Aengus Ó Snodaigh (Dublin South Central, Sinn Fein) | Oireachtas source

Like the other Deputies who have spoken, I find this change in the legislation odd because it is changing the presumption. As the Free Legal Advice Centres have indicated in their submission, this is negative legislation. I would like to remind people of exactly what is provided for in the relevant legislation at present.

In respect of carer's allowance, section 179(4) of the Social Welfare Consolidation Act 2005 states, "For the purposes of subsection (1), a relevant person shall be regarded as requiring full-time care and attention where". The new provision states, "For the purposes of the definition of ‘relevant person’ in this Chapter, a person shall not be regarded as requiring full-time care and attention". The use of "not" puts a different emphasis on the criteria or the burden of proof that someone who is applying for carer’s allowance needs to achieve. It is difficult, as other Deputies have said, to get carer’s allowance. Some of this is due to complications such as not providing enough documentation. Some of it is due to incomplete medical assessments. Now, an additional hurdle is being put in place. The Minister of State might claim this is not the case as it is just a different way of drafting it. We are supposed to be promoting plain English and ensuring legislation is accessible. Once one starts writing in the negative, it makes it more convoluted and difficult to understand where someone qualifies or does not. As a rule, legislation should not be written in the negative but this is what this provision does.

In its submission to the legislation, FLAC, the Free Legal Advice Centres, and the Community Law and Mediation group also made this point. It stated:

In practice, the proposed amendments to carer’s payments will allow decision-makers to adopt a presumptive position; that is, it will be presumed that a person is ineligible for a payment, “unless” it can be proven otherwise. This is an unacceptable shift in the burden of proof that falls to a prospective claimant; it is negative law-making. Referring to the existing definition, the conditions for receipt of the relevant payments are clear, a person must need full-time care and the applicant must prove this need exists. When determining a person’s eligibility decision-makers must make a reasoned finding from a position of neutrality and objectivity. The amendments if passed will have the effect of placing a greater burden of proof on the applicant, as the decision-maker will be considering the evidence from the perspective that the applicant is ineligible in the first instance.

We are in no doubt that this will have the effect of increasing the number of legitimate claims that are rejected, and this will in turn lead to a corresponding increase in the number of appeals that will be submitted to the Social Welfare Appeals Office. Notably, according to the Social Welfare Appeals Office report 2013, an average of 58% of those appealing decisions in respect of carers payments were successful. Lengthy appeal processing time for carer’s allowance, benefit and respite care grant currently stand at 22.6, 20.1 and 19.1 weeks respectively as of January 2015. The proposed amendment could increase the rate of appeal and cause further delays in processing appeals also resulting in undue hardship and distress for claimants who are entitled to these payments.

We recommend that section 3 ... is deleted as it does not present as having a purpose other than to make it more difficult for carers to access income supports since it does not alter the actual conditions for eligibility other than introducing a presumption that claimants are ineligible unless they can prove otherwise. If passed, prospective claimants will be presumed to be ineligible for a payment unless they can prove otherwise. This constitutes an unacceptable shift in the burden of proof placed on an applicant.

We should not be changing legislation unless there is a purpose to doing so. Is there some other purpose to this legislative change from the positive to the negative emphasis that we, FLAC or the Community Law and Mediation groups have not understood?

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