Róisín Shortall (Dublin North West, Labour)
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Question 131: To ask the Minister for Social and Family Affairs the steps he has taken to ensure that his Department are not operating the habitual residence condition in an over-rigid fashion; and if he will undertake to publish his Department's legal advice on the operation and application of the current criteria and any correspondence between his Department and the European Commission on this issue. [12183/08]

Martin Cullen (Waterford, Fianna Fail)
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The requirement to be habitually resident in Ireland was introduced as a qualifying condition for certain social assistance schemes and child benefit with effect from 1 May 2004. It was introduced in the context of the Government's decision to open the Irish labour market to workers from the 10 new EU Member States, without the transitional limitations which were imposed at that time by most of the other Member States. The effect of the condition is that a person whose habitual residence is elsewhere would not normally be entitled to social welfare assistance or child benefit payments on arrival in Ireland.

Under Social Welfare legislation, decisions in relation to all aspects of claims are made by statutorily appointed Deciding Officers. Each case received for a determination on the Habitual Residence Condition is dealt with in its own right and a decision is based on application of the legislation and guidelines to the particular individual circumstances of each case. Decisions in relation to Supplementary Welfare Allowance are made by Community Welfare Officers in the Health Service Executive (HSE).

Any applicant who disagrees with the decision on a case has the right to request a review of that decision and/or appeal to the independent Social Welfare Appeals Office.

While decisions to the effect that applicants satisfy the habitual residence condition (HRC) can be made in the vast majority (over 90%) of cases at claim acceptance stage on the basis of answers given on the primary claim forms, complex cases are examined in more detail. Claims involving complex HRC issues are assessed and decided in all scheme areas within my Department by a small number of deciding officers who are experienced and fully familiar with the issues involved for each scheme in regard to HRC. I am satisfied that this arrangement contributes greatly to accuracy and consistency in the decision-making process.

Arising from a review of the operation of the habitual residence condition which was published in 2007, revised and expanded guidelines for claims decisions staff on the application of HRC are currently nearing completion, in consultation with management in the various scheme areas.

Following final clearance, the revised guidelines will be made available to all relevant staff and published on the Department's website www.welfare.ie . As an additional support, and to maintain standards of accuracy and consistency, on completion of the revised HRC guidelines, arrangements will be made to provide training and/or briefings as appropriate to decisions staff within my Department and within the Health Service Executive.

My Department consulted in the normal manner with the Attorney General's Office in the course of drafting the habitual residence legislation and subsequently when issues were raised regarding compliance with the EU legislation and other international convention commitments. This advice is subject to legal professional privilege. The substance of the advice has been fully reported in earlier Parliamentary Questions.

At a recent meeting of the Joint Oireachtas Committee on Social and Family Affairs, dealing with the Habitual Residence Condition, officials from my Department indicated that, while advice from the office of the Attorney General was confidential, a note would be furnished, outlining the substance of that advice. That note was issued to the Committee and dealt with the position in relation to the U.N. Convention on the Rights of the Child. The European Commission initiated infringement proceedings in December 2004.

Following written and oral response by my Department and a full investigation of the matter, the Commission was satisfied that the HRC was being operated in conformity with the EU legislation and withdrew its infringement proceedings in April 2006. As this matter has also been dealt with in detail in previous Parliamentary Questions, and relevant issues have been fully explained at the Joint Committee meetings I have referred to, I see no need to publish the correspondence on this matter.