Social Welfare Payment Application.

Mr. Durkan

Thank you for the opportunity to raise this matter once again. I am sorry the Minister is not here to respond because I think he could deal with it. However, I hope the Minister of State, Deputy Burton, may be in a position to offer some assistance.

This issue relates to a particular deserted wife's benefit application which goes back a number of years. The kernel of the question is the magnificent word "volition" which is used to determine whether a woman in that position is entitled to a deserted wife's benefit. It applies more specifically to benefit than to assistance, the reason being that other ways and means can be used to deprive her of the money which may be due to her. In the case of benefit the word "volition" assumes a new importance.

This case was debated in the House previously and responded to by the Minister of State. She was honest enough to admit she was not as familiar with the file as she might have been. I have always regarded the Minister as a decent hard working man who is anxious to look after the interests of social welfare recipients but I hope he has not escaped from the House this evening in an attempt to avoid dealing with this issue. If that is the case I would have harsh things to say.

There are no grounds for maintaining the stance adopted by the Department. The question is whether the husband left the household of his own — or somebody else's — volition. From my discussions, repeatedly raising this issue on Adjournment debates and by way of parliamentary question I have no doubt if the case went to court the lady would win it without the slightest difficulty.

The attitude adopted by the Department flies in the face of natural law, equality legislation and everything we heard in the House during the past number of years about equality. I cannot understand the reason the chief appeals officer, or the appeals officer who dealt with the matter in the first instance, steadfastly maintain the stance that the lady was responsible for her own problems. A careful reading of the file and of the police report, also on the file, will clearly indicate that the main contributory factor was not her fault.

I recognise this is a private matter and one has to give as little information as possible in the House. That is another issue behind which the Minister has hidden during the past couple of years. I am disappointed the Minister is not here to respond — he may have some compelling reason — as he was in the House at Question Time. I appeal to the Minister of State, Deputy Burton, to recognise the disadvantage to which this lady is being put by virtue of the interpretation of the regulations applied by the chief appeals officer, and the other officers in the Department of Social Welfare, and to set the wheels in motion to have this case thoroughly examined. Otherwise I will have no option except to refer it to the courts where people would be happy to take up the case and win it.

Minister of State at the Department of Social Welfare (Ms Burton)

To qualify for deserted wife's benefit, a claimant must satisfy a number of conditions. One condition is that the claimant's husband must have left her voluntarily or she had to leave him.

The person concerned married in August 1985 and separated from her husband shortly after marriage. She later returned to her husband but left him in June 1986 and has not lived with him since. A claim for deserted wife's benefit was made in 1988. This claim was disallowed on the grounds that the husband did not, of his own volition, leave her. The person concerned appealed against the deciding officer's decision.

Following an oral hearing of the appeal and having considered all the facts the independent appeals officer ruled that she did not qualify for deserted wife's benefit because she was not a deserted wife within the meaning of section 195 of the Social Welfare (Consolidation) Act, 1981 in that her husband did not leave her of his own volition. For constructive desertion to be proved it has to be established that the wife was forced to leave the family home.

The decision of an appeals officer is final and may only be revised in the light of new facts or fresh evidence. It may also be revised by the chief appeals officer if it appears that the decision was erroneous by reason of some mistake having been made in relation to the law or facts. Following representations from the Deputy the chief appeals officer reviewed the appeal. He considered that the appeals officer had properly addressed himself to the issue before him and had taken the full circumstances of the case into account in arriving at his decision that the person concerned was not a deserted wife within the meaning of the Social Welfare legislation. In the circumstances, he considered that a revision of that decision was not warranted.

In any case of marital break-up a lone parent's allowance is available where a person has an income need. The lone parent's allowance legislation does not require that the desertion be proved, simply that separation has occurred. The person concerned did, in fact, apply for a lone parent's allowance but did not supply full information in relation to all her means and her claim was disallowed on that basis.

However, it is still open to her to furnish the information sought and I encourage her to do so to enable the Department to help her. As soon as the necessary information comes to hand her lone parent's allowance claim will be processed and finalised without delay.

The Deputy is familiar with the details in this case. It has been the subject of several parliamentary questions from him and an Adjournment debate on the matter was held on 8 December last. I assure him that all relevant available facts were taken into account by the Department of Social Welfare. It would not be appropriate to discuss this couple's business in more detail in this House. In saying this, I am strongly influenced by the fact that the interests of the child must be protected. The claim to deserted wife's benefit has been considered by an appeals officer and by the chief appeals officer, both of whom are independent in the exercise of their functions and the Deputy is well aware of that. As matters stand there is nothing further I can do for the person concerned. I examined the file carefully and I sympathise with the complicated position of the couple concerned. The woman should consider taking out a maintenance summons against her husband under the Family Law (Maintenance of Spouses and Children) Act, 1976.

Mr. Durkan

Did the Minister of State read the Garda report?

Ms Burton

This would allow the court to decide on the issue for maintenance purposes. If she were successful in obtaining a maintenance order against her husband, the Department of Social Welfare would be in a position to reconsider her claim for deserted wife's benefit.

Mr. Durkan

She does not have the resources to do that.

Ms Burton

The appeals officer and the chief appeals officer, who are independent in exercising their functions, have independently reached a view on the matter.

Mr. Durkan

The Minister of State can order a full review.

Ms Bruton

The chief appeals officer has reported on the matter. The person concerned can pursue the lone parent's allowance claim and the Department will facilitate her as far as possible in that regard. The Deputy is aware that some information was outstanding. She should proceed along those lines or, alternatively, apply for a maintenance order.

Dáil Éireann debate -
Thursday, 20 Oct 1994