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Disability Allowance Case 3

Question At Issue:

Retrospective decision assessing means derived from employment, resulting in an overpayment of some €9,500.

Background:

The appellant was assessed with means derived from employment of €103.10 per week from a date in 2003 and €91.29 from a date in 2004.

Oral Hearing:

The appellant attended accompanied by a friend.

The appellant submitted that he understood from enquires he had made with the Department of Social and Family Affairs and with FÁS that he was allowed to work up to 20 hours per week without his Disability Allowance being affected. He stated that, following an accident in 2000, his arm had been badly injured. He said that he was anxious to get back to work and that as soon as he had recovered sufficiently, he began looking for alternative work, as the nature of the injury prevented a return to his former employment. He reported that he had approached FÁS and the Jobs Facilitator of the Department of Social and Family Affairs and that he had secured funding to do a training course. He denied that an earnings limit of €120 per week was ever mentioned to him but was adamant that he was informed by staff in FÁS and in the Social Welfare Local Office that he could work for up to 20 hours per week without affecting his Disability Allowance payment. He reported that he found it difficult to get work initially but that he started work eventually, in February 2003. He stated that the only work available was for 20 hours, as the company operated short shifts in the dispatch area where he was employed. He said also that at that time, he would not have been able to work for any longer. He stated that he was still employed by the same company for 20 hours per week.

The appellant stated that he went to the Office of the Revenue Commissioners to register and that he had informed that office that he was in receipt of Disability Allowance. He stated that he was assured by a Revenue official that his affairs were in order. Accordingly, and in addition to the information he had obtained previously from the Department of Social and Family Affairs and from FÁS, he concluded that everything was in order and he continued to cash the orders in his Disability Allowance book.

On the appellant’s behalf, his friend argued that there was some confusion surrounding the conditions applying where people in receipt of social welfare payments returned to the workforce, particularly in relation to disability payments. He stated that 20 hours per week was the rule applied in a number of social welfare schemes and that this was the threshold which applied also in relation to the Community Employment Scheme. He contended that this may have led to the appellant misunderstanding the rules governing Disability Allowance. He argued also that had the appellant wished to conceal his employment from the Department of Social and Family Affairs, he would not have reported it to the Revenue Commissioners. He submitted that the fact that he had done so indicated that he was acting in good faith.

The Appeals Officer asked the appellant whether he had read the list of notifiable events at the back of his payable order book, and if he was aware that the list included a reference to taking up a job. The appellant replied that he was not aware of that list and that he had acted on the assumption that he could work for 20 hours per week. The Appeals Officer pointed out that the number of hours available in the job just coincided with the number of hours he had assumed he could work and asked if this was mere coincidence. The appellant replied that this was the only work available from the employer and that he had taken the job on the assumption already stated. He advised that he had returned his payable order book following notification of the decision.

Consideration of the Appeals Officer:

The Appeals Officer noted that, while the appellant had suffered an unfortunate accident and was left badly injured, he had shown a willingness to return to the workforce and to undertake training. He accepted that there was a range of conditions applying where people in receipt of disability payments wished to return to the workforce. He regarded it as reasonable to assume that confusion might arise in relation to the conditions which apply to Disability Benefit as against Disability Allowance or Invalidity Pension. He considered it possible also that some confusion might arise as to the difference between a FÁS Community Employment Scheme and work in the open economy. He noted that a common timeframe mentioned in a number of these areas was 20 hours per week.

The Appeals Officer was satisfied that the appellant genuinely believed that he was entitled to work as he had done, and that this conviction resulted from a misapprehension of the conditions governing the scheme rather than from incorrect information provided by the Department of Social and Family Affairs. He considered that it was possible that the relevant provisions were not fully understood within FÁS. He did not accept that registering with the Revenue Commissioners demonstrated good faith, as his employer would have required him to do so, although he considered that it was reasonable for the appellant to have to accepted assurances that all was in order.

The Appeals Officer noted that while the guidelines in the payable order book refer to notification in the event of taking up employment, they do not specify an earnings limit of €120 per week. He concluded that the appellant acted in accord with his understanding of the rules and, in the circumstances, he determined that the decision should apply from a current date and not with retrospective effect, so that no overpayment arises.

Outcome:

Appeal allowed.

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