DAO Bulletin Issue No 6 Issued March 2000

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Case No.

  1. Divorced Person's entitlement to Widow's Contributory Pension
  2. No UA for Inmate of Institution
  3. CDI for Student Nurse
  4. No entitlement to IQA where spouse is in receipt of Blind Pension
  5. Assessment of UA claimant's earnings from Sunday employment
  6. Substantial Loss Rule after Community Employment
  7. Foster Child not to be assessed with Board and Lodging
  8. Student Credits for UB Claimant
  9. Sharefisherman's entitlement to UB
  10. Search for work by UA/UB claimants to be widened in time.
  11. Family Farms and Farm Assist
  12. Farm loss cannot be offset against income from self-employment in assessing Carer's Means
  13. Part-time Summer work and Substantial Loss Rule
  14. Repeat Leaving Cert student and CDI
  15. No assessment of Rent from house bought with Hepatitis C award.

Case No 88: Divorced Person's entitlement to Widow's Contributory Pension

Q. Mr and Mrs O'H were divorced in 1998. Mr O'H died in June 1999. Mrs O'H has now claimed Unemployment Benefit, having worked in Ireland for the last 8 years. She assumed she was not entitled to claim a Widow's Pension, having been divorced. What rate of UB should she receive?

A. The legislation defines a 'spouse' for the purpose of Widow's and Widower's Contributory Pension as the person's 'last spouse' and this is to be construed "as including a party to a marriage that has been dissolved, being a dissolution that is recognised as valid in the State-. [Section 28 of the Social Welfare Act, 1996]

Mrs O'H is accordingly entitled to WCP provided that:

  1. the divorce is recognised as legally valid in the State and
  2. she has not re-married and is not cohabiting and
  3. she satisfies the contribution conditions.

She should be advised to contact WCP Section in regard to her claim, and comment on her reason for not making the claim at the appropriate time.

UB will be payable at half-rate when the WCP claim is awarded. If there is any delay in processing that claim, UB could be paid at full rate in the meantime, and the excess recouped from the arrears of WCP in due course.

Case No 89: No UA for Inmate of Institution

Q. Mr McQ is disabled and is wheel-chair bound. He is residing in a Cheshire Home where his meals are provided free. He also gets pocket money for his own personal needs. He is not paying anything towards the cost of his accommodation but would be expected to make a contribution if he received income - he has been self-employed as a disabled artist.

He has recently made a claim for Unemployment Assistance on the basis that he is available for and genuinely seeking work. We have established that the Cheshire Home where Mr McQ is staying is funded by the regional Health Board. Is there anything in the UA legislation which would preclude payments of UA in this case?

A. The legislation governing the UA Scheme includes a provision that a claimant shall be disqualified for receiving UA while he or she 'is an inmate of an institution maintained wholly or partly out of public moneys or by a local authority'. [Section 125(1)(a)].

The term 'inmate' is not defined in social welfare legislation but its usual meaning is a person confined in an institution. The term 'institution' is not defined in the UA legislation; it is, however, defined for Disability Allowance purposes as follows: 'institution' means a hospital, convalescent home or home for people suffering from physical or mental disability.......... and any other similar establishment providing residence, maintenance or care where the cost of a person's maintenance therein is being met in whole or in part by or on behalf of a health board'. [Section 191A].

It seems to us to be reasonable for Deciding Officers to apply this definition of 'institution' when considering whether a person is an inmate of an institution for the purposes of the UA disqualification.

The Cheshire Home Foundation provides residential accommodation and sheltered housing to people with physical disabilities in Cheshire Homes and projects which exist throughout the country. As the Cheshire Home in which Mr McQ is staying is funded by the Health Board, it is our view that it is an 'institution' within the meaning of the legislation and that Mr McQ is an inmate. We would accordingly consider disqualification appropriate in this case.

Case No 90: CDI for Student Nurse

Q. Mr U made a claim recently for One-Parent Family Payment in respect of himself and his daughter, Karen. She is aged 20, is a student nurse getting a student grant and works part-time at a local hospital. Is a Child Dependant increase (CDI) payable to Mr U for her?

A. CDI is payable to One-Parent Family Payment ( see note below) claimants in respect of a child up to age 22 who is attending a full-time, second or third level, education course by day in a recognised educational establishment. As student nurses now receive their training in third level colleges recognised for this purpose, they satisfy this condition. So, CDI is payable to Mr U in respect of Karen until the end of the academic year in which she reaches age 22, or until she ceases to be a student. The fact that she is getting a grant or engages in part-time work while a student does not affect her status as a "qualified child".

See 'Dependants Guidelines' for other long-term schemes to which this provision also applies.

Case No 91: No entitlement to IQA where spouse is in receipt of Blind Pension

Q. Mr G has recently claimed Disability Benefit. His wife is in receipt of a Social Welfare Blind Pension. Is he entitled to an Increase for Qualified Adult (IQA) for her?

A. No. An IQA is not payable to a claimant under any social welfare scheme for a spouse who is in receipt of Blind Pension. This is because the definition of a qualified adult excludes a spouse who is entitled to or in receipt of any social welfare benefit, pension, assistance or allowance with the exception of Child Benefit, Continued Payment for Qualified Children, Family Income Supplement and Supplementary Welfare Allowance [Section 2(2)1, or OIB Death Benefit, Disablement Benefit, Orphan's Contributory Allowance or Orphan's Non-contributory Pension [Article 6(b)]. Mr G is accordingly not entitled to an IQA for his wife.

Note the difference:
where a Blind Pensioner claims another social welfare payment in his or her own right. Blind Pensioners who have not attained pensionable age are entitled under the legislation to also be paid any other social welfare benefit for which they are qualified except for the following: Carer's Allowance, Disability Allowance, Farm Assist, Invalidity Pension, Old Age (Contributory) Pension, Old Age (non-contributory) Pension, Pre-Retirement Allowance, Retirement Pension and Unemployment Assistance. [Article 128 of S.I. 4171941.] This means, for instance, that a person can be paid Blind Pension and UB, DB, OIB or any other benefit not listed above.

Case No. 92: Assessment of UA claimant's earnings from Sunday employment

Q. Mr D has been on UA at a maximum long-term rate of £73.50 a week. He has recently started to work every Saturday and Sunday, being paid £50 net for Saturday and £70 net for the Sunday. PRSI contribution at Class A is paid by the employer. As Sunday is not counted as part of the UA week, is it correct to disregard Sunday earnings when assessing means?

A. No. Sunday earnings are reckonable when calculating the weekly and the daily means. In Mr D's case these would be calculated as follows:

Weekly means = net earnings received for working on Saturday (£50) and Sunday (£70) minus allowance of £10 for those 2 days = £100, multiplied by 60% = £60.

Daily Means = net earnings received for Saturday (£50) and Sunday (£70) = £120, divided by number of days worked (2) = £60, minus £10 daily allowance = £50, multiplied by 60% = £30.

As Sunday is not counted as part of a UA payment week, the weekly rate of UA payable to Mr D will be the maximum weekly rate payable in his case minus means in respect of the Saturday only i.e. £73.50 less £30.00 = £43.50.

All persons in receipt of UA must satisfy a means test i.e. the weekly means must be less than the appropriate maximum rate of UA payable. So if Mr D's average weekly means were higher than £73.50 he would not be entitled to UA and his claim would be disallowed on the grounds that he: "Does not satisfy the condition as to means" (Section 120(1)(c) applies).

Case No 93: Substantial Loss Rule after Community Employment

Q. Ms A has been working 5 days a week on a Community Employment Scheme for the past three years. The Community Employment has now finished and she has made a claim for Unemployment Benefit. Does the loss of her Community Employment constitute a 'substantial loss' for the purposes of her UB claim? What is Ms A's "normal level of employment"?

A. Since Community Employment became insurable at Class A Rate of PRSI, employment on a CE Scheme is to be treated the same as any other employment in determining a UB claimant's normal level of employment for the purposes of the substantial loss rule. It follows that in this case Ms A has sustained a substantial loss. Ms A's normal level of employment is therefore set at "5" at the beginning of this UB claim and will continue for its duration.

Case No 94: Foster Child not to be assessed with means from Board and Lodging

Q. Ms H, aged 19 years, claimed UA recently. She is living at home with her foster parents, both of whom are in employment. Should means from their income be assessed in respect of the value to her of Board and Lodging?

A. No. Means derived from Board and Lodging should only be assessed where the claimant is living in the home of his / her natural parents or adoptive parents.

Case No 95: Student Credits for UB Claimant

Q. Ms P claimed Unemployment Benefit recently following the closure of the company for which she had been working since 1 January 1998. She is aged 23 and had previously been at university for 4 years. She had worked part-time while at college and first entered insurance in 1996. Although she satisfies the first contribution condition (39 paid contributions), she has only 13 contributions in the GCY (1 997198). Could she be awarded Student Credits and, if so, would they qualify her for UB?

A. Student Credits maybe awarded to a person who has completed a course of full-time education by day, who had entered insurable employment during or before that course and who subsequently re-entered insurable employment as an employed contributor for which PRSI contributions at either Class A, E or H are payable. They are only awarded where the course of education commenced before the person reached age 23.

Student Credits are awarded on request from the beginning of the contribution year of re-entry into insurable employment up to the date of re-entry and for the two previous contribution years. Student Credits are reckonable for short-term benefits only i.e. Unemployment Benefit, Disability Benefit, Treatment Benefit.

In this case, if the position as described above is confirmed, Ms P will be entitled to Student Credits for the contribution years 1995/1996 and 1996/97 and for the periods 6/4/97 to 31/12197. The award of (about 39) credits for 1997/98 GCY will mean that she will satisfy the second contribution condition for the purpose of her UB claim.

She will need to submit

  1. a statement from the college showing that the course was full-time and the date of commencement and cessation of the course and
  2. a statement from her employer verifying the date of her re-entry into full-time insurable employment.

Case No 96: Sharefisherman's entitlement to UB

Q. Mr K is a fisherman working on board a fishing vessel and paid by a share of the value of the catch. What is the correct PRSI Class payable in his case? If he became unemployed, would he be entitled to Unemployment Benefit?

A. Whether Mr K would be entitled to UB depends on the class of PRSI payable in his case, which in turn depends on whether he is employed as an employee (Class A) or is self employed (Class S). The insurability of share fishermen is determined by reference to the terms and conditions of employment in each case. The aim is to establish whether the employment is under a contract of service (employee) or contract for services (self-employed).

Contract of Service:
A sharefisherman is considered to be employed as an employee if he:

  • works under the control of another person who directs (or has the right to direct) him as to how, when, what, and where the work is performed
  • is an integral part of the skipper/boatowner's business as a crew member
  • cannot send a substitute without prior consent of the boat owner supplies his labour only
  • does not make an investment in the vessel
  • is not expected to contribute to any losses which may be incurred
  • does not provide his own public liability cover
  • cannot engage or dismiss another crew member.

If these conditions apply, PRSI at Class A is payable.

Contract for services:
The question to be determined is whether or not the fisherman is in partnership with the skipper/boatowner.

The main factors indicating a partnership are

  • each partner contributes capital or services to the business
  • each partner has the right to make management decisions
  • the profits are paid and losses made good in accordance with their agreed share
  • the person is not under the control of the skipper

If these conditions apply, PRSI at Class S is payable.

Mr K's UB Entitlement:
If he was employed under a contract of service and the requisite number of Class A contributions were paid in respect of that employment, Mr K would be entitled to UB if unemployed.

Class P Contributions:
If Mr K was employed under a contract for services and had contributed under the 'Optional Social Insurance Scheme for People engaged in Share Fishing' and was a fully paid up contributor under this scheme than he would be entitled to UB for up to 78 days in each calender year. Any doubts or queries on the insurance status of sharefishermen should be sent to Scope Section for further investigation.

Case No 97: Search for work by UA/UB claimants to be widened in time.

This case was commented upon by the Chief Appeals Officer in his Annual Report for 1998 and highlights the need for an unemployed person to conduct a genuine and realistic search for work.

CAO's comments:
"if after a time, it is evident that employment is not obtainable in a claimant's preferred occupation, the person is expected to turn their attention to and look for other employment which might be suitable. Where it becomes clear that there is no reasonable prospect of obtaining the desired employment and a person, nevertheless, is not prepared to widen their search and look for suitable alternative employment, then the genuinely seeking employment condition is not satisfied. [Persisting in confining the search for employment to unrealistic ambitions is little different to the position of a person who is not looking for employment at all.]"

Ms G, aged 33, returned to live in Dublin after 10 years abroad as an au pair. She completed a FÁS approved course on acting and then claimed Unemployment Assistance. She told the local office that she had made efforts to get work as a receptionist, as a sales assistant and as a tourist guide; she also said she would be prepared to take other types of unspecified work. Some 7 weeks after the claim was in payment, Ms G was interviewed by the Deciding Officer about her search for work and was asked whether she had sought the assistance of FÁS for information about available jobs. She said that she was not prepared to make use of the service of FÁS because she considered that, if needs be, she would go to private employment agencies.

Deciding Officer's Decision:
In the light of this response and having regard to the widespread demand in the city for sales assistants and to the openings for receptionists, the Deciding Officer disallowed further payment of UA, on the grounds that she was not genuinely seeking work.

In her written appeal submission Ms G contended that the ground for disallowing her claim was untenable as she had informed the Deciding Officer of her efforts to get work. At the appeal hearing she gave particulars of contacts she had had with different enterprises which engaged acting and theatrical staff. She also told of some contacts she had made with stores about employment as a sales assistant.

Appeals Officer's Decision:
Commenting on the evidence the Appeals Officer noted the various efforts by Ms G to find employment in acting. He considered, however, that in regard to seeking or accepting main stream jobs for which she was qualified, until such time as employment in acting transpired, the evidence was not persuasive. He did not consider that she was applying her mind to securing work in the range of employments for which she was qualified but was instead concentrating on a particular and narrow field of employment in which there was a very limited number of opportunities. He accordingly disallowed the appeal.

Case No 98: Family Farms and Farm Assist

Q. Mr F owns a farm of land but is no longer actively involved in running the farm because of poor health. The farm is being run jointly by his wife, Mrs F, and their eldest son, Tom. Which of them may claim Farm Assist?

A. Both Mrs F and Tom may claim Farm Assist. Mr F is not entitled to claim if he has no part in the running of the farm.

With regard to Mrs F and Tom, entitlement to Farm Assist is not dependent on ownership of the farm. For Farm Assist purposes a farmer is defined as a person who is farming farmland including commonage, which -

  1. is owned, and used for the purposes of husbandry,
  2. is leased, and used for the purposes of husbandry, or
  3. does not form part of a larger holding and is used for the purposes of husbandry.

For the purposes of the Act, a person may qualify as a farmer under (a) or (b) or (c) above.

Where a son/daughter is working on a family farm and sharing in the profits of the farm with parent's, s/he may also claim Farm Assist. However, if s/he is working the farm in return for a wage instead of sharing the profits, s/he is not considered to be a farmer as defined in the Act, and does not qualify for Farm Assist.

Where a married couple are both involved in running the farm, both may apply for Farm Assist. A limitation applies to the rate payable, so that the combined payments do not exceed the married rate.

Case No 99: Farm loss cannot be offset against income from self-employment in assessing Carer's Means

Q. Mrs C has applied for Carer's Allowance in respect of her mother. Her husband is in self-employment from which he derived a net profit of £8,000 in the last year. He also has a farm which lost about £5,000 in the same period. Can the loss from farming be set off against the income from self-employment by subtracting one from the other, i.e. should her means be assessed on the basis of her husband having an income of £3,000?

A. The rules for the assessment of means for Carer's Allowance purposes are set out in Part 11 of the Third Schedule to the Social Welfare (Consolidation) Act, 1993. Income from farming is assessed under Rule 1 (5) and income from self-employment is assessed under Rule 1 (4). There is no provision for a negative value from the former to be offset against income from the latter. So, for the purpose of assessing Mrs C's means, her husband's income should be taken as £8,000.

This position is applicable to all other social welfare schemes with the exception of Farm Assist. Farm Assist provides for the aggregation of income from all forms of self-employment in respect of the farmer and his/her spouse/partner, less total expenses, before the disregards for children and 80% rule are applied. (in effect, for Farm Assist a loss in one form of self-employment can be off-set against a profit in another).

Case No 100: Part-time Summer work and Substantial Loss Rule

Q. Ms I works 3 days a week every year from June to end September (only). She signs for UB for the other 3 days. The days of the week follow a fixed pattern, i.e. she is not a casual worker. For the rest of the year she is fully unemployed and signs for UB for 6 days each week. Her UB expired during the summer and she made a new claim (having the necessary 13 requalifying contributions). However, this claim was disallowed because the Deciding Officer held that Ms I had not sustained a substantial loss of employment - on the basis that her normal level of employment over the previous 52 weeks was two days a week. Will she be entitled to UB in October when her summer work terminates?

A. Yes. When she is again fully unemployed, Ms 1 will satisfy the Substantial Loss rule and will be entitled to UB from that point, provided she satisfies the other statutory conditions (e.g. capable of, available for and genuinely seeking work).

Case No 101: Repeat Leaving Cert student and CDI

Q. Ms V was disqualified for Unemployment Assistance for 3 months following the Leaving Certificate examination in June 1999. Her father was paid Child Dependant Increase (CDI) for her on his Disability Benefit claim. Ms V has decided to resit the Leaving Certificate exam in June 2000. Should she be disqualified again for UA purposes for a further 3 months following the resit, and if so will her father be allowed to claim CDI for her again?

A. Yes. The disqualification should be imposed a second time, if Ms V should again claim UA. Her father's entitlement to CDI would therefore exist for this second period also. [Section 2(3)(a) and Section 126(3)(a) apply.]

Case No 102: No assessment of Rent from house bought with Hepatitis C award

Q. Ms O is in receipt of One Parent Family Payment. Last year she was awarded £100,000 compensation by the Hepatitis C Tribunal with which she bought a small house that she has let. I understand that compensation awarded in Hepatitis C cases is not assessable for means purposes. But if, as in this case, the money is used to buy property which is let, can the rental income be assessed?

A. No, any rental income received by Ms O from the property in question should not be assessed against her. The relevant legislation provides that 'the yearly value of all income derived from compensation awarded by the Compensation Tribunal ... to compensate certain persons who have contracted Hepatitis C....' is not assessable. [Articles 90A and 90B of SI 417/94 (inserted by SI 297/96 and 374/96)]. The same provision applies to compensation for Thalidomide disabilities. This includes all such compensation, together with subsequent income from the investment of that money.

Last modified:17/08/2010

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