Katherine Zappone (Independent) | Oireachtas source

I move:

That Seanad Éireann

notes:
- the importance of transparency and independence (actual and perceived) in a social welfare appeals system;
further notes that:
- social welfare appeals have more than doubled in the last 5 years with 51,500 live appeals in 2011;
- despite a reduction of 2.6 weeks since 2011 the average waiting time for appeals dealt with by summary decision making is now 22.4 weeks;
- despite a reduction of 11.6 weeks since 2011 the average waiting time for appeals requiring an oral hearing is now 40.9 weeks;
- the current pressure on the appeals system has resulted in a number of appellants being unable to access their fundamental rights due to delays;
- current procedures weigh against the appellant when making an appeal including a lack of legal assistance for complex cases; and
- the problems in the system have caused unnecessary hardship for appellants, in some cases resulting in destitution.
agrees that:
- there have been improvements to the system including an increase in the number of Appeals Officers to 41; and
- the Social Welfare Appeals Office is implementing system reforms which have resulted in decreased waiting times and increased productivity.
calls on the Minister for Social Protection to:
ensure the independence of the social welfare appeals system by undertaking an audit of how the system meets standards of fair hearing and human rights such as those contained in the Irish Constitution and the European Convention on Human Rights and to publish such an audit;
improve decision making at first instance by:
· putting more resources into the system at the initial decision stage thereby maximising cost-effectiveness and reducing the number of appeals against wrong refusals;
· simplifying and making more accessible social welfare application forms;
· providing for regular training of Appeals Officers in relevant areas of law including human rights law;
improve fair procedures by:
· automatically providing appellants with their social welfare file including the Deciding Officer?s submission without having to make an FOI request;
· anonymising the Department of Social Protection?s database of significant decisions and make available to the public as recommended by the UN Special Rapporteur on Extreme Poverty in 2011;
· amending social welfare appeal forms to include an option to request an oral hearing;
· directing that Social Welfare Office staff ensure that claimants are able to make an application or are assisted to do so where necessary; and
improve accessibility by:
· making civil legal aid available for appellants in complex cases.

I welcome the Minister for Social Protection. I have expressed support and admiration for her reform agenda on numerous occasions. My colleagues and I view this motion on the social welfare appeals system as an integral aspect of the reform process. We bring it forward in awareness of the current economic context but with the belief that even in times of economic austerity, we must have due regard to fairness and justice, especially for those who are most vulnerable. We will identify areas in which there could be a more cost-effective use of the resources already available in the system.

We bring forward the motion because we are aware that many public representatives, including Senators and Deputies, receive requests and complaints from citizens and residents who are experiencing enormous delays within the appeals system. We understand many people are waiting for decisions to be overturned because the initial decision did not take into account all the circumstances of an individual or interpret accurately Irish or EU social welfare law as it applies to the individual's circumstances. These wrongful decisions were made at the first instance of decision-making and contribute to the extremely high number of appeals before the social welfare appeals office. A clear indicator that the process is flawed is the fact that 42% of decisions are overturned on appeal.

As the Minister is aware and the motion indicates, persons who make an appeal face a number of problems. The number of social welfare appeals has more than doubled in the past five years; there were 51,500 live appeals in 2011. The average waiting time for an appeal to be dealt with by summary decision is 22.4 weeks. The pressures on the system have resulted in a number of appellants being unable to access their fundamental rights owing to delays, causing destitution in some cases. We acknowledge that the number of appeals officers has been increased to 41 and that other system reforms have resulted in decreased waiting times and increased productivity. However, given the pressures exerted in the current economic climate, it is vital to highlight that the time is almost upon us when the capacity of the system will be reached owing to the ever growing number of appeals and the limited number of staff available to deal with them. Consequently, we will still have considerable delays in spite of the current reform process.

Thus, a key part of our motion calls for changes in the way decisions are made at the very beginning of the application process.

We call for a social welfare application and appeals system that is transparent and independent. Our call is rooted in the recently published research on the system by FLAC, entitled, Not Fair Enough. I welcome several members of FLAC who are in the Visitors Gallery. FLAC's motivation in carrying out this research was based on its enormous experience of representing social welfare applicants as well as working with other advocate organisations and independent law centres which have met the hardship of applicants at the coal face. Complementing this - here is where FLAC's research provides us with significant added value - it provides an analysis of the system from the perspective of human rights law. This gives us a framework within which to determine what is lacking within the current system. This objective analysis, from the perspective of the rule of law, highlights that people have a right to social security, that they have a right to fair procedures and that they have a right to due process and effective remedies.

We request the Minister to ensure the independence and transparency of the social welfare applications and appeals system. We are aware that, according to the rule of law, especially the law of the European Convention on Human Rights, Article 6 of the convention, in noting a person's right to fair procedures, states:

In the determination of one's civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

My colleague, Senator Fiach MacConghail, will address the issues of our motion that recommend changes to the decisions made at first instance. I will focus the rest of my remarks on a call to undertake and publish an audit of the independence of the social welfare appeals system and how to further improve fair procedures in the system and an appellant's access to justice. An audit provides us with an objective benchmark. That benchmark is a checklist of human rights principles and standards of fair hearing against which an objective judgment can be made with regard to the independence and transparency of the current system.

I have selected four such principles as a basis for our recommendations for improving fair procedures and accessibility. The first of these is a fair balance between the parties. Current appeal procedures weigh against people when they attempt to make an appeal, because appellants do not have access to the same information as those making the decision about their case. Appellants are not automatically given a copy of their social welfare file which may contain useful information. This file as well as a copy of the deciding officer's submission, which contains information on why the application was rejected, should be provided to the appellant as a matter of course. It should not be necessary to make a freedom of information application.

Second, appellants should be informed of their right to seek an oral hearing, a right which they hold under Article 6 of the European Convention on Human Rights and which should not be at the discretion of an appeals officer. Statistics show there is a higher rate of success on appeal in cases where an oral hearing is held, compared to a decision that is made on written evidence only. I would like to give an example of the importance of oral hearings. A separated woman with a large family, not only had her one-parent family payment stopped, but also received a demand for ¤21,000, an alleged over-payment. Her payment was stopped in November 2009 and, following consultation with FLAC, she made an appeal to the social welfare appeals office. The Department claimed that she was co­habiting with her ex-partner.

As a result of a freedom of information request the woman received her social welfare file. This file contained a social welfare inspector's report which stated that she was not cohabiting. The report showed that the evidence on which the Department based its opinion was flawed. The woman had presented written evidence in her initial application which corroborated the inspector's report, but her file showed that this was not taken into consideration. Following an oral hearing which was held more than a year after she appealed the decision, at which FLAC represented her, the social welfare appeals officer allowed her appeal and rejected the overpayment claim. The woman's payment was restored, but arrears were not granted for a further three months.

Third, people have a right to legal assistance in complex cases. It must be noted that civil legal aid is not available for representation at a social welfare appeal. Appellants may seek assistance from an NGO or lay advocate or they may represent themselves. Some appeals can deal with complex issues of law. Therefore, appellants may be at a disadvantage when presenting their case without legal advice or assistance. Civil legal aid should be made available in these instances. Failing that, advocacy organisations should be funded to assist people in complex cases.

Fourth, there should be consistency in decision-making within the social welfare appeals system. The appeals office does not maintain a database of decisions which is accessible to appellants about cases which may be similar to their own. There is a database to assist appeals officers in their work, but all that would be needed is a minor investment in anonymising software in order to make a number of significant decisions available to the appellants and their advocates. This would assist appellants' preparations for appeals significantly.

I hope the Minister will consider all of our recommendations. I have read the counter motion, but I hope the Minister will still consider our recommendations, in particular the recommendation to conduct and publish an audit of the system. Our recommendations for reform are modest, but absolutely necessary for fairness and access to justice. I hope the Minister considers them in that way.