Aideen Hayden (Labour) | Oireachtas source

I disagree with my esteemed colleague, Senator Barrett. In times of recession when one has less to spend, the importance of openness and transparency in how people get those limited resources is even more critical. I thank my Independent colleagues for introducing this important motion. While it addresses the Department of Social Protection appeals process, its thrust applies to other areas of society and decision-making. It is about how we do business as a Government in deciding who gets what in society and does not just apply to the social welfare process.

There are three aspects to the work of the Department of Social Protection ? advice and advocacy, an initial decision-making process and the appeals process. The motion before us deals with the decision-making and appeals processes. The advocacy element is very important and very critical to the rights people have in the system, however. I take the Minister?s point that the Department has spent an increasing volume of money assisting people in accessing advice and advocacy. However, much of this advice comes from the Department. In other words, the Department has three faces. Its first face provides the citizen with advice and information. Its next face is to make a decision on a person?s entitlement. The third face it presents is it then sits in judgment on its previous decision. That is where this entire system falls down.

There is quite a problem with the process. For example, there were 51,500 appeals in 2011 while Northern Ireland had 320. Clearly, far too many cases are going to appeal. The deciding officer process is not sufficiently good enough. It might be better if there were an intermediate phase between the deciding officer and the ultimate appeals process. An appeals process should not be examining that volume of cases. I am concerned by the kind of powers appeals officers have. An appeals officer may decide to hold an oral hearing of the appellant?s case.

The appeals officer may decide on a case if there is sufficient information available without recourse to an oral hearing. There can only be an appeal on the decision of an appeals officer to the High Court on a point of law or for judicial review. Therefore, a significant degree of power is held by an appeals officer. I do not believe it is fair to compare the Department of Social Protection with a body such as the Irish Refugee Council. The Department of Social Protection has a different role. The Irish Refugee Council does not provide accommodation for the refugee who applies to it. On the other hand the Department of Social Protection is providing the resources that a person making the appeal is depending on. Therefore, the Department of Social Protection is a party in its own hearing. The question we must ask ourselves is whether this process is independent and whether it is perceived to be independent. I do not believe any process in which the Department is a party to its own hearing can be of its nature properly independent. I do not cast any aspersions on those persons who carry out the appeals process but I simply do not believe the process can be of itself sufficiently independent without being placed on a statutory basis.

The position of the Department is comparable to that of Dublin City Council in the case in which section 62 of the Housing Act was found to be repugnant to Article 6 of the European Convention on Human Rights. The judgment in that case found that one cannot be the judge and jury in one's own case and that one cannot decide oneself on the outcome of a process in which one is a party. Several points have been made in this regard. It is important to hear evidence from both sides. I got the impression from the Minister's statement that it is not necessarily the case that someone knows the basis on which a deciding officer has made a decision and that one must make an application for the documentation to be made available. The basis of the initial decision should be absolutely clear from the decision of a deciding officer. I realise I am running out of time.