Making the case for reform of the social welfare appeals system - Flac

126 Pages·2012·2.67 MB·English

NOT FAIR
ENOUGH N
NOT FAIR ENOUGH sets out the operation of the Social Welfare Appeals
O
Office and charts the increase in the workload of the office as well as looking T

F
Making the case for reform of the at the challenges facing it in terms of limited resources and delays. The report A
social welfare appeals system also summarises some of the main difficulties facing appellants and their IR

E
advocates when they come into contact with the appeals system. These include
Glossary N
the perceived lack of independence of the Appeals Office as a section of the O
U
AO: An Appeals Officer is a civil servant from the Department of Department of Social Protection, as well as the need for greater transparency, G
Social Protection appointed by the Minister for Social Protection H
consistency and even-handedness. FLAC examines the process in light of
to decide social welfare appeals.
domestic and international human rights law to which the State is committed
Appeal: A request to a higher authority, in this case an Appeals
Officer, to overturn the initial refusal of a social welfare payment. even in times of austerity. The report outlines various perspectives on the
appeals system, from advocates representing clients at appeal stage to the
Appellant: A person who makes a social welfare appeal against
a refusal or negative decision on his or her social welfare claim. views of the Chief Appeals Officer on behalf of the Appeals Office. FLAC makes
Beneficiary: A person who benefits from a social welfare the case for reform of this key institution which plays an ever more critical role as M
payment, although he or she does not receive that primary social a
more and more people seek state support in a fair and timely manner. k
welfare payment his or herself. This might be a partner or child in
who is dependent on the person who receives a primary payment g
plus an additional sum of money for the dependent person. th
e
c
CAO: The Chief Appeals Officer is a civil servant, appointed a
s
by the Minister for Social Protection, with responsibility for e
overseeing the social welfare appeals system. fo
r
r
e
Claimant: A person who makes an application for a social f
o
welfare payment. r
m
o
CWO: “Community Welfare Officer” was the name given to f
officials employed by the HSE responsible for administering th
the SWA scheme. These officials transferred to the DSP in e s
October 2011 where they are now called Department of Social o
c
Protection representatives. ia
l w NOT FAIR
DAO: The Decisions Advisory Office is a section of the Department
e
of Social Protection which provides assistance and guidance to lf
a
decision-makers while monitoring decisions by Deciding Officers r
e
and Appeals Officers for consistency and quality. a
p
p
DO: A Deciding Officer is a civil servant working in the e
a
Department of Social Protection who makes decisions on a ls
claimant’s entitlement to a social welfare payment. s
y ENOUGH
s
DSP: The Department of Social Protection, formerly known te
m
as the Department of Social and Family Affairs, is responsible
fpaEoinodfrCtr oomE Hdv uIiieRsrnrivoisi:ose phTtnlee oh do rpehsofi u nmEssmgouoe crcaspoiintoaapi clllre i ciwwlgaayenhew al tlffCs anat hordrineern os lvepttuoegragu niytshmhtmli aooteehtsnnineoe tot nsEwinn .iC h nHnHi cerueRheml da hAat aiocnosft n R a2b its0geos0eh it3nsthst. eia ni snSc caotea rC.pt eIoot’ sruaa nltsceoidl Making the case for reform of the
FOI: The Freedom of Information Acts 1997 – 2003 require
social welfare appeals system
certain public bodies to keep records and to make these records
available to members of the public on request.
HSE: The Health Service Executive is a state-funded body
rsoeefs rHpvieocanetsshi b tOhlerfo fifcuoegr shth amen eddde hilcievaaell rtpyh r oocffe ehnsetsraeiolstnh aa atls nc,d oh mpoesmrpsuitonaniltsay l a lsenovdce iala. lnI te istw ork F
divided into four regions countrywide. The HSE was responsible L
for administering the Supplementary Welfare Allowance scheme 13 Lower Dorset Street, Dublin 1 AC
until October 2011 when this responsibility was transferred to Tel: [phone] | LoCall: 1890 350 250 | Fax: [phone]
the Department of Social Protection. 0
1
E-mail: [email protected] | Web: www.flac.ie 2
HRC: The Habitual Residence Condition is a qualifying condition
which those seeking a means-tested social welfare payment or
Child Benefit must satisfy.
JOC: A Joint Oireachtas Committee is a parliamentary
committee made up of TDs and Senators to oversee a particular
department or area of policy. The committee can invite interested
parties to make presentations or to question them about a
particular area of interest.
Justiciable: Refers to issues which are capable of being
decided upon by a court of law.
LAB: The Legal Aid Board is a state-funded service which
provides civil legal aid and advice on matters of law to people
who cannot afford a private solicitor.
Notice of appeal: This name is sometimes used to refer to the
appeal form.
Ombudsman: The Office of the Ombudsman investigates
complaints from members of the public who feel they have
been unfairly treated by certain public bodies within the remit
of the Office.
Operational Guidelines: These are guidelines issued to
Deciding Officers which explain in more detail the requirements
a claimant must satisfy to be entitled to a particular payment,
or in some instances the relevant procedures to be followed by
the Deciding Officer. Some of these documents focus on the
Department’s obligations to claimants.
Principal Act: The Social Welfare (Consolidation) Act 2005 is also
referred to as the Principal Act. This piece of legislation forms
the main social welfare law and is updated by amendments each
year. All of the amendments are consolidated into one main piece
of legislation approximately once every ten years.
Quasi-judicial body: an administrative body or person
who exercises powers or functions similar to a judge. An
administrative tribunal such as the Appeals Office must make
decisions in line with natural justice.
Regulations: secondary law which governs how the primary
legislation is implemented. These are usually brought into force
when the Minister or other delegated person signs a statutory
instrument or order into law.
Review: a Deciding Officer, Appeals Officer or the Chief Appeals
Officer may re-consider an application or an appeal at each
stage of the social welfare application and/or appeal process
when a claimant or appellant requests such a review.
Submission: the written explanation put forward by each side
to support his or her case. In this report submission usually
refers to the Deciding Officer’s submission which he or she is
legally required to submit to the Appeals Office when an appeal
is lodged. However, appellants and/or their representatives may
also make submissions to counter the position put forward by
the Deciding Officer.
SWA: Supplementary Welfare Allowance is a weekly allowance
paid to people who do not have enough means to meet their
needs and those of their qualified adult dependants or any
qualified children. In addition to the basic allowance, those
on SWA may be entitled to other payments to assist with
accommodation and other costs.
SWAO: The Social Welfare Appeals Office or Appeals Office
is a section of the Department of Social Protection which was
established in 1991 to determine appeals against decisions on
social welfare claims. It is located in D’Olier Street in Dublin
and there are 39 Appeals Officers assigned to the office with an
administrative support staff.
Unenumerated rights: Rights which are not expressly stated in
the text of the Constitution but which are inferred through judicial
interpretation of the legal instrument. These rights are said to be
derived from natural justice.
NOT FAIR
ENOUGH N
NOT FAIR ENOUGH sets out the operation of the Social Welfare Appeals
O
Office and charts the increase in the workload of the office as well as looking T

F
Making the case for reform of the at the challenges facing it in terms of limited resources and delays. The report A
social welfare appeals system also summarises some of the main difficulties facing appellants and their IR

E
advocates when they come into contact with the appeals system. These include
Glossary N
the perceived lack of independence of the Appeals Office as a section of the O
U
AO: An Appeals Officer is a civil servant from the Department of Department of Social Protection, as well as the need for greater transparency, G
Social Protection appointed by the Minister for Social Protection H
consistency and even-handedness. FLAC examines the process in light of
to decide social welfare appeals.
domestic and international human rights law to which the State is committed
Appeal: A request to a higher authority, in this case an Appeals
Officer, to overturn the initial refusal of a social welfare payment. even in times of austerity. The report outlines various perspectives on the
appeals system, from advocates representing clients at appeal stage to the
Appellant: A person who makes a social welfare appeal against
a refusal or negative decision on his or her social welfare claim. views of the Chief Appeals Officer on behalf of the Appeals Office. FLAC makes
Beneficiary: A person who benefits from a social welfare the case for reform of this key institution which plays an ever more critical role as M
payment, although he or she does not receive that primary social a
more and more people seek state support in a fair and timely manner. k
welfare payment his or herself. This might be a partner or child in
who is dependent on the person who receives a primary payment g
plus an additional sum of money for the dependent person. th
e
c
CAO: The Chief Appeals Officer is a civil servant, appointed a
s
by the Minister for Social Protection, with responsibility for e
overseeing the social welfare appeals system. fo
r
r
e
Claimant: A person who makes an application for a social f
o
welfare payment. r
m
o
CWO: “Community Welfare Officer” was the name given to f
officials employed by the HSE responsible for administering th
the SWA scheme. These officials transferred to the DSP in e s
October 2011 where they are now called Department of Social o
c
Protection representatives. ia
l w NOT FAIR
DAO: The Decisions Advisory Office is a section of the Department
e
of Social Protection which provides assistance and guidance to lf
a
decision-makers while monitoring decisions by Deciding Officers r
e
and Appeals Officers for consistency and quality. a
p
p
DO: A Deciding Officer is a civil servant working in the e
a
Department of Social Protection who makes decisions on a ls
claimant’s entitlement to a social welfare payment. s
y ENOUGH
s
DSP: The Department of Social Protection, formerly known te
m
as the Department of Social and Family Affairs, is responsible
fpaEoinodfrCtr oomE Hdv uIiieRsrnrivoisi:ose phTtnlee oh do rpehsofi u nmEssmgouoe crcaspoiintoaapi clllre i ciwwlgaayenhew al tlffCs anat hordrineern os lvepttuoegragu niytshmhtmli aooteehtsnnineoe tot nsEwinn .iC h nHnHi cerueRheml da hAat aiocnosft n R a2b its0geos0eh it3nsthst. eia ni snSc caotea rC.pt eIoot’ sruaa nltsceoidl Making the case for reform of the
FOI: The Freedom of Information Acts 1997 – 2003 require
social welfare appeals system
certain public bodies to keep records and to make these records
available to members of the public on request.
HSE: The Health Service Executive is a state-funded body
rsoeefs rHpvieocanetsshi b tOhlerfo fifcuoegr shth amen eddde hilcievaaell rtpyh r oocffe ehnsetsraeiolstnh aa atls nc,d oh mpoesmrpsuitonaniltsay l a lsenovdce iala. lnI te istw ork F
divided into four regions countrywide. The HSE was responsible L
for administering the Supplementary Welfare Allowance scheme 13 Lower Dorset Street, Dublin 1 AC
until October 2011 when this responsibility was transferred to Tel: [phone] | LoCall: 1890 350 250 | Fax: [phone]
the Department of Social Protection. 0
1
E-mail: [email protected] | Web: www.flac.ie 2
HRC: The Habitual Residence Condition is a qualifying condition
which those seeking a means-tested social welfare payment or
Child Benefit must satisfy.
JOC: A Joint Oireachtas Committee is a parliamentary
committee made up of TDs and Senators to oversee a particular
department or area of policy. The committee can invite interested
parties to make presentations or to question them about a
particular area of interest.
Justiciable: Refers to issues which are capable of being
decided upon by a court of law.
LAB: The Legal Aid Board is a state-funded service which
provides civil legal aid and advice on matters of law to people
who cannot afford a private solicitor.
Notice of appeal: This name is sometimes used to refer to the
appeal form.
Ombudsman: The Office of the Ombudsman investigates
complaints from members of the public who feel they have
been unfairly treated by certain public bodies within the remit
of the Office.
Operational Guidelines: These are guidelines issued to
Deciding Officers which explain in more detail the requirements
a claimant must satisfy to be entitled to a particular payment,
or in some instances the relevant procedures to be followed by
the Deciding Officer. Some of these documents focus on the
Department’s obligations to claimants.
Principal Act: The Social Welfare (Consolidation) Act 2005 is also
referred to as the Principal Act. This piece of legislation forms
the main social welfare law and is updated by amendments each
year. All of the amendments are consolidated into one main piece
of legislation approximately once every ten years.
Quasi-judicial body: an administrative body or person
who exercises powers or functions similar to a judge. An
administrative tribunal such as the Appeals Office must make
decisions in line with natural justice.
Regulations: secondary law which governs how the primary
legislation is implemented. These are usually brought into force
when the Minister or other delegated person signs a statutory
instrument or order into law.
Review: a Deciding Officer, Appeals Officer or the Chief Appeals
Officer may re-consider an application or an appeal at each
stage of the social welfare application and/or appeal process
when a claimant or appellant requests such a review.
Submission: the written explanation put forward by each side
to support his or her case. In this report submission usually
refers to the Deciding Officer’s submission which he or she is
legally required to submit to the Appeals Office when an appeal
is lodged. However, appellants and/or their representatives may
also make submissions to counter the position put forward by
the Deciding Officer.
SWA: Supplementary Welfare Allowance is a weekly allowance
paid to people who do not have enough means to meet their
needs and those of their qualified adult dependants or any
qualified children. In addition to the basic allowance, those
on SWA may be entitled to other payments to assist with
accommodation and other costs.
SWAO: The Social Welfare Appeals Office or Appeals Office
is a section of the Department of Social Protection which was
established in 1991 to determine appeals against decisions on
social welfare claims. It is located in D’Olier Street in Dublin
and there are 39 Appeals Officers assigned to the office with an
administrative support staff.
Unenumerated rights: Rights which are not expressly stated in
the text of the Constitution but which are inferred through judicial
interpretation of the legal instrument. These rights are said to be
derived from natural justice.
NOT FAIR
ENOUGH
Making the case for reform of the
social welfare appeals system
FLAC 2012
NOT FAIR
ENOUGH
Making the case for reform of the
social welfare appeals system
© FLAC October 2012, all rights reserved
ISBN: 1873532210
Copyright declaration:
You are free to copy, distribute or display this publication under the following conditions:
- You must attribute the work to FLAC.
- You may not use this report for commercial purposes.
- You may not alter, transform or build upon this report.
For any reuse or distribution, you must make clear to others the licence terms of this publication.
Any of these conditions can be waived if you get permission from FLAC.
Whilst every effort has been made to ensure that the information in this report is accurate,
Free Legal Advice Centres does not accept legal responsibility for any errors, howsoever caused.
FLAC would like to acknowledge the financial support provided by the Atlantic Philanthropies and the
Iris O’Brien Foundation to this report.
Disclaimer:
The views, opinions, findings, conclusions and/or recommendations expressed here are strictly those of
the author(s). They do not necessarily reflect the views of the funders, who take no responsibility for any
errors or omissions in, or for the accuracy of, the information contained in this report. It is presented to
inform and stimulate wider debate among the policy community and among academics and practitioners
in the field.
FLAC,
13 Lower Dorset Street, Dublin 1
Tel: [phone] | LoCall: 1890 350 250 | Fax: [phone]
E-mail: [email protected] | Web: www.flac.ie
Design by Dara Ní Bheacháin

ii NOT FAIR ENOUGH Making the case for reform of the social welfare appeals system
Contents
List of Figures vi
List of Tables vi
Cases vii
Statutes viii
Other Authorities viii
Foreword & acknowledgments ix
Introduction x
Social Welfare Appeals System xii
1. The Social Welfare Appeals System 1
1.1 Introduction to the social welfare system 2
1.1.1 Government expenditure on social welfare 2
1.1.2 Social welfare payments and applications 3
1.2 The Social Welfare Appeals Office (SWAO) 3
1.2.1 Structure of the Appeals Office 4
1.2.2 Operation of the Appeals Office 5
1.3 The social welfare appeals process: A step-by-step overview 6
1.3.1 Refusal of a social welfare application 6
1.3.2 Review of first instance decision by Deciding Officer 6
1.3.3 Making an appeal to the Appeals Office 8
1.3.4 Determination of an appeal 9
1.3.4.1 The oral hearing 10
1.3.4.2 Summary decisions 11
1.3.5 Appeals Officer’s decision 12
1.3.6 Revision of an Appeals Officer’s decision 13
1.3.6.1 Section 301(b): Revision of Appeals Officer’s decision by an Deciding Officer 13
1.3.6.2 Section 317: Revision of an Appeals Officer’s decision by an Appeals Officer 13
1.3.6.3 Section 318: Review by the Chief Appeals Officer 13
1.3.7 Section 327: Right of appeal to the High Court 14
1.3.8 Judicial review 14
1.4 Freedom of Information 15
1.5 The Office of the Ombudsman 16
1.6 The current situation of the Appeals Office 16
1.6.1 Increase in the volume of appeals 16
1.6.2 Outcomes of appeals 17
1.6.3 Processing times and delays 17
1.7 Conclusion 18
2. A Human Rights Analysis of the Social Welfare Appeals System 21
2.1 Domestic legal framework 22
2.1.1 The Irish Constitution (Bunreacht na hÉireann) 22
2.1.2 European Convention on Human Rights 23
2.2 Regional and international human rights Instruments 23
2.2.1 Council of Europe Instruments 23
2.2.2 United Nations Human Rights Instruments 24
2.2.3 EU Charter of Fundamental Rights 24
2.3 Social security as a fundamental human right 25
2.4 Right to fair procedures in relation to social welfare appeals 27
2.4.1 An independent and impartial tribunal 28
2.4.2 Equality of Arms 34
2.4.2.1 Equal access to information and both sides must be heard 34
2.4.2.2 Right to an oral hearing 36
2.4.2.3 Right to assistance and legal representation 40
2.4.3 Precedent and consistency in decision-making 44
2.4.4 Reasonable processing times and delays 49
2.5 Right to an effective remedy 51
3. Perspectives on the social welfare appeals process 53
3.1 Background to survey 54
3.2 First instance decision-making 55
3.3 The advocate experience of the appeals process 57
3.3.1 Advocates’ type of experience and level of knowledge 57
3.3.2 Advocates’ perception of Appeals Officers 59
3.3.3 Advocates’ experience of oral hearings and summary decisions 61
3.4 Advocates’ views on representation 63
3.5 Advocates’ experience of Freedom of Information requests 64
3.6 Advocates’ experience of further rights of review or appeal 65
3.7 Advocates’ perception of the independence of the Appeals Office 66
3.8 Advocates’ views on the fairness of the social welfare appeals system 67
3.9 Advocates’ suggestions on improving the social welfare appeals system 68
4. Conclusion and recommendations 69
4.1 Overarching recommendations 70
4.2 Recommendations relating to procedural change 71
4.2.1 Decision-making at first instance 71
4.2.2 Access to information 71
4.2.3 Consistency in decision-making 72
4.2.4 Fair procedures 72
4.2.5 Oral hearings 72
4.2.6 Reasonable processing times 72
4.2.7 Right to assistance and legal representation at appeal stage 73
4.2.8 Access to an effective remedy 73
4.2.9 Chief Appeal Officer’s mechanism 73
4.3 Recommendations relating to structural changes 73
4.3.1 Appeals Officers 73
iv NOT FAIR ENOUGH Making the case for reform of the social welfare appeals system
Bibliography 75
Appendices 79
Appendix 1: Legislation governing Appeals Office and Appeals Officers 80
Social Welfare (Consolidation) Act 2005 as amended 80
Social Welfare (Appeals) Regulations 1998 91
Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 94
Appendix 2: FLAC survey for advocates (September 2011) 95
List of Figures
Chapter 1
Figure 1.1: Percentage increase year on year in social welfare expenditure and recipients 2002 – 2011 2
Figure 1.2: Appeals processing times 2004 – 2011 12
Figure 1.3: Total workload of Appeals Office and number of completed appeals 2002 – 2011 16
Figure 1.4: Outcomes of appeals processed by the Appeals Office 2002-2011 17
Figure 1.5: Department of Social Protection processing times for social welfare appeals 18
Figure 1.6: Appeals Office processing times 2002 – 2011 18
Chapter 2
Figure 2.1: Percentage of finalised appeals by oral hearing versus summary decision 2003 – 2011 38
Figure 2.2: Outcomes of oral hearing and summary decisions 2004 - 2011 39
Figure 2.3: Average processing times for appeals 2002 – 2011 50
Chapter 3
Figure 3.1: Number and type of participants in FLAC survey 54
Figure 3.2: Number of appeals taken by advocates 57
Figure 3.3: Advocates’ assessment of own legal knowledge 58
Figure 3.4: Types of payment being appealed 58
Figure 3.5: Type of assistance provided 59
Figure 3.6: Advocates’ perception of Appeals Officers’ knowledge of different areas of law 60
Figure 3.7: Options for recruiting Appeals Officers 60
Figure 3.8: Stage when advocates think legal aid should be made available for social welfare appeals 63
Figure 3.9: Advocates’ views of the independence of the Appeals Office 66
Figure 3.10: A dvocates’ views on whether the social welfare appeals process would improve
if the Appeals Office was more independent 67
List of Tables
Chapter 1
Table 1.1: Workload of Appeals Office compared with budget estimates 2002 - 2011 5
Chapter 3
Table 3.1: Advantages and disadvantages of oral hearings 62
Table 3.2: Advantages and disadvantages of summary decisions 63
vi NOT FAIR ENOUGH Making the case for reform of the social welfare appeals system