Bernard Durkan (Kildare North, Fine Gael)
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Question 173: To ask the Minister for Social and Family Affairs if she will reconsider the refusal of disability allowance in respect of a person (details supplied) in County Kildare; and if she will make a statement on the matter. [5535/09]

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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Disability Allowance is a weekly Allowance paid to people with a specified disability who are aged over 16 and under 66. The disability must be expected to last for at least one year and the allowance is subject to a medical assessment, a means test and a habitual residency test.

Habitual Residency is intended to convey a degree of permanence of residing in a country, evidence by a regular physical presence enduring for some time, beginning at a date usually in the past and intended to continue for a period into the foreseeable future. It implies a close association between the applicant and the country from which payment is claimed and relies heavily on fact. The legislation underpinning Habitually Residency for Disability Allowance is contained in Sections 210(9) and 246 of the Social Welfare Consolidation Act 2005, as amended by Section 30 of the Social Welfare and Pensions Act 2007, EEC Regulations and Directives and EC Case Law.

In deciding if a person is Habitually Resident a Deciding Officer takes into consideration all circumstances of the case and in particular the following:

(a) The length and continuity of residence in the state or in any other particular country

(b) The length and purpose of any absence from the State

(c) The nature and pattern of the person's employment

(d) The person's main centre of interest and

(e) The future intentions of the person concerned as they appear from all the circumstances.

Habitual Residency took effect from the 1 May 2004 and applies to certain Social Welfare Assistance Payments and Child Benefits and affects all applicants regardless of nationality.

The person concerned applied for Disability Allowance on 27 November 2008. His application was refused with effect from 3 December 2008 on the grounds that he is not habitually resident in the state. A letter issued to the person concerned on 29 January 2009 notifying him of this decision and giving him the option of sending in more documentary evidence or information he thinks is relevant to his case within 21 days and the decision will be reviewed by a Deciding Officer. It is also open to the person concerned to appeal directly to the Independent Social Welfare Appeals Office.

The Department of Social and Family Affairs is not obliged to concur with the decision made by other organisations such as the HSE with regard to Habitual Residency. On foot of new information supplied on behalf of the person concerned the Social Welfare Appeals Office has agreed to open an appeal in this case. The Social Welfare Appeals Office will be in direct contact with the person concerned.