Tommy Broughan (Dublin Bay North, Independent) | Oireachtas source

I move amendment No. 3:

In page 11, between lines 4 and 5, to insert the following:“Exceptional Needs Payment

15. Section 201 of the Social Welfare (Consolidation) Act 2005 is amended by the insertion of "which is not necessarily unforeseen" after "to meet an exceptional need".".

As the Minister of State will be aware, the exceptional needs payment fulfils a very important role in society. The amount of money involved amount to only a tiny fraction of the total budget for social protection. On 7 November, the Minister indicated that the total budget for single exceptional needs amounts to €31.5 million. I note that 9,400 payments were made in November 2016 and 9,100 payments were made in December 2016. The number of applicants who secured an exceptional needs payment averaged roughly 8,000 or 9,000 per month in 2016. However, statistics are not kept on the number of people and families whose applications for a payment were refused. As a result, we cannot take a global view of the payment and identify what percentage of applications are approved and rejected. This is a lacuna because the payment gives us an insight into the stresses suffered by citizens and families, particularly in the pre-Christmas period when they face additional stresses such as cold weather, additional payments for heating and clothing and so forth.

The exceptional needs payment scheme is demand led, as the Minister indicated to me in reply to a question. In my information clinics I have been finding that people with an exceptional need for their family or for themselves are increasingly being refused a payment on the basis that the guidelines issued by the Department to its officials and deciding officers stress that the need must be not only exceptional but also unforeseen. I contend that there is no basis in the legislation for such an approach.

I read over section 201 of the Social Welfare (Consolidation) Act 2005, which states: "The Executive or deciding officer may, in any case where the Executive or deciding officer considers it reasonable, having regard to all the circumstances of the case, so to do, determine or decide that supplementary welfare allowance shall be paid to a person by way of a single payment to meet an exceptional need." My amendment proposes to add the words "which is not necessarily unforeseen" after the words "to meet an exceptional need". I do so on the basis of the recent experiences I have outlined, which I believe are shared by other public representatives and agencies working to try to protect the most vulnerable families.

One example I encountered involved a person whose grandmother had a fatal illness. When the issue of funeral expenses arose following the grandmother's death, it was stated that while this may have been an exceptional expense for the family, it was not an unforeseen expense. The test in the 2005 legislation is that the payment may be made if exceptional conditions arise. It appears the Department is erecting a further hurdle to make it more difficult to secure an exceptional needs payment. The Department's interpretation in this matter is incorrect because the statutory test is one of exceptional need. To add a further hurdle that the need must also be unforeseen is, I believe, unlawful.

In a judicial decision in 2016 in the case of McE v. Residential Institutions Redress Board, Mr. Justice Hogan gave an explanation of the meaning of the word "exceptional". It is clear from this decision that exceptional means "exceptional circumstances simpliciter", with the standard of exceptionality measured by reference to contemporary standards prevailing within the public. As such, if someone has a serious illness and needs a once-off payment for a winter jacket, his or her case is exceptional as per the ordinary meaning of the word. If the Department tries to argue that the circumstances involved are not unforeseen, it is effectively changing the rules.

The starting point for many people would be that "exceptional" and "unforeseen" are completely separate concepts. It is clear from the Oxford English Dictionary that these concepts do not overlap in their meaning. The question one must ask, therefore, is whether something can be exceptional and also foreseen and the answer, of course, is yes. This means the Department's rationale is incorrect because the statutory test is one of exceptional simpliciter, rather than exceptional and unforeseen.

Another example I have been given is that if somebody had a cancer of the knee and following surgery had to have special footwear, that is an exceptional need the person would qualify for the payment. However, the Department seems to be taking the view that if the person applied the following year for a follow-up for this exceptional need, because it was foreseen in light of the operation, it would not be provided. It is a serious matter. I note there has been a legal challenge to this in the High Court in recent days where an effort is being made to bring the Department back to the legislation that we have and not to be erecting another hurdle.

The scheme involves a small amount of funding from the Department. In my experience, it has played an important role down through the years in alleviating real suffering for citizens. I have been disappointed, particularly in the last 18 months, to find increasingly that this exceptional and unforeseen rule is being used. I ask the Minister of State to accept the amendment to the consolidated Act to return the situation to the status quo anteand to proceed on that basis to deliver the exceptional need, which may well have been foreseen, to assist constituents.

See this speech in context