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Guardian's Payment Case 1


Question At Issue:

Whether the children in the case may be deemed to be orphans in line with the provisions of social welfare legislation.

Background:

The appellant claimed Orphan’s (Non-Contributory) Pension in respect of her two grandchildren. Her claim was rejected as the Deciding Officer determined that the children were not orphans within the meaning of the governing legislation.

Oral Hearing:

The appellant was accompanied by her husband. The Social Welfare Inspector attended at the request of the Appeals Officer and the father of one of the children also attended.

The appellant confirmed that her daughter was the mother of both children, that the father of one of them is unknown and that the father of the other child was in attendance. She outlined the circumstances to her having both children in her care. She reported that both children had lived in England with their mother for some years but, following her conviction and imprisonment, they were put into care. She was contacted by the relevant authorities in England and informed of the arrangements made for care of the children. She was informed also that her daughter wanted her children to be cared for by their grandparents while she was in prison. The appellant and her husband brought the children to their home, arranged for their education and had been caring for them since. The appellant argued that, as she and her husband were both in low-paid employment, the cost of rearing both children was presenting difficulties for them. She argued that the children should be regarded as orphans.

The Social Welfare Inspector stated that she had been asked by the Department of Social and Family Affairs to interview the named father. She reported that she had failed to contact him personally but that she had spoken with him on the telephone. In that interview, he had confirmed that he was the child’s father. He stated that the child’s mother had secured a restraining order against him, that she had returned all the gifts he had sent for the child and that she had refused offers of maintenance. He indicated that he had no knowledge of his child’s whereabouts and enquired about him. He considered, however, that it would not be in the child’s best interests for him to make contact at this stage, not having seen him since he was an infant. In addition, he had indicated that he was involved in a relationship and had other family commitments, which preclude his paying maintenance.

Consideration of the Appeals Officer:

In examining the decision with reference to the provisions of the governing legislation, the Appeals Officer focused in particular on the definition of an orphan (amended by Section 20(1) of the Social Welfare Act, 1995). In addition to the death of one or both parents, that definition is framed so as to include the abandonment or the refusal or failure to provide for the child. In this case, he considered the children to be qualified children. He noted that their mother had arranged for them to be cared for by their grandparents but concluded that she had no other option; by reason of her incarceration, she herself was not in a position to provide care. He considered that while it might be argued that the children are not abandoned, the legislation also makes specific provision for cases of refusal or failure to provide. He accepted that it was their grandparents who were providing for them, and not their mother. The Appeals Officer accepted that in the case of one child, his father is unknown, and in the other, his father has indicated that he does not want to have any involvement with him. Accordingly, he considered that his father was refusing and failing to provide for him.

The Appeals Officer concluded that the children are orphans within the meaning of social welfare legislation and, accordingly, that the appeal should succeed.

Outcome:

Appeal allowed.



End of Document

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