Regina Doherty (Meath East, Fine Gael) | Oireachtas source

I move amendment No. 1:

In page 5, line 14, to delete “Section 14” and substitute “Sections 4 and 14”.

I mentioned at the end of Committee Stage proceedings last week that I would be bringing forward these amendments on Report Stage to address matters arising from a Supreme Court judgment which found that provisions of the Social Welfare Consolidation Act 2005 relating to the entitlements of prisoners were unconstitutional. To put it in the simplest terms, the court found that the automatic disallowance of entitlement to benefits when a claimant is imprisoned is unconstitutional since this represents an extra-judicial punishment. The issues involved are complex and challenging and significant engagement with the Office of the Attorney General and with senior counsel has been required to arrive at a solution that is compatible with the Constitution. The outcome of all the deliberations is that a dual-stranded approach is needed which treats separately the position of those people who are of working age, that is, those who are aged under 66, and those who are of pensionable age, those who are aged over 66.

The measures contained in amendment No. 3 relate solely to working age payments and are concerned with the qualifying conditions for various illness and disability related payments. It is a core principle of eligibility for these working age payments that unavailability for work is as a direct result of a physical or mental illness. In other words, the customer is not in receipt of a payment for the illness or disability itself. What is being proposed through this amendment is the reinforcement of this eligibility principle in the conditionality requirements attaching to each of the working age payments concerned to make it explicitly clear that the claimant would be available for work were it not for the illness or disability and to reinforce the point that the illness or disability is the sole and principal reason the person concerned is not available for work.

The sole effect of these amendments is to provide that where a person is in receipt of one of these working age benefits but becomes unavailable for work for a secondary reason such as incarceration, that person will no longer fulfil the eligibility conditions for the payment.

I want to emphasise that these changes will have no impact on the accessibility of the schemes to the overwhelming majority of claimants and that the changes are designed to ensure that there are no circumstances in which a person could claim a continued entitlement to an income support payment, for instance, when they are incarcerated.

It is worth making the point that a kind of strict conditionality already exists for some of our other schemes. As an obvious example, it is a requirement that a claimant must be available for full-time work in order to qualify for a jobseeker's payment. Similarly, a person claiming a carer's payment must be in a position to provide the care. Accordingly, the principle of availability is already clearly established in those schemes and no change is required for these.

It is also worth making the point that disability allowance will continue to be paid, as it is at present, to persons who are detained in a medical setting. That includes people who are detained by reason of a mental health condition in the Central Mental Hospital or in any of our other acute hospital settings.

Before I conclude, I want to take the opportunity to explain what the approach will be regarding the pensionable age, although we are not dealing with that matter specifically today. It is a core principle of the social welfare system that it is there to support people on a maintain once basis. In other words, our system provides financial supports for people whose basic needs are not already provided for.

As part of the Supreme Court case, the State had argued that it was legitimate to provide social welfare payments on a maintain once basis. As prisoners have their basic needs met by the State, in terms of care and sustenance, the State argued that there should be no obligation to provide a pension payment as well. I think everybody knows we lost that case in part because of the legal basis for applying the maintain once principle was not clear enough.

A great deal of work has been undertaken in our Department, as well as with other relevant Government Departments, in seeking to define the policies and principles which should underpin the maintain once approach and to assess the implications for those persons in State care who are entitled to the payment of an age related pension. Unfortunately, the work was not completed before the closing date of the Report Stage amendments but there is work ongoing. We will continue to engage with the Office of the Attorney General and senior counsel and bring forward that amendment at the next possible time.

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