Dáil Éireann debate -
Tuesday, 20 Feb 1979

Vol. 311 No. 9

Private Members' Business. - Social Welfare Appeals Procedure: Motion.

Dr. O'Connell

I move:

That Dáil Éireann, aware of the present most unsatisfactory system of appeals procedure to determine eligibility for benefits under social welfare legislation, calls on the Minister for Social Welfare to establish a system of independent appeals tribunals to determine all such appeals.

The amendment in the name of the Minister reads:

To delete all words after "Dáil Éireann" and substitute the following:

"calls on the Minister for Social Welfare to examine the appeals procedure in relation to the determination of eligibility for benefits under the social welfare legislation with a view to effecting improvements therein."

In moving this motion I am endeavouring to highlight the unsatisfactory social welfare appeals system and I am asking the Minister to establish a system that will protect the rights of social welfare recipients by giving them access to an independent appeals tribunal when they consider that their entitlements have not been administered justly. In this context it is important not only that justice be done but that justice be seen to be done. I am calling on the Minister also to end the blatant discrimination against married women in respect of unemployment benefit in so far as the mere fact of a married woman having a child disqualifies her in practice from receiving unemployment benefit. I am calling on the Minister to bring increased pressure to bear on his colleagues in Government to speed up the implementation of the EEC directive on equal treatment of men and women in the area of social welfare. The rapid introduction of this directive would remove discrimination such as that practised blatantly against married women.

The present time span for the introduction of this directive is much too long in terms of establishing the rights of women in all spheres of Irish society. Surely the directive merits a much greater priority than the six-year limit would appear to indicate.

In putting forward this motion for an independent appeals tribunal I am not trying to open the floodgates in respect of social welfare, to create a situation in which those who are not entitled to social welfare payments might receive them. Neither is it the purpose of this motion to protect those who might be defrauding the social welfare system. The purpose of the motion is to protect the rights of social welfare recipients who are being denied a proper appeals system. These rights are referred to explicitly at paragraph 2.16, page 23 of the White Paper where it is stated that:

Finally, the Government are aware that in dealing with large bureaucracies, individuals can encounter difficulties in seeking to obtain their rights. The implementation of modern welfare legislation inevitably involves complicated administrative machinery. It is essential, therefore, to ensure that, in the administration of existing services and the design of new ones, the need is recognised for the greatest degree of simplicity consistent with proper management and control of the services and that the rights and dignity of the individual are protected.

Basically that is what I am trying to achieve in this motion.

Under the Social Welfare Act, 1952, the Minister appoints deciding officers. A married girl who has a baby and who applies for unemployment benefit finds that her application at her local social welfare exchange is rejected by virtue of the fact that she has a child. If she appeals the case it will be rejected. It is this type of case that all of us here hear of so often. The deciding officers are civil servants from the Department of Social Welfare. Therefore, the whole system of decisions and appeals regarding social welfare payments rests within the Department. It is not a good practice to have civil servants policing civil servants but that is the situation in relation to these appeals because civil servants as appeals officers are adjudicating on decisions that have been made by civil servants in the first place. In accordance with the provisions of the 1952 Act the decision of an appeals officer is final and conclusive.

One might say that any individual has the right to appeal a decision to the High Court and it may be said that the Minister has the right to refer a decision to the High Court at the request of the chief appeals officer. However, the 1952 Social Welfare Act contains a "catch 22" clause because it precludes appeals on the issues of disqualification for unemployment benefit and for social welfare benefit. These are the two issues we are talking about but they are the very ones that are precluded from appeal to the High Court. That is discriminating against people who are social welfare contributors. The questions that can be referred to the High Court have no relationship to these issues. They are merely minor technical details relating to matters of law. I have endeavoured to have a case challenged but I was precluded from doing so by virtue of the 1952 Act. The real substance of any appeal is disqualification or the period of disqualification in respect of benefit but since these questions cannot be referred to the High Court we are saying in effect that there is not an independent appeals procedure.

A large number of appeals are being rejected. In 1978 alone there were disallowed more than 4,000 appeals for unemployment benefit while the figure in respect of unemployment assistance was more than 1,500. In respect of disability benefit more than 1,000 appeals were disallowed. Therefore, in 1978 61 per cent of all appeals in respect of unemployment benefit were rejected. The corresponding figure in respect of disability benefit was 80 per cent while in respect of unemployment assistance the figure was 55 per cent. I am not saying that there may not have been justification for these rejections. It is not my intention to argue in favour of people who may be defrauding the system but we must provide the machinery for appeals to an outside body in respect of the decisions of a civil service Department.

The number of cases rejected in 1978 was very high. There is no provision for further appeal to a higher authority for these thousands of people. There is a total lack of appreciation of the rights of social welfare recipients. In many cases the appeals concern benefits that are financed largely by the workers. The Minister has admitted that the State's contribution to the social welfare scheme is decreasing. I suspect that the workers and employers are financing this scheme to the extent of about 90 per cent. Unfortunately the chances of an appeal being successful are increased considerably if a public representative attends on behalf of a constituent who is bringing an appeal. This perpetuates the myth that a TD is a necessary intermediary in the social welfare system. This is a dangerous situation. An independent appeals machinery should function as guarantor of the rights of social welfare recipients. It should not be a job for a TD since it perpetuates the belief that social welfare is not a social right or entitlement but rather something that can only be had through the intercession of somebody high up in the political field. If we had proper appeals machinery we would not find TDs in the role of string pullers. The public would not be under the impression that only a TD can secure someone's entitlement to social welfare.

The major flaw in the appeals system is in its treatment of women. The appeals machinery in the Department of Social Welfare enforces the discriminatory attitude that the only place for Irish women is in the home. This may have been true to a large extent in 1952 when this Act was passed; but this is 1979, 27 years later. Irish women are demanding their rights to participate fully and equally in Irish society. This means equal access to employment and social welfare while seeking employment. Unfortunately, the mentality of the Department of Social Welfare remains rooted in the old fashioned notion that a woman's place is in the home. Married women with children are being disqualified for unemployment benefit solely on the basis that they have children. The attitude is that if they have children they are unavailable for work despite the fact that they may have family and friends willing and able to care for the children during the day or that they may engage baby-sitters or have access to a creche. These are things the Department of Social Welfare apparently never heard of. They have not dragged themselves out of the dark ages when women had no rights. The Minister is perpetuating this by putting down this amendment which is sterile and means nothing.

Without reflecting personally on the Minister, he reminds me of Ron Moody in the film "Oliver" when he was constantly reviewing the situation. That should be the signature tune of the Minister for Social Welfare—I am reviewing the situation. This is another case of a review, a review. There is only one review: take the machinery away from the Department and set up an independent appeals tribunal. It is scandalous that this discrimination should exist against married women. It reflects the snail-like progress Ireland is making in the area of women's rights.

Equal pay remains a pious aspiration despite the EEC directive of 1976. Women are treated as second class citizens within the context of the taxation system. Ireland is the only country in the EEC without statutory provision for maternity leave. Our social system remains a showcase for discrimination against married women. They have been receiving a low rate of unemployment benefit, disability benefit, invalidity pension and occupational injuries benefit. The duration, up to the last budget, was limited to 156 days. It was more difficult for married women to qualify for unemployment assistance than it was for married men and more difficult for them to apply for increases in benefits in respect of dependants.

The EEC has been in the forefront of the battle for equal rights in Irish society. In December 1978 the EEC Council of Social Affairs passed a directive establishing the principle of equal treatment for men and women in matters of social security. This directive is a logical extension of the EEC's commitment to the principle of equal treatment as regards access to employment, vocational training, promotion, working conditions and rates of pay. The articles in the directive are of particular relevance to this motion. I quote article 4 from the Official Journel of the European Communities:

The principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to martial or family status, in particular as concerns:

—the scope of the schemes and the conditions of access thereto,

—the obligation to contribute and the calculation of contributions,

—the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits.

We are not meeting this directive. The important point is that no discrimination is permissible in regard to martial or family status. The fact that having children disqualifies married women from receiving unemployment benefit is discriminatory. If we have not got access to the courts here there must be provision for access to the European Court of Human Rights.

Article 5 states:

Member States shall take the measures necessary to ensure that any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished.

Ireland is showing an obvious case of blatent discrimination against married women. Article 5 places a responsibility on the Government's shoulders to eliminate this discrimination.

Article 6 deals with appeals and states:

Member States shall introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged by failure to apply the principle of equal treatment to pursue their claims by judicial process, possibly after recourse to other competent authorities.

The Minister has an obligation to fulfil these articles but he is not doing so.

A married woman who feels that she is being discriminated against cannot take her appeal to either an independent tribunal or to the High Court even though the directives are there. The Minister for Social Welfare is ignoring them. This directive places a responsibility on the Government and the Minister to provide access to the court for women who feel they are being discriminated against by a deciding or appeals officer of the Department of Social Welfare.

The cost of implementing the full EEC directive has been estimated at £35 million. The member states decided on a term of six years for its implementation. This is excessively long. It would not cost money to set up an appeals tribunal. If we can afford £28 million to abolish car tax surely we can allocate £17 million for two years and implement the directive.

The Minister is eliminating the discrimination against married women regarding the length of certain social welfare payments. I pay tribute to him for his progressive thinking in this regard. It was a positive move on his part and must be commended. He has also removed the ban on girl school-leavers receiving unemployment assistance. This was a good move and I admire the Minister for it. The motion provides the Minister with a golden opportunity to remove a further major area of discrimination and to speed up the implementation of the EEC directive. Ensuring that married women who felt they were discriminated against had access to the High Court or to an appeal tribunal would meet his obligation under article 6 of the directive, at little or no cost to the Exchequer.

There are other examples of injustice under the present appeals system. Married women are not the only victims of our archaic appeals system which fails to protect the rights of social welfare recipients. There is the question of disputes over disability benefit. No doubt the Minister as a Deputy has come across such cases. A man has injured his back. The surgeon says the man has a bad back. The wording of medical referees is interesting. They say: "is adjudged as not unfit for work". The appeals officer always accept the decision of the medical referee. Where a social welfare contributor makes an appeal for disability benefit he must be entitled to appeal against the decision of the appeals officer or the medical referee. I knew of a case of a man employed by Dublin Corporation who injured his back. He was told by the medical referee of Dublin Corporation that he could not work with the corporation and he applied for disability benefit. However, he was declared fit for work even though the medical referee employed by Dublin Corporation, a professor, had declared him unfit for work. There was a vicious circle——

Mr. Haughey

Has the Deputy brought this case to the notice of the Department?

Dr. O'Connell

Yes. The whole business went on for five months. I tried to get the medical referee for the Dublin Corporation and an orthopaedic surgeon to see reason in this case. It turned out that it would take four months to get an appointment with the orthopaedic surgeon so that he might write an opinion. We could not see the medical referee for Dublin Corporation and we went back to the medical referee in the Department of Social Welfare. In the meantime the man almost starved.

Mr. Haughey

We will look into the matter.

Dr. O'Connell

I am not asking the Minister to spend money. All I am asking him to do is to take the same kind of initiative as he did in other areas and for which he can be proud. We are not going to open the floodgates for people to defraud or abuse the system. All we are doing is asking for the right of appeal against the decision of the Department of Social Welfare. That is not a lot to ask.

Mr. Boland

It is a doctor's dilemma.

Dr. O'Connell

Yes. Doctors have disagreed and patients have suffered very badly, both at the hands of doctors bureaucracy and State bureaucracy. It is a deplorable situation. There is another point to which I should like to draw the Minister's attention, namely, where recipients of unemployment assistance are asked for proof that they have looked for work. Many people have written to hundreds of employers applying for jobs and often they do not get even an acknowledgment. How can they show proof that they have applied for a job? Must they ask the employer for a letter confirming that fact?

Mr. Haughey

We have changed that.

Dr. O'Connell

It must have been changed in the past few days. If that is the case, all the more credit to the Minister. Only a week ago I saw a circular letter from the Department stating that unless the person could provide evidence——

Mr. Haughey

We changed it about a month ago.

Dr. O'Connell

Obviously it has not filtered through. I know somebody who got a letter a week ago stating that unless he had proof that he had sought employment he would be cut off from his unemployment assistance.

Mr. Haughey

I accept that the foreman on a building site is not going to give a man a letter to that effect.

Dr. O'Connell

I will give the Minister credit when he does something to help. Perhaps people applying for assistance should register with the National Manpower Service? I should like more jobs to be offered to that organisation rather than to other bodies. The National Manpower Service have a vital role to play. All vacancies should be referred to them. People could get appointments for interviews and that would be proof that they were applying for jobs. It is not my aim to protect the swindler or the person who is trying to con the Department. I am trying to help the genuine person who cannot even get a reply to his application for a job.

There is also the situation where the employee walks out of a job. I have seen this happen. The person can be so intimidated, so frustrated and he can be worked to a pitch of desperation because of harassment by the boss that he walks out in a fit of temper. A boss can put a man out of employment in a number of ways without firing him; he can make a person's life so impossible that he has no alternative. Recently I stopped a man from walking out of his job. He was under intense pressure and he told me his employer was making his life a hell and that he was not sleeping at night. I asked him to consider getting somebody to talk to his employer, or even to take a week's leave to pull himself together. If a man walks out under that kind of duress he is deprived of unemployment benefit because the employer will say he has walked out. That man has no appeal to any body outside the Department of Social Welfare and it is grossly unjust. He is deprived of unemployment benefit for six weeks. He should have the right to an independent appeals tribunal if he considers he has been treated wrongly by the Department of Social Welfare.

I do not think an appeal to the High Court is the answer. That would be both complex and expensive and would not be available to the general public. It would be beyond their means and I do not think the Minister would like that to happen. We would be making things just as bad. We have a Rights Commissioner. Surely it should be possible to establish a tribunal on those lines to deal with such matters? Perhaps it could be composed of trade union officials or someone else. It would not cost £10,000 per year and it could be done quite easily. Not only would justice be done but it would be seen to be done. The Rights Commissioner adjudicates on unfair dismissals and he does a good job. An outside objective body would best serve the purpose.

This motion strikes at the heart of our concept of social welfare. We must decide if social welfare is a social right or a charitable hand-out from a benevolent state. The impression is given that it is a charitable hand-out. If we consider social welfare as just that, the recipients have no real entitlement to the services. If that is our concept the people should just take what they get and that is how we should talk to them. An appeals system run exclusively by the Department is quite compatible with such a concept. No explanation is given to people; all they are told is that they have a right to appeal to an appeals officer and nothing else. No explanation is given as to why they were rejected. I have tried several times to get an explanation but I did not succeed. Is a married woman with a child rejected because she has a child? If a public representative intervenes on her behalf, or goes with her before the appeals officer, that woman will win her case in many instances—indeed in too many instances. That is wrong. I do not think the Minister would like to see that system operating. He would be opposed to it, and I would like him to be opposed to it.

What does the Minister's amendment seek to do? Without reflecting on him personally in any way, what he wants to do is to examine the appeals procedure in relation to the determination of eligibility with a view to effecting improvements. How could you examine that system? There is only one way of effecting improvements, that is, to take the system away from the Department of Social Welfare. The only way is to take it away from the civil servants in the Department of Social Welfare.

When I was pleading to have lay people put on the Medical Council I said it was not right that people who felt they had suffered an injustice and were looking for redress from doctors should have to appeal to a body of doctors. In the same way, people who feel they have been wronged by the social welfare system should not be forced to appeal to the Department of Social Welfare. I do not see how the system could be improved except by taking it away from the Department and setting up an appeals tribunal. If the Minister said he would come back to the Dáil within three months with positive proposals I would support him.

Minister for Social Welfare (Mr. Haughey)

I move amendment No. 1:

To delete all words after "Dáil Éireann" and substitute the following:—

"calls on the Minister for Social Welfare to examine the appeals procedure in relation to the determination of eligibility for benefits under the Social Welfare legislation with a view to effecting improvements therein."

Deputy O'Connell's disappointment at my putting down an amendment in these terms should not prevent me from expressing my view that this motion is timely. Quite recently I had an interesting discussion with the Irish Transport and General Workers' Union about this very matter and my mind was already directed to these issues as a result of that discussion. I am glad to have this opportunity of teasing out the situation and the issues involved in the House.

In proposing the amendment I should like to assure Deputies that I am not at all complacent about the present appeals procedure. The aim should be to preserve what is best in the system while, at the same time, effecting any improvements which may be shown to be necessary or desirable. The present system has very distinct advantages. It is relatively speedy; it is inexpensive; it is expert; and it is informal. It has been in operation for 26 years and, to that extent, it can be said to have stood the test of time.

I should like to point out that my predecessor, who is a member of the Labour Party and who had full jurisdiction over the Department of Social Welfare, in his four or five years in office did not see fit to make any change in the appeals procedure. I give him the credit of having examined it. I am sure he did, but he was persuaded that the existing system despite its imperfections had certain advantages. Then I have heard this discussion in the Dáil. The approach should be to see first of all if the present system can be improved and if the imperfections can be removed. In carrying out an examination of the system. I receive suggestions from all those who are interested and concerned, and they are many. The motion calls for the full abandonment of the present arrangements——

Dr. O'Connell

It does not.

Mr. Haughey

——and asks for a system of independent appeals tribunals.

Dr. O'Connell

There is an appeal against that. The motion does not change that at all.

Mr. Haughey

It asks for the abandonment of the present system——

Dr. O'Connell

No, a change in the appeals mechanism.

Mr. Haughey

——and the substitution of independent appeals tribunals.

Dr. O'Connell

No, an appeal against the appeals officers. I do not want to abandon anything or to dismantle anything.

Mr. Haughey

My understanding was that the whole thrust of the Deputy's remarks was in favour of independent appeals tribunals.

Dr. O'Connell

Against the appeals officers.

Mr. Haughey

That is what I want to deal with. The establishment of separate independent appeals tribunals would result in the abolition of the present system.

Dr. O'Connell

No.

Mr. Haughey

I understood from the motion and from what the Deputy said that what he had in mind was something along the lines of the employment tribunal which operates at present under the Department of Labour. That tribunal has three persons with equal voting rights—a legally qualified chairman and a representative from the trade union and the employer interests.

In contrast to that, let me give a brief outline of our social welfare system. I am empowered by the legislation to appoint appeals officers from the officers of my Department to decide appeals against the decisions of deciding officers and old age pension committees. It is important to realise that there are two areas from which appeals can emanate—the deciding officer and the old age pension committee. One of these appeals officers is designated chief appeals officer and his responsibilities include the distribution of the work and the prompt consideration of appeals. Appeals officers are of a senior grade and normally reach that grade only when they have served a number of years in the Department and have considerable experience of the system.

They decide appeals on a wide variety of social welfare matters, a very wide spectrum of matters. The main areas are insurability of employment, whether the employment is insurable, and different questions relating to availability for work, incapacity for work, claimants' means and the various contributions conditions. In 1978, 18,000 appeals were decided and half of those were decided after an oral hearing and the remaining 50 per cent were decided summarily. At appeal hearings relating to unemployment benefit and assistance, two assessors sit with an appeals officer and these assessors are representative of the insured persons and the employers. In appeals involving medical matters, independent medical assessors are appointed where necessary.

Let me give some statistics of the way the system is working. Of 12,500 appeals decided last year, 36 per cent were decided in favour of the appellants. That is not bad.

Dr. O'Connell

And 64 per cent against. The Minister should be positive.

Mr. Haughey

I wonder how that compares with the ordinary courts. I do not know, but 36 per cent successful appeals is not a bad tribute to any system.

Dr. O'Connell

Two-thirds against.

Mr. Haughey

I mentioned that there were 18,000 altogether. Unfortunately the remaining 5,500 relate to old age non-contributory pensions and it is not possible to analyse them in the same way because the majority of them are appeals made by social welfare officers against the decision of old age pension committees.

From the time of its receipt in the appeals' section of my Department an appeal which can be decided summarily is normally disposed of within a couple of weeks. That is very important. Oral hearings are usually arranged inside two weeks in the Dublin area and within four weeks elsewhere when they are not dealt with summarily. That is still within two weeks in Dublin and four weeks elsewhere. Deputies will agree they are reasonably satisfactory times, and time is of the essence in this matter. I want to emphasise that aspect of it. That contrasts with an average delay of seven to eight weeks under the British social security system. That has to be kept very carefully in mind.

The employment appeals tribunal in the Department of Labour heard 1,200 cases last year and the cost of those 1,200 cases was about half the cost of our 18,000 cases. The employment appeals tribunal decides appeals on questions relating to redundancy, minimum notice and unfair dismissal. The range of activity is nothing like as wide or as complicated as ours. The problem in the appeals' tribunal is delays. I am sure the Deputy knows from his contacts with the trade union movement, and others, that this is a very serious matter so far as that tribunal is concerned.

It is clear, therefore, that if we were to have the same sort of system in this area as we have in the redundancy area of social welfare, the costs would be enormously greater and we could not attempt to deal with the cases as expeditiously——

Dr. O'Connell

All I am asking for is an appeal against the appeals officer.

Mr. Haughey

There is an appeal against the appeals officer.

Dr. O'Connell

There is not.

Mr. Haughey

If we were to have the same system, an appeals tribunal system, it would be more costly. At the same time, if that were the only system which would ensure fairness in so far as the appellants were concerned. We would have to face that cost. Cost should not be the final arbiter in this matter but it is certainly an important consideration.

We should examine whether there is evidence to suggest that some sort of independent tribunal system could deal with the volume of appeals that we have to put through it. In passing, I might mention that the British appellate machinery for social welfare matters involves independent tribunals and only 22 per cent of appeals are successfull, whereas in our case 36 per cent of appeals are successful.

Dr. O'Connell

That has no bearing on the matter.

Mr. Haughey

It has a bearing on the matter. The Deputy made a strong case that our system was unfair and that some sort of independent system would be fairer to the appellants. I am making the case that that is not necessarily so. One cannot dismiss as totally unfair a system which allows 36 per cent of appeals to succeed.

The question of the principles of natural justice is as good a starting point as any to detail a number of the objections against our appeals system. There are two principles of natural justice involved. One is the rule against bias which stipulates that no person may be adjudged in his own cause. The other stipulates that both sides must be fairly held. The argument put forward by Deputy O'Connell and others is that appeals officers are career officials in my Department and may be likely to uphold the original decision. Against that, the legislation firmly guarantees the independence of the appeals officer. Therefore, he has no reason to alter his opinion in favour of the Department. There is no way in which the Department can influence his decision.

Dr. O'Connell

Where is it guaranteed?

Mr. Haughey

It is in the Social Welfare Acts that his independence is guaranteed. Furthermore, his decisions are final and conclusive unless they are revised by the chief appeals officer or by the courts.

Dr. O'Connell

The case cannot be taken to court.

Mr. Haughey

He goes to court on a question of law. I am now going to quote for the Deputy a decision of the Supreme Court on this matter.

Dr. O'Connell

Section 45 of the 1952 Act——

An Leas-Cheann Comhairle

The Minister is in possession.

Mr. Haughey

The court can accept and decide any appeal on a point of law. The Supreme Court judgement states that the duty is laid upon the appeals officer by the Oireachtas and that he is required to perform it as between parties freely and fairly as becomes anyone who is called upon to decide on matters of right and obligation. Not alone is it in the law but the Supreme Court has asserted and defined the impartiality and objectivity of the appeals officer. There can be no doubt that the appeals officer has complete freedom in deciding any case.

The next question is, do the present arrangements satisfy the other side rule of natural justice? I want to point out what the legislation confers on the people concerned. First of all, it confers a right on the appellant to appear in person at an oral hearing or to be represented by a member of his family. Secondly, it confers on the appeals officer the power to permit representation by any other person. The Deputy himself mentioned that a public representative can attend a hearing. That is very important because it affords free legal aid to appellants who require it and the Minister for Social Welfare is obliged to bear the expense of that legal aid. It gives power to an appeals officer to require the attendance of any person at hearings and to hear evidence on oath. It gives a right to an appellant in unemployment cases to have his appeal heard in the presence of assessors, one from the trade union side and one from the employer's side.

It is true to say that a deciding officer is not usually present at appeal hearings. That is a practical arrangement as it reduces the administrative costs and avoids delays in the hearing of appeals. Not only have deciding officers other duties to perform but frequently they have regard to medical and social welfare reports in arriving at decisions. If the attendance of all or some of those parties were required, the routine work would become unduly cumbersome. The documents relevant to the appeal are before the appeals officer who would, in the event of their being challenged as evidence, suspend the hearing pending the attendance of the appropriate departmental official.

A major criticism of the appeals system, which has been stressed by Deputy O'Connell, is that it is particularly unfair to married women in relation to unemployment benefits. At this stage, the only thing I can say is that we will have to examine that complaint. It has been voiced here during Question Time. One aspect of it that needs to be considered is that a high proportion of unemployment benefit appeals are against decisions regarding availability for work, particularly in the case of married women with children. We would all accept that a number of married women believe they are entitled to unemployment benefit when they have paid stamps for a number of years and it is difficult to persuade them that this other provision has to be operative. Maybe we can change it, but it is there at the moment and they have to be available to work, and this is where the "aggro" starts. Married women claim that they are available but the appeals officers or deciding officers decide on the basis of the facts before them that they are not available.

Mr. Quinn

Arbitrarily, by virtue of their having a child.

Mr. Haughey

By virtue of there being a child, yes. I know the story.

Mr. Quinn

Do you condone it?

Mr. Haughey

The situation is exacerbated by the fact that a lot of married women feel that, having contributed to the social welfare fund for five or ten years, they should be entitled to this benefit. I hope that at present appeals officers do conscientiously decide these issues. There is no reason why they should not. Again to resort to the vernacular, it is no skin off their nose. It must not be forgotten that we, the Oireachtas, have included this provision that the married women must be available to work. If we were to take a decision and change that, then the life of the appeals officer or deciding officer would be much simpler, but that is another matter. The question of being available for work applies not only to married women, it applies right across the board. It is inherent and an integral part of the whole system.

Mr. Quinn

When the mother can show that there is a child-minder available is she then available for work?

Mr. Haughey

Yes, I would maintain that that is the situation. In any case like that which comes before me I take that attitude.

Mr. Quinn

Why before the Minister?

Mr. Haughey

Cases do come before me and I hope that the Deputy will give me the details of the case he has mentioned.

Mr. Quinn

I can bring the Minister hundreds of cases.

Mr. Haughey

The Deputy mentioned Dublin Corporation; if the Deputy gives me the facts we will look into that. The facts as recounted by the Deputy are unintelligible.

Mr. Quinn

I have given the facts, to the Department of Social Welfare. It is a massive, beaucratic department.

Mr. Haughey

The rate of successful appeals in the case of married women is 38 per cent which is higher than the 36 per cent that I mentioned. A 38 per cent successful rate of appeals in any system is not a bad judgement on the system.

Mr. Boland

Two to one against.

Mr. Haughey

It is sometimes suggested that appellants are refused oral hearings. Of course, appeals may be decided summarily at the discretion of the appeals officer and some 50 per cent are decided in that way. I have mentioned that figure earlier. Those appeals relate to situations where the facts would have been established beyond any reasonable doubt and they come mainly in the areas of means tests and failure to satisfy prescribed contribution conditions. I am informed, and I believe and hope it is true, that no reasonable request for an oral hearing is refused.

Undoubtedly there are people who feel that the informality of the present system does not lend itself to the proper administration of justice. On the other hand, it is held that the less formal atmosphere is a strong point in its favour. Individual complaints concerning the conduct of appeal hearings are not so very frequent, and this might lead us to the conclusion that the system in general is satisfactory to the majority of appellants. Here again is an aspect which, in the light of this discussion here in the Dáil, we have to consider further.

There are other areas also which require a hearing. The first is the provision of information to the claimants concerned. I have been endeavouring to improve the facilities in this area, and many Deputies will be aware that we are making significant progress in recent years towards better information to the general public about the provisions of legislation and the entitlements of the person under the legislation. We have also made considerable progress in the design of the forms that we use and the information leaflets. We are trying to make them more readily understandable, to cut out as much jargon and beaucratic language as possible and to make them simple and straightforward. However, there is a point beyond which you cannot go and sometimes you have to have a legalistic phraseology, otherwise you will mislead. There is still plenty of scope for improving the system of communicating decisions to claimants and an information leaflet on appeal hearings will be of use to the appellants.

I have also become aware recently that some assessors are dissatisfied with their roles at appeal hearings and I am examining the arrangements for summoning assessors to such hearings and the case documentation which is supplied to them. It is essential that assessors play a positive role at hearings, and I want to see what we can do to improve their situation and meet the complaints made.

To replace completely the present system and put in its place an appeals tribunal is one option but I am not attracted to it at this stage. The present system has the advantage of speed, low cost, expertise and informality and we should not just abandon those advantages. They are important. The key element in this situation is the volume of these appeals which is 18,000, and with that volume and with so many people depending on the outcome, it is important that we have an effective, expeditious system. The difficulty is in knowing where to maintain the balance between the fast, inexpensive, informal system on the one hand and the full rights of the appellant being granted on the other hand. My view, which I have tried to enshrine in the amendment, is that at present at any rate we should stay with the existing system and see what improvements can be made in it and what specific things can be done to meet the more frequent of the complaints made about it.

Deputy O'Connell spoke at some length about discrimination against married women. I have already replied to that when I said that this system is not discriminatory against married women in particular. If it is a bad system it is bad for everybody. It is the same system rights across the board. As a system it cannot be held to be particularly discriminatory against married women. Deputy O'Connell also mentioned that we are moving reasonably rapidly towards the elimination of discrimination against women in the social welfare system. In 1978 we got rid of the discrimination against single women and widows, and this year we made a start on the married women situation by doubling the length of time available to married women for unemployment benefit. That is a fairly significant start. The Deputy also accused me of having everything under review.

An Leas-Cheann Comhairle

The Minister has two minutes left.

Mr. Boland

To conclude the review?

Mr. Haughey

Maybe, although there are matters under review on which people would like decisions. On the other hand, in the 1978 budget and in the 1979 budget we have given effect to a myriad of minor improvements in the administration and implementation of the social welfare system and I will be talking about them on Thursday next when I will be speaking on the budget. I would like Deputies to acknowledge that there were five or six fairly important provisions in the 1978 budget and there are ten or twelve in this year's budget, all of which go a long way to improving the situation for individuals or small groups and removing anomalies, hardships and imperfections in the administration of the system.

I am not at all upset that this motion was put down. It is timely. It is an area which has been engaging my attention, and the House might accept what I propose in the amendment, namely, that a through examination of the existing system be carried out with a view to effecting improvements in it, in full consultation with all those who have an interest, before we make anything like the sort of major change inherent in the motion.

Mr. Boland

The Minister seems to have the same sort of difficulty with Deputy O'Connell's motion that I have. The motion reads:

"That Dáil Éireann, aware of the present most unsatisfactory system of appeals procedure to determine eligibility for benefits under Social Welfare legislation, calls on the Minister for Social Welfare to establish a system of independent appeals tribunals to determine all such appeals."

The Minister spoke to that motion but Deputy O'Connell appeared to speak to a motion suggesting that an independent appeals tribunal machinery should be set up to investigate appeals decision, which is an entirely different thing. Deputy O'Connell interrupted the Minister to say that he did not mean that there should be an independent appeals tribunal but that there should be an independent tribunal to appeal against appeals. I do not know how the Deputy expects anybody to come in here to make a contribution to debate a motion when he has an entirely different idea in his mind as to what the motion is about. Over the last few years I and my party have consistently set out an appeals procedure to be used against appeals decisions. Unfortunately this Government did not implement it. That is entirely different from saying that the system of social welfare appeal officers working within the Department ought to be removed from the Department and appointed to operate under the auspices of an independent appeals tribunal. I am at a loss, and doubly so when I find myself in agreement with the Minister. The Minister seems to have been misled somewhat, as I have been, by the wording in the motion. I am in agreement with the Minister in his approach to the motion.

There is no doubt, as Deputy O'Connell said and as the Minister conceded that the system needs to be improved. There is no doubt that the time lag that evolves in the assessment of some appeals especially from rural areas is far too great. The Minister ought to have dealt with the figures that obtain, the state of the backlog, the steps being taken to reduce the backlog, and how the system is being made more efficient. The Minister outlined in detail how the system should operate in theory but he might have told us how it operates in practice. The theory shows that the system has many checks within it and it is difficult to criticise. A good case can be made in favour of the present system of appeals officers operating as long as they operate efficiently within that system. What is wrong is that they are not operating efficiently within the system. Deputy O'Connell wanted a system whereby the people could go to the courts, although this is not contained in his motion.

If Deputy O'Connell checks his contribution he will see that he suggested that people should be able to go either to the courts without cost or to an independent tribunal. We all agree that there should be some method whereby if people feel genuinely aggrieved with the decision of the appeals officer they should be able to take their case to another authority. Some years ago at the initiative of my colleague, Deputy Fergus O'Brien, this party urged the Government of the day to set up an informal all-party committee to investigate the possibility of appointing an ombudsman to investigate grievances against the system of government and decisions within the public area. That all-party committee met a number of times between 1973 and 1977.

In the context of some of the committees associated with the House there was an unusual degree of harmony and agreement on that committee. The committee recommended that an ombudsman system should be set up to operate in a number of areas for the first number of years until such time as he had a proper grasp of things and had an administrative system set up, and then he could be extended into other areas. The committee suggested that one of the first areas that ought to be dealt with by an ombudsman was the social welfare area where people with grievances were appealing against social welfare decisions. Since then the Minister and his colleague, the Minister for Finance, have taken no further action to appoint the ombudsman which was recommended by the all-party committee. If that ombudsman were now in existence we would not need to be here this evening. Instead of arguing as to whether a dissatisfied person should go to the High Court on a point of law or to an independent appeals tribunal on a point of grievance, the ombudsman would be the obvious person to whom they should go.

Because the appeals system would be contained within the Department of Social Welfare, the very important right of Deputies in this House to ask a question would be removed by the setting up of an independent appeals tribunal. That is the final democratic check which we are inclined to forget, the right of a constituent to approach his democratic TD to ask for a question to be asked of the Minister either privately or in the House as to why a decision has been delayed or an appeal held up. That right would be denied if merely an independent appeals tribunal was set up. Too often the panacea for all our ills now is the setting up of an independent this, that or the other which would remove from the public the very important right to have their case stated in parliament. That right is an inherent part of democracy and it would be removed by the setting up of a so-called independent tribunal. We all know very well that if an independent tribunal was set up for social welfare appeals, the existing appeals officers in the Department of Social Welfare would be taken from the Department and put on the independent appeals tribunal and nobody in this House would have the right to say here to the Minister for Social Welfare, "Why are your officers not making a decision in case X Y or Z in Castlebar or Donegal". Whatever defects there are in the system, one can be sure that if one comes in here and puts pressure on the Minister he will put pressure on his officers to produce results. The results may not be what one would wish but one accepts that the appeals officers are as fair and impartial as possible. I also accept that they are hindered to a great extent by the amount of paper work and the backlog of work they have at present.

The figures that the Minister gave on the decisions given on appeals, that from 36 to 40 per cent of the decisions are actually turned over, is a fair figure and would compare favourably with the courts. There is no doubt that many appeals are made without justification. Only last night somebody said to me that their middle-aged sister had given up employment and was living with her aged mother who was seeking an increase in pension because of a dependent relative, on the basis that the sister was operating in a full-time capacity as a relative assisting. On the original application form she showed that her brother who was earning a substantial amount of money was living in the house with them. Naturally, the case was refused. But somebody told her to appeal it and somebody else told her to go direct to the Minister. However, she came to me and I said that quite clearly she was not entitled to this. She said she knew that but wanted to appeal in any case and wanted me to write in about it. When you take out of the appeals machinery cases like that where people appeal against decision that are quite clearly fair and form no basis for appeal, the figures compare pretty favourably.

The real fault is the length of time taken, especially in rural areas according to my colleagues there, to determine appeals. What is then wrong is that if a person is genuinely dissatisfied with a decision on appeal he or she seems to have no higher court to go to. The higher court that could have been resorted to in the social welfare area and in other areas of public life is the ombudsman but this Government, for whatever reason— although ostensibly interested in job creation—have not created one of the most important jobs that could have been set up since the change of Government, that of an ombudsman apart from the system with an administrative team who could send for any file, examine it impartially and see if fair treatment had been given without it costing the aggrieved party a penny and, I suggest, with the experience of other countries, with very good value to the public. Members of Parliament and public representatives generally could have cases referred to him. This Government have not agreed to the recommendation of the all-party committee on which, if my memory is correct, the present Minister for Finance served as a member and lent his name to the recommendation to appoint an ombudsman. That is why we are discussing this motion this evening.

I am told that at present in certain parts of rural Ireland, especially in the 12 western countries, people are being refused unemployment assistance and being encouraged to apply for the supplementary welfare allowance. They are getting roughly the same money with one very important difference—they no longer appear on the live register. The Minister may shake his head but it is time to ascertain exactly whether that is happening or not. I agree with Deputy O'Connell, a large part of whose contribution was based on the fact that there is not equality of treatment, that the equal rights concept is not respected. But there is more involved in his motion than merely the equal rights situation. There is the position of people applying for non-contributory widows' pensions and old age pensions, the situation of the aged and of people, male and female, who feel aggrieved by the delays in the system and sometimes by the decisions of appeals officers. This debate encompasses more than equality of treatment and the attitude of the Government in this regard. In view of the firm promise in their manifesto, it is shameful that they should now be saying, one-and-a-half years after taking office, that they intend to bring in equality of treatment and equal rights over a period of six or seven years from now.

Mr. Haughey

That is what the EEC says.

Mr. Boland

There was no reference to that in the manifesto.

An Leas-Cheann Comhairle

The motion covers only appeals procedure in the Department of Social Welfare and any other matters are not really relevant only in so far as they concern appeals or rights to appeal, and so on.

Mr. Boland

When the Chair allowed Deputy O'Connell to deal with this matter in extenso earlier I should have thought I would have been allowed to refer to it also.

An Leas-Cheann Comhairle

I have given the Deputy a fair amount of latitude. Deputy O'Connell is good at relating these things to the appeals procedure and the motion.

Mr. Boland

I am relating it to the appeals procedure in that I am pointing out that there is more than equal treatment involved. There is the question of what is the proper and most efficient method of administering appeals impartially. One can complain about the absence of equality of treatment—and I agree—but when it does not exist it is not fair to blame the appeals officer for the fact that the Legislature of the day had not allowed equality of treatment. The appeals officer can only take the situation presented to him by the Oireachtas. What we want to discuss is the operation of an impartial system of appeals. That is what this motion is about. We shall have another day—perhaps several—to talk about equality of treatment.

One of the important things is that in the existing system people have the right to go to a Deputy. It is certainly wrong that the concept should be abroad that a Deputy can get somebody what is or what is not his right. It is also wrong to remove from the democratic system a person's right to ask his elected representative to raise his case or grievance in his own Parliament. I object to having that public right removed unless there is at least a similar right to go to an ombudsman, an impartial person outside the system, paid by the State, who can call for the file and carry out an impartial investigation. I believe that is the solution to the problem that apparently lies behind Deputy O'Connell's motion. I must say that I took a completely different meaning from his motion because of its wording.

I am convinced that the present appeals procedure is unsatisfactory because of the time lag, the back log, the bureaucracy. I think the procedure itself would be fair if the person were also allowed to go to someone else if dissatisfied with the appeal. The ombudsman is the ideal person and if the Minister wants to make a real contribution to improving the social welfare system, rather than conduct a review or make a speech, I urge him to urge his colleagues in Government that the position of ombudsman as recommended by the all-party committee should be set up without delay and that social welfare be one of the first areas which he should be assigned the right to investigate.

Dr. O'Connell

I am sorry that there are not more Deputies to contribute to this debate. I have shown the Minister that he was misinformed in his statement——

Mr. Haughey

I had not time to deal with that.

Dr. O'Connell

I can tell the Minister—and I have read it again—that he came in with a brief and that he was misinformed by his Department. This is a serious situation.

Mr. Haughey

I do not accept that. I must reject that.

Dr. O'Connell

To whom will we refer it?

Mr. Boland

The ombudsman.

Dr. O'Connell

I do not want to cast any aspersions on my colleague, Deputy Boland, but I must also say that the former Taoiseach approved a Private Members' motion in the name of a colleague that there be an ombudsman and we did not see an ombudsman emerge. I was calling for an ombudsman and they did not come forward with him either. In 1975 there was a Private Members' motion that the Dáil approve the appointment of an ombudsman. Deputy Fergus O'Brien——

An Leas-Cheann Comhairle

The ombudsman only enters into this in so far as he would be dealing with social welfare.

Dr. O'Connell

Call him what you like—an independent body away from the Department. Let the Department operate their deciding officer and their appeals procedure in the normal way. We would not slow up the appeals if we adopted this system. My concern is that there is no court of appeal against the decision of the appeals officer within the Department. I am not trying to create another massive bureaucracy but some cases cannot be dealt with properly under the present system. The Act specifically states that there is no right of appeal against the appeals officer in the case of unemployment benefit. I had a senior counsel look at this section because I wanted to bring a case to court on behalf of a person and the advice given to me was that I could bring every case to court with the exception of that one.

Section 45 of the Social Welfare Act 1952 states:

Where any question other than a question specified in paragraph (a), (b) or (c) of subsection (1) of section 42 of this Act is referred to an appeals officer—

The relevant paragraphs are:

(a) in relation to a claim for benefit,

(b) as to whether a person is disqualified for benefit.

(c) as to the period of any disqualification for benefit,

Any question, other than those, can be referred to the High Court on a question of law. That is why I stated that the Minister was misinformed. I am not blaming him but he did not examine the matter well.

Mr. Haughey

May I make a point in my own defence? The Act is very specific about how a point of law can be taken to the courts under the Act but anybody can go to the courts certiorari about the administration of any piece of public administration. There is nothing to prevent any citizen who feels he is badly done by by the deciding officer, the appeals officer, the Minister or anybody else, going to the courts and having the matter decided there.

Dr. O'Connell

According to the Act the three things I have mentioned are precluded.

Mr. Haughey

That is a statutory right but there is a general right.

Dr. O'Connell

People seeking disability or unemployment benefits do not have a lot of money and for them to take a case to court would place insuperable obstacles in their way. My request is simple: let the normal deciding officer decide and the appeals officer give his ruling but where there is dissatisfaction it should be referred to an independent body. That is not calling for a dismantling of the machinery in the Department.

Mr. Haughey

To whom does the Deputy want the matter referred?

Dr. O'Connell

To an independent appeals body or tribunal. A person who is held by an appeals officer not to be entitled to a disability benefit, even though he is suffering from a severe back complaint, is held by the medical referee to be fit for work, although the orthopaedic surgeon feels he is not, has a grievance but he has no appeal against the decision of the appeals officer who held him to be fit for work. I want an independent body established to consider such appeals.

Mr. Haughey

Is the Deputy suggesting that the existing deciding officer—appeals officer system should remain but that after the appeals officer there should be an independent tribunal outside the Department?

Dr. O'Connell

That is correct. Only 20 per cent of cases would go before such a tribunal and no extra charge would be imposed on the Department. Not only would justice be done but it would be seen to be done. It is not a lot to ask.

Mr. Haughey

It is worthy of consideration but the Deputy must withdraw his motion.

Dr. O'Connell

I will gladly concede anything if I see the Minister taking positive steps. I seldom call for a division on my motions because it is enough for me to win the Minister around to a way of thinking that will essentially get the essence of what I have in mind accepted. I agree that the existing system should not be dismantled but I want another method of appeal against the appeals officer, not a judicial court.

Mr. Haughey

The Deputy wants this outside the Department?

Mr. Haughey

If the Deputy withdraws his motion I can assure him that his specific proposal will be considered.

Dr. O'Connell

I will gladly withdraw it.

Amendment, by leave, withdrawn.

Motion, by leave, withdrawn.

The Dáil adjourned at 8.30 p.m. until 10.30 a.m. on Wednesday, 21 February 1979.