Publication
Operational Guidelines: Guardian's Payment (Non-Contributory)
From Department of Social Protection
Published on
Last updated on
From Department of Social Protection
Published on
Last updated on
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Internal Guidelines used in processing claims
Guardian's Payment (Non-Contributory) is a means-tested payment made in respect of a child who satisfies the definition of "orphan" under Irish social welfare law.
For the purpose of this document, any reference to 'payment' means a Guardian's Payment (Non-Contributory), unless otherwise stated.
In general, this payment is made to the person who cares for the child. Receipt of this payment does not prevent a person from receiving any other social welfare payment they may be entitled to, but they cannot be paid an increase for qualified child on any social welfare payment in respect of the orphan. See "Multiple Payments" and "Disqualifications" below for more information.
This payment was introduced on 1 January 1936 and was original called Orphan's Non-Contributory Pension. It was renamed Guardian's Payment (Non-Contributory) in July 2006, in recognition of the fact that the original remit of the scheme had been extended to include certain children who had not lost both parents through bereavement.
The legislative provisions relating to Guardian's Payment (Non-Contributory) are contained in:
Appendix 1 lists the main legislative provisions, where relevant, in more detail.
The principal EU legislation governing social security for migrant workers is Regulation (EC) 883/04. Guardian's Payment (Non-Contributory) is classified as a family benefit under EU Regulations.
This Regulation is accompanied by implementing Regulation (EC) 987/09, which covers the practical implementation of Regulation (EC) 883/04.
Guardian's Payment (Non-Contributory) is administered by:
Orphan
For the purpose of this payment, social welfare law defines an "orphan" as "a qualified child –
"both of whose parents are dead, or
one of whose parents is dead or unknown or has abandoned and failed to provide for the >child, as the case may be, and whose other parent –
is unknown, or
has abandoned and failed to provide for the child,
where that child is not residing with a parent, adoptive parent or step-parent"
(See note 1)
In deciding whether a child can be considered an "orphan" for the purpose of this payment, the Deciding Officer in the case must, in cases where the child has one or more parent still living, be satisfied that the child has been abandoned and that their parent or parents have "failed to provide" for them.
Guardian
For the purpose of this payment, social welfare law defines a "guardian" as "the person in whose care an orphan normally resides" (See note 2).
Abandonment and failure to provide
There is no legal definition of "abandonment" or "failure to provide". In cases where the child has one or more parent still living, the Deciding Officer examines the circumstances which led to the child being looked after by someone other than their parent, assesses the relationship between the child and the parent(s) and arrives at a decision as to whether the child is an "orphan" for the purpose of the payment.
Deciding Officers are responsible for deciding on entitlement to social welfare payments. They are appointed by the Minister for Employment Affairs and Social Protection and are independent in the exercise of their role. In arriving at their decision, Deciding Officers are bound by the legal provisions in the Social Welfare Acts and Regulations, and are expected to be familiar with the relevant operational guidelines, for example, "Decision Making and Natural Justice".
Deciding Officers must apply the relevant social welfare legislation to the facts of each case, which are established by considering the evidence provided.
When determining whether a child has been abandoned, a Deciding Officer will consider the following:
This list is not exhaustive and, due to the complex and sensitive circumstances often involved in such cases, the Deciding Officer may request and consider such other evidence as they see fit, before arriving at a decision on a case.
A parent is considered to have failed to provide for their child where they do not provide financial support for or towards the care of the child.
Abandonment and failure to provide includes the failure of a parent's duty to provide for the emotional and physical necessities of life required by the orphan (See note 3).
Note 1: Section 2 of the Social Welfare Consolidation Act 2005, as amended
Note 2: Section 171(2) of the Social Welfare Consolidation Act 2005, as amended
Note 3: See pages 53-55 of the Social Welfare Appeals Office Annual Report 2015
Guardian's Payment Non-Contributory is payable in respect of an orphan, where the weekly means of the orphan are less than a certain amount.
The means of the guardian are not assessed when establishing entitlement.
Receipt of Guardian's Payment (Non-Contributory) in respect of an orphan does not disqualify a guardian (as defined above) from receiving any other social welfare payment to which they may be entitled.
An Increase for a Qualified Child (IQC) is not payable on any social welfare payment, in respect of an orphan for whom Guardian's Payment (Non-Contributory) is in payment (See note 4).
An orphan may receive any of the following payments in their own right, without affecting the continuing payment of Guardian's Payment (Non-Contributory) to their guardian:
If an orphan becomes entitled to any social welfare payment not included in the list immediately above, there is no further entitlement to Guardian's Payment (Non-Contributory) in respect of that orphan.
Note 4: See Section 247(2) of the Social Welfare Consolidation Act 2005, as amended and Appendix 1 of this Guideline.
Payments under the Child Care Act
Guardian's Payment (Non-Contributory) is not payable in respect of a child for whom a payment is being made under Part VI of the Child Care Acts, 1991 to 2011.This includes children in respect of whom a Foster Care Allowance or Aftercare Payment is being made.
Imprisonment
Guardian's Payment (Non-Contributory) is not payable while an orphan is undergoing penal servitude, imprisonment or detention in legal custody.
In the event that a guardian is undergoing penal servitude, imprisonment or detention in legal custody, they can no longer be considered to be the person in whose care the orphan normally resides. Therefore, a new application for payment must be made by the person in whose care the orphan subsequently resides.
A person must apply to the department for Guardian's Payment (Non-Contributory). The GP1 application form is available:
The guardian should complete the form in full and sign it. Where the guardian is not able to sign the form, they can make their mark instead, but this must be witnessed.
The completed form, along with all necessary supporting documents, should be sent to:
It is an offence for a person to knowingly make a false or misleading statement or to provide documents or information which they know to be false in some respect for the purpose of obtaining or establishing entitlement to payment.
A person found guilty of such an offence could be liable to a substantial fine or term of imprisonment of up to 12 months or both. Any overpayment would also be repayable to the department.
A person may, depending on their financial circumstances, apply for Supplementary Welfare Allowance while awaiting a decision on their application for Guardian's Payment (Non-Contributory).
Evidence of births and deaths which occurred in the State is available to the department and documentary evidence of these events is not required.
In all other cases, when requested to do so by a Deciding Officer, a person applying for this payment must provide evidence such as birth and death certificates, if available and any other documents requested, to the Deciding Officer.
A claim for Guardian's Payment (Non-Contributory) should be made within three months of date of entitlement, that is, the date the applicant became the person in whose care the child resides. A failure to claim on time may result in loss of payment (See note 5).
A person is disqualified from receiving payment for any period more than 6 months before the date on which the claim is made.
Payment can be backdated up to 6 months from the date of receipt. Payment can be backdated further only where it is shown to the satisfaction of a Deciding Officer that the delay in claiming the payment was due to:
Note 5: See Section 241 of the Social Welfare Consolidation Act 2005, as amended by Section 9 of the Social Welfare Act 2011 and Articles 182 and 186 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations, 2007, (S.I. 142 of 2007), as amended by S.I. 240 of 2009.
When arriving at a decision, the Deciding Officer will consider the available evidence, establish the facts of the case and apply the relevant social welfare legislation to the established facts. See "Decision Making and Natural Justice" for more information.
Deciding Officers are responsible for deciding on entitlement to social welfare payments. They are appointed by the Minister for Employment Affairs and Social Protection and are independent in the exercise of their role. In arriving at their decision, Deciding Officers are bound by the legal provisions in the Social Welfare Acts and Regulations, and are expected to be familiar with the relevant operational guidelines, for example, "Decision Making and Natural Justice".
When a Deciding Officer has made a decision on entitlement to payment, they send a letter to the person, notifying them of the outcome of their claim.
If the claim has been awarded, the letter lists the range of circumstances which could affect continuing entitlement to the payment and asks them to advise the department of any changes in these circumstances.
Any certificates or documents which have been submitted in support of the claim are returned with the letter, if not already returned earlier.
If the claim has been disallowed, the letter explains the basis for the decision and also advises the person of their right to appeal against the Deciding Officer's decision. The appeal must be lodged within 21 days of the date of the notification letter. See 'Appeals' below.
Any decision of a Deciding Officer may be revised by a Deciding Officer if new information or evidence comes to light or if the original Deciding Officer made a mistake in relation to the law or facts of the case. A person has the right of appeal against a revised decision.
See "Decision Making and Natural Justice" and "Revised Decisions and Their Date of Effect" for more information.
If a person is not satisfied with the decision of a Deciding Officer they can appeal directly to the Social Welfare Appeals Office, by writing to that Office within 21 days, outlining the grounds of their appeal.
See Social Welfare Appeals Office for more information.
Guardian's Payment (Non-Contributory) is paid on Friday, weekly in advance. See "Payment Related Issues" for more information.
Payment is made by one of the following methods:
Arrears of payment may be included in the normal method of payment or paid by cheque.
A person may change their payment method, Post Office, financial institution or account by writing to the department.
Guardian's Payment (Non-Contributory) is paid while the guardian and the orphan continue to satisfy the relevant qualifying conditions.
Before being considered an orphan, a child must first satisfy the condition of being a "qualified child" (see Definitions above).
A child is regarded as a qualified child up to age 18, or, if they are in full-time education by day at any university, college, school or other educational establishment, up to the end of the academic year in which the qualified child reaches age 22.
Payment of Guardian's Payment (Non-Contributory) automatically stops when the orphan turns 18. It can only be paid past the age of 18 when the orphan remains in full-time education and the necessary documentary evidence is provided by the person receiving the payment. In such cases, Guardian's Payment (Non-Contributory) can be paid at most up to the date the orphan ceases full-time education or age 22, whichever is the earliest. If an orphan reaches the age of 22 during the academic year, the payment is paid to the end of that academic year.
The department may, in certain cases where the orphan is aged 18 or over, suspend payment over the summer and issue a form to be completed and stamped by the educational institution concerned, affirming that the orphan remains in full-time education, before re-instating the payment from the date of suspension.
Lost or stolen Department of Employment Affairs and Social Protection cheques or EIT cards should be reported to the department immediately. The Gardaí should also be notified if a cheque or EIT card is stolen.
A person who is unable to collect their payment may nominate another person to collect it on their behalf. See "Payment Related Issues" for more information.
A person receiving this payment must notify the department in writing if they change address or if they want to change the Post Office or bank account to which their payment is paid.
The department has a duty to ensure that it pays the right person the right amount of money at the right time.
There is an onus on all customers of the department to assist with this process when requested, confirming identity and other necessary details which may affect their entitlement to payment.
When a person is awarded Guardian's Payment (Non-Contributory), they are sent a letter which includes a list of the range of circumstances which could affect their continuing entitlement to the payment and asks them to advise the department of any changes in these circumstances.
The following are some of the circumstances and events which may affect a guardian's entitlement to payment:
Failure to notify the department of any of the above events may result in overpayment of Guardian's Payment (Non-Contributory) and any overpayment may be recovered by the department either by way of lump sum repayment or deductions from a social welfare payment. See "Overpayment Recovery" for more information.
The department may carry out a review of any person's payment at any time.
A review is always carried out when the department is notified of any change in circumstances which may affect entitlement. This review may involve a visit from a Social Welfare Inspector or direct correspondence or phone contact with the person.
Periodic reviews are also carried out by the department to confirm that the payment is correctly in payment, and that the qualifying conditions for receipt of payment continue to be fulfilled.
There is an onus on all customers of the department to assist with the review process when asked to do so, confirming their identity and other necessary details.
Where, despite the efforts of a Deciding Officer, including written communication to the person, it is not possible to establish the facts of a case as a result of failure on the part of the person to provide evidence or information, payment may be suspended until the relevant evidence or information has been provided by the person or a person acting on their behalf.
Payment will be stopped if the Deciding Officer decides that the person no longer satisfies the qualifying conditions for the payment.
In cases where a Deciding Officer proposes to decide that a person is no longer entitled to payment and where that proposed decision is based on evidence of which the person is not aware, the Deciding Officer may write a letter to the person, outlining the reasons for their proposed decision and giving them an opportunity to respond to the letter and, if they wish, provide other evidence. This letter is called a Natural Justice Letter.
The person is given 21 days in which to reply to a Natural Justice Letter. The Deciding Officer will re-examine the case if the person provides new evidence or information.
If no new evidence or information is provided or if the evidence or information provided is considered by the Deciding Officer to have no material bearing on the case, the Deciding Officer will make a decision revoking the payment. The person has the right of appeal against this decision.
The process outlined in the paragraphs above does not apply where the decision to reduce or revoke payment is based on information provided by the person or a person acting on their behalf.
See "Decision Making and Natural Justice" and "Revised Decisions and Their Date of Effect" for more information.
If an overpayment has occurred it may be recovered by the department. See "Overpayment Recovery" for more information.
This Appendix is intended as a guide only and is not a definitive list of all social welfare legislation in this area.
The main legislative provisions relating to Guardian's Payment (Non-Contributory) are contained in:
In this Appendix, any reference to "Section" means a Section of the Social Welfare (Consolidation) Act, 2005 as amended and any reference to "Article" means an Article of the Social Welfare (Consolidated Claims, Payments and Control) Regulations, 2007, as amended, unless otherwise stated.
All Acts and Statutory Instruments listed in this Appendix can be viewed online at www.irishstatutebook.ie.
Section 2
defines the following terms for the purpose of this payment:
Section 162
specifies the means test to be used when establishing entitlement to guardian’s payment (non-contributory)
Section 168
(1) states that guardian's payment (non-contributory) shall be payable in respect of an orphan
(2) states that not more than one payment shall be payable in respect of any one orphan
(3) states that guardian's payment is not payable in respect of an orphan for whom an increase for qualified child is payable along with either i) widow’s, widower’s or surviving civil partner’s contributory pensions or ii) one parent family payment
(4) states that guardian’s payment (non-contributory) shall not be payable for any period during which a payment is made in respect of a child under Part VI of the Child Care Act 1991 and any regulations made thereunder (see note 6)
(4) states that guardian’s payment (non-contributory) shall not be payable for any period during which a payment is made in respect of a child under Part VI of the Child Care Act 1991 and any regulations made thereunder (see note 6)
Section 169
(1) provides that the weekly rate of payment is set out in part 1 of Schedule 4
(2) sets out the means test for guardian’s payment (non-contributory)
Section 171
(1) provides that the payment shall be paid to the guardian of the orphan
(2) defines "guardian" as the person in whose care an orphan normally resides
(3) provides that the Minister, where he or she thinks fit, may direct that payment of guardian’s payment (non-contributory) be paid to some other person, other than the guardian, for the benefit of the orphan. This subsection also provides, subject to conditions and in the circumstances that may be prescribed in regulations, for the payment to be made directly to an orphan aged 18 years or more, where that orphan is not normally residing with a guardian
Section 247 (2)
provides that where guardian’s payment (non-contributory) is payable in respect of a qualified child, an increase for a qualified child cannot be paid with any other social welfare payment
Article 222
(1) states that, notwithstanding the provisions regarding multiple payments in the Social Welfare Consolidation Act 2005, as amended, an orphan can receive any of the payments listed in Article 222(3) without affecting the entitlement of their guardian to guardian’s payment (non-contributory)
(2) disqualifies orphans from receipt of certain social insurance payments in cases where they are already in receipt of certain other payments and, at the same time, a guardian is receiving guardian’s payment (non-contributory) in respect of them
(3) lists the payments an orphan can receive without affecting the entitlement of their guardian to guardian’s payment (non-contributory)
Note 6: This wording was inserted by Section 17(a) of the Social Welfare and Pensions Act 2007.