The client attended the Community Law & Mediation advice clinic in relation to his entitlement to Jobseeker’s Allowance (JA). The client resides with his ex-wife in a property jointly owned by them. The client and his ex-wife separated in or around 2000 but did not obtain a legal separation. They continued to reside separately under the same roof. The client was awarded Jobseeker’s Allowance at the rate of €188 per week. A review of the payment was subsequently carried out by the Department. On request, the client submitted one of his ex-wife’s payslips and the Department wrote to the client stating that his ex-wife’s income had been taken into consideration in calculating his means and that, as a result, his JA payment was reduced to €7.70 per week. A Social Welfare Inspector attended his home and the client stated that he sleeps on the couch. He was not asked to provide the reasons for living with his ex-wife but he was questioned in relation to finances. The client’s ex-wife was not interviewed. The client appealed the decision of the Department and submitted correspondence from the Legal Aid Board in relation to instituting legal separation proceedings.
CLM Northside’s Input
CLM provided written submissions as well as affidavit evidence supporting the client’s contention that he and his wife are not cohabiting within the meaning of relevant legislation but are living separately albeit under one roof. CLM represented the client at oral hearing and argued that the Department failed to comply with the legislative provisions because the Inspector did not seek specific information in respect of the requirements set out in legislation. It was also argued that the onus is on the Department to establish cohabitation when it is disallowing a payment to a person. CLM contended that the client’s ex-wife should have been interviewed. The Department argued that the decision was based on information available to it at that time and that full payment was awarded in advance of the review in order not to cause delay. The Appeals Officer was satisfied that there was sufficient evidence to establish that the client was not in a cohabiting relationship with his ex-wife and allowed the appeal.
The failure by the Department to follow its own guidelines in relation to the determination of cases denied the client his right to fair procedures. This meant that a payment, to which he was entitled, was drastically reduced. When the client’s appeal was upheld, he received the full amount of the payment as well as arrears.