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Disability Allowance Case 5

Question At Issue:

Whether the appellant’s claim for disability allowance should be back-dated for seven years to the date of her 16th birthday when her entitlement to domiciliary care allowance ceased

Background:

The appellant claimed disability allowance when she was 23 years of age having been in receipt of domiciliary care allowance up to16 years of age. She referred to the Department’s information booklet which states that claimants getting domiciliary care allowance will be notified in advance of reaching 16 years of age of their right to claim disability allowance. The appellant claimed that neither she nor her mother received any such notification.

The deciding officer considered that there were not sufficient grounds to support the back-dating of the appellant’s claim beyond 6 months but was disposed to back-date it for 6 months as provided for in the relevant legislation. However, the deciding officer noted that the appellant had been employed for 5 of the 6 months back-dating period during which her weekly income would have exceeded the weekly means limit in respect of disability allowance. Consequently, the appellant was awarded the maximum rate of disability allowance from the date she ceased employment. She appealed against that decision and requested that her claim be back-dated for seven years to her 16th birthday.

Oral Hearing:

The appellant was accompanied by her mother and her solicitor at the oral hearing of her appeal. The deciding officer also attended.

The deciding officer outlined the procedure followed by the Department in cases where the payment of domiciliary care allowance is due to cease and where there may be an entitlement to disability allowance. The Health Service Executive (HSE) is responsible for the payment of domiciliary care allowance and furnishes to the Department about four times a year detailed lists of all cases reaching 16 years of age. The Department then issues the relevant application forms by post to all those listed. It was not possible to confirm that forms had issued to the appellant as the Department does not retain the lists beyond 5 years. The deciding officer undertook to enquire from the HSE as to whether it would still have a record of the appellant having been included on a list sent to the Department.

When asked by the Appeals Officer, the appellant’s mother said that she had not made any enquiries as to her daughter’s further entitlements when the payment of domiciliary care allowance ceased as she had assumed that the allowance was only payable up to a certain age and, in any event, she was not familiar with the social welfare system. The appellant said she was a college student and generally did not work while at college as she had no energy to do so. She said she became aware of disability allowance when she was on a work experience programme. She had been absent from work due to illness on a number of occasions and enquired at her local social welfare office as to her entitlements. She was advised to claim disability allowance which she subsequently did.

The appellant’s solicitor argued that there had been an onus on the Department to invite the appellant to claim disability allowance given that the procedure in place provided that she should have been automatically invited to do so. It was pointed out to the solicitor that the automatic invitation to claim could be construed as part of the customer service provided by the Department in relation to people moving between schemes and nothing more than that. However, the solicitor felt that the procedures in place went beyond customer service.

The appellant’s solicitor then proceeded to address the four criteria, as provided for in the relevant regulations, under which the back-dating of a claim beyond six months can be allowed. Two of those were not being argued i.e. the delay in claiming being due to the claimant being so incapacitated as to be unable to make a claim and being in financial difficulties. However, the solicitor contended that the delay in claiming being due to wrong information having been given by an officer of the Minister was relevant as the lack of information given to the appellant could be equated to wrong information. It was further contended by the solicitor that the “force majeure” criteria (i.e. something which physically prevents a person from making a claim) was relevant on the grounds that the system failure whereby the appellant was not notified about claiming disability allowance effectively prevented her from making a claim at the proper time.

Following further questioning about the issue of back dating the appellant’s claim for 6 months at the time of claim, the deciding officer agreed that there was no reason why it could not be back dated for 6 months.

Consideration of the Appeals Officer:

The deciding officer subsequently reported to the Appeals Officer that following contact with the HSE, as agreed at oral hearing, it had been established that the HSE had no records on file relating to the appellant. The Appeals Officer made further enquiries of the HSE and was informed that it was its practice to write to people several months in advance of their entitlement to domiciliary care allowance ceasing letting them know about the disability allowance scheme and the conditions for its receipt. The Appeals Officer then wrote to the appellant’s solicitor asking if the appellant or her mother had any recollection of having received such a communication from the HSE. The solicitor responded that no such communication had been received. In the light of the evidence adduced on that point and notwithstanding that the appellant has no recollection of having been notified by the HSE and that the HSE has no record of having notified the appellant, the Appeals officer was satisfied that in the normal course procedures were in place to notify persons in such circumstances. He was of the view that, although the Department’s information literature states that domiciliary care allowance recipients will automatically be invited to claim disability allowance on reaching 16 years of age, there was in effect no automatic entitlement to disability allowance for such recipients because it was a different scheme with its own conditions to be satisfied. He felt it was good customer service on the part of the Department to seek to preserve continuity of payment in circumstances such as this.

The Appeals Officer then considered the arguments put forward for back-dating the claim beyond six months. In relation to the wrong information criteria, he did not accept that giving no information equates to giving wrong information. Providing wrong information could result in a person never claiming an entitlement. In addition, the Department makes use of a variety of methods to disseminate information on entitlements to members of the public, such as information booklet leaflets, availability of information officers, advertising campaigns, website, etc. He felt that the appellant had the same access to general information about disability allowance as was available to any other person over 16 years of age. As regards the “force majeure” provision, he was of the view that the solicitor’s contention was stretching that provision too far. While it was clear that the appellant had not been invited to make a claim, she had not been prevented from doing so in that it was open to her at the time to make a claim in the same way as anyone else over the age of 16 years who felt they had a possible entitlement to disability allowance.

Having considered all the evidence, including that adduced at and subsequent to the oral hearing, the Appeals Officer decided that the appellant did not meet the criteria, as provided for in legislation, for back dating her claim beyond 6 months.

Outcome:

Appeal disallowed in relation to back-dating beyond 6 months but allowed in relation to back-dating for 6 months which was subject to a means assessment for that period.

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