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Annual Report of the Ombudsman 2008 (text version)

6.2.2 Selected cases - local newspaper contributor gets non-contributory pension after means review

A man approached my Office after the department had refused a non-contributory State pension.  His income consisted of a small sum for royalties from plays and for writing for a local newspaper.  However, as he inherited the family home jointly with his brother, who continued to live in the house, this was also taken into account as means when assessing his entitlement to the payment.   As a result, the department held that he was not entitled to a non-contributory State pension, as his means exceeded the statutory limit allowed.  Although the complainant appealed this decision, this appeal was refused on the grounds that the house was up for sale and so he had been properly assessed with half-ownership of the property.  However, at the time of making the complaint to my Office, the house remained unsold.

Under social welfare regulations, a second house is assessable only as means for social welfare payments if it is not being personally used or enjoyed by the person claiming the payment and either,

1. it is invested or is otherwise put to profitable use by the person or,
2. although not invested or put to profitable use, it is capable of being invested or put to profitable use.

I requested a review of the department's decision on the grounds that, as joint owners, both brothers have a legal right of residency in the family home.  I reasoned that although the property was for sale, owing to the legal rights of the present occupant, his brother, the house was not capable of being put to profitable use until such time as it was sold.

I am pleased to say that the department re-examined the claim and decided, having reviewed the particular circumstances of the case that, as long as the family home remained unsold, it should not be regarded as means when assessing the complainant's entitlement to a non-contributory State pension.  This resulted in the complainant being awarded the pension of €212 per week, from February 2008 and the payment of arrears in the amount of €37,954.00.

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