Dáil debates

Tuesday, 28 July 2020

Social Welfare (Covid-19) (Amendment) Bill 2020: Second Stage

 

6:35 pm

Photo of Seán SherlockSeán Sherlock (Cork East, Labour) | Oireachtas source

Let us be 100% clear. Joan Burton had nothing to do with the changes to the PUP brought by the Minister for Employment Affairs and Social Protection on 12 July through the statutory instrument, SI 242/2020. With no public notice, the Minister changed the rules for the Covid-19 PUP and for other unemployment payments meaning that recipients could not take holidays abroad. Previously, they were allowed two weeks in any calendar year for a holiday without losing entitlement to jobseeker’s benefit. The Taoiseach has now said there should be a review of cases where people who travelled were not aware they were at risk of losing their income.

Some 104 individuals had the PUP stopped in the last two weeks following checks at airports and a further 44 had benefits such as jobseeker’s allowance cut off. Today on "Morning Ireland", the Minister for Education and Skills said the statutory instrument was not discussed at Cabinet, which is not unusual. However, was the advice of the Attorney General sought? That is a key question in all of this. There are questions about the legal standing of the regulations, as the travel advisory on which it is based has no legal standing. As the people were not informed of the changes, there is a legitimate expectation they could travel under the normal rules that previously applied.

Since 2007, social welfare regulations have provided that recipients of jobseeker's benefit can leave the State for two weeks of holidays. The Minister's regulations changed that. The Tánaiste said on Sunday that people are now required to be genuinely seeking work if on the pandemic unemployment payment. However, does that apply to those working in a pub or the entertainment industry? The gov.iewebsite was changed on Monday to reflect this comment. The Government has still not clarified this. It is not clear if there has been a regulation stipulating that those on the pandemic unemployment payment must be actively seeking work now. The Taoiseach has now ordered an investigation into how the Government website was changed. The Data Protection Commissioner has asked the Department how it is getting data to block benefit payments.

There are key questions. As it is a statutory instrument based on advice from another Department, is the travel ban legal? Did the Attorney General sign off on this? Is there a change in the conditions that apply to the pandemic unemployment payment? Must people be actively seeking work since Monday when the website was changed? Was this decided at Cabinet? Is there a new regulation? From where are the data being used to stop people coming? What are the reasonable grounds that apply and why are people being stopped in the airport not being told it is for social welfare purposes?

I go back to Joan Burton. The Social Welfare and Pensions Act 2012 provided powers for An Garda Síochána to assist with tackling fraud, but it is the Minister who changed the rules without notice earlier this month. The legal basis for these checks is section 250(16) of the Social Welfare Consolidation Act 2005, as amended by section 17 of the Social Welfare and Pensions Act 2012. The issue here is how the regulations are changed, not social welfare inspectors at the airport.

Since March of this year, more than 2,000 pandemic unemployment payment claims have been closed as a result of checks carried out at Dublin Airport. We do not know how the Department is accessing and processing all this information. From anecdotal reports, it appears people are not being told when stopped that this is for social welfare control. Under the law, a social welfare inspector accompanied by a garda or a garda acting for the Department must have reasonable grounds for believing that there has been a contravention of the Act. The anecdotal evidence we have heard on various radio shows today from people who have been stopped does not seem to reflect the grounds laid out in the law.

The Minister and her Department have not clarified why she did not publicise the change in the regulations over two weeks ago when she introduced the statutory instrument. The Department changed the guidance online on gov.ie/welfareon Monday following the Tánaiste's comments on "The Week in Politics". It was the Fine Gael Minister who changed the rules for people on the pandemic unemployment payment without clearing it through the Cabinet or telling the public. It is not clear if welfare recipients are allowed to travel to a green list country. The statutory instrument refers to the general travel advisory from the Department of Foreign Affairs and Trade. The Government has not provided a definition of what essential travel is, nor has it banned people from leaving the country.

From where are the data for checking people leaving the country coming? Is it on the basis of Garda checks at the airport? What are the reasonable grounds being used? Gardaí are asking people for their names, addresses and PPS numbers, but not telling them it is for the purpose of social welfare checks. What are the reasonable grounds for believing there has been a contravention? The people are demanding that these questions be answered.

I refer the Minister to a COVID-19 law and human rights observatory document which was published by Dr. Mel Cousins of Trinity College Dublin. It is a very interesting document entitled, Pandemic Unemployment Payment: Holidays in the Sun? I will cite some extracts from it. It states:

Unlike most social welfare payments, PUP is based on an (unpublished) administrative scheme.Thus the normal rules in relation to claims, payments, decisions, appeals, etc. set out in the Social Welfare Acts do not apply. However, this does not mean that the scheme can be operated on an arbitrary basis and the normal rules of administrative (and human rights) law apply. So the question arises as to what is the legal basis for the decision not to make payments to people on holidays and on their return?

That is a very legitimate question that demands clarification from the Minister and her Department.

The document goes on to state:

The legal change to [jobseeker's benefit] was made as of 10 July. It is not clear when exactly the change was made to the PUP conditions although it has been made as of 27 July. Principles of administrative law would not seem to allow persons to be disqualified for a benefit on the basis of a rule which had not yet been made or of which they were unaware so the rule concerning non-payment of PUP abroad would seem to apply somewhere between 10 and 27 July (whenever it was actually made and notified to claimants).

This is another valid point this eminent legal practitioner has raised. It deserves attention and it deserves to be answered.

Every point I have just raised is pertinent to the legislation. I will briefly speak to certain sections. We acknowledge that section 6 provides that some of the expenditure incurred to date on the PUP, which has been paid as a supplementary welfare allowance or urgent needs payment, may be charged to the Social Insurance Fund. What is the monetary implication of this measure for the Social Insurance Fund? Is this a raid on cash to avoid raising taxes or borrowing? Does this risk destabilising the already weakened fund? Is this a retrospective measure? Are we to draw on the fund to cover costs that have been incurred through this supplementary welfare allowance? If so, is this kind of retrospective legislation constitutional? I again seek clarity from the Minister on that point. There was set to be a hefty surplus in the fund, which had been identified as a source of funding to allow for the delay in raising the pension entitlement age. Will this window of opportunity now be closed?

Section 6 provides that some of the expenditure incurred to date on the PUP, which has been paid on a special welfare allowance or urgent needs payment, may be charged to the Social Insurance Fund. That is worth repeating. There is no link, however, between social insurance contributions and eligibility for the PUP. Students, for examples, would not have sufficient PRSI contributions recorded. Depleting the Social Insurance Fund surplus, especially when it is likely to come under pressure to pay for insolvency and redundancy payments, does not seem to be sound public policy.

Section 9 is a technical amendment, which formally identifies the new Covid-19 PUP as a social insurance benefit within the social welfare code. If the PUP becomes a social welfare entitlement based on payment of social insurance, will that change the situation for people travelling abroad? I have already spoken to this issue. Jobseeker's benefit, for example, is payable for up to two weeks of holiday abroad if travel advice is followed. It appears, however, that quarantine is not covered. If people travel abroad to seek work or to visit family for sound medical reasons, or if they travel within our common travel area with the UK or within the EU Common Market, can they be denied a social insurance-related entitlement? As time goes by, there may be increased numbers of people on the PUP going abroad to seek work. Their entitlement to a stable income needs to be secured.

If the new definition of PUP ends up excluding people who were entitled to it as a form of supplementary welfare allowance, will the older form of PUP still be available to prevent people losing their incomes or dropping to a much lower level of income? As we all know, supplementary welfare allowance is based on open rules, which allow discretion, and allows for people to be given money in a variety of circumstances. It seems likely that any legislating for PUP will tighten the criteria and exclude people who may be in dire need of a supplementary welfare allowance payment. This is again something I hope the Minister will clarify.

Like other speakers, I would also like to speak on behalf of those involved in the entertainment and culture sector. As Members, we will all have received emails from the Music & Entertainment Association of Ireland. I will quote the email that I received from somebody involved in that group:

I am writing to you as a member of the Music & Entertainment Association of Ireland (MEAI) to express my anger at the lack of proper support for self-employed workers in the July Stimulus.

The Minister for Arts in her support package for the Arts, has failed utterly to understand how my profession works. As a self-employed musician/entertainer I do not need a ‘Stimulus Package’ - I need a Survival Package.

As a worker in this industry, I am unable to earn a living due to the Government Guidelines on Social Distancing. My industry is sacrificing its right to work and earn a living in order to help protect the health of the nation during this pandemic.

I am not unemployed. I am forced not to be employed as a direct result of Government guidelines.

My colleagues in the industry are facing hardship like never before. MEAI conducted a survey of its 4,100 members recently.

- 68.5% depend solely on the Music & Entertainment sector for their income.

- 31.6% had their PUP cut to the reduced rate and are now struggling to get by.

- 11.6% [have] utility bills [that are] in arrears.

- 9.7% had to sell essential equipment to cover household expenses.

- 7% have lost or are in danger of losing their vehicle.

- 3.4% in danger of losing their home.

- 17.4% are dealing with mental health worries as a result of the financial stress.

The nub of what this group is asking for is an immediate reinstatement of the PUP payment of €350 a week from 7 July 2020 for all its members for the duration of the crisis and until the industry is able to reopen without social distancing. That is not an unreasonable request and I hope the Minister will give some consideration to the thousands of people in this sector who are affected by the cut to this payment.

The Covid-19 working group of the event production industry also wrote to me. I will again quote from an email from one of its members:

I’ve spoken to 3 companies today, all in business 20+ years. One with 6 staff, the other two have 20 plus staff. One is an event safety consultants, one is Event Power and the final one is a sound & lighting company. All three will be out of business by Sept 1st. This package is devastating for SMEs in general but it’s essentially a death sentence for those operating in the Live Entertainment Sector.

This person goes on to say:

The removal of the COVID payment to proprietary directors seems to illustrate a basic understanding of small and medium sized business.

Small business owners :

- Tend to be majority shareholders

- Tend to be employees

- are the first people into work in the morning and the last people paid - most business owners pay their staff first when times are tough

- Have personal equity tied up in the businesses e.g. houses tied to business loans.

These are not wealthy people. This person continues:

The events industry is made up of hundreds of small businesses and sole traders who, although normally profitable, are depending on the COVID payments many having sunk savings and personal assets into their enterprises.

Simply owning your own business now singles you out for further impoverishment on top of the many responsibilities of company ownership and, in one swoop the government is crushing the one group who should be supported having already proven that they have the strength and drive to create a company and jobs.

I will make reference to my own local area where, in 2019, the Indiependence festival in Mitchelstown generated in excess of €500,000 in VAT alone for the Exchequer.

This festival should have been going into its 15th edition this week, with 15,000 people descending on Mitchelstown and spending in excess of €1.5 million locally. There is nothing in the stimulus package to help events such as this to survive the next 12 months so that they can return to generating large sums for the Exchequer when the public health advice allows for same.

I again ask the Minister to please give consideration to the people who are working within this sector, with a view to revising the rules to allow them not to fall below a social floor, whereby they lose those vital protections to sustain themselves throughout this crisis.

I started off my submission in respect of the issues of the past 24 hours. I have asked a litany of questions. I am very hopeful that the Minister will respond to the questions I have asked because at this stage the public demands clarity in respect of the PUP and the stopping of people at airports in this State. That has really upset thousands of genuine people going about their business and acting within the law as they see it, rather thanultra vires.

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