Seanad debates

Tuesday, 26 July 2011

9:00 pm

Photo of Brian Ó DomhnaillBrian Ó Domhnaill (Fianna Fail)
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While I was not anxious to bring this social welfare case before the House, I have exhausted every available avenue to deal with a young lady's social welfare entitlement. She is an Irish citizen who took up employment in the UK. She had a young family and, as she was no longer able to work in the UK, she returned home in 2010. She applied for what she felt was her social welfare entitlement, such as child benefit and family income supplement, even though she had links with the UK but was caught by the habitual residence clause, unfairly so in my view. Her children are being deprived of their social welfare entitlements also. I know of similar cases where the social welfare entitlements were approved.

The young lady in question has appealed the decision. Will the Minister for Social Protection have this matter properly investigated even while the appeal is being heard by the Department? The young lady has furnished all the relevant information and documents, including a P45 from the UK to show she left employment there.

While her appeal is being heard, the Department has refused to give her an exceptional needs payment. The appeals system is clogged up. In 2007, some 14,000 appeals were made while this year the figure stands at 35,000. An appeal takes between six and eight months to process. I have spoken to the departmental staff involved who have been as helpful as they can be. Due to the constraints they are under from a national level, they are still unable to pay out the exceptional needs payment.

The young lady in question and her family are at breaking point. She is expected to live on nothing. Every time I speak to her she breaks down in tears because she cannot provide for her children while others who may not be Irish citizens are obtaining supplementary welfare allowance or the exceptional needs payment.

This is a genuine case but because of the bureaucracy in the system the young lady in question is denied her right of an exceptional needs payment while her appeal is processed. I hope some flexibility will be given to the local community welfare officers to pay out the exceptional needs payment for this lady while the appeal is being decided. If that cannot be done, the appeal should be decided upon in the next six days. The family in question cannot be expected to live on fresh air. Fresh air will not provide for this lady's children, pay her rent and allow her, an Irish citizen, to live in her own town.

Photo of Alan ShatterAlan Shatter (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael)
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I apologise for the inability for the Minister for Social Protection to attend the House.

The supplementary welfare allowance scheme which is administered on behalf of the Department of Social Protection by the community division of the Health Service Executive provides for the payment of weekly or monthly supplements to eligible people who are habitually resident in the State and whose means are insufficient to meet their needs. The rules that apply this year are the same that were prescribed and applied when the Senator's party was in government.

The supplementary welfare allowance scheme is the safety net in the overall social welfare system in that it provides a basic income support payment to eligible people in the State whose means are insufficient to meet their needs and those of their dependants. Its main purpose is to provide immediate and flexible assistance for those in need who do not qualify for payment under other State schemes.

However, supplementary welfare allowance cannot at any time be viewed as a temporary or interim means of income support available independently of the habitual residence condition while an applicant awaits the outcome of either a decision or an appeal against a decision on a claim for a social welfare payment from the Department.

Since 1 May 2004, all applicants, regardless of nationality, are required to be habitually resident in the State to qualify for jobseeker's allowance, supplementary welfare allowance, one-parent family payment, child benefit, disability allowance, State pension non-contributory, carer's allowance, widow's non-contributory, guardian's non-contributory payment or blind pension. No distinction is drawn in social welfare legislation on grounds of nationality. The determination of a person's habitual residence is made in accordance with section 246 of the Social Welfare Consolidation Act 2005, as amended. Section 246(4) specifically directs the deciding officer to "take into consideration all the circumstances of the cases" including, in particular, the length and continuity of residence in Ireland or in any other particular country, the length and purpose of any absence from Ireland, the nature and pattern of employment, the applicant's main centre of interest and the future intentions of applicant as they appear from all the circumstances.

Habitual residence may be lost where a person spends time away. This may apply in the case of an Irish national who gains stable employment abroad, a non-Irish national who returns to his or her own country or settles in a third country following a period of residence here. In determining the main centre of interest in such cases account will be taken of the purpose of return such as the expiry of foreign residence permit; the record of employment or self-employment in another state; whether the applicant has maintained links with the previous residence and can be regarded as resuming his or her previous residence rather than starting a new period of residence; the applicant's stated intentions; and verified arrangements which have been made in regard to returning on a long-term basis such as transfer of financial accounts and any other assets, termination of residence-based entitlements in the other country, or assistance from Safe Home or a similar programme to enable Irish emigrants to return permanently. The length and continuity of the previous residence in the State is also taken into account.

The HSE has advised that the person concerned was refused a supplementary welfare allowance on the grounds that she did not satisfy the habitual residence condition. Information available to the HSE at the time of her application indicated the person concerned was on an incentivised career-break from her UK employer, she was still in receipt of income from that employment and benefited from UK personal tax and child dependant credits. She was also in receipt of child benefit from the Department of Health and Social Security in the UK and in receipt of rental income from property owned again in the United Kingdom.

In making its decision, the HSE concluded that this person's main centre of interest was in the UK and she was not considered to be habitually resident in the State. The HSE has further advised that it has received no appeal against this decision. I suggest the Senator clarifies this matter with the individual in question. If no appeal has been received, clearly the matter has been concluded. If an appeal has been received, the Minister has not been given the correct information.

Photo of Brian Ó DomhnaillBrian Ó Domhnaill (Fianna Fail)
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I thank the Minister for his reply. However, an appeal was lodged because I have acknowledgments from the Department of Social Protection indicating the appeal is being processed. The confusion may relate to the appeal for the supplementary welfare allowance. The appeal which has been lodged is the appeal to the original decision by the Department of Social Protection to refuse social welfare payments. The applicant has demonstrated in her appeal that she is no longer on a career break and has a P45 from her employer. She is not in receipt of any employment benefit or any other kind of benefit from the UK in that regard and is no longer in receipt of her personal child dependant tax credit. She has gone to extreme lengths to explain that to the Department. There may be some confusion, but the response the Minister gave does not seem to be joined up in the context of the social welfare appeal and the appeal on the supplementary welfare side, which is being dealt with by the HSE. What I ask is that the Minister talk to his colleague, Deputy Joan Burton, to see whether, in light of the information that has been available to the social welfare appeals office, a review could be made of the supplementary welfare decision. Can that be done?

Photo of Alan ShatterAlan Shatter (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael)
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In an effort to be of help to the Senator, all I know of this matter is what the Senator has said in this House and the information furnished by the Minister. However, as someone who has some knowledge in this area and who has written about the social welfare and supplementary welfare systems at length, it seems to me there is a significant difficulty in being of assistance in the matter. The Senator raised the issue as to why the supplementary welfare allowance is being refused. Clearly, there are two separate systems. If this individual has made an appeal against the refusal of the application for social welfare, which is an application to the Department of Social Protection, that is one issue. That appeal will be dealt with in the course of time. The delays in the appeal system have been there for a considerable period and are due to the failure of the previous Administration to address the issue. I hope we will have an opportunity to address the delays.

A separate appeal system operates with regard to supplementary welfare allowance. Clearly, if the applicant's situation is different now from that believed to be the case by the HSE and if she is not in receipt of rental income from the UK, which is a significant matter mentioned in the response, she may qualify. If she is receipt of rental income, I expect she does not qualify for supplementary welfare allowance. However, if she is not in receipt of rental income and if she has established habitual residence in this State, the course of action she should take is to lodge an appeal with the HSE with regard to the refusal of supplementary welfare allowance, which is a separate matter. Alternatively, she should reapply for supplementary welfare allowance.