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FLAC challenges welfare halted over trip abroad
FLAC solicitor Erin Brogan

11 Mar 2021 / justice Print

FLAC challenges welfare freeze over trip abroad

FLAC has pursued a social welfare case on the right of claimants to seek a written decision from a deciding officer where they have been deemed to be temporarily disqualified.

The case highlights issues about decisions regarding entitlement to social welfare and hinged on a claimant’s decision to visit family abroad last summer, in a country not on the COVID-19 green list.

Criteria for receiving welfare

The claimant was advised that her claim would not be payable during the fortnight following her return on the basis that she would not satisfy the “availability for work” criteria during that period.

In August 2020, FLAC lodged an appeal to the Social Welfare Appeals Office on her behalf.

FLAC wrote to the client’s local Intreo office and sought a copy of any decisions made. The office said the suspension of the claim was not a formal decision and therefore not subject to appeal. 

Documents released under FOI showed that the client’s claim was not subject to an investigation by the department, and that the suspension on an administrative basis was being treated as a final decision. 

The Social Welfare Appeals Office stated that it could not accept an appeal in relation to an action  that was “administrative in nature”.

It also stated that a formal letter of decision from a Deciding Officer was necessary to lodge an appeal.

The law

FLAC has said that the department’s approach to the matter conflated the power of Deciding Officers to make a formal decision to disqualify a claim, and the power of Executive Officers to suspend a claim pending the completion of an investigation (where a formal decision of a Deciding Officer follows the investigation). 

A disqualification can only be put in place by way of a formal, appealable decision under section 300 of the Social Welfare Consolidation Act 2005.

FLAC says that the department had formed a view of its client that she was not entitled to her payment during the period concerned.

However, instead of taking a formal decision to disqualify her claim during that period (and issuing a letter of decision which is required for an appeal to be lodged), the department had mistakenly treated the cessation of her payment as a suspension.

Outcome

FLAC says that, as well as being contrary to the legislative regime, the process followed had infringed upon its client’s right to fair procedures and her right to pursue an appeal.

The matter was subsequently referred to a Deciding Officer, who issued a revised decision on the holiday period and the two weeks following.

FLAC subsequently lodged an appeal of that decision to the Social Welfare Appeals Office, which is currently pending.

FLAC says the case illustrates the important right of claimants to seek a written decision from a Deciding Officer where they have been deemed to be disqualified from receipt of a social welfare payment, even in circumstances where the cessation of their claim is temporary.

Review

It is then available to them to lodge an appeal in respect of the decision to disqualify them, and/or to seek an internal review of the decision, FLAC has said. 

Meanwhile, solicitor Erin Brogan has joined FLAC as an information telephone line co-ordinator.

Brogan qualified as a solicitor in 2008 and has worked for  a number of years in private practice, specialising in family, immigration, litigation, employment and property/probate law.

The line offers first-stop legal information to callers on a variety of legal issues.

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