Éamon Ó Cuív (Galway West, Fianna Fail) | Oireachtas source

I see a change in the approach of the Department. The Oireachtas will have to bring in legislative change to deal with that change in approach as regards invalidity, especially illness payments, where a question of judgment is involved. We have a problem with the invalidity pension. We are talking about appeals today, which I will come to in a minute, but we have a problem with invalidity pension in that somebody has to be unable for any work. Technically speaking, the person who got a primary education now has to be able to prove they cannot become a nuclear physicist because that is the way it is being interpreted. We are getting refusals on that basis whereas, in practice, up until now in these cases, both at departmental level and certainly at appeals level, a much more practical and pragmatic view was taken, which was if people were at that level of education they were unlikely to get a desk-type job. Therefore, if they were not physically fit, they got invalidity pension. There is a change in the way that has been approached. The argument will be made that we now sticking to the letter of the law and maybe did not do so previously. If that is the way, we should change the law. That is our job. We are the Oireachtas and we make the laws. Maybe the flaw is on our side. We now have to look at some of these laws because patently different results are being got from the same laws than those we got in the past. Which is the right result? I do not know.

We have not had too many appeals recently for which we got oral hearings. I do not know about anybody else. There is a problem with appeals. If you get a social welfare case involving somebody who needs 520 contributions but has 519, it is a mathematical certainty that those will never make 520 and that is the end of it. Unless you can find a missing contribution, that is it. I know people who state in written appeals that they cannot live on that money because they are not getting enough. As Teachtaí Dála, we know that might be true but it is not a grounds for appeal. If we are working on a contributions basis, people either have the contributions or they do not. I get most of my appeals on cases to do with illness or that kind of thing, including domiciliary care allowance, DCA, invalidity pension, carer's allowance, disability allowance and so on.

There are a number of challenges. Most of these schemes depend significantly on experts' letters. The thing is doctors are doctors but not lawyers. They are under massive pressure, as we all know. We debate endlessly in the House on getting an appointment with a doctor. They do their best and, often, they think when they write to say a person needs full-time care and attention, and give a medical or technical breakdown of the condition, that will suffice. In other cases, they are so busy they have not read the legislation and do not know what the criteria are. They state what is wrong with the person but do not make the call on whether the person can or cannot work, or whether they need constant care and attention and so on. This is where appeals come in. The appeals office often used to translate, in the oral hearing, the reality from the medical condition.

I will give an example.

I know a young lad who took time off from work to look after his mother who had cancer. He applied for carer’s allowance in June. This eventually went for review and appeal because it was refused. In December, we got even stronger letters from the hospice and the doctor saying she was dying. The appeal was refused in March and she died in April. That is scary. It is a case of a little bit of generosity and little bit of reality. It was a reasonable proposition since she was that beyond. Consequently and unfortunately, in this tragic case, he never got carer’s allowance to care for his dying mother who had cancer the whole time. It was said from the very beginning that she had cancer. This upsets me deeply. I have no doubt that it would have been different had there been an oral hearing in that case. I was a bit surprised that even when the evidence was provided as part of the appeal – extra, stronger and irrefutable evidence – their response was that was not given in June. I think it was a reasonable extrapolation that if she was that bad by December, she was that bad in June, progressive care was going to be needed and she could not be left on her own. Obviously, the dependency increased over time. She was mentally totally dependent once she got that kind of prognosis.

This is where I think the system is becoming legalistic, removed from the people and non-interactive. Part of it is probably up to us to start changing the laws, and this committee will be making budget submissions. The other part of it is that I have no doubt that if there had been an oral appeal hearing face to face in that case and they had questioned what it was like last June, it would have confirmed the medical evidence. The one thing the doctor does not know, because he or she is not living in the house with a person, is how much care and attention is needed in terms of what the witnesses measure, such as if they can be got out of bed or if can they get out of bed themselves, whether can they feed themselves and so on. It is hard for the doctor to make an exact call on that. Some cases are black and white but others are not.

As I often said about life, some cases are black and white. Some are black and some are white. However, it is the grey areas and the percentage in them that we need to care for. We should not now be erring on the side of harshness, as is what happened in this case, instead of on the side of generosity. In the greater scheme of the social welfare budget, we are not talking about anything significant here. We are talking about a small but sensitive percentage of cases.

I do not want to go into case after case but I am finding it is a massive loss for us not to have the oral hearings in these cases. As I said, I do not look for an oral hearing where it is a black-and-white case where somebody does not have contributions and so on. Sometimes people appeal on grounds that just do not stand up and I accept that. However, the ones dependent on a certificate are judgment calls by the office and depend hugely on the ability, knowledge and expertise of the medical people a person is dealing with to write the right things.

I had a domiciliary care allowance, DCA, case recently as well. I was a bit surprised and we are appealing it. When I sat down with the mother, it is black and white that care is needed for this child way and beyond any other child of the same age. The term "profound" was put in the columns multiple times by the medical people but it was still refused. It was profound, not significant or moderate. Still, it was refused. We will appeal this until the end.

In the whole system, there seems to be a change of approach. I do not think the Department is saving any money, by the way. I am convinced of that. As I said, most cases are fairly black and white and it is only these ones in the middle that are a small but very sensitive percentage where we are now erring on the side of harshness. The biggest thing I would be looking for is speedy appeal. In the case of the mother and son, for example, it was submitted in June. They said to reapply in March, and she was dead at the beginning of the April.