Operational Guidelines: Revised Decisions and their Date of Effect

Three sections of the Social Welfare Consolidation Act 2005 (as amended) empower Deciding Officers (DOs), Designated Persons (DPs) and Appeals Officers (AOs) to revise statutory decisions made by similar officers, at any time under certain circumstances. Sections 301, 324 and 317 of the Act refer respectively. Furthermore, the act confers powers to determine the relevant date such revised decisions will take effect.

Hereinafter, any references to the Social Welfare Consolidation Act 2005, as amended, in these guidelines will refer to the abbreviated form ‘the 2005 Act’, as standard.

These guidelines interpret the relevant subsections of the 2005 Act that confer broadly similar powers to DOs and DPs as regards revised decisions and set out conditions that govern the revision effects, in certain circumstances i.e. when different subsections of sections 302 and 324 of the 2005 Act may apply.

The guidelines are structured to reflect how the various powers to revise a decision can be exercised at each stage of the decision-making process from original decision, through review requests to post appeal stages. The guidance will also set out essential components of revised decisions in terms of communications and composition requirements.

IMPORTANT: Principles of natural justice:

Notwithstanding the provisions in Social Welfare legislation for appointed officials to revise decisions, the guidelines re-state the importance for all officers to comply with the core principles of natural justice throughout all stages of such considerations.

DOs, DPs and Appeals Officers (AOs) are reminded that they are performing functions under statutory appointment and must act judicially i.e. Government officials engaged in the decision-making process are subject to the rules of natural justice. These principles are set out in detail in section 5 of the Operational Guidelines: Decision Making and Natural Justice.

Legislation

The legislation providing for revised decisions and their date of effect for Deciding Officers is covered under Sections 301 and 302 of the 2005 Act, whereas for Designated Persons it is covered under Sections 324 and 325 of the Act.

Power of a Deciding Officer to revise a DO/DP/AO decision

Section 301 of the 2005 Act allows a Deciding Officer to revise a decision of other officers as follows:

• subsection (1)(a) provides the circumstances by which a DO may revise a decision given by a Deciding Officer
• subsection (1)(b) provides the circumstances by which a DO may revise an Appeals Officer’s decision where the AO decision was to entitle a person to a payment and there has been a change of circumstances since the date of the AO’s decision
• subsection (2A) provides the circumstances by which a DO may revise the decision of a Designated Person.

(See Appendix 1)

Power of a Designated Person (DP) to revise a decision of a DP

Section 324 of the 2005 Act provides for the revision of a determination of entitlement to supplementary welfare allowance by a Designated Person (DP) as follows:

• subsection (1)(a) provides the circumstances for a DP to revise the determination/decision given by a Designated Person
• subsection (1)(b) provides the circumstances for the revision of an Appeals Officer decision by a DP where the AO decision was to entitle a person to a payment and there has been a change of circumstances since the date of the AO decision.

(See Appendix 1)

Three circumstances where an earlier decision may be revised

Under the relevant legislation cited above a DO / DP may revise an earlier decision where it appears to that officer that the original decision was erroneous because:

1. new evidence has been brought to light since the original decision was made or

2. a mistake in law or facts was made or

3. the effect of the decision was to entitle a person to any “benefit” listed under section 240 of the Act (see Appendix 1) or supplementary welfare allowance and there has been a relevant change of circumstances that has come to the attention of the DO since the original decision was made.

Note:

Change of circumstances relates only to events after the initial decision.

1. A revision on the grounds of a change in circumstances only applies therefore to live claims or those previously in payment.

2. Where a claim was originally disallowed and there has been a change of circumstances since the original decision to disallow, the customer can make a fresh claim.

3. Where an AO decision is being revised by a DO, it is confined to cases where there has been a relevant change of circumstances which has come to notice since the original AO decision was given.

Only revised if in favour of the customer.

In accordance with subsections 301(3), (4) and 324(2) of the 2005 Act when a decision is under appeal, a revised decision can only be made where the revision would be in favour of the customer. This means, for example, that additional grounds for disallowance or additional retrospection cannot be included in a revised decision until such time as the appeal is finalised.

When a DP's decision is under appeal, Section 301(4) of the 2005 Act provides that a DO can revise that determination again only if the revision would be in favour of the customer.

Note:

1. A DO does NOT have power to revise an AO’s decision after an Appeal where new facts or evidence comes to light and render the decision erroneous. An example of new evidence / facts would be details of a bank account.

a) Where new evidence comes to light that relates to a period covered by the AO's decision, the DO should refer the file back to the Social Welfare Appeals Office for a revised AO decision under Section 317 of the 2005 Act.

b) Where new evidence comes to light that relates to a period not covered by the AO's decision, the DO should give a revised decision under Section 301 of the 2005 Act.

2. A DO does NOT have the power to revise an AO’s decision where it appears that a

mistake has been made in relation to the law or the facts. The DO must consider the merits of submitting a request to the Chief Appeals Officer under section 318 of the 2005 Act for a review of the appeal decision.

Sections 302 (for DOs) and 325 (for DPs) of the 2005 Act, sets out options for which the date of a revised decision should take effect. Both sections are divided into three sub-sections: 302(a), (b) and (c) for DOs and sub-sections 325(a), (b) and (c) for DPs. It is for the DO/DP to determine the appropriate date having regard to the legislation and the circumstances of the case.

The effective date of a revised decision may be the date of the original decision, the date of the new fact or new evidence, or a current date.

Where fraud or the concealment of facts is involved, the date of the revised decision should always be retrospective in accordance with section 302(a) (for DOs) and section 325(a) (for DPs).

In other cases, decisions are revised in accordance with section 302(b) or (c) (for DOs) or section 325(b) or (c) (for DPs) where the customer could reasonably have been expected to be aware of any relevant new facts or evidence such as a change of circumstances and to have notified the Department. The revised decision should have effect from a date as determined by the DO/DP having regard to the new facts or evidence and therefore may be applied from a retrospective or current date.

The effective date of a revised decision should be determined by the DO/DP with regard to the facts of each case and the evidence that has come to his or her attention since the original decision was made.

Note:

Where a DO decides an effective date in accordance with 302(a) or a DP in accordance with 325(a) there must be evidence that the information was not just false, but deliberately so, and that any subsequent failure to disclose information was deliberate.

Sample Cases on the legislation for revised decisions

Note:

The following case scenarios are relevant to DO and DP decisions, where the cited legislation applies. The reader will note that the various decisions are effective from a current or retrospective date, depending on the facts and circumstances.

Case 1 – Section 302(a) – retrospective

• Ms E has been in receipt of OFP since 2018.
• In October 2020 it is established following investigation that she had married in June 2020 and is residing with her spouse who is in full-time employment.
• She alleges that she was not aware she was no longer entitled to OFP. However, evidence is available that she had returned a declaration form (OFP40) after she married to state she had no change in circumstances in relation to her claim for OFP.
• Ms E should be disqualified for payment of OFP in accordance with a revised decision under Section 302(a) of 2005 Act.

This is a case where a revised decision under Section 302(a) is appropriate, as the customer declared on her OFP40 form that there was no change in circumstances. However, the details she provided on the updated declaration form is firm evidence of wilful concealment of the fact that she had married. As such, Ms E was no longer entitled to claim OFP.

Note:

Revised decisions under Section 302(a) and 325(a) are always retrospective.

Case 2 – Section 325(b) - retrospective

• Mr C, a single man, had been in receipt of full-rate SPNC since 2017 on the basis of nil means and a SWA Heating Supplement for the same period.
• Following his death in September 2021 it came to light that he had received an inheritance of €55,000 in July 2018 which he had lodged to a bank account.
• The bank account shows regular lodgements and withdrawals by him.
• He had not notified the Department of this change in his circumstances.
• Mr C’s means should be reassessed having regard to the undisclosed capital from 2018.

As the customer is deceased, it cannot be established that there was fraudulent intent or wilful concealment, so section 325(a) is not appropriate. The receipt of the inheritance is a new fact, so the decision as regards his heat supplement should be made in accordance with Sections 325(b). The decision should be applied retrospectively with effect from 2018 on the basis of the available evidence that Mr C was aware of his increased means and should have notified the Department about the position.

Case 3 – Case 3 Section 302(b) - current

• Ms. D is in receipt of full rate One Parent Family Payment (OFP) since March 2018.
• Following an investigation by a Social Welfare Inspector (SWI), it has been established that she is cohabiting with another person. Her partner is working and earning €45,000 per annum.
• Ms D. has provided a signed statement/declaration that she is cohabiting since December 2021
• There is a report from local enquiries that she has been cohabiting since December 2019, however there is no evidence to substantiate this such as utility bills etc.
• This decision should be applied under 302(b) from date of admission for the following reasons:

There is a new fact before the DO. Unless there is solid proof of the cohabitation prior to date of admission, a revised decision to terminate OFP from the date of admission is appropriate. Hearsay evidence is not established proof.

Case 4 – Section 325(c) – current

• Ms F has been in receipt of One Parent Family Payment (OFP) and SWA Rent Supplement since February 2017 @ €258.00 p/w.
• It has now been discovered that this entitlement was incorrect, as the differential rate between the basic SWA and OFP rate was not taken into account by the DP.
• Payment of SWA Rent Supplement to Ms F should be reduced to €256.00 p/w.

The need for a revised decision in this case arises from an error by the DP and the DP is satisfied that the person did not know the decision was wrong and there is no reason for believing that she was aware she was being paid SWA Rent Supplement at the wrong rate.

Therefore, the revised decision should, in accordance with section 325(c), be applied with effect from a current date.

Case 5 – Section 302(c) – retrospective

• Mr. W was in receipt of Disability Allowance (DA) from August 2018 to August 2020.
• He commenced work in July 2020.
• He e-mailed DA Section notifying them that he had commenced work on the 01/07/2020, earning €900 per week.
• DA Section replied to Mr. W that payment was being stopped as he was no longer entitled to DA. However, due to an internal error, payment continued to be paid into his bank account until a Commencement of Employment (CoE) notification was received by the Department.

This decision should be applied under section 302(c) retrospectively as the customer was made aware that he was no longer entitled to DA and payment continued to be made to his bank account in error. In this case, the DO is satisfied the customer knew the payments into his account were issued in error and should have reported this.

Section 317 of the 2005 Act provides the power for an Appeals Officer (AO) to revise the decision of an Appeals Officer in two situations where:

1. it appears that the earlier AO decision was erroneous in the light of new evidence or facts brought to notice since the date of the original appeal decision

or

2. the effect of the appeal decision was to entitle a person to any benefit listed under section 240 of the 2005 Act and there has been a relevant change of circumstances that has come to notice since the original decision was made.

See Appendix 1 for the relevant legislation.

Note:

A DO does NOT have power to revise an AO’s decision after an Appeal where new facts or evidence comes to light and render the decision erroneous. An example of new evidence or facts would be details of a bank account. Where new evidence comes to light that relates to a period covered by the AO's decision, the DO should refer the file back to the Social Welfare Appeals Office for a fresh AO decision under Section 317 of the 2005 Act.

Where new evidence comes to light that relates to a period not covered by the AO's decision, the DO should give a fresh decision under Section 301 of the 2005 Act.

Section 318 revision - Chief Appeals Officer Review

If an error has been made by an AO in relation to the law or the facts, the Chief Appeals Officer may revise the decision under Section 318 of the 2005 Act. If a DO/DP considers that such an error has occurred s/he should make a submission through senior management with a view to having a review carried out by the Chief Appeals Officer.

Note:

A DO does NOT have the power to revise an AO’s decision where it appears that a mistake has been made in relation to the law or the facts.

The principles of natural justice emphasise the importance of giving adequate information to the customer in relation to any unfavourable decision.

Many applications for appeal are submitted where there is little, or no prospect of the decision being overturned due to the lack of valid grounds of appeal being included by the customer. The volume of appeals applications can be significantly reduced by giving the customer clear concise information in the decision notification regarding the grounds determined and the reasons for refusal. The customer has a core right under natural justice principles to know the reasons for any adverse decision. The Department’s guideline: Operational Guidelines: Reasons for Decisions sets out guiding principles for communicating your reasons for a decision to the customer.

The guidelines reflect the need for communications to clearly set out the statutory basis for the decision and for full compliance with the principles of natural justice throughout the decision-making process. The Operational Guidelines: Decision Making and Natural Justice elaborates further on this.

A quality decision is one that is:

• Scrupulously fair and reasonable
• Based on full and accurate information
• Has regard (only) to the relevant facts
• Grounded in the relevant legislation
• Made in a timely way and in accordance with natural justice.

The customer must be clearly advised of the decision and any consequences it may have, and of their rights to review and appeal.

In order for a revised decision to be strong and well-founded it should include reference to:

1. The relevant provision in the legislation under which payment is being allowed or disallowed.

2. The relevant subsection of section 302 (for DOs) or section 325 (for DPs) of the 2005 Act, which the reviewing officer is applying in determining the effective date of the revised decision.

This ensures that all parties i.e. the customer and where relevant the Appeals Officer are informed of the basis of the revised decision and there is no doubt as to the grounds and circumstances which resulted in the revision.

Wording for a Revised DP determination

If payment of supplementary welfare allowance is being discontinued as the person is in full-time employment and the DP considers that Section 325(b) is appropriate, the revised decision should include:

• Disallowance: You are excluded from receipt of Supplementary Welfare Allowance as you are in full-time employment and are not participating in a government approved employment scheme.
• Legislation: [Social Welfare (Consolidation) Act 2005 Section 191(1) and Article 6(2) and 6(3) of S.I. 412 of 2007
• Effective date: This decision is made in accordance with section 325(b) of Social Welfare Consolidation Act 2005, as amended and has effect from (date).

Wording for a revised DO decision

1. If payment of an Increase for Qualified Adult is being discontinued because the spouse/partner is in receipt of a specified Social Welfare payment in his/her own right, and the DO considers that Section 302(b) is appropriate, the revised decision should include:

• Disallowance: An increase of benefit is not payable in respect of (the customer's spouse/partner) from (date) because he or she is (state circumstances) and, therefore, is not a Qualified Adult within the meaning of the Social Welfare legislation.
• Legislation: [Social Welfare (Consolidation) Act 2005 Part 1, Section 2(2)(a)(iii)]
• Effective date: This decision is made in accordance with section 302(b) of Social Welfare Consolidation Act 2005, as amended and has effect from (date).

2. If a Jobseeker’s Benefit claim is being discontinued because the customer is no longer available for full-time work:

• Disallowance: Jobseeker’s Benefit is not payable from (date) because he or she is not available for full-time work.
• Legislation: Section 62(5)(a)(ii) of the 2005 Act and Article 15(1) of S.I. 142 of 2007.
• Effective date: This decision is made in accordance with section 302(b) of Social Welfare Consolidation Act 2005, as amended and has effect from (date)

To access scheme guidelines on www.gov.ie click on the link here to the collection site for the ‘a to z’ list of all the department’s guidelines.

The Social Welfare Consolidation Act 2005 (as amended)