Social Welfare Appeals System:Motion

12.11.2012

http://tinyurl.com/bqnshr9

Senator Zappone

I welcome the Minister for Social Protection. I have expressed support and admiration for her reform agenda on numerous occasions. My colleagues and I view this motion on the social welfare appeals system as an integral aspect of the reform process. We bring it forward in awareness of the current economic context but with the belief that even in times of economic austerity, we must have due regard to fairness and justice, especially for those who are most vulnerable. We will identify areas in which there could be a more cost-effective use of the resources already available in the system.

We bring forward the motion because we are aware that many public representatives, including Senators and Deputies, receive requests and complaints from citizens and residents who are experiencing enormous delays within the appeals system. We understand many people are waiting for decisions to be overturned because the initial decision did not take into account all the circumstances of an individual or interpret accurately Irish or EU social welfare law as it applies to the individual's circumstances. These wrongful decisions were made at the first instance of decision-making and contribute to the extremely high number of appeals before the social welfare appeals office. A clear indicator that the process is flawed is the fact that 42% of decisions are overturned on appeal.

As the Minister is aware and the motion indicates, persons who make an appeal face a number of problems. The number of social welfare appeals has more than doubled in the past five years; there were 51,500 live appeals in 2011. The average waiting time for an appeal to be dealt with by summary decision is 22.4 weeks. The pressures on the system have resulted in a number of appellants being unable to access their fundamental rights owing to delays, causing destitution in some cases. We acknowledge that the number of appeals officers has been increased to 41 and that other system reforms have resulted in decreased waiting times and increased productivity. However, given the pressures exerted in the current economic climate, it is vital to highlight that the time is almost upon us when the capacity of the system will be reached owing to the ever growing number of appeals and the limited number of staff available to deal with them. Consequently, we will still have considerable delays in spite of the current reform process.

Thus, a key part of our motion calls for changes in the way decisions are made at the very beginning of the application process. We call for a social welfare application and appeals system that is transparent and independent. Our call is rooted in the recently published research on the system by FLAC, entitled, Not Fair Enough. I welcome several members of FLAC who are in the Visitors' Gallery. FLAC's motivation in carrying out this research was based on its enormous experience of representing social welfare applicants as well as working with other advocate organisations and independent law centres which have met the hardship of applicants at the coal face. Complementing this - here is where FLAC's research provides us with significant added value - it provides an analysis of the system from the perspective of human rights law. This gives us a framework within which to determine what is lacking within the current system. This objective analysis, from the perspective of the rule of law, highlights that people have a right to social security, that they have a right to fair procedures and that they have a right to due process and effective remedies. We request the Minister to ensure the independence and transparency of the social welfare applications and appeals system. We are aware that, according to the rule of law, especially the law of the European Convention on Human Rights, Article 6 of the convention, in noting a person's right to fair procedures, states:

In the determination of one's civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

My colleague, Senator Fiach MacConghail, will address the issues of our motion that recommend changes to the decisions made at first instance.
I will focus the rest of my remarks on a call to undertake and publish an audit of the independence of the social welfare appeals system and how to further improve fair procedures in the system and an appellant's access to justice. An audit provides us with an objective benchmark. That benchmark is a checklist of human rights principles and standards of fair hearing against which an objective judgment can be made with regard to the independence and transparency of the current system.I have selected four such principles as a basis for our recommendations for improving fair procedures and accessibility. The first of these is a fair balance between the parties. Current appeal procedures weigh against people when they attempt to make an appeal, because appellants do not have access to the same information as those making the decision about their case. Appellants are not automatically given a copy of their social welfare file which may contain useful information. This file as well as a copy of the deciding officer's submission, which contains information on why the application was rejected, should be provided to the appellant as a matter of course. It should not be necessary to make a freedom of information application.

Second, appellants should be informed of their right to seek an oral hearing, a right which they hold under Article 6 of the European Convention on Human Rights and which should not be at the discretion of an appeals officer. Statistics show there is a higher rate of success on appeal in cases where an oral hearing is held, compared to a decision that is made on written evidence only. I would like to give an example of the importance of oral hearings. A separated woman with a large family, not only had her one-parent family payment stopped, but also received a demand for €21,000, an alleged over-payment. Her payment was stopped in November 2009 and, following consultation with FLAC, she made an appeal to the social welfare appeals office. The Department claimed that she was co­habiting with her ex-partner.As a result of a freedom of information request the woman received her social welfare file. This file contained a social welfare inspector's report which stated that she was not cohabiting. The report showed that the evidence on which the Department based its opinion was flawed. The woman had presented written evidence in her initial application which corroborated the inspector's report, but her file showed that this was not taken into consideration. Following an oral hearing which was held more than a year after she appealed the decision, at which FLAC represented her, the social welfare appeals officer allowed her appeal and rejected the overpayment claim. The woman's payment was restored, but arrears were not granted for a further three months.

Third, people have a right to legal assistance in complex cases. It must be noted that civil legal aid is not available for representation at a social welfare appeal. Appellants may seek assistance from an NGO or lay advocate or they may represent themselves. Some appeals can deal with complex issues of law. Therefore, appellants may be at a disadvantage when presenting their case without legal advice or assistance. Civil legal aid should be made available in these instances. Failing that, advocacy organisations should be funded to assist people in complex cases.
Fourth, there should be consistency in decision-making within the social welfare appeals system. The appeals office does not maintain a database of decisions which is accessible to appellants about cases which may be similar to their own. At present, a database exists to assist appeals officers in their work, but all that would be needed is a minor investment in anonymising software in order to make a number of significant decisions available to the appellants and their advocates. This would assist appellants' preparations for appeals significantly.
I hope the Minister will consider all of our recommendation. I have read the counter motion, but I hope the Minister will still consider our recommendations, in particular the recommendation to conduct and publish an audit of the system. Our recommendations for reform are modest, but absolutely necessary for fairness and access to justice. I hope the Minister considers them in that way.

 

Senator Zappone

I welcome the Minister of State, Deputy Perry. I also welcome the noting of the importance of independence, actual and perceived, in the amendment. However, the amendment states that there is no sustained or concerted criticism of the independence of the office. My colleague, Senator Norris, has already referred to evidence to the contrary, highlighting a statement of the former chief appeals officer in 2007, who called for statutory independence for the office. The Commission on Social Welfare recommended an independent chairperson in 1986 and the Northside Community Law Centre has also called for the independence of the office.

  We must examine what independence means. Stating that the social welfare appeals office is independent without reference to objective standards of independence is simply not sufficient. There is a host of human rights principles against which we should evaluate independence. These are embedded in our Constitution and the European Convention on Human Rights, to which my colleague, Senator van Turnhout, referred earlier. I referred to four of them earlier as well. They are embedded in the European Convention on Human Rights, although I note that the State is in breach of the convention and has been for more than five years on account of the Lydia Foy case.

  We have human rights principles, objective standards developed over time through courts of law and by agreement of millions of people at European level. These are standards of independence and fair procedure, some of which I have identified. Our recommendations are based on these standards of independence. Our call for an audit requests that the Government recognises these standards. We call on the Labour Party and Fine Gael to demonstrate their recognition of these standards by conducting an audit and publishing it for the public. It is simply not good enough for the people to be led by a Government which declares that it has respect for the rule of law, including the human rights law, but which lists the accomplishments of reform on the basis of what the Department tells us and on the basis of what we are told by staff appointed by the Government.

  We regret that the Government has used the statistic of 42% of appeals allowed as evidence of the independent nature of the appeals office. We believe this demonstrates the flawed process at the beginning of the system. The amendment also refers to the ability to appeal to the courts on a matter of law or by means of judicial review. Other Senators have spoken about this and the Minister referred to it as well. Realistically many people who access social welfare and who make appeals are among the most vulnerable and marginalised. How would they have the resources to make these continued applications? This is why we are calling for legal assistance in complex cases. I believe the Minister knows the difference between the theoretical opportunity for fairness and justice and genuine access to fairness and justice. Many appellants require legal representation to access fairness and justice.

  The amendment refers to the provision of oral hearings where it is deemed appropriate. Oral hearings are deemed appropriate by social welfare appeals officers. These hearings may take more time but they have a higher success rate. Why is this? It is because oral hearings allow for a teasing out of the issues and the questioning of evidence and decisions. One principle of natural law and fair procedure is that a person should have the opportunity to make her case in the easiest form possible. We have called for an amendment to the social welfare appeals form to include an option to request an oral hearing. The Minister is unwilling to grant this. Rather, she has stated that it is under consideration by the chief appeals officer. Is it not the Minister who creates policy? This right is integral to fair procedure.

  Does our motion call for an audit? No. Does it call for putting more resources into the system at the first instance of decision, where, many of us have acknowledged, many of the problems stem from? No. Does our motion call for automatically providing appellants with their social welfare file? No.he Government is saying "No" to our calls to provide appellants with their social welfare files automatically.

  The Minister talked a lot about the difficulties of anonymising the Department of Social Protection database, but we are not talking about anonymising 28,000 cases; rather, we are talking about significant points of law. The Government is saying "No" to amending the social welfare appeals system to allow appellants to request an oral hearing and "No" to making civil legal aid available for appellants in complex cases. The message to the people from the Government amendment is that further reforms as identified by us are not necessary, that the current reforms are largely sufficient and that the Government has not taken on board any of our calls for changes to a system that is still not fair enough. Therefore, I will push the issue to a vote.

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