Guardian's Payment (Non-Contributory)
Internal Guidelines used in processing claims
Table of Contents
Description of Scheme
Information Leaflet
Legislation
Administration
QUALIFYING CONDITIONS - SUMMARY
QUALIFYING CONDITIONS IN DETAIL
Definition of Orphan
Guardian
Application of the
HRC conditions to
EEA workers
Family Benefits
Means Test
SAVER Cases
DISQUALIFICATIONS
Imprisonment
Late Claims
Absence from the State
RATES STRUCTURE
EXTRA ALLOWANCES/BENEFITS
Fuel Allowance
amily Income Supplement
Supplementary Welfare Allowance
OVERLAPPING PROVISIONS
Claims
Late Claims
Documentation
Offences
INVESTIGATION OF CLAIM
Decisions
Appeals
Payment Date
Payment Methods
Duration of Payment
Claim Maintenance
Lost/Stolen Book/ Cheque action
Lost/Stolen EIT Card
Payment to an agent
Change of Post Office/Bank, Method of Payment or Address
Absence from the State
Illness/Hospital Stays
Imprisonment
Certification of ongoing entitlement
Review
Suspension/Revocation/Reduction of Payment
PART 1: ENTITLEMENT
Description of Scheme:
Guardian's Payment (Non-Contributory) is a means-tested payment which is made in respect of an orphan or orphans and where they do not satisfy the conditions for Guardian's Payment (Contributory).
The scheme was introduced on 1 January 1936 and was called Orphan's (Non-Contributory) Pension. The title of the scheme was changed in July 2006 to Guardian's Payement (Non-Contributory).
Information Leaflet:
Guardian's Payment (Non-Contributory) & Guardian's Payment (Contributory) - SW 115
Legislation:
The main provisions relating to Guardian's Payment (Non-Contributory) are contained in Chapter 6 (Part 3) of the Social Welfare (Consolidation) Act, 2005 as amended.
Administration:
The Guardian's Payment (Non-Contributory) scheme is administered by the Social Welfare Services, College Road, Sligo.
QUALIFYING CONDITIONS - SUMMARY
(i)The person in respect of whom the allowance is claimed must:
- be an orphan
- be under 18 years of age, or under 22 if in full-time education.
- satisfy a means test
- be resident in the State
- not be in the care of the Department of Health and Children as a Foster Child
(ii) The person claiming the payment must be habitually resident in the State and must be
- the guardian
or
- the person with responsibility for the care of the orphan,
or
- in exceptional circumstances, the orphan, where s/he is aged 18 and under 22, in full time education, and not normally residing with a guardian.
QUALIFYING CONDITIONS IN DETAIL
Definition of Orphan:
A child is regarded as an orphan if:
- both parents are dead, or
- one parent is dead or unknown or has abandoned, and has failed to provide for the child, and the other parent is also unknown, or has abandoned and failed to provide for the child, provided that the child is not normally residing with a parent, adoptive parent or a step parent.
The child must be:
- under the age of 18 years, or
- over the age of 18 years and under the age of 22 and be receiving full-time education by day at any educational establishment. The period may be extended to the end of academic year (June) of the year in which the child reaches age 22.
A reference to parent above includes an adoptive parent.
A Guardian's Payment ( Non-Contributory) is not payable for any period during which a payment is made under Article 14 of the Child Care (Placement of Children in Foster Care) or (Placement of Children with Relatives) Regulations 1995 .
Guardian:
A guardian is the person in whose care the orphan normally resides and who is responsible for the care of the orphan. The allowance is payable to the orphan's guardian. A guardian may have already been appointed by the courts. However, where there is no legally appointed guardian, Guardian's Payment (Non-Contributory) may be paid to the person with whom the orphan resides and who is responsible for the care of the orphan and where the pension will be used for the benefit of the orphan.
The Guardian must be habitually resident in the State. See the separate guideline on the Habitual Resisdence Condition, but not also the exception below relating to EEA workers.
Where the orphan is attending a full-time education course, is aged between 18 and 22 years of age, is not residing with or in the care of a guardian, the pension may be paid directly to him/her.
Application of the HRC condition to EEA workers
A Deciding Officer must have due regard to EU law where it is applicable. In general EU law takes precedence over National Law.
Family Benefits:
Guardian's Payment (Non Contributory) has been classified as a Family Benefit with effect from 5 May 2005 ( EU Regulations 1408/71 as amended by 647/2005). The effect of this is that an EEA national, who is employed or self employed in Ireland and paying Irish PRSI, does not have to satisfy the habitual residence condition. Such entitlement continues where the person becomes unemployed and is in receipt of Irish Jobseeker's Benefit.
These entitlements are payable even if the orphans are habitually resident in another EEA State. The rate payable by the Department of Social Protection will depend on whether there is entitlement to Family Benefits from another EEA State in respect of the same child(ren).
See separate Guidelines on an Overview of EU Social Security Regulations .
Means Test
For Guardian's Payment (Non-Contributory) purposes, means of the orphan e.g. income from savings, investments, property etc. are calculated in accordance with Part 3 of Schedule 3 of the Social Welfare (Consolidation) Act, 2005 as amended.
See separate guideline on " Means Assessment" for more detail on how means are assessed as income.
"Saver" Cases
A new means test for persons in receipt of Guardian's Payment (Non-Contributory) was introduced from 17 October 1997.
This new means test does not have the effect of reducing payment to persons who were already entitled to Guardian's Payment (Non-Contributory) before the 17 October 1997. Persons in this category continue to have their means assessed under the old means test (pre October 1997). However, if assessment of means under the new means test, operative from 17 October 1997, is more beneficial, such persons will receive the higher payment.
DISQUALIFICATIONS
Imprisonment:
A Guardian's Payment (Non Contributory) is not payable in respect of an orphan who is undergoing penal servitude, imprisonment, or detention in legal custody, including detention in a Young Offenders Centre. Payment of pension may resume when the orphan is released, provided s/he continues to satisfy the qualifying conditions.
Where the guardian or other person with responsibility for the care of an orphan is disqualified from payment of Guardian's Payment (Non-Contributory) by virtue of penal servitude, imprisonment, or detention in legal custody, payment of the pension may be made to some other person for the benefit of the orphan.
See Part 3 below and separate guideline on " Payment Methods" for more detail on payment arrangements while imprisoned.
Late Claims:
A claim to Guardian's Payment (Non-Contributory) should be made within three months of date of entitlement. A person who fails to claim within that period may be disqualified from receiving payment in respect of any period prior to the date of claim.
See Part 2 below and separate guideline on " Claims and Late Claims" for details of circumstances in which payment of pension may be backdated.
Absence from the State:
A Guardian's Payment (Non-Contributory) is not normally payable outside the State, except where it is payable in accordance with EU legislation. A person should notify the Department if leaving the State and payment will be suspended for the period of the absence abroad.
See Part 3 below and separate guideline on " Payment Methods" for more detail, including detail on payment for temporary absences from the State.
RATES STRUCTURE
Payment is made up of a personal rate in respect of each qualified orphan.
See the Rates Booklet SW 19 which is issued annually for the current rates of payment.
EXTRA ALLOWANCES/BENEFITS
A person in receipt of an Guardian's Payment (Non-Contributory) may be entitled to the following benefits/allowances:
Fuel Allowance:
A Fuel allowance is payable from September to April, to assist persons with heating costs. Entitlement to Fuel allowance is subject to certain conditions, including that a person lives alone or with certain specified persons and that the household satisfies a means test. Guardian's Payment (Non-Contributory) is not assessable as means. Only one allowance is payable per household.
See separate guideline " National Fuel Schemes" for more detail on Fuel Allowance.
Family Income Supplement:
This supplement is payable to persons working for an employer and on low income. Certain conditions apply in relation to hours of work, and duration of employment. A means test also applies and Guardian's Payment (Non-Contributory) is not assessable as means.
Supplementary Welfare Allowance:
A person may qualify for additional payments under the Supplementary Welfare Allowance scheme from the Health Service Executive e.g. Rent or mortgage interest subsidy, Diet Supplement, Exceptional Needs Payments, Medical Card etc.
See separate guideline " SWA Guidelines" and other Supplementary Welfare Allowance guidelines for further details.
OVERLAPPING PROVISIONS
Not more than one Guardian's Payment (Non-Contributory) may be payable in respect of any one orphan.
(i) A guardian may be in receipt of any payment made by the Department of Social Protection in their own right and still receive Guardian's Payment (Non-Contributory) in respect of any child/ren residing with them.
Increase for Qualified Child (IQC) in respect of any child/ren for whom Guardian's Payment (Non-Contributory) is in payment will not be payable on Guardian's own social welfare payment.
(ii) A child for whom Guardian's Payment (Non-Contributory) is being paid may also receive (subject to the normal qualifying conditions) one of the widow(er)'s or one-parent family payments listed at A below OR one of the short-term benefits listed at B below. He or she may not receive one of the short-term benefits in addition to a widow's or one-parent family payment. He or she may also receive a Blind Pension, if entitled in his/her own right, but may not receive any of the payments listed at B below in addition to the Blind Pension.
A:
- Widow's or Widower's (Contributory) Pensions,
- Widow's or Widower's (Non-Contributory) Pensions,
- Death Benefit (Occupational Injuries) by way of Widow's, Widower's or Parent's Pension
- One Parent Family Payment
- Persons who are in receipt of a relevant payment under section 18 of the 1996 Act, i.e. Deserted Wife's Benefit or Allowance or Prisoner's Wife's Allowance.
B:
- Adoptive Benefit
- Illness Benefit,
- Health and Safety Benefit,
- Occupational Injury Benefit,
- Maternity Benefit,
- Incapacity Supplement or
- Jobseeker's Benefit.
See separate guideline on " Overlapping Payments" for more details
PART 2: CLAIMS, INVESTIGATION AND DECISION PROCEDURES
Claims
Under Social Welfare legislation there is an onus on a person to apply to the Department for Guardian's Payment (Non-Contributory), if s/he believes that there may be such an entitlement. The GP 1 should be completed in full and signed by the claimant in all cases. Where the claimant is not able to sign the claim form, her/his mark instead of signature must be witnessed.
The Personal Public Service Number(s) (PPS No.) of the orphan's parents or step parents should be stated, if known. If the PPS No. is/are not known, details of former employment should be given.
The claimant should forward relevant documentation as indicated below with the signed claim form . However the documentation may be sent to the Department after the initial claim is made, if not immediately available. This may cause some delay in processing the claim as a Deciding Officer may not be in a position to decide on entitlement until all relevant documentation has been received in the Department.
An acknowledgement of claim is issued on receipt of the claim. The claim reference is quoted and the claimant is asked to quote same in any future contact with the Department.
A person may, depending on financial circumstances, claim Supplementary Welfare Allowance, while awaiting a decision on pension entitlement.
Late Claims
A claim to Guardian's Payment (Non-Contributory) should be made within three months of date of entitlement. A person may be disqualified for payment of Guardian's Payment (Non-Contributory) for any period before the date on which the claim is made and entitlement exists.
If a claim for Child Benefit or a claim for Increase for Qualified Child (IQC) was made by the guardian at any time, that will be accepted in lieu of a claim at that time to Guardian's Payment (Non-Contributory) and, in the absence of indications to the contrary, as sufficient evidence of guardianship.
In rare cases where there was neither claim to Child Benefit or IQC, the claim will be examined under the provisions of the Late Claims legislation. (See Claims and Late Claims Guidelines for details)
For instance, the payment may be backdated for up to six months where "good cause" is shown for the delay in making the claim, provided the claimant can prove to the satisfaction of a Deciding or Appeals Officer that s/he satisfied the qualifying conditions for receipt of payment during that period.
If, in the unlikely situation that there is no claim to Child Benefit in place and independent verification of the date the child came to live with the guardian cannot be provided, the claim will be awarded from the current date.
Documentation
A person claiming Guardian's Payment (Non-Contributory) is required under social welfare legislation, to produce certificates, documents, information and evidence required, including the original long version of orphan's Birth Certificate, parent's Marriage and (where appropriate) Death Certificates, and any other supporting documents relevant to their claim. A claim cannot be awarded until necessary documentation has been provided.
Offences
It is an offence for a person to knowingly make a false or misleading statement or to provide documents or information which s/he knows to be false in some respect for the purpose of obtaining or establishing entitlement to Allowance. A person found guilty of such an offence could be liable to a substantial fine or a term of imprisonment of up to 12 months or both. Any overpayment of pension would also be repayable to the Department.
INVESTIGATION OF CLAIM
Investigation by Social Welfare Inspectors
All claims are referred to a Social Welfare Inspector prior to decision by a Deciding Officer, in order to establish if the conditions of entitlement to Guardian's Payment (Non-Contributory) are fulfilled. Depending on circumstances, a Social Welfare Inspector's report may address issues such as the orphan's means, household composition, and where appropriate inspect relevant certificates. The Social Welfare Inspector also reports on the following:
- if the child(ren) can be regarded as orphaned within the meaning of the legislation
- the guardian or person with responsibility for the care of the orphan and the normal residency of the orphan
- any other relevant information
The Social Welfare Inspector completes a report for a Deciding Officer, usually following an interview with the claimant. When all the relevant information is available the claim is returned by the Social Welfare Inspector to a Deciding Officer for decision on entitlement.
Where a person provides evidence of employment to the Social Welfare Inspector, a check is made to establish whether the person may have an entitlement to Guardian's Payment Contributory.
Decisions
Claims are decided by Deciding Officers appointed by the Minister under Section 300 of the Social Welfare (Consolidation) Act, 2005. They are independent in the exercise of their function in deciding on entitlement to pension.
A written notification of the decision is issued to the claimant. Where claims are disallowed or allowed at a rate other than the maximum, the claimant is given an explanation of the basis for the decision and also given the right of appeal. Details of means/earnings assessed as income are also shown.
Claimants are advised of their right of appeal against a Deciding Officer's decision. The appeal must be lodged within 21 days of the date of notification of the decision on their claim.
Any decision of a Deciding Officer may be subsequently revised by a Deciding Officer in the light of new information or evidence. This could arise where new information is made available as part of an appeal by the claimant. In such circumstances, a Deciding Officer may revise a decision on entitlement, if it is to the advantage of the claimant. There is also a right of appeal against a revised decision.
See separate guidelines on " Decision-Making" and " Revised Decisions" for more details.
All award notifications advise the claimant of circumstances which could affect continued entitlement to the payment and request the claimant to advise the Department of any such changes in circumstances.
Any certificates or documents which have been submitted in support of the claim are returned with the decision notification.
Appeals
If a claimant is not satisfied with the decision of a Deciding Officer s/he can appeal directly to the independent Social Welfare Appeals Office. An Appeals Officer can decide the matter summarily or may deal with the case by way of an oral hearing. An appeal should be lodged within 21 days of receipt of the decision, outlining the grounds for appeal.
A statement is prepared on the facts relied on by the Deciding Officer in the making of a decision on entitlement to pension and on the extent to which the facts and contentions advanced by the appellant are admitted or disputed. This statement is put before the Chief Appeals Officer.
PART 3: PROCEDURES FOLLOWING AWARD PAYMENT METHODS
Payment Date:
A Guardians Payment (Non-Contributory) is payable weekly in advance. The payment date is Friday. This also applies to the payment of increases or allowances.
Payment Methods:
Persons living in the State have the option of having Guardians Payment (Non-Contributory) paid by one of the following methods:
- Electronic Fund Transfer: Payable 1 week in advance directly into a Bank, Building Society or An Post Savings Account. Payment in this way has a number of advantages: the payment is lodged to the bank on the day of payment; the pension is more accessible; and you avoid delays and queues.
- Electronic Information Transfer: Payable weekly using a Social Services Card at a chosen Post Office.
- Arrears: Any arrears of payment due may be included in the normal method of payment or paid by cheque.
A person may request a change of payment method or to change nominated Post Office, Bank, etc. This can be done by notifying the Department.
In certain circumstances, a person can be paid by Personalised Payable Orders (PPOs). Please forward requests to Guardians Section.
Persons living outside the State have the option of having Guardians Payment (Contributory Pension) paid by one of the following methods:
- Electronic Fund Transfer to an account in the State ‑ payable weekly in advance into a Bank, Building Society or An Post Savings Account.
- Electronic Fund Transfer to an account outside the State, usually in the currency of residence and payable every four weeks (one week in advance and three weeks in arrears) into a relevant financial institution.
A person may change nominated account, bank etc., by notifying the Department.
Duration of Payment
Guardian's Payment (Non-Contributory) is payable for as long as the qualifying conditions are satisfied.
Claim Maintenance
Stop dates are inserted onto the Department's computerised payment system to ensure that Guardian's Payment (Non-Contributory) is discontinued when the child ceases to be a dependent i.e. at age 18 or if in full-time education, the date the child ceases full-time education or age 22, whichever is the earliest. If a child reaches the age of 22 during the school year, pension continues to be payable to the end of that school year.
Lost/Stolen Book/ Cheque action
When a book of payable orders or one or a number of orders, or a cheque from the Department is lost or stolen, it should be reported to the Department immediately. The Garda and the Post Office of payment should also be notified of any such loss or theft.
See separate guideline on " Payment Methods" regarding action to be taken when a book of payable orders or cheques are reported as lost or stolen.
Lost/Stolen EIT card:
Lost or Stolen EIT cards should be reported immediately to Guardians Section where the current EIT card will be cancelled and a replacement issued.
Payment to an agent
A person who is unable to cash his/her payable order book may nominate another person to collect the payment on his/her behalf. See separate guideline on " Payment Methods" for more details in relation to appointment of an agent.
Change of Post Office/Bank, Method of Payment or Change of Address
The Department should be notified as soon as possible by telephone or in writing. See separate guideline on " Payment Methods" for more details.
Absence from the State:
A Guardian's Payment (Non-Contributory) is not payable outside the State, except where it is payable in accordance with EU legislation. A person should notify the Department if leaving the State and payment will be suspended for the period of the absence abroad.
Payment may be made in certain circumstances for periods during which a person is temporarily outside the State e.g. on holidays, attending a family funeral etc. Payment may be made in such circumstances for a period up to 3 weeks.
See separate guideline on " Payment Methods" for more detail.
Illness/Hospital Stays
Arrangements may be made for payment of a pension where a person is too ill to attend the Post Office to cash payable orders, or is in hospital. See separate guideline on " Payment Methods" for more details.
Imprisonment
If the guardian or other person with responsibility for care of the orphan and to whom Guardian's Payment (Non-Contributory) is in payment, is undergoing penal servitude, imprisonment or detention in legal custody, pension may be paid to another person, for the benefit of the orphan, or directly to the orphan where the orphan is over 18 years of age.
If the orphan is undergoing penal servitude, imprisonment or detention in legal custody, including detention in a Young Offenders Centre, Guardian's Payment (Non-Contributory) is not payable to or in respect of the orphan.
See separate guideline on " Payment Methods" for more detail.
Certification of ongoing entitlement
Social Welfare legislation puts an onus on a person to notify the Department of any changes in circumstances which affect entitlement to Guardian's Payment (Non-Contributory). The onus is on the guardian (or the person to whom the allowance, including the orphan if over age 18, is payable) to notify the Department of any changes in circumstances which may affect entitlement.
On being notified of an award of Guardian's Payment (Non-Contributory) a person is issued with a list of circumstances which could affect continued entitlement to the payment. The person is requested to advise the Department of any such changes in circumstances.
In addition, persons are advised on an ongoing basis of circumstances which must be notified to the Department as follows:
Persons paid by payable order book: On the inside of the first page of the order book are "Instructions for cashing Orders". In the last few pages of the book is a list of some of the circumstances and events of which the Department must be notified about.
The person's signature on the payment book is to the effect that s/he has read and fully understands these instructions and obligations.
The following are some circumstances and events which may affect a person's entitlement to the allowance:
- Change of address
- Change of Post Office/Financial Institution
- Death of guardian or orphan
- An orphan no longer living with or being maintained by guardian.
- An orphan who reaches 18 years (or between 18 and 22) and not continuing in full-time education.
- Imprisonment or detention of guardian or orphan
- Guardian or orphan leaves the State.
- Child ceases to be an orphan as defined by current legislation and guidelines.
- Foster Care or Relative Foster Care Allowance commences to be paid in respect of the child.
- The child returns to live with parent/s or parent/s commence residence with the child.
Failure to notify the Department of any of the above events may result in overpayment of Guardian's Payment (Non-Contributory) which may be recoverable from the recipient by way of lump sum repayment or weekly deductions from other social welfare payments.
See separate guideline on " Overpayment Recovery" for more detail.
It may equally result in an underpayment of Guardian's Payment (Non-Contributory) e.g. where an orphan between age 18 and 22 is continuing full-time education and certification of continuing attendance at full-time education has not been sent to the Department. The effective date of payment of any underpayment due would normally be decided by reference to legislative and other provisions in relation to late claims - see at Part 2 above.
Review
A review is initiated when the Department is notified of any change in circumstances which may affect entitlement. This review may be carried out by way of a visit from a Social Welfare Inspector or by direct correspondence or phone contact with the person.
Periodic reviews are also initiated by the Department to confirm that the qualifying conditions for receipt of Guardian's Payment (Non-Contributory) continue to be fulfilled.
Suspension/Revocation/Reduction of Payment
Payment of Guardian's Payment (Non-Contributory) will be discontinued if the qualifying conditions are no longer satisfied e.g. where orphan is no longer living with and being supported by the claimant or where there is no longer any entitlement in respect of an orphan aged 18 to 22 years, who has ceased full-time education or the child ceases to be an orphan. Payment of pension may be reduced where means have increased.
Depending on the circumstances of the case, the Deciding Officer may, having established the facts of the case, consider it necessary to write to the claimant outlining the reasons why it is deemed that s/he no longer appears to satisfy the conditions for receipt of Guardian's Payment (Non-Contributory) or at the rate currently in payment. The claimant will be given 21 days in which to comment. If new evidence or fresh information is advanced by the claimant, the Deciding Officer will re-examine the case. If, however, no new information is advanced or that advanced is considered by the Deciding Officer to have no material bearing on the case, the Deciding Officer will make a decision revoking the pension payment or revising entitlement downwards, as appropriate. There will be a right of appeal against this decision, as referred to already in this guideline.
Also, where initial enquiries with a claimant including written communication, fail to establish the facts as required, payment may be suspended until the relevant information has been provided by the claimant or a person acting on his/her behalf.
See also separate guidelines on " Decision-Making" and " Revised Decisions" in relation to principles of Natural Justice and revised decisions.
If an overpayment has occurred it may be recoverable by the Department. See separate guideline "Overpayment Recovery" for more detail.