Legal challenge brought over decision a woman was overpaid pension

Review was carried out by the Department of Social Protection after the woman’s death

The case is against the Chief Appeals Officer (CAO), the Social Welfare Appeals Office (SWAO) and the Minister for Social Protection. File photograph: Frank Miller

The case is against the Chief Appeals Officer (CAO), the Social Welfare Appeals Office (SWAO) and the Minister for Social Protection. File photograph: Frank Miller

 

A legal challenge has been brought over a decision a woman was overpaid some €75,000 in means-tested non-contributory State pension payments for some eight years until her death.

Brigid Early, of Killadisert, Corry, Drumkeerin, Co Leitrim, died in July 2016.

Joseph Early, of the same address, contends, as personal representative of her estate that it has no liability to the Department of Social Protection over the alleged overpayment.

This week, Derek Shortall SC, for Mr Early, secured leave from the High Court’s Mr Justice Garrett Simons to bring judicial review proceedings over the December 2020 dismissal of the estate’s appeal against a finding of a €75,644 pension overpayment between August 2008 and Mrs Early’s death.

The case is against the Chief Appeals Officer (CAO), the Social Welfare Appeals Office (SWAO) and the Minister for Social Protection.

It centres on claims an oral hearing of the appeal should have been granted, as requested by the estate, and the failure to do so meant the appeal outcome was fatally flawed.

In an affidavit, Mr Early said, after Mrs Early’s death, a review was carried out by the Department and a letter of July 2018 stated there had been overpayment of €75,644 concerning her entitlements between August 22nd, 2008 and her death.

His legal advisers wrote to the appeals office in November 2018 requesting a formal decision and saying there was no evidence the appeals office ever carried out a review of Mrs Early’s entitlement to the pension “awarded more than 30 years ago”.

They said there was no evidence Mrs Early was ever informed of an obligation to alter the Department to any change of circumstances and the Revenue was believed to have alerted the appeals office some years ago to the presence of her savings. If so, the appeals office “must accept some degree of liability for this oversight in failing to act more promptly”, Mr Early said.

Mrs Early, the letter said, had suffered from serious medical problems, including cancer and heart problems. Her medical history was attached.

Following further correspondence, Mr Early received a letter from the SWAO in April 2020 giving him 21 days to provide any statement or evidence in the case prior to a decision.

His legal advisers issued a letter on May 7th, 2020 setting out the facts of the case and asking the deciding officer to use their discretion under the Social Welfare Consolidation Act 2005 as to the date from which over-payment can be sought.

A reply from the appeals office of June 19th, 2020 clarified matters raised in the May 7th letter, stated an overpayment of €75,644.50 had resulted and the appeals office would accept €72,000 if paid by June 19th, 2020.

He wrote to the chief appeals officer on June 30th, 2020, appealing that decision and arguing the estate has no liability to the Department. Alternatively, he submitted any liability, which was denied, should be substantially reduced for reasons similar to those in the letter of November 2018.

It was also stated some savings on deposit very likely constituted savings derived from the pension itself and a significant percentage should thus not be counted.

The letter requested an oral hearing, to be attended by solicitor and counsel for the estate.

Mr Early said, to his surprise, the matter was determined by summary decision without an oral hearing. A letter from the chief appeals officer on December 11th, 2020 concluded the assessment of Mrs Early’s means was correct and disallowed the appeal.

In the proceedings, it is claimed the refusal of an oral hearing, via Zoom or otherwise, breached the estate’s rights to fair procedures and natural justice.

Mr Early wants orders quashing the chief appeals officer decision and directing the respondents to grant a fresh first instance appeal.