Wednesday, 23 November 2011
Social Welfare Code
Question 3: To ask the Minister for Social Protection if habitual residence dose not apply to returning Irish emigrants, as is outlined by the EU guidelines (details supplied), when seeking social welfare, the reason local welfare offices continue to demand that returning Irish emigrants prove their habitual residence; the number of Irish nationals who were or are aware of these guidelines and have been denied benefits because they have been outside the country for a few years, almost forcing persons to seek work in another country again; and the measures she will take to ensure that welfare officers are fully informed on the application of habitual residence criteria to Irish citizens returning from abroad. [36442/11]
The requirement to be habitually resident in Ireland was introduced as a qualifying condition for certain social assistance schemes and child benefit with effect from 1 May 2004. The effect of the condition is that a person whose habitual residence is elsewhere would not normally be entitled to social welfare assistance or child benefit payments on arrival in Ireland.
The reference from the guidelines quoted by the Deputy does not mean the habitual residence condition does not apply to returning Irish emigrants. Rather its purpose is to clarify that, once satisfied, HRC can apply from the date of return. Irish nationals returning to live here on a permanent basis should experience no difficulty in demonstrating that they satisfy the requirements of the HRC. I have no statistical evidence of a significant increase in the numbers disallowed on the grounds of not being habitually resident for claims made by returning Irish emigrants. My Department will review cases brought to its attention.
Under social welfare legislation, decisions on all aspects of claims are made by statutorily appointed deciding officers. Each case received for a determination on the HRC is dealt with in its own right and a decision is based on application of the legislation and guidelines to the individual circumstances of each case. Since the introduction of the condition, 144 staff at local offices have been trained on habitual residence decisions and training has been provided to approximately 1,000 former community welfare staff who are now on the staff of my Department.
In June this year, new national and international HRC guidelines were produced, taking into account recent developments in case law. The Department also published a supplement which gives example scenarios of how the condition is applied. These guidelines have been published on the Department's website and circulated to all relevant staff within the Department. The updated documents make the guidelines clearer and more user friendly for staff and customers alike. An applicant who disagrees with the decision on a case has the right to request a review of that decision and-or appeal to the social welfare appeals office.
I thank the Minister for her reply. In my experience of dealing with this issue, the only way claimants end up getting their payments is if they quote the EU guidelines. It is only when that happens that the deciding officer will say, "You are actually right", but if the claimants do not know that before meeting the officer, they will not get what they are entitled to. Can these guidelines be made more solid, for example, in legislation?
I dealt with the case of an elderly man who no longer felt safe in Manchester, where he was living. It is debatable whether he was right or wrong but he had not lived in Ireland for 30 years. He had lived here for 35 years before he emigrated. He returned and he was told he was not entitled to anything and he was not Irish anymore. People seem to have to fight like dogs to secure their benefits rather than it being pointed out to them that they are entitled to them. They have to prove something before anything is done for them.
The Deputy's question relates to returning Irish emigrants. I refer to a number of developments that have taken place. The HRC distinguishes between people who return to the State for a temporary period and those who return with the intention of settling permanently or at least on a long-term basis. The Department's guidelines indicate the evidence that enables a deciding officer to distinguish that, for instance, the sale of a residence or termination of employment abroad, the shipping of property and personal effects back to Ireland, no immediate family remaining abroad and the expiry of a foreign residence permit, if one was required in the country in which the claimant resided.
The Department met representatives of Safe-Home and Crosscare in May 2010. The attention of officers in the Department was drawn to the arrangements made by Safe-Home for the repatriation of Irish emigrants. When I visited London for the St. Patrick's Day celebrations shortly after my appointment, I met the representatives of several organisations assisting Irish emigrants, some of whom were returning to Ireland. The issue is an information gap between the two sides but a claimant must show clearly that he or she is returning to Ireland. In the case referred to by the Deputy, the individual had lived for a long period in the UK and was returning to Ireland. Applicants have to show they do not intend to return to the UK. Deciding officers look for evidence that they no longer maintain a home or rent a property there and they have transferred their interest back to Ireland.
I did not table the question to address the elderly man's case. The person about whom I tabled it made clear that she was returning to Ireland to go to college having been away for three years. It was only when she pointed out the fact that EU guidelines were in place that she was told she was entitled to the payment. There is an anomaly in this regard and perhaps the Minister can discuss this with the Minister for Education and Skills. There seem to be different rules. If one is claiming welfare when one returns to Ireland, the HRC applies but if one wants to go to college on return to avail of the fees regime as opposed to being treated as someone from outside the EU, one must prove that one is ordinarily resident in the State. Why the difference?
I know people affected by that issue as well, particularly the children of Irish people who have worked abroad for years, for example, in Africa and whose children are Irish. When they return home, their children want to go to college here but the Department of Education and Skills has specific rules because it cannot discriminate in favour of people who are Irish.
Crosscare indicated the revised guidelines, which followed from the ongoing discussions between the Department and Safe-Home and Crosscare, were much improved and it welcomed their publication.
The other issue is that one of the reasons that appeals succeed is that by the time they are heard, it is clear that the applicants have settled in Ireland. When they first return, they may not have made their case as clearly as they should, whereas a few months later, it may be clear that they are staying.