Michael Noonan (Limerick East, Fine Gael)
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Question 65: To ask the Minister for Social and Family Affairs her plans to review the guidelines for assessing a person under the habitual residence condition; and if she will make a statement on the matter. [40649/09]

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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As I have already given an extensive answer to Deputy Naughten's priority question regarding habitual residence, I will confine this reply to the Department's guidelines on this provision in social welfare legislation.

An internal review of the operational aspects of the habitual residence condition was completed by the Department of Social and Family Affairs in 2006 and copies of the report were laid before the Oireachtas in February 2007. One outcome of the review was an in-depth examination of the guidelines which were subsequently updated in July 2008. The revised guidelines reflect the inclusion in Irish social welfare legislation of the five factors for determining habitual residence which have been set down in judgments of the European Court of Justice. They also included expanded material on the application of EU legislation to certain categories of migrant workers and the circumstances in which that legislation applies to override the national provisions regarding habitual residence.

Additional information was also provided about the different types of immigration stamps issued by officers of the Minister for Justice, Equality and Law Reform and the implications for habitual residence in regard to certain groups of non-EEA nationals. Minor amendments to these guidelines have been made from time to time as the need has arisen. Before the Department makes any significant changes in its guidelines, careful consideration is required to ensure there will not be any unforeseen and unwarranted outcomes from the revised text. Retraining may also be required to ensure the revised guidelines are correctly understood.

The Department is aware of the discrepancy between the guidelines as they currently stand and the recent decisions of the chief appeals officer in a small number of claims from asylum seekers. In the circumstances of this particular issue, it was deemed best to complete the process of considering the appropriate response to the chief appeals officer's decisions first and to postpone any changes in the guidelines until this process is complete.

Denis Naughten (Roscommon-South Leitrim, Fine Gael)
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There is, as Deputy Crawford noted in another context, a lack of consistency in implementing the habitual residence condition on the ground. Is the Minister aware that some community welfare officers continue to apply the old, two year habitual residency rule? Will she give a commitment that more guidance and training will be given to community welfare officers in this matter?

There is a significant variation in the manner in which similar applications are dealt with by the Department. The disbandment of the habitual residency unit is facilitating this lack of consistency. I will give an example of the crazy position that has resulted in a deluge of appeals to the social welfare appeals office. It concerns a family which has always resided in the common travel area. While one son was granted jobseeker's allowance under the habitual residency requirement, another son's application for jobseeker's allowance was refused under the same requirement. Moreover, the father's application for disability allowance was refused under the habitual residency condition, whereas his wife, who is his carer, was granted the carer's allowance under the condition. This demonstrates the inconsistency with which applications are being processed. What action is the Minister taking to ensure this inconsistency is addressed?

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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The procedure makes sense, even if that may not appear to be the case in the example cited by the Deputy. Different criteria apply in the various schemes under which applications were made by the family in question. A genuine jobseeker from another European Union country would qualify for jobseeker's allowance, as would someone who had worked previously in this country. Different circumstances may apply to each of the two brothers to whom the Deputy referred.

Denis Naughten (Roscommon-South Leitrim, Fine Gael)
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Their circumstances are identical but we will leave that aside. Will the Minister explain the reason an application for disability allowance was refused but an application for carer's allowance made by the person caring for the individual who applied for disability allowance was granted?

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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The criteria for the two schemes are different. I will check the details of the case on behalf of the Deputy. The example to which he refers raises another interesting issue, namely, the fact that four members of one family expect to live off the State by means of various allowances. If two members of a family received jobseeker's allowance, one member received disability benefit and one member received carer's allowance, the household would be in receipt of a significant amount of money. It is critical in all cases to ensure the applicant qualifies for a payment and, in particular, that habitual residency requirements are met.

Denis Naughten (Roscommon-South Leitrim, Fine Gael)
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Will the Minister answer my question?

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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To return to the two year rule, the issue raised in Deputy Noonan's question, as soon as the community welfare officers transfer to the Department, we will provide more training and ensure greater consistency across their work. All five elements of habitual residency should be taken into account.

Róisín Shortall (Dublin North West, Labour)
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In view of the ruling that people applying under the habitual residency condition must be treated as individuals and considered under the five standard criteria, does it open up a liability for the State in terms of people seeking backdated payments? What legal advice has the Minister received in that regard?

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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We do not believe it does because the case determined by the appeals officer was based only on the legal arguments from both sides and did not look at or set out a particular set of circumstances by which people would or would not qualify. Since then, as I outlined earlier, decisions have been made to refuse applications and such decisions have been upheld by the appeals officer.

Róisín Shortall (Dublin North West, Labour)
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Previous decisions have been taken on the basis of assessing applicants as a group rather than individually.

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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Decisions were always taken on the basis of the Supreme Court judgment, which said that such people do not have a status until it has been determined by the court or the legal process.

Róisín Shortall (Dublin North West, Labour)
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I understood the issue was that they should not be assessed as a group but, rather, individually. Surely people in the past who were assessed as part of a group would now have a case against the State.

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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To date, we are satisfied. That is why we are currently examining this area very carefully. As I indicated earlier, if a change in legislation is needed, we will have to do that. To date, we believe it only applies to the particular case and does not have a knock-on effect or mass application.

Denis Naughten (Roscommon-South Leitrim, Fine Gael)
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I ask the Minister to respond to my question regarding the habitual residency condition and the lack of consistency. How can someone be granted the carer's allowance to care for a person who has been refused disability allowance on the basis that he or she is not eligible for a payment under the habitual residency condition? One rule contradicts the other.

Brendan Howlin (Wexford, Labour)
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Needless to say, we cannot go into individual cases.

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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In order to qualify for the carer's allowance, one must be habitually resident in the State. I presume the same applies to a person with a disability. There is no point discussing an individual case as I do not know the full circumstances.

Denis Naughten (Roscommon-South Leitrim, Fine Gael)
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My point concerned the inconsistency.

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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Different applications apply, but the Deputy referred to a particular case. Every individual case is assessed. One example concerned four people who applied for social welfare but did not qualify on the basis that they were not habitually resident in the State. That is the type of control measure we need.

Kathleen Lynch (Cork North Central, Labour)
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Question 66: To ask the Minister for Social and Family Affairs the steps she is taking to ensure that all self-employed people applying for income support under jobseeker's allowance are means tested on the basis of their current income. [40712/09]

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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Jobseeker's allowance is a means tested payment and the manner in which means are to be assessed is set out in the third Schedule of the Social Welfare Consolidation Act 2005. In most such cases, a social welfare inspector will interview the claimant to ascertain the means of the applicant. The Department of Social and Family Affairs also produces administrative guidelines to assist inspectors in this task, which are supplemented from time to time to take account of changing legislation or circumstances. Legislation provides that a person's income in the coming 12 months is the basis of his or her means. The means assessment guidelines state that where the income in the coming 12 months is not otherwise ascertainable, which is usually the case, the income for the past 12 months should be taken as a guide, allowing for any factors which it is known will vary. However, it was always the case that where an applicant had ceased self-employment and he or she could show that his or her income in the coming 12 months was likely to be greatly reduced in light of personal or economic circumstances, inspectors and deciding officers would take account of this.

As I have just outlined to the House, the Department issued a circular in May 2008 advising inspectors that in light of the changed economic climate it would generally be the case that less work would be available to a claimant in the foreseeable future. Inspectors were advised that they should apply their knowledge of local conditions to arrive at a fair assessment of a person's income from self-employment in the coming 12 months. Where a self-employed person's situation changes after he or she has made an initial claim for jobseeker's allowance, he or she can apply to have his or her means reviewed. In addition, it is open to the individual, if he or she is dissatisfied with the means assessed, to make an appeal to the Social Welfare Appeals Office.

It is important to remember that people who have urgent income support needs can apply for the means tested supplementary welfare allowance and more than 95% of basic social welfare allowance applications are decided on and paid within a week. I appreciate the need to ensure that claimants who have been self-employed and whose income is significantly affected by the economic down turn receive their full and fair entitlements in a timely manner and I assure the House we are doing our best to achieve this.

Róisín Shortall (Dublin North West, Labour)
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I continue to receive complaints about accessing payments from people who were self-employed, whose businesses have gone bust and who find themselves in dire circumstances. In many cases such people are being asked to produce the last set of accounts for their business, which are very often those for 2007. Decisions are being taken in an entirely new scenario at the end of 2009 on the basis of their financial circumstances in 2007. Does the Minister accept that many people do not have money to pay their accountant for their 2008 accounts and, therefore, the only finalised accounts they have are for 2007? It seems to be a continuing problem. I have brought it to the Minister's attention before but it is still a problem.

The Minister said she issued advice in March 2008. Is there a need to revisit that advice? There is a need for guidelines to be issued to deciding officers dealing with claims other than those for jobseeker's allowance, such as those applying for qualified adult payments. The same rules apply to such people who are being asked for up-to-date accounts, on the basis of which decisions have been taken. Would the Minister consider issuing up-to-date guidelines?

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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If inspectors on the ground need me to issue further clarity and guidelines, I am more than happy to do that. At the beginning of the year I indicated that we would do it and two circulars were issued to inspectors in May, one concerning people who were unemployed due to the down turn in the construction industry and the other concerning self-employment and jobseeker's payments. I accept there were discrepancies in the way people were being treated at the beginning of the year but, to be fair, it has a more general application. I accept the Deputy's comments on people not having accounts because self-employed people only had to produce their accounts in November 2008 for 2007. I will ensure flexibility is given to people in that regard.

Denis Naughten (Roscommon-South Leitrim, Fine Gael)
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There needs to be more flexibility. I have the same problems as Deputy Shortall and every Member of the House has come across examples of it. A more flexible approach needs to be taken regarding the capital assets people have. Fictional calculations are being provided regarding income which is being generated, particularly from commercial premises, when no income is currently being generated. On Deputy Shortall's comments on the need to reissue guidelines, can the Minister ensure that a clear and transparent checklist is put on the Department's website for applicants so they can try to provide as much relevant information and up-to-date documentation as possible to speed up the current backlogs in processing applications?

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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The Department's website has won a number of awards for its quality and the fact that it is so user-friendly. To my knowledge, there is a checklist on it. The website www.losingyourjob.ie which, unfortunately, has had a huge number of hits is also very practical and tells people exactly what they need. I will check to make sure the type of information to which the Deputy refers is also available. I know capital was an issue. We are examining the issue with a view to giving guidelines to inspectors not just on commercial property, but on assessing people whose only income was rental income from houses which are now no longer rented out. We are actively looking at the issue.

Róisín Shortall (Dublin North West, Labour)
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Many cases are going to appeal, which creates obvious expense and delay. Would the Minister consider a minor change which might improve the situation? A person now has only 21 days to produce all the necessary documentation, which is very difficult when a person had his or her own business and is looking for accounts and up-to-date information. If people were given a little more time they may be able to produce the required documentation which would enable a proper decision to be made and avoid the necessity to go to an appeal. Will the Minister examine the issue?

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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I am not sure how many people are being turned down on the basis that the information is not in on time or the period is closed.

Róisín Shortall (Dublin North West, Labour)
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Three weeks is a very short period.

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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We will certainly try to take a sample of cases to see where the problems are because I am particularly conscious that this group of people have paid a stamp that does not automatically entitle them to a number of benefits but are experiencing difficulties. We will take a look at that to see if we can help people.