This week FLAC published a report which looked at Ireland’s complex social welfare appeals system and whether it’s fair or not. Here, Saoirse Brady explains what they found:
‘MARY’ IS A woman raising her children alone in Cork. With no financial or other support from her former partner and in the middle of a complicated family law process that made assessing her income quite difficult, she was refused lone parent support payment. Desperate, she turned to MABS for money advice, and was lucky enough to be referred to a social welfare adviser who helped her to re-apply and then appeal the refusal of her social welfare application. Although she had no income and several children to support, she was repeatedly denied state support. However, knowing she had a legitimate claim and with the support of her adviser, she kept up her appeal. In the end, it took Mary five years to actually receive her payment, three of which were spent appealing a refusal of her social welfare application. She is now working and studying and counts herself luckier than many people, as she had adequate support throughout.
It would seem straightforward to argue that nobody should have to wait for such a protracted length of time for a payment on which he or she might be completely dependent. Mary was able to access an emergency payment while waiting on a decision, but many people are refused even this meagre support. So just how effective – or even fair – is the system of appeals presented to people in Ireland?
The responsible office is the Social Welfare Appeals Office, which is a quasi-judicial body – in other words, it is an administrative body which exercises powers or functions similar to a judge. The Appeals Office determines whether or not a Deciding Officer in the Department of Social Protection was correct to refuse a claim for a social welfare payment. However, despite its role as adjudicator over disputed decisions of the Department, the Appeals Office is not an independent statutory body. It is in fact an office of the Department of Social Protection, and Appeals Officers are employees of that department.
One of the fundamental cornerstones of natural justice enshrined in both the Constitution and the European Convention on Human Rights is the right to fair procedures. FLAC’s report on the issue examines the various components of fair procedures as interpreted by the European Court of Human Rights. This includes the independence of the tribunal and its employees. It also requires a level playing field between the person making the appeal and the Department. That means equal access to information, the right to an oral hearing for people making appeals, legal assistance where needed and reasonable processing times. In light of these factors, the Appeals Office would seem to fall short of standards on fair procedures.
“They are faced with a legal and bureaucratic labyrinth…”
The Appeals Office was initially intended to be a forum where people appealing a social welfare decision, or appellants, could present their own cases in an informal way. Now, however, Appeals Officers must be aware of complex areas of law, including social welfare legislation and regulations, European Union law and international human rights obligations.
The social welfare appeals scheme is a maze of different options to appeal – we had great difficulty even to sketch a simplified diagram of it in our report – involving a variety of public servants, regulations and laws. Although they are faced with a legal and bureaucratic labyrinth, appellants are barred from getting representation in a social welfare appeal through the civil legal aid scheme. Those who realise they need help to navigate such a complex system and to understand the law and regulations may turn to independent organisations or Citizens Information Centres.
Alternatively, they may just represent themselves and where claimants are refused payments due to a misunderstanding of their circumstances, this may be the most appropriate option. On the other hand, where complicated legal rules or technicalities are involved, they may require legal advice and representation to ensure that the process is not weighted against the appellant.
In fact, appellants are an unequal footing from the start as they do not automatically have access to all information on their social welfare file. They must specifically request it. Nor are they allowed access to previous decisions which may be relevant to their case. Furthermore, appellants will not know who has decided their case, as the name of the Appeals Officer does not appear on the standard decision letter. They are not even sent a copy of the full Appeals Officer’s report on the decision unless they ask for it, whereas it is automatically put on their file and sent back to the relevant payment section of the Department. This lack of transparency goes against appellants’ right to access justice and can result in inconsistent decision-making and a lack of faith in the system.
Almost half of appeals led to decision being overturned…
In recent years, more appeals are being decided based on the written evidence only, despite the fact that appellants have a higher success rate when an oral hearing is held. The Ombudsman Emily O’Reilly also noted this concern while launching the FLAC report and talked about how crucial it is for a person to be able to speak in person about his or her situation.
In 2011, some 42 per cent of appeals led to decisions being overturned. In fact, in 18 per cent of the overall number of appeals, the decision was reversed by the original Department staff member being asked to review his or her own conclusion. These figures indicate flaws in the initial application and decision-making process. Under the current system people may be denied their entitlements for more than a year at a time due to the lengthy delays at the Appeals Office. If more support was given to both administrators and applicants at the outset this would improve first-instance decision-making and hopefully avoid unnecessary appeals.
In the current economic climate, the State has to ensure that it is complying with international human rights standards by maximising its resources and ensuring the protection of the most vulnerable, rather than wasting its limited funds on needless bureaucracy and ineffective systems.
Saoirse Brady is FLAC’s Policy and Advocacy Officer. Saoirse is responsible for FLAC’s policy work on social welfare law reform and is the author of One Size Doesn’t Fit All (2009), a legal analysis of the State’s direct provision and dispersal system for asylum seekers, and Not Fair Enough, which can be read here.
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