Róisín Shortall (Dublin North West, Labour)
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Question 153: To ask the Minister for Social and Family Affairs her plans to ensure that the definition of an orphan under social welfare legislation is amended in order that it includes the scenario in which a child has no parent available to them due to the incarceration of their parent or parents. [34873/08]

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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The Guardians' payment schemes allow for the provision of a weekly allowance to a guardian of a child who has either been orphaned or whose parents have abandoned and failed to provide for the child. Section 2(1) of the Social Welfare Consolidation Act, 2005 defines an orphan as a qualified child—

a. both of whose parents are dead, or

b. one of whose parents is dead or unknown or has abandoned and failed to provide for the child, as the case may be, and whose other parent—

i. is unknown, or

ii. has abandoned and failed to provide for the child, where that child is not residing with a parent, adoptive parent or step-parent.

All claims for Guardian's payment are decided by a Deciding Officer appointed by the Minister under Section 299 of the Social Welfare (Consolidation) Act, 2005. Prior to decision, claims are referred to a Social Welfare Inspector in order to establish if the conditions of entitlement are fulfilled. The Social Welfare Inspector completes a report on all relevant issues and this report is then referred to the Deciding Officer to make a decision on the claim.

A parent's committal to prison alone is not considered a sufficient qualifying criterion to satisfy the legislative definition of orphan. Each case is decided based on the individual circumstances. Factors such as the length of incarceration, the previous and continuing level of contact with the child and the level of the parents' involvement in the welfare of the child are among the factors taken into account in determining if the legislative provision relating to abandonment and failure to provide is satisfied.

Where a child whose parent/s have been incarcerated is cared for by another person for the period of that incarceration and their carer is in receipt of a social welfare payment (other than a Guardian's payment), an increase for a qualified child may be payable for each child.

In light of the above, I do not propose to amend the current definition of an orphan.