Decision
Mr D and Department of Social Protection
From Office of the Information Commissioner (OIC)
Case number: OIC-151359-S3B9H4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-151359-S3B9H4
Published on
Whether the Department was justified in refusing an application made under section 9 of the FOI Act to amend certain information in the record of the applicant’s PRSI contribution statement for 2018
19 May 2025
On 17 June 2024, the applicant applied, under section 9 of the FOI Act, for the amendment of his PRSI contribution statement for the 2018 tax year, to include details of 15 Class A contributions he paid in 2018. He said he retired in 2017 but was liable for Class A PRSI on backpay he received in 2018. On 10 July 2024, the Department refused the application for amendment. It said that as the applicant was already attributed Class A contributions in 2017 for work carried out in that year, no further contributions can be awarded to reflect back pay for the same work.
On 25 July 2024, the applicant sought an internal review of the Department’s decision. Among other things, he said:
• a PRSI Refunds Section email confirms backpay was reckonable for PRSI in 2018.
• Intreo’s PRSI records show backpay as earnings reckonable for PRSI in 2018.
• backpay was received in 2018 and Class A PRSI contributions were paid in 2018.
On 7 August 2024, the Department affirmed its original decision. It said the bonus/back pay received in 2018 related to work carried out in 2017 and that the payment is not regarded as insurable employment for 2018. It said the backpay should ideally have been returned to the 2017 year via an amended P35 return to Revenue or alternatively, it should have been returned with nil contribution weeks as while the payment was liable to PRSI, the applicant was not entitled to contribution weeks in 2018 as the payment referred to 2017.
On 18 August 2024, the applicant sought a review by this Office of the Department’s decision. He said that as a retiree he was PRSI-exempt in 2018 except for the backpay which was earned in 2017 and therefore liable for PRSI. He said the key point is that PRSI liability on this backpay arose when it was paid to him in 2018. He said his PRSI Liability for 2017 was fully paid in 2017 and he said the assertion by CES Records that this PRSI belongs to 2017 makes no sense. He said liability for PRSI on the backpay only arose in 2018.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence outlined above and to the submissions made by both parties. I have also examined the record at issue and additional information submitted to this Office by the applicant in support of his application. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Department was justified in its decision to refuse to amend, under section 9 of the FOI Act, the applicant’s PRSI contribution statement for the 2018 tax year.
Section 9 of the FOI Act provides for a right of amendment of incomplete, incorrect, or misleading personal information in a record held by an FOI body. The Act is silent on the question of where the onus of proof lies in section 9 cases. This Office considers that in the absence of any express statement in the Act, the onus of proof lies on the applicant as the party asserting that the information is incomplete, incorrect or misleading.
The Act is also silent as to the standard of proof which should apply in such cases. This Office takes the view that the standard of proof required in such cases is that of "the balance of probabilities". It follows, therefore, that an applicant seeking to exercise the right of amendment under section 9 must show that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect, or misleading.
The Office does not see its role arising from section 9 as being to conduct its own comprehensive enquiry as to the accuracy or completeness of records held by a public body. Rather, we must have regard to the evidence provided by the applicant, and to any rebutting evidence put forward by the FOI body and make a decision on that basis.
Furthermore, this Office would not be justified in directing an FOI body to amend its records on the sole basis of contrary statements or opinions, however strongly held, by the person seeking the amendment. Thus, an applicant's assertions alone will not form sufficient evidence to warrant an amendment, in the absence of supporting evidence. The fact that an applicant may fail to provide sufficient evidence to enable the Commissioner to conclude that the information in a record is incomplete, incorrect or misleading will cause the records to remain undisturbed, but this does not carry any judgement on the part of the Commissioner that the record is, in fact, complete, correct and not misleading.
The Commissioner also takes the view that section 9 does not provide an alternative mechanism for resolving disputes regarding the administrative actions of FOI bodies or an alternative appeal mechanism against determinations by a properly appointed authority. The Commissioner considers that a determination by a properly appointed authority cannot be deemed to be incomplete, incorrect or misleading if made by a properly appointed and authorised person and in the absence of a successful appeal as provided for by the appropriate legislation. (Such determinations may include, for example, a determination in relation to the entitlements of an individual as a beneficiary under the Social Welfare Acts, or a determination of the liability of an
individual in respect of tax or duty payable.)
The essence of the applicant’s argument for asserting that his PRSI contribution statement for the 2018 tax year is incorrect or incomplete is based on his view that PRSI liability on the backpay he received in 2018 arose when it was paid in 2018 and that his PRSI Liability for 2017 was fully paid in 2017. The Department’s position is that this is incorrect.
In its submissions to this Office, the Department said the applicant’s employer returned a payment in 2018 deducting PRSI at the Class A rate and awarded 4 Class A1 contributions. It said it was only when the applicant queried the validity of only 4 A1 contributions being awarded that it came to light that the payment related to back pay/bonus for a previous year. It said the applicant’s case was referred to the Tallaght District Social Welfare Inspectorate to determine the validity of his 4 PRSI Class A contributions which the employer returned for the applicant in the 2018 year. It said this is normal procedure and was already explained to the applicant via email on 6 February 2025. It said that based on information provided by applicant, the payment returned from the employer in 2018 referred to a back payment/bonus payment for a period in 2017. It said that the applicant is therefore not entitled to Class A PRSI contributions in respect of the payment made in 2018. It said this payment is now recorded as PRSI Class M on his record. It said PRSI Class M is used as it still allows the customer’s record to be issued without showing errors.
The essence of the Department’s position on the matter is that the earnings returned by the applicant’s employer in 2018 was backpay for 2017 and no Class A contributions were due in 2018 as the applicant already received Class A1 Contributions for the period of the backpay in 2017. It said while PRSI is payable in the year that a payment is received, this does not equate to PRSI contributions for the year itself, and the applicant is not entitled to Class A PRSI contributions in 2018 in respect of a payment made for work undertaken in 2017. It referred to the publicly available PRSI Employer Guide, which provides as follows:
“Where PRSI is applied to a back-payment in respect of a previous period for which weeks of Insurable Employment have already been recorded, that is a retrospective pay increase or bonus for prior service, an additional week of Insurable Employment should not be submitted. Where the back-payment is the only payment being made and being submitted in the current period, “0” (zero) weeks of Insurable Employment should be submitted.”.
In response to the applicant’s assertion that attributing 2018 PRSI to 2017 would give rise to an overpayment for 2017, the Department said there was no overpayment made as the payment received in 2018 for 2017 was not included in the employer’s original return for the 2017 tax year.
While it is clear that the applicant does not accept the Department’s explanation as to why he is not entitled to Class A PRSI contributions in 2018 in respect of a payment made in 2018 for work undertaken in 2017, he has submitted no evidence to suggest that the Department’s explanation is incorrect. I find, therefore, that the applicant has not shown, on the balance of probabilities, that the information contained in the records at issue is incomplete, incorrect or misleading. Accordingly, I find that the Department was justified in refusing to amend the record in question.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision to refuse to amend certain information in the record of the applicant’s PRSI contribution statement for the 2018 tax year on the ground that the applicant has not shown that the information that is the subject of the application is, on the balance of probabilities, incomplete, incorrect or misleading.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
Stephen Rafferty
Senior Investigator