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One Parent Family Payment Case 7

Question At Issue:

Whether the appellant, originally from a central African country, satisfied the conditions for receipt of One Parent Family Payment.

Background:

The appellant first claimed a One Parent Family Payment in 2000 on the basis that she was separated from her husband. The claim was disallowed, and the decision upheld on appeal, on grounds that she could not be regarded as a separated spouse as she still maintained some contact with her husband and the marriage tie was deemed not to have been broken. She claimed a One Parent Family Payment again in 2002, this time as a single parent. Following receipt of a report from a Social Welfare Inspector, the Deciding Officer wrote to the appellant, seeking a response to the contention that her status was unchanged and that she remained separated geographically only. The appellant did not reply and her claim was disallowed. Solicitors acting for the appellant made an appeal against this decision, arguing that she was not legally married. They contended that she was married by tribal / traditional ceremony only and therefore she should be treated as a single woman who cohabited with her partner. An oral hearing of the case had already been scheduled when the appellant submitted a death certificate for her former partner (who had died in 2001). The Appeals Officer then proceeded to determine the appeal without an oral hearing, on the basis of the evidence available.

 Consideration of the Appeals Officer:

The Appeals Officer considered that the death of the appellant’s partner had obvious implications for her claim. If she had been legally married, she was now widowed with potential entitlement to a One Parent Family Payment as a widow. In these circumstances, she would be required to provide a marriage certificate as well as a death certificate. He recognised that there was an obstacle to her doing so where she claimed that the marriage was traditional and therefore unregistered in her home country. If, on the other hand, she was not legally married as her solicitors had argued, then her entitlement to a One Parent Family Payment had to be determined in relation to her status as a single parent.

The Appeals Officer sought clarification from the General Registrar’s Office. He was advised that traditional marriages could be recognised where such marriages were conducted ‘under native law and custom’ and where:

• the marriage had complied with Irish law so that the participants were aged 18 years or over and the marriage was not polygamous;
• a marriage ceremony had taken place, and
• the ceremony had legal status in the country where it had taken place.

The Appeals Officer was also advised that provision exists for the General Registrar’s Office to verify such details, with information being provided from persons such as tribal elders through the relevant embassies.

The Appeals Officer noted that the appellant’s late partner had died in 2001, almost a year before the earlier Appeals Officer’s decision in relation to her first claim. He considered that while it might be regarded as remarkable that she had been unaware of his death, it might also be taken as confirming their separation and constituted new evidence that was not available to the Appeals Officer in 2002. He noted that the appellant had presented herself at various stages as a married woman, such as when she made her first claim and also when she sought refugee status (which had been granted in 2002). Her solicitors, however, disputed that she was legally married and argued that her traditional marriage had no legal status in this country.

The Appeals Officer considered that the question to be determined in the case was the claim made by the appellant in 2002 as an unmarried person. He considered that the Deciding Officer’s decision on this claim was not correct as the appellant’s ‘husband’ was in fact deceased at the time. He noted that her solicitors argued that the appellant’s marriage was informal and that her status was ‘unmarried’. He was satisfied, however, that a traditional marriage such as this one could not be disregarded and that a mechanism exists whereby it could be formally recognised. He noted that there was significant evidence to indicate that the appellant had been married but considered that it was unlikely to be sufficient to allow her to qualify for a One Parent Family Payment as a widow. He regarded this as being a matter for the Department of Social and Family Affairs, noting the existence of a mechanism through which the appellant could have her traditional marriage recognised.

The Appeals Officer concluded that the appellant had an entitlement to a One Parent Family Payment, either as a single person or a widow. In determining the appeal, he accepted her solicitors’ contention that at that time she could be regarded only as a woman who had previously cohabited with a partner. Accordingly, he allowed her appeal from the earlier date in 2000, noting that she would have been in receipt of payments from the Health Board for much of this time.

Outcome:

Appeal allowed.

End of Document