Joan Burton (Dublin West, Labour) | Oireachtas source

I do not propose to accept amendment No. 18. The Deputy noted and welcomed the provisions in respect of the two-year rule. Consequently, the issue here is that unless this kind of change is introduced, it could result in the State continuing to pay social assistance to claimants who may no longer have that entitlement, having, for example, lost their status as migrant workers. Essentially, it provides for that situation, if appropriate, to be reviewed. The five factors, which are derived from European Union legislation such as Article 11 of Regulation No. 987/2009, the European Court of Justice jurisprudence including the Swaddling case and the Knoch case among others, are listed in section 246(4) of the Social Welfare Consolidated Act 2005. Guidelines on habitual residence have been published by my Department. They are freely available to everybody and are updated regularly to take account of developments nationally, at EU level and at the European Court of Justice. Full training is given on the use of the guidelines to all deciding officers and designated persons with refresher training offered when the guidelines are updated.

If a person is dissatisfied with a decision given regarding habitual residence, two avenues of appeal are open to that person. He or she may seek a review of that decision or he or she may appeal to the independent Social Welfare Appeals Office. As the elements for the decision-making process already are laid down in primary legislation and there are adequate means of redress through the review and appeal procedures, I remain of the view that it is unnecessary to provide secondary legislation as proposed by the Deputy in amendment No. 18.

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