Ivana Bacik (Independent)
Link to this: Individually | In context

I thank the Minister for coming to the House today and his presence here has solved a mystery for me. My question pertains to the universality of child benefit and initially I had addressed it to the Minister of State at the Department of Health and Children with responsibility for children, Deputy Brendan Smith, because neither I nor the groups on whose information I am working were clear as to who was responsible for this issue within the Government. I am grateful to the Minister for coming into the House and taking responsibility for this issue.

Essentially this issue concerns the universality of child benefit. The Government's National Children's Strategy 2000-10 states: "...child benefit is an important means of reducing child poverty and supporting the welfare of children, given its universal coverage and its neutral relationship to both the employment incentive and decisions regarding family formation". These words are highly important and all Members would subscribe to them. However, in recent years, child benefit has not been applied universally. A small number of children exist, who perhaps are the most vulnerable and disadvantaged, to whom child benefit is not made available. This is because of the habitual residence condition. I raised this issue on the Order of Business on universal children's day two days ago and a number of groups have been campaigning for the restoration of child benefit to the aforementioned small group of children. The campaigning groups are led by the free legal advice centres, FLAC, but also include the Vincentian Refugee Centre, the Immigrant Council of Ireland, Barnardos and the Children's Rights Alliance.

Their campaign concerns the habitual residence condition, which I understand was introduced in 2004. Its initial purpose was to prevent social welfare payments, including child benefit, being made unless persons could demonstrate two years' habitual residence in Ireland. Following legal advice, it became clear that the habitual residence condition could not apply to children whose parents were from EU member states or the European Economic Area. Consequently, such parents are not subjected to this condition. However, a small number — the free legal advice centres estimate between 2,000 and 3,000 children — remain deprived of the benefit because of the application of the habitual residence condition. Most of the children concerned are the children of asylum seekers or those seeking humanitarian leave to remain. FLAC found figures showing that at the end of September 2007, just 2,019 such children were in this category and were deprived of child benefit. The point made by FLAC and the other groups is that the deprivation of child benefit to the parents of such children has had a severe effect on them because many of them already exist on direct provision and are therefore already on extremely low incomes. They cannot afford to buy basic essentials such as food, schooling and medical requirements. Were child benefit restored to them, they would be able to so do.

My question also concerns the extent to which the Government had considered its international human rights obligations when taking this policy approach to these children. Article 2 of the UN Convention on the Rights of the Child, which Ireland ratified in 1992, provides that children's rights should be respected without discrimination of any kind. Moreover, Article 26 states that children have the right to benefit from social security. It is clear from the convention that governments should not discriminate against children on the basis of the immigration status or otherwise of their parents. In effect, however, the application of this condition has deprived a particular small group of children of what should be a universal benefit and what the Government has referred to as an important plank of the strategy to remove children from poverty.

I ask the Minister the reason the Government has not considered the rights of the child in the application of this policy. I also ask the Minister to consider whether the implementation of this policy has in effect broken not only the Government's own promises contained in the national children's strategy, but also our international human rights commitments to children, namely, to ensure they are entitled to social benefits without any discrimination based on parental status.

Martin Cullen (Waterford, Fianna Fail)
Link to this: Individually | In context

I thank the Senator for raising this important issue. In general, child benefit may be paid in respect of every child under the age of 16 years who is ordinarily resident in the State. Payment can be extended to the 19th birthday if the child is in education or incapable of self-support. The benefit is paid to the qualified person with whom the child resides and the qualified person must satisfy the habitual residence condition.

The purpose of the habitual residence condition is to allow access to our social welfare schemes to people who are genuinely and lawfully making Ireland their habitual residence, while preventing unwarranted access by persons who have little or no connection with the State. It was introduced because Ireland at that time was one of only three member states of the EU to open its borders without restriction to nationals of the new EU states in May 2004. EU regulations provide that EEA nationals who are migrant workers, that is, who are employed or self-employed in this country or who are receiving Irish jobseeker's benefit since being in employment here, are entitled to payment of family benefits in respect of their families whether the families are resident with them in Ireland or in another member state. Under these regulations, the family members are treated as if they are resident in Ireland for the purpose of child benefit.

Prior to the introduction of the habitual residence condition in 2004, full examination was given by my Department to the question as to whether it was consistent with a number of international conventions to which Ireland was party, including the UN Convention on the Rights of the Child. Article 26 of the Convention on the Rights of the Child provides:

(1) The State parties shall recognise for every child the right to benefit from social security, including social insurance, and shall take the necessary measures to achieve the full realisation of this right in accordance with their national law.

(2) The benefits should, where appropriate, be granted, taking into account the resources and circumstances of the child and persons having responsibility for the maintenance of the child, as well as any other consideration relevant to an application for benefits made by or on behalf of the child.

The convention allows the national legislation to prescribe the manner of provision of that benefit. The benefit does not have to be a cash payment and benefit in kind may equally satisfy the requirement. Therefore where direct provision is made, as in the case of persons in the asylum process, that provision meets the obligations of the convention and Ireland is not obliged to pay child benefit in addition to such provision. The outcome of this examination was that the habitual residence condition was not incompatible with the provisions of the convention.

Approximately 2,000 claims to child benefit for some 3,400 children have been refused since May 2004 as the applicant did not satisfy the habitual residence condition. Those who were refused were mainly persons whose claims to asylum were not yet finalised, who did not have a work permit or who had no attachment to the workforce in Ireland. In the same period, a total of more than 160,000 new claims for child benefit were received and awarded.

As part of the ongoing monitoring of the application of the habitual residence condition, my Department reviewed the outcome of related child benefit decisions during the period between January and the end of August 2007. A total of 28,542 decisions were made on new child benefit claims in this period. Of these, a total of 3,430, or 12%, required particular examination of the habitual residence condition. A total of 90% of these cases satisfied the condition and only 341 were refused because this condition was not satisfied. This shows that it continues to be the case that only slightly more than 1% of the total number of new child benefit claims fail to satisfy the habitual residence conditions.

The review also confirmed that those who are refused child benefit are mainly persons whose claim to asylum has not yet been decided, others who have not obtained a work permit, or persons who have had only a minimal or no attachment to the workforce since coming to Ireland. As I have already stated, those who do not satisfy the condition because they are in the asylum process have direct provision available to them, and in this manner the rights and welfare of the child is protected. If refugee status is granted to such persons, they are accepted as habitually resident and become entitled to child benefit in respect of their qualifying children.

Ivana Bacik (Independent)
Link to this: Individually | In context

I wish to ask a supplemental question arising from the Minister's reply and I believe I am entitled to so do. Am I to understand that direct provision is made instead of child benefit in cases where direct provision is made to the children?

Martin Cullen (Waterford, Fianna Fail)
Link to this: Individually | In context

Yes. This issue was considered at the time with particular reference to the UN Convention on the Rights of the Child. It became clear that the convention does not prescribe that a straight cash payment must be made. If a state makes indirect provision — Ireland devotes quite substantial resources to indirect provision — rather than making payment by way of child benefit that is equally acceptable under the UN convention. That is the position at present. While I agree the numbers are small, there is a range of reasons. The figures clearly indicate that our society wants to look after children irrespective of where they come from, and we do that well. According to the current examination for which I have given Senator Bacik the figures for January to August this year, more than 28,000 applications were granted and of 3,430 that were examined, 90% got it and only 341 failed. The system is being more than fair to and conscious of the rights of children. That is important. Where there is direct provision that is equal and counts as making a direct cash payment.