Joan Burton (Dublin West, Labour) | Oireachtas source

I thank the Members who tabled the motion on this important issue and those Senators who have contributed to the debate. The background to this motion is the report published recently by FLAC entitled, Not Fair Enough - Making the Case for Reform of the Social Welfare Appeals System. I welcome this report as a valuable analysis of the social welfare appeals system through a human rights lens. It is important, particularly in straitened times like this, to stand back, reflect and ensure that the drive for efficiency does not compromise the quality or fairness of the services that are delivered.

Significant resources are being assigned to improve initial decision-making and thereby reduce the number of appeals. Since I became Minister, a formal two-week deciding officer training course was designed and launched in November 2011 for staff working in the areas of jobseeker's claims acceptance and decisions. The reform of the process must start with the very beginning of the process with the people who are the initial decision-makers. The course content includes scheme conditions, legislation, best practice procedures and also areas such as natural justice, good decision-making and proper customer service standards. Initial work has also begun on developing further training for deciding officers in other scheme areas on aspects such as decision-making, reviewing decisions and appeals submissions. In reply to Senator Healy Eames, social welfare forms are constantly monitored for relevance and accessibility, with online versions being provided in most cases. Social welfare local office staff provide information and guidance for customers on the completion of application forms. My Department runs a very extensive range of information services which are costly to administer. In reply to Senator Norris, the Citizens Information Board, through its network of offices around the State, provides information, advice and advocacy services for members of the public on a wide range of public and social services, including the social welfare appeals process. The Citizens Information Service and the Money Advice and Budgeting Service are funded by my Department at a cost of ¤47 million annually. Both these agencies interact extensively with the social welfare system. Departmental staff also advise customers of the availability of relevant non-governmental organisations, where required. In addition, interpreter facilities may be accessed by telephone in local offices, as required.

The National Advocacy Service, which I launched shortly after becoming Minister, is funded through the Citizens Information Board. It provides independent, confidential and free advocacy for people with disabilities. In 2011 the National Advocacy Service received ¤2.6 million in funding. The first cases have been reported. My Department also provides an annual grant to the Irish National Organisation for the Unemployed, INOU, and to the Northside Community Law Centre, under the scheme of grants for the promotion and development of information and welfare rights. This year, the INOU and the Northside Community Law Centre will receive funding of ¤235,000 and ¤350,000 respectively. The INOU provides advocacy services for the unemployed, either directly or through a network of affiliates and the Northside Community Law Centre provides information, advice and representation on legal matters. Both have a very good reputation in this area and in many cases they work closely with local FLAC services. The Irish Congress of Trade Unions also receives funding via the community employment and jobs initiative schemes to assist in the running of ICTU information and resource centres. This approximates to ¤5.75 million per year for community employment funding and ¤1.8 million for jobs initiative schemes. Other community employment schemes funded by the Department place considerable emphasis on advising people how to access social welfare. The Department is very strong compared with other governmental organisations in providing extensive platforms of information on the rights of citizens. This is at the heart of the services provided by the Department.

The appeals system was reformed in 1990. The social welfare appeals office was established as a separate executive office with its own premises and staff and it operates independently. The chief appeals officer is legally obliged to submit an annual report to the Minister and a copy of the report is laid before both Houses of the Oireachtas. She is responsible for the distribution of appeals to appeals officers and for the general management of the service. Appeals officers are quasi-judicial officers. The Supreme Court judgment in the McLoughlin v. the Minister for Social Welfare case in 1958 ruled that appeals officers are required to be free and unrestricted in discharging their functions. If evidence of independence were needed, there is ample provided by the high level of appeals allowed, at 42% of appeals.

There is no doubt that in recent years the unprecedented increase in the volume of appeals has led to unacceptable delays and backlogs. Senator Mac Conghail referred to the recommendations made by FLAC, one of which is that there should be a system for prioritising urgent cases, such as those who are refused supplementary welfare allowance. This allowance is the safety net payment in the system. I am pleased to confirm that appeals against refusal of supplementary welfare allowance are prioritised by the social welfare appeals office, as is evidenced by the shorter processing times of 16 weeks for a summary decision and 21 weeks for an oral hearing. Significant resources and effort have been put into reducing backlogs and improving processing times for appellants, including the assignment of 15 additional appeals officers; retaining retired experienced officers for 18 months ending December 2011; improving business processes; and implementing a new operating model.

It is worth repeating the scale of the increases in social welfare appeals in the last three years, this at a time when money has become very tight. Senator Mooney knows what the incoming Government had to deal with, such as the outfall from the bank guarantee. Up to 2009, the average number of appeals received was 15,000 per year. The number rose to 32,000 in 2011. In the same period, the number of decisions finalised increased from an average of 13,500 to 34,027. The volume of appeals has increased exponentially.

The Department is examining what further improvements can be made to reduce processing times. When an appeal is received, it is acknowledged and the Department is asked to make a submission on the grounds of appeal put forward by the appellant. While this adds some considerable time to the process, it also underpins the flexibility of the Irish system. There are advantages and disadvantages to this flexibility. For example, in the case of schemes which include medical criteria, the time taken by the Department will invariably include a review by a different medical assessor from the one who initially examined the case. In many cases there may be a third review by a medical assessor where additional medical evidence is submitted. While this process carries an inherent delay in terms of finalising an appeal, it also emphasises the flexibility and accessibility of the system. In cases where a person's means are the issue, this may warrant a further visit by a social welfare inspector. This adds time to the process.

We allow multiple reviews and submissions of fresh evidence in the interests of being fair to applicants. Senators who handle appeals will be familiar with this. One may have a GP acting as an advocate on behalf of a person who is making an application. The GP's evidence may simply state, "I support this application." That is of little value in terms of medical evidence, but the GP is being helpful to the patient. People need to think about this. In many systems that is where the appeal stops and one is not allowed to appeal again for a considerable period, but in our system we allow the person to resubmit evidence. A person may go to the citizens information centre or make representations to his or her public representatives and obtain advice on how to present a stronger case. We allow people to make multiple presentations and submit fresh evidence at all stages of the system. Very often they make three submissions and, in other cases, many more. They are anxious to do this because they believe they are strengthening their case and the social welfare system allows them to do so. Inevitably, however, it means delay. We need to consider, therefore, whether we should allow people to make their case and then one more submission on appeal in order that a person would have two strikes. In our system we allow multiple appeals. In many ways, that is a very humane way to deal with appeals, as one is not obliged to hire a lawyer and can introduce fresh evidence, for example, one can obtain evidence from a wider group of medical referees or specialists.

The chief appeals officer expects to finalise 6,000 more claims this year. We are improving the computerisation of the system. We will generate additional capacity as the newer appeals officers become experienced. As things stand, because of the turnover of staff and with additional new recruits, 25 appeals officers have less than 18 months experience. There is a major programme of process redesign and modernisation under way in many scheme areas which will reduce scheme backlogs and also the time taken for the Department to respond to requests from the social welfare appeals office. It is also planned to improve the capacity of the medical review and assessment service through the recruitment of an additional eight medical assessors in 2013. All of these measures, taken together, will reduce the waiting times for appellants.

Let me point out to Senator Paschal Mooney, in particular, that in 2009 domiciliary care allowance claims were transferred by the then Fianna Fáil-led coalition Government to the then Department of Social Welfare, while illness benefit was limited to two years, whereas previously it had been paid indefinitely. The consequence of these changes was inevitably extra appeals. Many of the files from the HSE carried in-built review dates. That is reasonable because a medical assessor decided that the file must be reviewed because there was a possibility the person would recover from his or her illness. These are inherent changes that have arisen from the old system when people were paid illness benefit on an indefinite basis when we moved to a more time limited system in the Department of Social Protection.

Another aspect of the delays being experienced by appellants is the disparity in waiting times between those whose case is decided summarily and those whose appeal goes to an oral hearing. We have front-loaded the system in 2012. We have taken on eight experienced retired appeals officers on a part-time basis to work on summary decisions. In the nine months to September, the proportion of summary decisions dropped from 69% to 56%, while the number of positive decisions has risen from 20% to 30%. A number of Members referred to the significant improvements as a consequence of the improvements in information technology and the way decisions have been dealt with.

If the information is very clear, it is possible for the deciding officer to make a clear decision. An oral hearing is provided for in cases in which there is a need to clarify points of evidence. The supporting information the person can produce is very important, as consistency of decision-making is crucial. The Department publishes extensive guidelines and information on social welfare entitlements which explain how decisions are made and the factors taken into account. The decisions advisory office of the Department has responsibility for ensuring consistency in decision-making and the social welfare appeals office liaises with it to give and receive feedback on issues arising and any issue arising is discussed with appeals officers. This learning is, in turn, reflected in the published guidelines. In the social welfare appeals office it is the statutory responsibility of the chief appeals officer to convene meetings of appeals officers for the purpose of ensuring consistency. It maintains a database of decisions for use by appeals officers for this very purpose. Cases of interest are circulated among appeals officers and where diverse views emerge, these form the basis for discussions at case conferences convened for that purpose.

The issue of making a searchable database available was the subject of the recent High Court case Ikraam Jama v. the Minister for Social Protection on 11 October 2011 that the social welfare appeals office publish decisions, suitably anonymised, for the purpose of assisting appellants and their representatives in making an appeal. The judge in that case found that there was no duty on the social welfare appeals office to maintain a database for public access. Comparisons were drawn with the social security commissioners in Northern Ireland, the Refugee Appeals Tribunal and the Equality Tribunal which do publish their decisions. In 2010 the social security commissioners in Northern Ireland finalised 141 decisions; the Refugee Appeals Tribunal finalised 2,783 decisions, while the Equality Tribunal finalised 322 decisions, whereas the social welfare appeals office finalised 28,000 decisions in the same period. A comparison is being drawn between a body in the North of Ireland which made approximately 150 decisions and the social welfare appeals office which made 28,000 decisions. We do not have the resources to do what they do in the North for 150 cases.