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Internal Guidelines used in processing claims Contents Part 1: Entitlement Description of Scheme Legislation Administration Definitions Orphan Guardian Abandonment and failure to provide Qualifying conditions EU and Bilateral Agreement payments Extra Allowances or Benefits Multiple Payments Disqualifications Payments under the Child Care Act Imprisonment Part 2: Claims, Investigation and Decision Procedures Claims Documentation Late Claims Claims received on or after 6 April 2012 Claims received between 1 January 1997 and 5 April 2012 Claims received before 1 January 1997 Examination of Claim Decisions Revised Decisions Appeals Part 3: Procedures following Award Payment day Payment methods Duration of payment Child over 18 Lost or stolen cheques or EIT cards Payment to an agent Change of address or change of payment arrangements Absence from the State Certification of ongoing entitlement Review Suspension, revocation, reduction of payment Appendix 1 – Legislation Social Welfare Consolidation Act 2005, as amended Section 2 Section 130 Section 131 Section 132 Section 133 Section 247(2) Social Welfare (Consolidated Claims, Payments and Control) Regulations, 2007, as amended Article 222 Appendix 2 – Countries subject to EU Regulations Appendix 3 – Bilateral Agreements – Relevant Legislation Appendix 4 – Date of claim under Bilateral Agreements Part 1: Entitlement Description of Scheme Guardian's Payment (Contributory) is a social insurance based payment made in respect of a child who satisfies the definition of "orphan" under Irish social welfare law. For the purpose of this document, any reference to 'payment' means a Guardian's Payment (Contributory), unless otherwise stated. In general, this payment is made to the person who cares for the child. Receipt of this payment does not prevent a person from receiving any other social welfare payment they may be entitled to, but they cannot be paid an increase for qualified child on any social welfare payment in respect of the orphan. See "Multiple Payments" and "Disqualifications" below for more information. This payment was introduced on 1 January 1936 and was called Orphan's Contributory Allowance until July 2006, when it was given its current title, in recognition of the fact that the original remit of the scheme had been extended to include certain children who had not lost both parents through bereavement. Legislation The legislative provisions relating to Guardian's Payment (Contributory) are contained in Chapter 19 of Part 2 of the Social Welfare (Consolidation) Act, 2005 as amended, and in Article 222 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations, 2007, (Statutory Instrument 142 of 2007), as amended. Appendix 1 lists the main legislative provisions, where relevant, in more detail. The principal EU legislation governing social security for migrant workers is Regulation (EC) 883/04. Guardian's Payment (Contributory) is classified as a survivor's benefit under EU Regulations; Article 52 of Regulation (EC) 883/04 therefore applies where entitlement falls to be calculated under EU Regulations. This Regulation is accompanied by implementing Regulation (EC) 987/09, which covers the practical implementation of Regulation (EC) 883/04. The legislation governing Ireland's Bilateral Agreements is listed in Appendix 2. Administration Guardian's Payment (Contributory) is administered by Social Welfare Services, College Road, Sligo. Definitions Orphan For the purpose of this payment, social welfare law defines an "orphan" as "a qualified child – "both of whose parents are dead, or one of whose parents is dead or unknown or has abandoned and failed to provide for the child, as the case may be, and whose other parent – is unknown, or has abandoned and failed to provide for the child, where that child is not residing with a parent, adoptive parent or step-parent" (see note 1). In deciding whether a child can be considered an "orphan" for the purpose of this payment, the Deciding Officer in the case must, in cases where the child has one or more parent still living, be satisfied that the child has been abandoned and that their parent or parents have "failed to provide" for them. Guardian For the purpose of this payment, social welfare law defines a "guardian" as "the person in whose care an orphan normally resides" (see note 2) . Abandonment and failure to provide There is no legal definition of "abandonment" or "failure to provide". In cases where the child has one or more parent still living, the Deciding Officer examines the circumstances which led to the child being looked after by someone other than their parent, assesses the relationship between the child and the parent(s) and arrives at a decision as to whether the child is an "orphan" for the purpose of the payment. Deciding Officers are responsible for deciding on entitlement to social welfare payments. They are appointed by the Minister for Employment Affairs and Social Protection and are independent in the exercise of their role. In arriving at their decision, Deciding Officers are bound by the legal provisions in the Social Welfare Acts and Regulations, and are expected to be familiar with the relevant operational guidelines, for example, "Decision Making and Natural Justice". Deciding Officers must apply the relevant social welfare legislation to the facts of each case, which are established by considering the evidence provided. When determining whether a child has been abandoned, a Deciding Officer will consider the following: - Likely duration of the existing circumstances - Level of contact between the parent and the child - Level of parent's involvement in the welfare of the child - Willingness of the parent to have the child live with them - Evidence of conflict between the parent and the child - Parent's view of their relationship with the child - Whether the parent has the care of other children This list is not exhaustive and, due to the complex and sensitive circumstances often involved in such cases, the Deciding Officer may request and consider such other evidence as they see fit, before arriving at a decision on a case. A parent is considered to have failed to provide for their child where they do not provide financial support for or towards the care of the child. Abandonment and failure to provide includes the failure of a parent's duty to provide for the emotional and physical necessities of life required by the orphan (see note 3). Qualifying conditions Guardian's Payment Contributory is payable in respect of an orphan, where either a parent or step-parent of the orphan has paid at least 26 qualifying social insurance contributions. PRSI contribution classes A, B, C, D, E, F, G, H, P, N and S are reckonable for this payment, as are voluntary contributions at the high, low and special rate. EU and Bilateral Agreement payments Where the Irish social insurance record of a parent or step-parent is not sufficient to establish entitlement to Guardian's Payment (Contributory), i.e. where there are less than 26 Irish social insurance contributions, the Irish social insurance record may be combined with reckonable social insurance contributions in another country subject to EU Regulations. The countries subject to EU Regulations are listed in Appendix 2. The countries with which Ireland has a Bilateral Agreement are: - Australia - Austria - Canada - Japan - Korea - New Zealand - Switzerland - United Kingdom (including the Isle of Man and the Channel Islands) - United States of America Appendix 3 lists the legislation governing these Bilateral Agreements, which determine how the weekly rate is calculated. Ireland also has a Social Security Understanding with Québec which came into effect on 1 October 1994. Extra Allowances or Benefits Receipt of Guardian's Payment (Contributory) in respect of an orphan does not disqualify a guardian (as defined above) from receiving any other social welfare payment to which they may be entitled. Multiple Payments Receipt of Guardian's Payment (Contributory) in respect of an orphan does not disqualify a guardian (as defined above) from receiving any other social welfare payment to which they may be entitled. An Increase for a Qualified Child (IQC) is not payable on any social welfare payment, in respect of an orphan for whom Guardian's Payment (Contributory) is in payment (see note 4). An orphan may receive any of the following payments in their own right, without affecting the continuing payment of Guardian's Payment (Contributory) to their guardian: - adoptive benefit - child benefit - death benefit by way of widow's pension, widower's pension or surviving civil partner's pension - deserted wife's benefit - domiciliary care allowance - family income supplement - health and safety benefit - illness benefit - incapacity supplement - injury benefit - jobseeker's benefit - maternity benefit - one-parent family payment - respite care grant - supplementary welfare allowance - widowed or surviving civil partner grant - widow's, widower's or surviving civil partner's (contributory) pension - widow's, widower's or surviving civil partner's (non-contributory) pension If an orphan becomes entitled to any social welfare payment not included in the list immediately above, there is no further entitlement to Guardian's Payment (Contributory) in respect of that orphan. Disqualifications Payments under the Child Care Act Guardian's Payment (Contributory) is not payable in respect of a child for whom a payment is being made under Part VI of the Child Care Acts, 1991 to 2011. This includes children in respect of whom a Foster Care Allowance or Aftercare Payment is being made. Imprisonment Guardian's Payment (Contributory) is not payable while an orphan is undergoing penal servitude, imprisonment or detention in legal custody. In the event that a guardian is undergoing penal servitude, imprisonment or detention in legal custody, they can no longer be considered to be the person in whose care the orphan normally resides. Therefore, a new application for payment must be made by the person in whose care the orphan subsequently resides. Note 1: Section 2 of the Social Welfare Consolidation Act 2005, as amended Note 2: Section 133(2) of the Social Welfare Consolidation Act 2005, as amended Note 3: See pages 53-55 of the Social Welfare Appeals Office Annual Report 2015 Note 4: See Section 247(2) of the Social Welfare Consolidation Act 2005, as amended and Appendix 1 of this Guideline Part 2: Claims, Investigation and Decision Procedures Claims A person must apply to the Department for Guardian's Payment (Contributory). The GP1 application form is available: - for download from the Department's website www.welfare.ie - by telephone on (071) 915 7100 or LoCall 1890 66 22 44 - at Post Offices, Citizens Information Centres, Intreo Centres and Social Welfare Local and Branch Offices The guardian should complete the form in full and sign it. Where the guardian is not able to sign the form, they can make their mark instead, but this must be witnessed. The completed form, along with all necessary supporting documents, should be sent to: Guardian's Payments Social Welfare Services Department of Employment Affairs and Social Protection College Road Sligo It is an offence for a person to knowingly make a false or misleading statement or to provide documents or information which they know to be false in some respect for the purpose of obtaining or establishing entitlement to payment. A person found guilty of such an offence could be liable to a substantial fine or term of imprisonment of up to 12 months or both. Any overpayment would also be repayable to the Department. A person may, depending on their financial circumstances, apply for Supplementary Welfare Allowance while awaiting a decision on their application for Guardian's Payment (Contributory). Documentation Evidence of births and deaths which occurred in the State is available to the Department and documentary evidence of these events is not required. In all other cases, when requested to do so by a Deciding Officer, a person applying for this payment must provide evidence such as birth and death certificates, if available and any other documents requested, to the Deciding Officer. Late Claims A claim for Guardian's Payment (Contributory) should be made within three months of date of entitlement, that is, the date the applicant became the person in whose care the child resides. A failure to claim on time may result in loss of payment (see note 5). A person is disqualified from receiving payment for any period more than 6 months before the date on which the claim is made. Claims received on or after 6 April 2012 Where a claim is received on or after 6 April 2012, payment can be backdated up to 6 months from the date of receipt. Payment can be backdated further only where it is shown to the satisfaction of a Deciding Officer that the delay in claiming the payment was due to - false or misleading information provided by the Department or - the person having been incapacitated by illness or infirmity. Claims received between 1 January 1997 and 5 April 2012 Where a claim was received between 1 January 1997 and 5 April 2012, payment can be backdated up to 12 months from the date of receipt. If the claim was made more than 12 months late, payment is backdated to the first 12 months and proportionately for the remainder of the delay period. Payment can be backdated further only where it is shown to the satisfaction of a Deciding Officer that the delay in claiming the payment was due to - false or misleading information provided by the Department or - the person having been incapacitated by illness or infirmity or - the person having suffered an event which was a 'force majeure' Payment may also be backdated further in cases where the person had a level of financial indebtedness which they could not reasonably finance. Claims received before 1 January 1997 Extra statutory provisions allowed for backdating of late claims received before 1 January 1997. Where a late claim was received, payment can be backdated up to 6 months from the date of receipt. If the claim was made more than 6 months late, payment is backdated to the first 6 months and proportionately for the remainder of the delay period. Payment can be backdated further where it is shown to the satisfaction of a Deciding Officer that the delay in claiming the payment was due to - false or misleading information provided by the Department or - the person having been incapacitated by illness or infirmity or - the person having suffered an event which was a 'force majeure' Payment may also be backdated further in cases where the person had a level of financial indebtedness which they could not reasonably finance. Examination of Claim When arriving at a decision, the Deciding Officer will consider the available evidence, establish the facts of the case and apply the relevant social welfare legislation to the established facts. See "Decision Making and Natural Justice" for more information. Decisions Deciding Officers are responsible for deciding on entitlement to social welfare payments. They are appointed by the Minister for Employment Affairs and Social Protection and are independent in the exercise of their role. In arriving at their decision, Deciding Officers are bound by the legal provisions in the Social Welfare Acts and Regulations, and are expected to be familiar with the relevant operational guidelines, for example, "Decision Making and Natural Justice". When a Deciding Officer has made a decision on entitlement to payment, they send a letter to the person, notifying them of the outcome of their claim. If the claim has been awarded, the letter lists the range of circumstances which could affect continuing entitlement to the payment and asks them to advise the Department of any changes in these circumstances. Any certificates or documents which have been submitted in support of the claim are returned with the letter, if not already returned earlier. If the claim has been disallowed, the letter explains the basis for the decision and also advises the person of their right to appeal against the Deciding Officer's decision. The appeal must be lodged within 21 days of the date of the notification letter. See 'Appeals' below. Revised Decisions Any decision of a Deciding Officer may be revised by a Deciding Officer if new information or evidence comes to light or if the original Deciding Officer made a mistake in relation to the law or facts of the case. A person has the right of appeal against a revised decision. See "Decision Making and Natural Justice " and "Revised Decisions and Their Date of Effect " for more information. Appeals If a person is not satisfied with the decision of a Deciding Officer they can appeal directly to the Social Welfare Appeals Office, by writing to that Office within 21 days, outlining the grounds of their appeal. See "Social Welfare Appeals Office – An Introduction", "Social Welfare Appeals Office – Appeal Hearings" for more information. Social Welfare Appeals Office D'Olier House D'Olier Street Dublin 2 www.socialwelfareappeals.ie Note 5: See Section 241 of the Social Welfare Consolidation Act 2005, as amended by Section 9 of the Social Welfare Act 2011 and Articles 182 and 186 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations, 2007, (S.I. 142 of 2007), as amended by S.I. 240 of 2009. Part 3: Procedures following Award Payment day Guardian's Payment (Contributory) is paid on Friday, weekly in advance. See "Payment Related Issues" for more information. Payment methods People living in the Republic of Ireland can have their payment paid by one of the following methods: - Electronic Fund Transfer – payment is made one week in advance directly into an account in a financial institution (for example, in a Bank, Building Society or into an An Post Savings Account) - Electronic Information Transfer – payment is made weekly via a Social Services Card at a chosen Post Office Arrears of payment may be included in the normal method of payment or paid by cheque. A person may change their payment method, Post Office, financial institution or account by writing to the Department. In general, people living outside the Republic of Ireland are paid only by Electronic Fund Transfer into an account. If that account is in an institution in the Republic of Ireland, they are paid weekly, as described above. Otherwise they are paid every four weeks (one week in advance and three weeks in arrears). In certain cases, people living outside the Republic of Ireland cannot be paid by Electronic Fund Transfer. Only these people are paid by cheque. Duration of payment Guardian's Payment (Contributory) is paid while the guardian and the orphan continue to satisfy the relevant qualifying conditions. Child over 18 Before being considered an orphan, a child must first satisfy the condition of being a "qualified child" (see Definitions above). A child is regarded as a qualified child up to age 18, or, if they are in full-time education by day at any university, college, school or other educational establishment, up to the end of the academic year in which the qualified child reaches age 22. Payment of Guardian's Payment (Contributory) automatically stops when the orphan turns 18. It can only be paid past the age of 18 when the orphan remains in full-time education and the necessary documentary evidence is provided by the person receiving the payment. In such cases, Guardian's Payment (Contributory) can be paid at most up to the date the orphan ceases full-time education or age 22, whichever is the earliest. If an orphan reaches the age of 22 during the academic year, the payment is paid to the end of that academic year. The Department may, in certain cases where the orphan is aged 18 or over, suspend payment over the summer and issue a form to be completed and stamped by the educational institution concerned, affirming that the orphan remains in full-time education, before re-instating the payment from the date of suspension. Lost or stolen cheques or EIT cards Lost or stolen Department of Employment Affairs and Social Protection cheques or EIT cards should be reported to the Department immediately. The Gardaí should also be notified if a cheque or EIT card is stolen. Payment to an agent A person who is unable to collect their payment may nominate another person to collect it on their behalf. See "Payment Related Issues" for more information. Change of address or change of payment arrangements A person receiving this payment must notify the Department in writing if they change address or if they want to change the Post Office or bank account to which their payment is paid. Absence from the State Guardian's Payment (Contributory) is payable outside the Republic of Ireland. If a person receiving the payment is leaving the country for more than a few weeks, they should tell the Department the date they are leaving the country and their new address. If they are being paid by EIT, they must return their card to the Department and provide details of the bank account into which they wish the payment to be made. Certification of ongoing entitlement The Department has a duty to ensure that it pays the right person the right amount of money at the right time. There is an onus on all customers of the Department to assist with this process when requested, confirming identity and other necessary details which may affect their entitlement to payment. When a person is awarded Guardian's Payment (Contributory), they are sent a letter which includes a list of the range of circumstances which could affect their continuing entitlement to the payment and asks them to advise the Department of any changes in these circumstances. The following are some of the circumstances and events which may affect a guardian's entitlement to payment:- - An orphan no longer living with or being cared for by the guardian - An orphan reaching 18 years (or between 18 and 22) and not continuing in full-time education - Imprisonment or detention of the guardian or the orphan - The orphan becoming entitled to a social welfare payment which is not on the list in "Multiple Payments" above - The orphan becoming a foster child - The orphan being adopted - A payment being awarded under Part VI of the Child Care Act 1991 (including Aftercare Payment) in respect of the orphan - The parent of the orphan providing financial support towards the care of the child - The parent living at the same address as the orphan - The guardian or orphan leaving the State - Death of the guardian or the orphan Failure to notify the Department of any of the above events may result in overpayment of Guardian's Payment (Contributory) and any overpayment may be recovered by the Department either by way of lump sum repayment or deductions from a social welfare payment. See "Overpayment Recovery" for more information. Review The Department may carry out a review of any person's payment at any time. A review is always carried out when the Department is notified of any change in circumstances which may affect entitlement. This review may involve a visit from a Social Welfare Inspector and/or direct correspondence or phone contact with the person. Periodic reviews are also carried out by the Department to confirm that the payment is correctly in payment, and that the qualifying conditions for receipt of payment continue to be fulfilled. There is an onus on all customers of the Department to assist with the review process when asked to do so, confirming their identity and other necessary details. Suspension, revocation, reduction of payment Where, despite the efforts of a Deciding Officer, including written communication to the person, it is not possible to establish the facts of a case as a result of failure on the part of the person to provide evidence or information, payment may be suspended until the relevant evidence or information has been provided by the person or a person acting on their behalf. Payment will be stopped if the Deciding Officer decides that the person no longer satisfies the qualifying conditions for the payment. In cases where a Deciding Officer proposes to decide that a person is no longer entitled to payment and where that proposed decision is based on evidence of which the person is not aware, the Deciding Officer may write a letter to the person, outlining the reasons for their proposed decision and giving them an opportunity to respond to the letter and, if they wish, provide other evidence. This letter is called a Natural Justice Letter. The person is given 21 days in which to reply to a Natural Justice Letter. The Deciding Officer will re-examine the case if the person provides new evidence or information. If no new evidence or information is provided or if the evidence or information provided is considered by the Deciding Officer to have no material bearing on the case, the Deciding Officer will make a decision revoking the payment. The person has the right of appeal against this decision. The process outlined in the paragraphs above does not apply where the decision to reduce or revoke payment is based on information provided by the person or a person acting on their behalf. See "Decision Making and Natural Justice" and "Revised Decisions and Their Date of Effect" for more information. If an overpayment has occurred it may be recovered by the Department. See "Overpayment Recovery" for more information. Appendix 1 – Legislation This Appendix is intended as a guide only and is not a definitive list of all social welfare legislation in this area. The main legislative provisions relating to Guardian’s Payment (Contributory) are contained in Chapter 19 of Part 2 of the Social Welfare (Consolidation) Act, 2005 as amended, (Sections 130 to 133) and in Article 222 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations, 2007, (Statutory Instrument 142 of 2007), as amended. In this Appendix, any reference to “Section” means a Section of the Social Welfare (Consolidation) Act, 2005 as amended and any reference to “Article” means an Article of the Social Welfare (Consolidated Claims, Payments and Control) Regulations, 2007, as amended, unless otherwise stated. All Acts and Statutory Instruments listed in this Appendix can be viewed online at www.irishstatutebook.ie. Social Welfare Consolidation Act 2005, as amended Section 2 defines the following terms for the purpose of this payment Section 130 (1) states that guardian’s payment (contributory) shall be payable in respect of an orphan where the contribution condition in section 131 is satisfied (2) states that guardian’s payment (contributory) shall not be payable for any period during which a payment is made in respect of a child under Part VI of the Child Care Act 1991 and any regulations made thereunder (see note 6) Section 131 (1) specifies the contribution conditions for guardian’s payment (contributory); not less than 26 qualifying contributions must have been paid by either a parent or step-parent of the orphan (2) provides for regulations to modify these contribution conditions Section 132 provides that the weekly rate of payment is set out in Part 1 of Schedule 2 Section 133 (1) provides that the payment shall be paid to the guardian of the orphan (2) defines “guardian” as the person in whose care an orphan normally resides (3) provides that the Minister, where he or she thinks fit, may direct that payment of Guardian’s Payment (Contributory) be paid to some other person, other than the guardian, for the benefit of the orphan. This subsection also provides, subject to conditions and in the circumstances that may be prescribed in regulations, for the payment to be made directly to an orphan aged 18 years or more, where that orphan is not normally residing with a guardian. Section 247(2) provides that where Guardian’s Payment (Contributory) is payable in respect of a qualified child, an increase for a qualified child cannot be paid with any other social welfare payment. Social Welfare (Consolidated Claims, Payments and Control) Regulations, 2007, as amended Article 222 (1) states that, notwithstanding the provisions regarding multiple payments in the Social Welfare Consolidation Act 2005, as amended, an orphan can receive any of the payments listed in Article 222(3) without affecting the entitlement of their guardian to Guardian’s Payment (Contributory). (2) disqualifies orphans from receipt of certain social insurance payments in cases where they are already in receipt of certain other payments and, at the same time, a guardian is receiving Guardian’s Payment (Contributory) in respect of them. (3) lists the payments an orphan can receive without affecting the entitlement of their guardian to Guardian’s Payment (Contributory). Note 6: This wording was inserted by Section 17(a) of the Social Welfare and Pensions Act 2007 Appendix 2 – Countries subject to EU Regulations - Austria - Belgium - Bulgaria - Croatia - Cyprus - Czech Republic - Denmark - Estonia - Finland - France - Germany - Greece - Hungary - Iceland - Italy - Latvia - Liechtenstein - Lithuania - Luxembourg - Malta - Netherlands - Norway - Poland - Portugal - Romania - Slovakia - Slovenia - Spain - Sweden - United Kingdom Appendix 3 – Bilateral Agreements – Relevant Legislation All Statutory Instruments listed in this Appendix can be viewed online at www.irishstatutebook.ie Appendix 4 – Date of claim under Bilateral Agreements
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Caithfidh 26 seachtain de ÁSPC a bheith íoctha ag aon am amháin ar a laghad ag tuismitheoir nó ag leas-tuismitheoir an dílleachta, le bheith cáilithe di. Baineann Aicmí ÁSPC A, B, C, D, E, H agus S leis seo. Árachas Sóisialach agus cónaí taobh amuigh d'Éirinn Sa chás nach bhfuil taifead árachais shóisialaigh Éireannach tuismitheora nó leas-tuismitheora dóthanach chun teidlíocht a bhunú i leith Íocaíocht Caomhnóra (Ranníocach), d'fhéadfaí é a chomhcheangal le hárachas sóisialach inríofa i dtíortha atá cuimsithe faoi Rialacháin an AE nó i dtíortha a bhfuil Comhaontú Déthabhaoch Leasa Shóisialaigh acu le hÉirinn. Is gá go mbeadh íosmhéid ranníocaíocht amháin Éireannach árachais shóisialaigh íoctha sular féidir taifid árachais Éireannacha agus eachtracha a chomhcheangal, chun teidlíocht i leith Íocaíocht Caomhnóra (Ranníocach) a chur ar fáil. Bheadh an íocaíocht iníoctha ar an ráta iomlán.