Woman incorrectly refused Disability Allowance on habitually resident grounds

The complaint

In order to qualify for a number of social welfare payments, including Disability Allowance, a person must be able to show that they are habitually resident in the State.  The term ‘habitually resident’ is not defined in Irish law, but it conveys a degree of permanence – meaning that a person has been here for some time, from a date in the past, and is intending to stay for a period into the foreseeable future.  It implies a close association between the applicant and the country from which payment is claimed and relies heavily on fact.

Ms Y, a Lithuanian national, made a complaint to the Ombudsman regarding the decision of the Department of Social Protection to refuse her application for Disability Allowance on the grounds that she was not habitually resident in Ireland.

The Department's decision was upheld by the Social Welfare Appeals Office (SWAO).  In reaching its decision the SWAO  held that while the woman could not be regarded as a "benefit tourist", she had not severed her connections with Lithuania (as her husband and daughter continued to live in Lithuania); she went to Lithuania for medical treatment; and her command of English was poor.

Examination of complaint

In examining Ms Y’s complaint the Ombudsman noted that:

• Ms Y had lived in Ireland for 4 years prior to making her application for Disability Allowance;
• Her son, daughter-in-law and three grandchildren lived in Ireland;
• She had a full employment pattern in Ireland until she became ill;
• Her command of English was not a barrier to her finding work or to making a home for herself in this country;
• She had received medical treatment through the Irish medical system.

Furthermore, in order to be considered habitually resident in the State it is not necessary to sever all connections with all other countries that you may have a connection with.  In relation to Ms Y’s husband and daughter continuing to live in a rented apartment in Lithuania, the Ombudsman noted that:

• Ms Y’s husband remained in Lithuania to look after his elderly mother; 
• He came to Ireland for extended periods to support Ms Y through her illness;
• Ms Y’s daughter was an adult.

Outcome

In light of the facts of this case the Ombudsman asked the SWAO to review its decision.  The Ombudsman was pleased to be informed by the SWAO that following its review it accepted that Ms Y was habitually resident in the State, and Ms Y was subsequently awarded Disability Allowance.