Róisín Shortall (Dublin North West, Independent)
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6. To ask the Minister for Social Protection the reason the decision to remove child benefit from a person (details supplied) in County Cavan has been upheld by the deciding officer despite the significant amount of evidence supporting this person's claim and the fact that an internal review of the case has found the social worker who wrote the letter on which the original decision was based was not in a position to make any comment on the case; and if she is satisfied with the current review process in the Department whereby the final say on whether to change an original decision rests with the original deciding officer regardless of the evidence available. [43834/13]

Joan Burton (Dublin West, Labour)
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This question relates to a child who was born in 1997. While payment of child benefit has moved between the parents over the intervening years, payment has been made continually in respect of the child since the month following his birth. I understand the principal residence of the child and the matter of who should receive the child benefit is under dispute between the parents in this case.

It should be noted that payment of child benefit is generally made to the mother. In circumstances in which a child resides part-time with both the mother and the father, payment is made to the parent with whom the child resides most of the time. In this case, payment of child benefit was originally made to the mother and this remained the case up to May 2011. At that time the child’s father made a claim for the benefit and following investigation it was decided that he should receive the payment. As a result, the payment was made to him from June 2011 until February 2013, when the child’s mother submitted a new child benefit claim. Inquiries about the length of time the child spent with each parent elicited conflicting information, so the deciding officer referred the case for investigation. The parties were interviewed by separate social welfare inspectors and both provided evidence to show their son resided with them most of the time. The deciding officer, having considered all available evidence, decided to award payment to the mother. The other person appealed this decision. As is routine practice, the file was referred back to the deciding officer for review. The deciding officer did not consider it necessary to revise the decision.

In subsequent representations, I understand Deputy Shortall raised concerns as to the weight attached to a supporting letter provided by a social worker. In light of her representations, a senior official undertook a full review of the papers. The review concluded that the social worker’s letter should be excluded from the evidence. On this basis, the deciding officer again reviewed all the evidence and concluded that the decision to pay the child benefit to the mother should stand. As both parents claim the child resides more than 50% of the time with them, the deciding officer has made a judgment that the child can be considered to reside at least 50% of the time with his mother.

I can confirm it is normal practice to refer back to the original deciding officer when a revised decision is to be considered, as happened in this case. This is now subject to an appeal to the independent social welfare appeals office.

Róisín Shortall (Dublin North West, Independent)
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I raised an individual case because I have serious concerns about the handling of this by the Department. These are separated parents, both of whom claim to be the principal carer of the child. When the Department found in favour of the mother I queried the decision and discovered it was based on a letter from a social worker which was on the file. The social worker had no professional role with the family. When I requested a review, senior staff accepted that the original decision was flawed. The file was then sent back to the original deciding officer, who upheld the original decision, as the Minister stated.

Two issues arise in this instance and both require attention. Will the Minister indicate what is the verification process for supporting documentation from professionals on the basis of which final decisions are made? The decision in this instance related to child benefit and had knock-on effects in the context of increases for a qualified child and a family income supplement payment. In the light of the change introduced in the budget, it will also have an impact in respect of the lone parent tax credit. This is a very important decision and there is a great deal of money involved. It only came to light that there was a letter from a social worker on the file after I had taken up the matter with someone at senior level within the Department. In circumstances where the actual handling of a case is being challenged, surely the review should be carried out by another deciding officer. There is a need for a policy change in this regard. The review in this case did not arise on foot of new documentation, it came about as a result of a flawed decision made by the original deciding officer. In that context, the review should be carried out and the final decision made by a different deciding officer.

Joan Burton (Dublin West, Labour)
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Under social welfare law, deciding officers make independent judgments on the application of that law. Individual deciding officers are not subject to direction when making decisions. In other words, they cannot be directed as to what they should decide. A deciding officer can, of course, seek advice and consult others in order to ensure he or she provides a correct and fair decision. Where errors are made in law or in fact, where new evidence or facts have arisen or where there has been a relevant change in circumstances, another deciding officer has the legal power to revise the decision of the original officer. As the Deputy is aware, in practice child benefit is paid to the child's mother in all cases, except where the parents are separated and the father has responsibility for the full-time care of the child for more than 50% of the time. The regulations governing the scheme do not provide for the splitting of the payment between parties in cases of shared residency arrangements for the child. In the case in question, both parents claimed and produced evidence to the effect that the child was with each of them more than 50% of the time.

Róisín Shortall (Dublin North West, Independent)
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The Minister is not answering the question I asked.

Joan Burton (Dublin West, Labour)
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Where there is a dispute, the deciding officer is obliged to make an extremely difficult decision. In this instance, each parent brought forward separate evidence indicating that the child was with them more than 50% of the time. Where a child spends more than 50% of his or her time with the mother, the practice has been to make the payment to her.

Róisín Shortall (Dublin North West, Independent)
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The Minister is ignoring circumstances where a decision is based on a flawed understanding of the case or a strange letter which appears in the file. Surely there is a need to refer a case of this nature to a different deciding officer. If it is referred back to the original officer, he or she will be required to admit that he or she made a mistake. I have serious concerns about this matter. Having tabled a number of parliamentary questions in respect of it, I discovered that, first, the file had gone missing and then that the social worker had disappeared. This matter raises some significant issues for the Department. It also gives rise to questions about the probity of some of the decisions made. In view of the serious nature of these matters, will the Minister refer the case to which I refer to the Secretary General of the Department in order that someone might consider it anew and carry out a full review of the circumstances involved?

Joan Burton (Dublin West, Labour)
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In the aftermath of the Deputy's representations, a senior official undertook a full review of the papers relating to the case. The review concluded - as the Deputy has acknowledged - that the social worker's letter should be excluded from the evidence. On that basis, the deciding officer again reviewed all of the other evidence-----

Róisín Shortall (Dublin North West, Independent)
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The original deciding officer who made the mistake in the first instance.

Joan Burton (Dublin West, Labour)
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Therefore, the Deputy is suggesting the case should not be referred back to the deciding officer who was involved in making the original decision. It is very difficult to make a decision in a case such as this, particularly as both parents produced evidence to support their claims. As the Deputy will appreciate, it is extremely difficult to achieve an outcome which is favourable to both parents in circumstances where they are in dispute with each other. The best interests of the child must be the prime consideration of the Department in the context of its actions based on the evidence. This matter is now the subject of an appeal.

Róisín Shortall (Dublin North West, Independent)
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Which will be costly and lengthy. A mistake has been made and it should be addressed.

Joan Burton (Dublin West, Labour)
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Deciding officers have certain powers under the Social Welfare Acts and are required to act in a certain way. I sympathise with the Deputy in the context of the complexity of the case. As is the position in all separations where issues arise, it would be ideal if the parents could reach an agreement that would be in the best interests of their child.