Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Question 1236: To ask the Minister for Social Protection the reason a person (details supplied) in County Cork was refused for benefits, with the exception of carer's allowance (decision pending), from his Department; and when they can expect a decision on the outcome of their appeal. [33713/10]

Éamon Ó Cuív (Galway West, Fianna Fail)
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The supplementary welfare allowance scheme (SWA) is administered on behalf of the Department by the community welfare division of the Health Service Executive (HSE). Apart from a number of excluded categories, anyone in the State who satisfies a habitual residency condition (HRC) and a means test, has registered for employment, unless they have a physical or mental disability, and can prove unemployment may qualify for a weekly payment of SWA.

However, subject to the provisions of EU law which apply to EEA workers, SWA cannot at any time be viewed as a temporary or interim means of income support available independently of HRC, while an applicant awaits the outcome of either a decision — or an appeal against a decision — on a claim for a social welfare payment from DSFA. The HSE have advised that the person concerned applied for SWA in June 2010 but her application was refused as in the opinion of the HSE, the person concerned was deemed not to be habitually resident based on an assessment of her particular circumstances.

The HSE further advised that the person concerned appealed the decision to the HSE Appeals Office in July 2010. The Appeals Office in the HSE upheld the decision to refuse SWA on the basis that the person concerned could not prove habitual residency. An appeal by the person concerned, against the decision to refuse her claim for SWA was forwarded to the Social Welfare Chief Appeals Officer in August 2010. Every effort is being made to have this appeal determined as quickly as possible.

The determination of a person's habitual residence is made in accordance with Section 246 of the Social Welfare Consolidation Act 2005 as amended. Section 246 of the Social Welfare Consolidation Act (amended by Section 30 of the Social Welfare and Pensions Act 2007) incorporated into Irish law 5 factors that have been set down in judgements given by the European Court of Justice as the main items to be considered in determining habitual residence notwithstanding the presumption in Section 246(1) of the Consolidation Act.

Section 246 (1) of the Social Welfare Consolidation Act 2005 provides that: "it shall be presumed, until the contrary is shown, that a person is not habitually resident in the State at the date of the making of the application concerned unless he has been present in the State or any other part of the Common Travel Area for a continuous period of 2 years ending on that date."

Section 30 of the Social Welfare and Pensions Act 2007 added the following to the above:

"(4) Notwithstanding the presumption in subsection (1), a deciding officer or the Executive, when determining whether a person is habitually resident in the State, shall take into consideration all the circumstances of the case including, 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."

The presumption in Section 246 does not mean that an applicant is automatically considered to be habitually resident in the State because he or she has been in Ireland (or another part of the Common Travel Area) for 2 years or more. The onus is always on applicants to provide sufficient evidence to support their claims for a social welfare payment. With regard to the other claims for social welfare payments made by the person concerned the following is a summary of the status of the individual claims:-

The application of the person concerned for Carers Allowance was received on 20th August 2010. The application is currently with a Deciding Officer for decision regarding the habitual residence condition.

The application of the person concerned for child benefit was received on the 1st September 2010. The application is currently with a Deciding Officer for decision regarding the habitual residence condition.

The application of the person concerned for domiciliary care allowance was received on 13th July 2010. The application was incomplete and returned to her on 20th of July 2010. To date this application has not being returned to the domiciliary care allowance section.

The application of the person concerned for disability allowance was received on the 30th July 2010. Her application has been referred to an Investigative Officer for confirmation that all conditions necessary for receipt of this allowance are satisfied. On completion of the necessary investigations in each individual case a decision will be made and the person concerned will be notified directly of the outcome.