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Ask Buachaill Your Own Question
Buachaill, Lawyer
Category: Republic of Ireland Law
Satisfied Customers: 10626
Experience:  Barrister 17 years experience
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I am in a relationship with my boyfriend a

Customer Question

I am in a relationship with my boyfriend for over a year. At the end of last year his lease has ended and I agreed to temporary let him stay at my house until he finds his new place. This lasted for about three months and then he moved out to live with his friend. He still continued coming over and having sleep overs at my place 2-3 nights per week, and on a days off he would spend some time here also. So some of his belongings are still at my house (tools, motorbike parts, motorbike that he is fixing at the moment after a crash), but no personal belongings like clothes, shoes, hi-gene items etc. I got a visit from SW Inspectors and was accused of cohabitation with him. I explained that this was a temporary arrangement and that he is not living here anymore, he is not supporting me or my son financially. They saw a letter addressed to my boyfriend with my address on it, I explained that I let him use this address just for the bank and Insurance purposes as he has just received his compensation for Personal Injury and was looking to get a mortgage, therefore he needed to show where he is residing at present as well as get an Irish Credit Bureau rating. After one day I have received an email from same Inspector with a list of documentations requested (tomorrow is the last day to submit them), but since then he has already made a recommendation to a Deciding Officer to suspend my payments based on the fact that I am cohabiting, and I have also received a letter where my boyfriend is being referred to as my partner and an application form to include him as my partner on my claim was also posted to me.
I would like to ask you in your opinion have they not already violated my rights under the Natural Justice principals? which state:
The right to know the information upon which a decision is being made
The opportunity to comment upon any reports or documents being used in reaching the decision and
Generally to present his or her case
The right to know the reasons for any adverse decision
The right to have all relevant evidence considered and irrelevant evidence not taken into account
To have the decision made by an impartial person whose discretion has not been fettered and,
Where it is necessary for a fair determination of the issues, an oral hearing.
It seems to me that they have already reached their decision and established (it's clearly stated in their email) that I am cohabiting with my boyfriend PRIOR to providing me with an information upon which decision is made, WITHOUT giving me an opportunity to comment on reports/documentations in other words evidence which was used in reaching their decision and WITHOUT giving me time and opportunity to provide substantial evidence and present my case, also WITHOUT informing me of the reasons for their decision, also WITHOUT considering ALL relevant documentations/evidence AND never less the deciding officer has already being fettered as he received their recommendation to suspend my payments based on the information provided only by them.
I feel like I have no chance in proving that they're wrong, that I am not cohabiting with my boyfriend as their actions show that this is already decided/established. I believe in these cases - 'Innocent until proven guilty' should apply and no presumptions to be regarded as a solid evidence. In the legislation there are so many criteria which define cohabitation and most of them would not even apply in my case. Can your good self advise me what to do further? Should I inform the Ombudsman's Office about this situation? Thank you kindly for your time taken out.
Truly Yours,
Jurga Petkus
Submitted: 1 year ago.
Category: Republic of Ireland Law
Expert:  Buachaill replied 1 year ago.
1. Dear Jurga, before the principles of natural justice are engaged in a decision being made, the person the subject of any decision has to engage fully in the decision-making process. So, here you need to provide the SW Inspectors with the documentation they are requesting and also to submit a statement setting out your grounds for denying the allegation of cohabitation. This is because, if you don't engage in the decision making process, even it is flawed, you cannot subsequently judicially review the decision of the SW Inspectors should the procedure be wrong. So, as the final decision has not been made yet, you first need to engage in the decision making process before you will be able to challenge it.
Expert:  Buachaill replied 1 year ago.
2. In judicial review proceedings, if you can show the decision of the SW officer was made, in circumstances where it was already fettered by the previous recommendation to suspend your SW payments, then you will have good grounds for challenging the decision made. However, in order for you case in court to be successful, you must be seen to have engaged in the decision making process. If you don't engage in the decision making process, this will be held against you and you won't win your case in court.
Expert:  Buachaill replied 1 year ago.
3. However, your first port of call should be to make a complaint to the Ombudsman about the matter. However, you first should engage in the process and see what outcome results. Whilst you may have your fears, as of yet, there has been no adverse decision. So wait until the decision has been made before you seek to challenge it. In the meantime, engage with the process.
Expert:  Buachaill replied 1 year ago.
4. Please Rate the Answer as unless you Rate the answer your Expert will receive no payment for answering your question.
Customer: replied 1 year ago.
Yes I do understand that. And I am hoping that I will be able to submit all the documentations tomorrow. I have also emailed the Inspector with an update that I have not yet received all bank statements by post as it may take up to 10 working days. But my question is, why are they acting as if the decision is made already? Their suspending my payment, posting me letters and application forms as if I have admitted that he is my partner and now I am wishing for him to be included on my claim. Should they not sent this sort of correspondence AFTER the decision is made by the Deciding Officer?
This is a quotation I received from SWI in the first email : 'As a result of our visit and your letter with the considerable information it contained I have recommended the suspension of your claim to a Deciding Officer with immediate effect on the basis that you are co habitating with Mr. and that you have been for a period yet to be determined'. From this I understand that he has established the cohabitation fact already and is now acting on it, that's why I feel that my right were violated already as I had no chance to present my evidence that would show otherwise.
Thank you for your comment.
Expert:  Buachaill replied 1 year ago.
5. The Irish Social Welfare Acts are unusual in that they give this power to suspend - not revoke - a right to SW when a decision is being made. This does not mean that your case has been decided. Instead, it means that your SW payments are not going to be made until the decision is taken. This is structured in this way so as to avoid the need to recoup payments incorrectly made. So, until a decision has been made, there are no SW payments. From a legal point of view, you could challenge this suspension of payment in court. However, it is unlikely to meet with much success, as many judges would view the payment of SW whilst a decision is being made as being foolish, if adopted by the authorities.
Customer: replied 1 year ago.
But what about my minor son? What about his right to security? I am unable to cover the rent cost as I earn very little from my self-employment, and this suspension may last weeks if not months, I believe I am going to be evicted on a street and become homeless soon as in this economy there are no properties that I could afford to pay rent out of my own income and no one would accept me as a tenant with little income that I earn as I would not be in a position to pay rent. My rent is not paid for three months as they carried out a review of my claim and my payment had to resume at the end of April, but now they suspended it again. It seems that they're empowered to do as they please and leave a single mom without a penny in a situation where the fact of cohabitation is not even yet established. What other powers do they have? Can they contact my bank and is my bank obligated to provide information about my finances? Can they question my neighbors? Can they watch my house? What if they come over again and my boyfriend stayed over the night and they find him? I am not willing to artificially create a situation where he has to stay away from me and the property there I reside as this would feel that we did something wrong before, but we didn't, our relationship was and is normal as of girlfriend-boyfriend and not as husband and wife. I want to continue my relationship as it was and feel free in doing so, but then how will it look in the eyes of social inspectors? I am living in constant fear and panic that they're watching my house; I am in constant stress as I have no idea how I am going to cover my rent and provide for my son. I am just lost as it is.