A FREQUENTLY ASKED QUESTION CONTINUES TO BE WILL I LOSE MY CHILDRENS BENEFIT PAYMENTS IF I HOLIDAY MORE THAN A FEW WEEKS ? HERE, WE REPEAT AN ARTICLE FROM A COUPLE OF YEARS AGO AS A REMINDER. FILIPINA WINS APPEAL FOR REFUND OF CHILDRENS ALLOWENCE. May 23, 2014 at 6:49pm IN 2006 FILIPINO FAMILY WON APPEAL FOR REFUND OF CHILDRENS ALLOWANCE AFTER FOUR MONTH HOLIDAY. Child Benefit Case 6 Question At Issue: Whether payment of child benefit should be disallowed for a period of four months when the child in question was not ordinarily resident in the state. Background: The appellant appealed against a decision of a deciding officer disallowing payment of child benefit for a period of four months in late 2006/early 2007 during which the child was abroad accompanied by the parents both of whom are Asian. The purpose of the trip abroad was to acquaint the grandparents with the family’s first born newly born child. The child’s father had to return to Ireland after a few weeks as he had utilised his annual leave entitlement from his employment. His wife stayed abroad with the child and, after the father was able to get some additional leave, he rejoined the family abroad. The family travelled home together after being absent from the state for a period of some four months. Deciding Officers Submission: The deciding officer relied on Section 219 (1) (c) of the Social Welfare Consolidation Act 2005 which provides for a disqualification from receipt of child benefit where the child is not ordinarily resident in the state. The submission from the deciding officer pointed out that the appellant and her child were similarly abroad for a two month period in 2008 and it was accepted that the child was ordinarily resident in the state in respect of that period as it was deemed to be a holiday. While what constitutes a holiday was not defined in legislation, the deciding officer took the view that, in the circumstances of the case, a two month period was within the acceptable definition of a holiday whereas a four month period was considered to amount to an absence from the State. Consideration of the Appeals Officer: Having identified no dispute in relation to the facts of the case, the Appeals Officer focused on the circumstances in which a child can be regarded as being ordinarily resident in the state for the purpose of entitlement to child benefit. He noted that the term “ordinarily resident” is not defined in legislation and, consequently, he looked to its interpretation in the context of its everyday meaning having regard to the circumstances of the case before him. The Chambers Concise English Dictionary defines “ordinary” as “usual, of the usual kind common, normal, not exceptional” and “resident” as “dwelling in a place for some time, residing on one’s own estate; or the place of one’s duties, or the place required by certain conditions: not migratory, inherent”. He also checked as to the position in similar circumstances in the United Kingdom and obtained the following extract from guidelines issued by the relevant government department:- “Meaning of “ordinarily resident” for Child Benefit The term “ordinarily resident” is not defined, but its established meaning is that a person is ordinarily resident if they are normally residing in the United Kingdom (apart from temporary or occasional absences), and their residence here has been adopted voluntarily and for settled purposes as part of the regular order of their life for the time being.In considering whether a person is ordinarily resident, all the circumstances of the particular case will need to be considered. When considering whether a person leaving the United Kingdom has ceased to be ordinarily resident here, the decision is whether they have, for the time being, ceased to live here as part of the regular order of their life. All the relevant factors should be considered in order to build up an overall picture of the person’s position.” The Appeals Officer considered that the issue of whether or not the child is ordinarily resident cannot be determined solely on the length of time absent from the State but must take account of other factors which contribute to building up an overall picture of the child’s position i.e. the regular order of its life. He noted from the appellant’s submission that her husband worked in Ireland, that the family lived in Ireland and that it was always her intention to return to Ireland with her family. He further noted from evidence on the file that return airline tickets for the family were purchased before they commenced their trip abroad. Accordingly, he was satisfied that the family were on holiday, albeit an extended one in the light of their first born meeting grandparents, and that they had every intention of returning to their life in Ireland. He determined in the circumstances that the child was ordinarily resident for the purpose of entitlement to child benefit. Outcome: The appeal was allowed. The decision was made on a summary basis without the need for an oral hearing in the view of the Appeals Officer.welfare.ie
Posted on: Mon, 26 May 2014 08:43:33 +0000
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