Social Welfare Appeals Bill 2013: Second Stage [Private Members]

Willie - head & shoulders

My speech on the Social Welfare Appeals Bill

This is a very short Bill with one purpose, which is to expedite the social welfare appeals system. I propose that the maximum period for an appeal should be 60 working days, which is 12 weeks, except in very exceptional circumstances.

The Minister of State is aware of the 2012 report of the Free Legal Advice Centres, FLAC, which examined the social welfare appeals system in detail. It highlighted a number of difficulties with the existing system, of which delay was just one. In its report FLAC pointed out that in 2011 the success rate of social welfare appeals was 43%. I understand this figure has since crept up to more than 50%. The information available to me is that in the period from October 2013 to September 2014 34,000 cases were taken, of which 19,000 cases succeeded, which is approximately 56%. This means more than half the decisions taken by the deciding officer at first instance were incorrect. The latest figures available to me also state that at present the average length of time to process an oral hearing is 29.3 weeks, which is approximately seven months, and a summary decision takes 21.8 weeks, which is approximately five months. These are the average figures; individual cases can take much longer. I know of cases that have taken a year or longer.

Taken together, these delays, along with the high rate of incorrect decisions at first instance, mean that many people may be deprived of their legitimate social welfare entitlement for a very lengthy period. In certain instances a person may apply for a supplementary welfare allowance to tide him or her over. The way it is supposed to work is that somebody who makes an appeal shows evidence of this to the community welfare officer, who is supposed to make a payment to tide the person over. My experience is that this is not automatic. I have come across several instances in which people have been refused supplementary welfare allowance for one reason or another. If a case centres on habitual residence, a supplementary welfare allowance will automatically be refused.

During the lengthy waiting period, people are affected in two ways. Some of them are literally destitute and depend on the assistance of family and friends to tide them over. In many cases these family and friends can ill afford the payments themselves. It has also been my experience that while people are waiting for an adjudication on their entitlement to social welfare they experience great anxiety and distress. I have come across cases in which people’s health was affected by the delay encountered on an adjudication of entitlement. With this Bill, I am seeking to shorten this period of uncertainty and, sometimes, destitution.

Changes could be made within the system itself which would alleviate the situation. If 56% of appeals are successful – I acknowledge that some of these successes were as a result of a review by the deciding officer – what does this say about the decision-making process at first instance? I have some familiarity with the courts system. If a particular judge was being overruled 56% of the time there would be consternation. Surely it is not beyond the capacity of the Department to improve the decision-making process at first instance. If my figures are correct, they show that the number of successful appeals is increasing, which indicates that the position is getting worse rather than better.

A common experience of Members who phone the appeals office is to hear that the file has not yet been handed over by the deciding officer. This accounts for a considerable portion of the delay. We are speaking about individual human beings who may be kept waiting, so it is difficult to speak about averages, but I understand that on average it takes a deciding officer approximately three months to hand over a file to enable the appeals office make a decision. This is indefensible.

It is no exaggeration to state that the 2012 FLAC report is a brilliant piece of work and a model of lucidity. Recently I read an interview with the novelist Ken Follett, who extolled simplicity in writing. He stated that if anybody had to read one of his sentences twice he had failed in his task. We can say this about the FLAC report. It is clear, comprehensive and compelling. It examines the social welfare appeals system in detail and signposts very clearly the need for a number of changes. Some of the changes proposed certainly would involve a cost to the Exchequer, but others are simple and straightforward, could be done at no cost to the Exchequer and would immensely improve the system.

When the Minister of State responds, will he indicate how aware the Department is of the report and what, if any, action has been taken on foot of its recommendations? The evidence suggests that not much action has been taken.

Among the proposals made is that the appeals office be put on an independent statutory basis so as to remove the view that it is simply part and parcel of the Department of Social Protection. Another allied recommendation is that appeals officers be recruited through the general recruitment process rather than from within the Department as this reinforces the image of the Department adjudicating on itself.

Another recommendation is that the appellant be automatically given a copy of his or her social welfare file. Currently, an appellant whose appeal progresses to an oral hearing must, if he or she wishes to know the deciding officer’s submission, request his or file under FOI legislation. In my opinion and the view of FLAC, appellants should be automatically entitled to this information.

Another recommendation is that urgent cases be prioritised or, alternatively, that an interim payment be made to persons experiencing destitution in the event of excessive delay. While free legal advice is available to social welfare appellants, FLAC recommends that civil legal aid also be available, which obviously would result in a cost to the Exchequer. FLAC also recommended that terms of reference be drawn up for appeals officers. I am not aware if this has been done.

A number of other, largely procedural, proposals are made, including that the appeals officer carry out an audit of his or her procedures to ensure optimum use of resources and that staff in the Department of Social Protection, where appropriate, direct people presenting with problems to organisations that can help them such as citizens’ advice centres and NGOs. It is also recommended that an appellant be given access to any previous decision which may be relevant to his or her case, with, of course, the appropriate anonymity. In terms of precedent, such a system operates in the courts.

Another recommendation is that oral hearings be granted when requested unless there is a compelling reason to the contrary. In my experience – I am not aware of statistics in this regard – while this was previously the case, the number of cases in which oral hearings are being refused is increasing, which is a serious matter. By way of statistics, the number of successful appeals decided by way of oral hearing far out-numbers the number of successful appeals decided by way of the summary process.

Other recommendations include that appeals officers, similar to deciding officers, hold quarterly meetings and that regular training be provided for appeals officers. All of these are simple and straightforward recommendations, the vast majority of which would not result in an additional burden on the Exchequer but would immensely improve the system for the benefit of appellants. We are speaking in this instance about people whose circumstances are such that they have applied for social welfare benefits and are, therefore, among the poorest in society. In many cases, they will experience several months of anxiety and uncertainty and, in some cases, great poverty, while awaiting a decision on their case. The system should be as user-friendly as possible for the people concerned who are a disadvantaged sector of society.

I look forward to hearing the Minister of State’s response on shortening the appeals system or, at least, the provision of some certainty for the unfortunate people stuck in the appeals system awaiting a decision on their cases and also on the recommendations contained in the FLAC report of 2012.

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