Question At Issue:
Retrospective assessment of means derived from earnings with consequent overpayment of some €18,500.
The appellant’s entitlement to a One Parent Family Payment was examined during a special project undertaken by the Department of Social and Family Affairs, in which earnings data were reviewed. In March 2004, a Deciding Officer revised an earlier decision and determined that she qualified for a transition (half) rate of payment for one year, up to May 2001, and that she did not qualify for any payment with effect from that date until a date in October 2003. Her earnings were deemed to have been in excess of the statutory limit of €293 per week for the period in question and, as a result, an overpayment of some €18,500 was assessed.
The appellant attended accompanied by her mother. The Deciding Officer attended at the request of the Appeals Officer.
The Deciding Officer outlined the background to the case, indicating that the appellant had claimed a Lone Parent’s Allowance in 1996. She was working at the time, with earnings of £100 per week. When the One Parent Family Payment was introduced, she was switched to that payment. At that stage, her earnings had increased to €180 per week. He asserted that in correspondence at these times, the appellant would have been advised of the need to notify the Department of any change in her means or circumstances. He pointed out that a statement to this effect was also printed on the payable order book. He said that there was no record on file of any notification from the appellant since January 1997. He argued that the onus was on an individual to advise the Department of any change as to their circumstances or means and said that the appellant had failed to do so.
The appellant acknowledged that she had signed a payable order each week but said that she had not read it. She accepted that she should have done so. She said that she had paid tax on the payment she received and had assumed that the Department of Social and Family Affairs had access to her earnings details and were checking her entitlement each time they issued her with a new payment book. She referred to the fact that the Health Board had reviewed her entitlement to a medical card and had withdrawn it. She said that she could not understand how the Department had allowed the overpayment to build up to such an extent and argued that it should have been dealt with earlier.
Consideration of the Appeals Officer:
The Appeals Officer considered that a decision which results in a substantial overpayment being assessed against a client is a very serious one. Notwithstanding the onus on an individual to notify the Department, he considered that there is an onus also on the Department to ensure that it acts promptly and that its decision is correct in all aspects. In this case, he noted that in making a revised decision under Section 249 (b) of the Social Welfare (Consolidation) Act, 1993, it had been accepted that there was no fraud involved. The decision as to entitlement, made with reference to Section 158 of the Act, was made on grounds that the appellant’s earnings exceeded €293 for each week in the period at issue. He noted, however, that the Deciding Officer appeared simply to have divided annual earnings by 52, taking that figure as the earnings for each week. The Appeals Officer indicated that he was not aware of any provision in the legislation which allowed for such averaging. He noted that details as to weekly earnings had been obtained some 8 months after the initial decision was made, indicating an acceptance that averaging was not provided for in legislation. He was not satisfied that getting earnings data at a later date and essentially applying them retrospectively was legislatively sound.
The Appeals Officer considered that it would be prudent for the Department of Social and Family Affairs to keep under review those cases where reduced rates of One Parent Family Payment were awarded because of earnings from employment. This might lead to decisions being taken at an earlier date and reducing the number of cases where substantial overpayments are raised years later. From the number and type of these cases arising, he considered that there was need for a review of procedures to ensure that clients were aware of precisely what and when they should notify to the Department. He noted that the Department appeared to be moving in that direction with the printing of the earnings limit (€293) in payment books, issued with effect from April 2004.
Having regard to all the circumstances of the case, the Appeals Officer considered that it would be inappropriate to uphold the overpayment. While allowing the decision of the Deciding Officer to stand, he determined that it should take effect from a date in October 2003 and, accordingly, that no overpayment would arise.
Decision upheld but overpayment deemed not to arise.
End of Document
Page Updated 02/09/2005