Issue 42

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Seanad debates FLAC report on social welfare appeals

In the Seanad, Katherine Zappone (ind, Taoiseach nominee) moved a motion for the reform of the system of social welfare appeals  (Seanad Eireann, Debates, 7th November 2012,  260-289).  She started by citing the Free Legal Advice Centres (FLAC) report Not fair enough which applied a human rights standard to the appeals system.    Any appeals system should be fair and transparent and she argued that it should be based on four principles: fair balance between the parties, the right to an oral hearing, legal assistance in complex cases and consistency in decision-making.  At present, there is no balance between the parties, because appellants are not given a copy of their file, which is available to the other side and may contain information of which they are unaware.  There is a right to an oral hearing under the European convention on human rights and oral hearings have a higher rate of success, so it should not be at the discretion of the appeals officer.  In complex cases, appellants are at a disadvantage unless they have legal advice and that should be provided either through the civil legal aid scheme or through advocacy organizations.  Finally, there should be consistency, with significant decisions made available on a database.  These were modest but necessary proposals.

 

Her motion was supported by Fiach Mac Conghail (ind, Taoiseach nominee) who argued that the resources of the system should be put into the earliest stage of the process and thus achieve fairness and less hardship, for the hardship cases were quite distressing.  Telling people that they had the right to an oral hearing was not about spending additional money but providing consistency in decision making.  There should be a system for fast-tracking urgent and hardship cases, but there was not at the moment.  The fact that 42% of appeals were successful showed that the system was flawed at an early stage.  At present, the waiting time for a summary decision was 22.4 weeks and for an oral hearing 40.9 weeks, so the minister should set a reasonable target for a waiting time.

 

Sen. Fidelma Healy-Eames (FG, labour) moved a three-page government amendment – attacked by Fiach Mac Conghail as verbose – and spoke of the unprecedented strain under which the appeals system had come.  15 additional appeals officers had been appointed, 34,000 appeals were closed in a year and processing times had been reduced ten weeks.  She saw merit in setting maximum times for appeals and in urgent cases jumping the queue.  Whereas in 2004, 70% of appeals went to oral hearing, this was now 35% and that was surely progress.  In the area of domiciliary care allowance, she noticed that most appeals were turned down and she wondered if the officer had already decided to dismiss the case.  She agreed a lot with what the proposers said and although huge progress had been made, this did not mean we could not do better.

 

Paschal Mooney (FF, agricultural) told the house that he had never seen as long a government amendment, 900 words and a piece of propaganda.  He was well aware that the minister was groaning under the weight of the most difficult department.  1600 people were waiting to have appeals for carer’s allowance processed and they must be high on the list of the hierarchy of vulnerability.  The appeals office did not publish previous decisions even in an anonymized format, leaving the appellant at a disadvantage and not knowing if a previous point of law or policy had been decided or clarified.  The Equality Tribunal published its decisions.  For all the new staff that had been appointed, why was there not now a time limit? he asked.  FLAC argued that the appeals office should be independent of the department, but at the moment the department was judge, jury and executioner in its own case.  John Kelly (Lab, administrative) spoke of how nobody had an idea when an appeal might be dealt with and cited a case brought to him by a man who had been told that some time would elapse before his case was dealt with, but did not have a clue when it would happen.  People should be sent a full copy of their file to see what had happened to their application.  

 

David Norris (ind, Dublin University) described the government amendment as a fog squirted by departmental officials and an attempt to derail argument by prolonged attention to the inessentials.  In 2007, the chief appeals officer had recommended the social welfare appeals office be independent.  Those who made appeals came from marginalized areas and had difficulties with literacy, fluency and even comparatively simple forms and were expected to negotiate a system that was incredibly complicated.  Getting information on file was vital and he cited the Kafkaesque case of someone who was refused naturalization but was told to give the grounds for his appeal, but when he asked for the information on which the decision was based he was refused.  People cannot be expected to mind-read appeals officers to try understand why particular decisions were handed down.

 

The Minister for Social Protection, Joan Burton, welcomed the FLAC report and described the significant efforts being made to improve the appeals process.  In recent years, the unprecedented increase in appeals led to unacceptable delays and backlogs.   Appeals rose from 15,000 in 2009 to 32,000 in 2011.   There was already a prioritization system, for supplementary welfare allowance appeals were prioritized, with processing times of 16 weeks for a summary decision and 21 weeks for an oral one.  She described the way in which appellants were permitted to make multiple presentations and submit fresh evidence, showing that our system was humane.  On the issue of a database of decisions, she cited Ikraam Jama vs Minister for Social Protection of 11th October 2011 where the judge found that there was no duty on the social welfare appeals office to maintain a database for public access.  To set up a database for 28,000 cases would be an enormous undertaking and we did not have the financial or staff resources to do that, which would involve removing names, addresses and personal information.    As it was, the chief appeals officer published case studies of how appeals were decided.  She was also examining the issue of amending the appeal form to allow people to request an oral hearing – but because of the large number of cases, we needed to clear about the expectations that this might generate, especially in cases which by their nature should be decided on a summary basis such as if a person did not meet the means test.  She concluded by saying that they were trying to make the system as friendly and efficient for people as possible: ‘We have an appeals system because not everyone qualified for what they wish to apply.  We have sought to make the appeals system as fair as possible, but we do not have extra resources.  The reforms taking place in the system involve, to be honest, doing more with less’. 

 

David Cullinane (SF, labour) regretted the government amendment, which ruled out a commitment to even the most modest action.  Delays in appeals could mean severe hardship for many.  The failures were not just mechanical ones, but had consequences for people’s lives and could result in destitution.  He did not support appeals officers being filled by ministerial decision, but they should be publicly-advertised positions.  There was a need for people from a wider variety of backgrounds, with organizations like the Society of St Vincent to Paul or the Carer’s Association making nominations.  He regretted that the minister would not take on board practical and considered recommendations.

 

Tony Mulcahy (FG, labour) said he would support the government amendment unfortunately because being the government one had to do that.  He described the way in which people filled in forms, including a young lad with severe autism.  He wanted to know the clinical qualifications of the medical assessors for domiciliary care allowance.  There was a problem either with the assessments or the adjudicators, but there was a problem somewhere.  We cannot come in here and say everything is fine.  He had visited the houses of the applicants.  Does the domiciliary care assessor pick up the phone and speak to the clinician who made the original assessment?  We must be clear that there is a cost to disability.  He was not saying that every claim was 100% bona fide, but ‘do not deny that family for 18 years.  They have enough to put up with’.

 

Labhras O Murchu (FF, cultural & educational) described the amendment as a lost opportunity to engage with the motion.  If something was not working properly, one could restructure or scrap it – but there was no one there who was comfortable in speaking against the motion.   He did not hear anyone dispute the information put forward by FLAC. People were waiting more than a year in destitution, begging from their family to survive. When members who had not particular axe to grind table a motion like this, there should have been another way of dealing with it.

 

Jillian van Turnhout (ind, Taoiseach nominee) informed the house of McLoughlin vs the Minister for Social Welfare, a Supreme Court case 60 years ago which set down that appeals officers should be unrestricted by ministerial control – yet all were nominated by the minister.  There was no public appointment process.  Appeals officers could be removed at any time back to the department.  Selection criteria should be made public, officers come from a variety of backgrounds and be trained.  The system was not independent or transparent.

 

Sean Barrett (ind, Dublin University) told the Seanad that we had given away so many entitlements that we had exhausted the taxable and borrowing capacity of the country and now we were bankrupt.  The appeals procedure cost €47m and on top of that the National Advocacy Service received €2.6m, the Irish National Organization of the Unemployed and Northside Community Law Centre €1m between them: ‘we have made a nightmare industry out of this’.  We cannot give everyone what they want and that is what has the country bankrupt.   Our payments were not low by European standards and we cannot sustain existing social welfare standards.  The minister was making an honest attempt to ration resources toward those who need them most.

 

Aideen Hayden (Lab, Taoiseach nominee) disagreed.  When there was less to spend, openness and transparency were even more important.  She contrasted the low appeals rate in Northern Ireland, which meant that the decision stage here was not good enough.  She was concerned with the powers of the appeals officers to decide on an oral hearing, which was significant.  The department was a party to its own hearing, which she did not believe could by its nature be independent.  She cited the European convention on human rights which found that §62 of the Housing Act was repugnant to the convention because Dublin City Council could not be judge and jury in its own case.

 

Mary Moran (Lab, Taoiseach’s nominee) spoke of how ‘unfortunately I will have to vote with the government’ and she was horrified at the number of special needs children refused domiciliary care allowance even when they had submitted the medical evidence.  Today she had occasion to telephone a constituent to tell her that her appeal had been upheld and she now qualified for domiciliary care allowance, for which she had been waiting on appeal for a year.  She was driving when she got the message and broke down speechless with gratitude.  She should have got it a year ago and not put through the hoops for this.  Children with an intellectual disability were deserving of a medical card but it had been refused in many cases.

 

Concluding the debate, Katherine Zappone said that the government’s message was that further reforms were not necessary, current reforms were largely sufficient and that the government had not taken on board any calls for changes to a system that was not fair enough, so she would push it to a vote.  Her motion was defeated 25-11.