her, and might enable the Guardianship of Infants Act, 1964, to be invoked for her protection.

The Appeals Officer noted that the Deciding Officer had taken the view that where a couple is not married and jointly own the house in which they formerly lived together, the capital value of the appellant’s share of the property should be assessed for social welfare purposes. In contrast, he noted that when a married couple separates and the party who leaves the marital home applies for a One Parent Family Payment, s/he is not assessed with a beneficial interest in the house. Given that this is the case, he considered that it could be argued as inequitable to single out cohabitees for adverse treatment. In relation to the legal position of cohabitees vis-a-vis married persons, he concluded that the law distinguishes between them in a number of important ways. He noted the provisions of the Domestic Violence Act, 1996, the Succession Act, 1965 and the Family Home Protection Act, 1976 in this regard, and concluded that married persons and unmarried cohabitees do not have the same rights in law. He considered that there is little case law relating to the property rights of cohabitees, and that decisions which have been handed down have not served to make the position any clearer.

The Appeals Officer concluded that the appellant was adversely affected by the decision of the Department of Social and Family Affairs and that the onus, therefore, was on the Department to establish its case. Moreover, he considered that the adverse effect of the decision would have major implications for the appellant and her child, and that the Department was required to show that the position it had adopted was clearly supported by the law. He concluded that the Department, the much stronger party, had not discharged this obligation with respect to the appellant, the weaker party, and that, accordingly, the appeal should succeed.

Outcome:

Appeal allowed.

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