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Guardian's Payment - Case 2

Question At Issue:

Whether an Orphan’s (Contributory) Allowance is payable to the appellant in respect of her granddaughter.

Background:

The appellant’s son and his former partner had a child who lived with the appellant since she was born. The appellant made a claim for an Orphan’s Allowance when her granddaughter was 10 years old. That claim was rejected on grounds that the child’s mother was willing to have the child living with her as she then had the care of other children.

Oral Hearing:

The appellant attended the hearing accompanied by her husband and two representatives of her local Citizens Information Centre (CIC). The child’s mother attended at the request of the Appeals Officer, and was accompanied by her aunt. The Social Welfare Inspector involved in the case was called but unable to attend.

In the absence of the Social Welfare Inspector, the Appeals Officer read from her report, outlining details of the investigation in the case. The report stated that following the child’s birth, she and her parents had all lived with the appellant. The family situation was unstable and difficulties emerged as a result of the parents’ addiction problems. Ultimately, the appellant and her son obtained joint custody of the child. Having obtained custody, the appellant did not allow contact between mother and child. In her report, the Inspector stated that she saw no reason to prevent the child’s mother from caring for her as she had since had two other children, both of whom lived with her. The Inspector stated that her mother was prepared to have the child living with her if she so wished, and that she hoped the child would do so when she was old enough to decide.

The child’s mother submitted that the Inspector’s report did not reflect fully what she had said. She stated that she would welcome regular contact with her daughter, if and when the child agreed, but that she had not meant that the child could come to live with her. She stated that she was not in a position to support the child as her only income was the One Parent Family Payment, and that she suffered from depression as a result of the stress of looking after her other two children.

The appellant stated that when her granddaughter was born, both her parents were drug addicts. She reported that during the first six months of her life, the child lived mainly with her due to the unstable nature of her parents’ lives. After six months, the child came to live with her full time and she obtained joint custody with her son who was living with her at that time, struggling to overcome his addiction. She stated that the child’s mother was in irregular contact with her at that stage and that she was living an unstable life as a consequence of her addiction. She contended that she did not keep appointments in relation to custody hearings and that contact faded away eventually.

The appellant reported that her son was the father of another child who lived with his maternal grandmother and that a Foster Care Allowance was being paid in respect of his care. The representative from CIC stated that an Orphan’s (Non-Contributory) Pension had been paid to the other grandmother while that pension was payable with the Foster Care Allowance. She reported that both grandmothers were keen to ensure that the children kept in contact and to this end, they had arranged regular visits and holidays for them.

It was reported that there had been no contact between the appellant’s household and that of the child’s mother over the previous nine years. The appellant stated that there had been an occasional chance meeting, but no more than that. She asserted that the child would refuse to meet her mother. The child’s mother confirmed the account given by the appellant and said that there were no plans to commence any formal contact.

The appellant stated that her son had recommenced drug abuse and that he had not supported the child since, having visited only once in the previous four years. She stated that he had been paid Child Benefit in respect of his daughter up to a year ago but, in view of his addiction problems, payment was now being made to the appellant. In support of her appeal, the appellant submitted a letter stating that her son was participating in a drug treatment programme, a letter from him confirming that he does not support his daughter, a letter of support from the family doctor, and a letter from a social worker confirming that the other grandmother had been paid an Orphan’s Pension in respect of the child’s brother and that, to the best of the social worker’s knowledge, there was no contact or support between the child and her mother.

Consideration of the Appeals Officer:

The Appeals Officer referred to the amendment of the definition of a qualified child for purposes of an Orphan’s payment, outlined in the Social Welfare (Consolidation) Act, 2005, to one that provides that both parents have abandoned and failed to provide for the child. He noted that the application for an Orphan’s Allowance in this case had been motivated by the deteriorating financial position of her guardians. He considered, however, that the events critical to determining whether the child could be deemed to be an orphan, in line with the legislative definition, had occurred earlier in her life. He noted that, at the time of her birth, both parents were drug addicts and as such were unable to care and provide for their child so that she lived with and was cared for by her grandmother. He noted also that the evidence confirmed that the child’s father had a role in her life in her early years but that, following his relapse into addiction, he was no longer supporting or providing for her.

He considered that the reason for the decision to reject the claim related to the position of the child’s mother, in that it was held that there were no circumstances which prevented her from caring for the child as she was already caring for two other children and that the child was free to come to live with her if so wished. The testimony of the child’s mother, however, was that she was not supporting the child nor was she in a position to do so. Accordingly, the Appeals Officer considered that the issue to be determined was whether the child’s mother had abandoned her. He noted that the evidence presented at the oral hearing indicated that she had never supported her daughter, that she had not been involved in the child’s life nor had there been any contact between them for many years. He referred to the statement made at the oral hearing that the child’s mother would like to establish regular contact with her but considered that this was purely aspirational and that the evidence indicated that the child did not wish that to happen. He considered that the fact that the child’s mother was caring for two other children was not of itself indicative that she had not abandoned her older child in earlier years. He concluded that the child had been abandoned by her mother when she was an infant and that nothing had been done to repair that abandonment. He was satisfied, therefore, that the child could be regarded as an orphan for purposes of social welfare legislation.

Outcome:

Appeal allowed.

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