Operational Guidelines: Occupational Injuries Benefit - Late Claims for Injury Benefit

Section 241 of the Social Welfare Consolidation Act 2005 provides for the disqualifying a person for receiving benefit if the claim is not made within the prescribed time. This section of the Act also provides for regulations for extending the period in respect of which a disqualification will not be imposed. These regulations in relation to Injury Benefit are contained in article 44 of S.I. 102 of 2007, Social Welfare (Consolidated Occupational Injuries) Regualations 2007.

Claiming within the prescribed time

Under the regulations, the prescribed time for making an Injury Benefit claim is 21 days from the date of commencement of illness. The relevant regulation specifying this period is article 43 of S.I. 102 of 2007. For claims received more than 21 days after commencement of illness, where good cause has been shown for the delay in making the claim, it may be admitted from an earlier date, subject to the condition that no benefit may be paid for any period which is more than 6 months before the actual date on which the claim was received in the department. (However, see below under heading SI 102 of 2007 for an amendment to this rule).

Note: In relation to prescribed diseases the date of development, for the purposes of Injury Benefit, is regarded as the first day that the claimant was incapable of work because of the disease.

Good Cause

All circumstances advanced by a client will be considered by the Deciding Officer when deciding whether 'good cause' for the late making of the claim exists. For example, factors which would be taken into account would be client's age, educational standard, health and domestic circumstances.

Other factors which would be considered would be:

• client living alone
• serious illness
• bereavement

Clients are expected to take reasonable steps to find out about their rights. Accordingly, while lack of knowledge of the Injury Benefit Scheme may be accepted as good cause for back-dating of payment for six months, it is not regarded as a basis for the further back-dating of payment. See below under the heading "Circumstances which do NOT warrant back-dating beyond six months."

Article 44 of S.I. 159 of 2000

Under article 44 of SI 102 of 2007, Social Welfare (Consolidated Occupational Injuries) Regulations 2007, the only circumstances under which payment may be back dated beyond six months are the following:

• where the failure to claim within six months of the accident or development of the prescribed disease arose as a result of information supplied by staff of this department to the client or to someone acting on his or her behalf
• where the delay arose because a client was so incapacitated by illness that she or he was not able to make the claim or instruct another person to act on his or her behalf
• where a client suffered an event which could be considered a "force majeure" which prevented him or her from claiming on time. A "force majeure" is an event or action to which a person was subjected and which by its nature was so overwhelming or catastrophic in nature as to make it impossible for him or her to satisfy the requirement for making a claim. Typical examples of "force majeure" are natural disasters - flood, earthquake or other "Acts of God"; war, insurrection, riot
• where the client is in current financial difficulties which cannot be met from current income including any payment made or due under these regulations, the disposal of assets or a combination of both

Deciding Officers have to be careful when dealing with late claims, particularly where a claim is made more than 6 months after the commencement of illness. As a general rule, if a claim if more than 3 weeks late then "late notice" can be applied and the client can be requested to submit an explanation for the late claim.

If the claim is made within six months of the accident or development of the prescribed disease and if the client is suffering from a serious illness as a result, a Deciding Officer may at his or her discretion decide to pay the claim from the date of commencement of illness. If, however, the accident or development of the prescribed disease was more than six months before the date of receipt of the claim, it will, to a certain extent at least, have to be considered under the terms of article 44 of S.I. 102 of 2007.

Example:

A claim to Injury Benefit is received on 1 July 2007 which indicates that the client had an occupational accident on 1 November 2006 and that he is still incapable of work as a result. In accordance with Section 241 of the Social Welfare Consolidation Act 2005 back-dating may be allowed from 1 January 2007 (that is six months prior to the receipt of the claim) to 29 April 2007 (that is end of the 26 weeks Injury Benefit period, if good cause were shown for not claiming in time. However, the Injury Benefit period would be from 1 November 2006 to 29 April 2007, so that consideration in respect of payment for the period from 1 November 2006 to 31 December 2006 would have to be dealt with under the provisions of article 44 of S.I. 102 of 2007.

It should be noted that the majority of claimants to Injury Benefit, because of their PRSI contribution record, would have an entitlement to Illness Benefit subsequent to the cessation of the maximum 26 weeks allowed for payment of Injury Benefit. Accordingly, should the question of the backdating of the Illness Benefit claim also come up for consideration, the Illness Benefit area would be mindful of the decision made by

the Injury Benefit area in relation to the backdating of the claim.

Information

The amended legislation mentions "information" not necessarily "wrong information".

The following questions would be considered under this heading by the Deciding Officer when dealing with claims received later than six months from the date of commencement of the incapacity:

• how clear is the client about the information given?
• can the client identify the person who provided the information?
• is it reasonable to believe that the person so identified might have given the information reported?
• was the point at issue unusually complex and one not normally addressed by departmental staff?
• was the information the main reason for failure to notify the claim on time?

Another factor to be taken into consideration would be that a person may have been given correct information but may have acted incorrectly through misunderstanding. The Deciding Officer has to consider whether the delay in claiming was due to mistaken belief that was reasonable in the circumstances.

Illness

A claim for further back-dating may be considered where the nature of a client's illness prevented him or her pursuing a claim or appointing someone else to make the claim on his or her behalf. The client will need to provide very specific medical evidence certifying how the illness of itself prevented the client pursuing the claim or appointing someone else to do it on his or her behalf.

It will also be necessary to ascertain at what point the client's condition improved to a degree which would have allowed him or her to make the claim or appoint a person to act on his or her behalf.

Where a client's condition has improved to such an extent as would have permitted him or her to make the claim, the claim must be made within 21 days of such improvement unless there was further good cause for the continued delay. Where good cause is accepted, the claim must have been made within 6 months of the client's improvement.

A claim for further back-dating cannot be entertained where the client did not make the claim within 6 months of his or her condition improving to such a degree as would have permitted him or her to pursue the claim or appoint someone else to do so.

Force Majeure

Force Majeure is a very specific legal term which often appears as a clause in many contracts. It excuses a party from liability if some unforeseen event beyond the control of that party prevents him or her from performing his or her obligations under the contract, for example natural disasters, war, riot and so on

Therefore, it is difficult to envisage a situation where a claim for further back-dating could be allowed under this heading. One rather far-fetched example would be where a client was kidnapped and physically prevented from making the claim.

The event must be so calamitous or catastrophic as to prevent the client making the claim and it is the event itself which must prevent the making of the claim not the after-effects of the event. (A client might be so incapacitated from the effects of a force majeure as to be unable to pursue the claim. However, in such case the back-dating would be dealt with under the "ILLNESS" section of the regulations.)

So while personal tragedies and bereavements may be considered good cause for back-dating a claim to 6 months prior to the date of notification, these are not "forces majeure" which would warrant further back-dating. Here again, the after-effects of the tragedy or bereavement may render the client incapable of pursuing the claim but this comes under the "ILLNESS" heading also.

In the event that a claim for back-dating were received under this heading, the claim would have to be made within 21 days of the end of the "force majeure" unless there was additional good cause which would extend the period to 6 months.

Financial Need

Payment is necessary to prevent or relieve current "financial hardship".

In order to make a claim under this heading the client must satisfy the following conditions:

• she or he must have current debts
• she or he must show that his or her current income, (including any social welfare entitlement) is not sufficient to meet ongoing payments
• she or he must show that she or he is not able to pay off or reduce the debts to manageable levels by using other disposable assets, such as money in a financial institution or other assets which could be sold. A person's family home is not regarded as disposable for this purpose

The client will need to provide information setting out, in detail, his or her current financial position, information on his or her current debts and any assets she or he owns and evidence of his or her income from all sources. In some situations it may be necessary to obtain a report from a Social Welfare Inspector.

If a claim for back-dating is admitted under this heading, the backdating may be made to the date of entitlement or whatever date after that is considered appropriate to discharge or relieve the debts.

The following circumstances, while they may be considered good cause for back-dating payment for 6 months, are NOT regarded as a basis for further back-dating of payment of Injury Benefit:

Where the delay in claiming was caused by:

• lack of knowledge about entitlement
• lack of knowledge by someone acting on the client's behalf
• lack of knowledge by third parties
• information supplied or advice given by agencies other than the Department of Employment Affairs and Social Protection
• failure to act by individuals or agencies other that the Department of Employment Affairs and Social Protection

Payment for Loss of Purchasing Power

Compensation for loss of purchasing power must be made when there is a delay of more than 12 months in issuing payment and, where it is established that the department is solely at fault for the delay.

Information regarding procedures for dealing with compensation payments is available in the Claims and Late Claims Guidelines in the Guidelines shared drawer.