Brian Stanley (Laois-Offaly, Sinn Fein)
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442. To ask the Minister for Employment Affairs and Social Protection if her Department is of the view that the 1997 Revenue Commissioners courier sector tax agreement which was discontinued in 2019 was in keeping with her Department’s factors for determining the employment status of courier workers (details supplied). [61639/21]

Brian Stanley (Laois-Offaly, Sinn Fein)
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443. To ask the Minister for Employment Affairs and Social Protection the number of test cases that were undertaken prior to her Department’s establishment of criteria in 1995 to determine the formal insurability and employment status of courier workers. [61640/21]

Brian Stanley (Laois-Offaly, Sinn Fein)
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446. To ask the Minister for Employment Affairs and Social Protection the reason her Department did not amend the 1995 determining factors for employment status of courier drivers following the outcome of a Supreme Court case (details supplied). [61643/21]

Heather Humphreys (Cavan-Monaghan, Fine Gael)
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I propose to take Questions Nos. 442, 443 and 446 together.

The concept of a ‘test case’ has been misinterpreted over the years.

In 1995 the Social Welfare Appeals Office considered an appeal against a Departmental Deciding Officer determination that a person working as a courier, was in the particular circumstances of the case, employed rather than self-employed. The Appeals Office determined on appeal that the worker was in fact self-employed. In reaching this determination the Appeals Officer set out a number of criteria that informed the decision and that could then be used on a case by case basis when deciding whether a worker was employed or self-employed. It is not the case that the determination by the Appeals Officer was used to classify all people working as couriers as self-employed.

While Deciding Officers in my Department have regard to the findings of the Appeals Office, they are required to assess each new case on an individual basis, considering all of the terms and conditions of the particular employment. Accordingly, subsequent to the 1995 Appeals Office decision, and taking account of the criteria set out in that decision, Scope Section has found some couriers to be employees and others to be self-employed.

In the years following the decision of the Appeals Officer in 1995, the evolving case law of the time clarified and expanded the criteria that should be applied in determining questions of employment status. These criteria were codified into the first Code of Practice, published in 2001. This Code was devised by the Employment Status Group, involving trade union and employer representatives, under the Programme for Prosperity and Fairness and has been recently updated following consultation with the same groups.

The outcome of any case with respect to a worker in a particular occupation or sector is not applied to an occupation or entire sector. All workers are entitled to a determination of their status on an individual basis with each application for a determination subject to decision on its own merits taking account of the criteria set out in the Code of Practice.

The criteria used for deciding the insurability of couriers are the same criteria used for deciding the insurability of individuals in all other sectors. This criteria is set out clearly in the Code of Practice on Determining Employment Status and it is based on case law set down by the Courts. The Henry Denny case (Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1997] IESC 9), to which the Deputy refers, is one of many High Court and Supreme Court cases which are instructive in employment status cases. Decisions made by my Department are guided by the case law as it evolves. For this reason, an indicative list of key Court decisions is contained at page 33 of the Code of Practice.

In relation to the Revenue Tax Briefing of 1997 referred to by the Deputy, it is important to emphasise the distinction between the remits of my Department and that of the Office of the Revenue Commissioners. While I understand that the Revenue Commissioners has had regard to the criteria first identified in 1995 and subsequently expanded and codified in 2001 (updated in the past year), the Revenue Commissioners make decisions on tax matters under statutory powers granted to them and are required to act independently of Government in the exercise of their functions.

My Department has the statutory power to determine which social insurance class applies to an individual. The Revenue Commissioners do not make decisions regarding social insurance status, only tax matters. Equally, decisions of my Department as to PRSI insurability do not affect tax liability.

I encourage any worker who has doubts about their social insurance classification to apply to Scope Section by e-mailing: scope@welfare.ie, phoning: +353 (0)1 673 2585 (9am-5pm) or writing to:

Scope Section

Department of Social Protection

Áras Mhic Dhiarmada

Store Street

Dublin 1

D01 WY03

I trust this clarifies matters for the Deputy.

Brian Stanley (Laois-Offaly, Sinn Fein)
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444. To ask the Minister for Employment Affairs and Social Protection the specific legal basis for an appeals officer in 1995 to establish a set of criteria in relation to determining the employment status of a group and class of workers specifically in relation to establishing a set of criteria to determine the employment status of courier workers. [61641/21]

Brian Stanley (Laois-Offaly, Sinn Fein)
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445. To ask the Minister for Employment Affairs and Social Protection the reasoning of her Department for each of the three factors established by her Department in 1995 with regard to the determination of employment status of courier drivers (details supplied). [61642/21]

Brian Stanley (Laois-Offaly, Sinn Fein)
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447. To ask the Minister for Employment Affairs and Social Protection if a statement (details supplied) by the Secretary General of the Department of Social, Community and Family Affairs in a letter to the Oireachtas Joint Committee on Public Accounts in September 2000 represents an accurate account of her Department’s actions. [61644/21]

Heather Humphreys (Cavan-Monaghan, Fine Gael)
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I propose to take Questions Nos. 444, 445 and 447 together.

The role of the Social Welfare Appeals Office is to determine appeals against decisions of Deciding Officers and/or Designated Persons of the Department of Social Protection. The legislation currently governing the appeals process is contained in Chapters 2, 3 and 4 of Part 10 of the Social Welfare Consolidation Act 2005 and the Social Welfare (Appeals) Regulations, 1998 (S.I. No. 108 of 1998).

Section 300(2) of the 2005 Act gives statutory power to Deciding Officers of the Department to determine questions relating to the insurability of employment for social insurance purposes. All such determinations/ decisions can be appealed under the provisions of Section 311 of the 2005 Act to an Appeals Officer. The equivalent provisions in relation to a decision made by an Appeals Officer in 1995 were Sections 247(2) and 257 of the Social Welfare (Consolidation) Act 1993 respectively.

I am advised that in October 2000, the then Secretary General of the Department of Social, Community and Family Affairs in correspondence to the Chairman of the Public Accounts Committee made reference to a number of representative ‘test cases’ in the courier sector that were selected in 1993/1994 for investigation and formal decision as some couriers considered themselves self-employed while others regarded themselves as employees. I am further advised that these cases were not selected to determine the employment status of all workers in that sector but rather to identify criteria that could be used by Deciding Officers and Appeals Officers for the purpose of assessing each case on an individual basis and to improve the quality and consistency of decision making in relation to the determination of whether an individual was employed or self-employed. Depending on the circumstances of the particular case, as assessed by reference to these criteria, an individual decision would be made in the case.

In one particular case which I understand has become known as the ‘1995 decision’ the Scope section of the Department determined that the courier was employed under a contract of service – i.e. an employee – and insurable at class A PRSI. This decision was appealed by both the worker and the company to the Social Welfare Appeals Office. Following an oral hearing, the Appeals Officer’s decision in July 1995 was that, on balance, the worker was operating under a contract for services and, therefore, was deemed to be self-employed. The Appeals Officer considered the following were critical factors in reaching the decision; lack of (company) control, no requirement to provide personal service, being able to enlist help of others (substitution) and refuse jobs, ability to do work for other companies and flexibility in the hours of attendance. The evidence adduced at the oral hearing included that the worker provided his own vehicle and equipment, was responsible for expenses, including tax, insurance and maintenance and payment was made on the basis of rate per job.

The Secretary General in his correspondence of October 2000 outlined that the Appeals Officer’s decision established the criteria that were generally accepted as relevant for consideration when determining the employment status of workers in that sector.

It is my understanding that this approach was a precursor to the subsequent development on a tripartite basis of the Code of Practice for Determining Employment or Self-Employment Status of Individuals under the Programme for Prosperity and Fairness in 2001. The Code was subsequently updated in 2007 under the Towards 2016 Social Partnership Agreement with a further update in this past year.

Therefore, since 2001, the criteria used for deciding insurability status are set out in the Code of Practice on Determining Employment Status. The Code was updated further this year by an interdepartmental working group comprising my Department, the Revenue Commissioners and the Workplace Relations Commission. I published the revised Code on 21 July 2021.

Accordingly, neither the ‘1995 decision’ nor any other decision is used by the Scope Section of the Department or the Social Welfare Appeals Office as a precedent and they do not form any part of the deliberations in such cases. Cases are determined on a case by case basis having regard to the Code of Practice and the case law from the Courts.