Amendments Nos. 1 to 5, inclusive, are related and may be taken together.
Social Welfare (Miscellaneous Provisions) Bill 2015: Report Stage
I move amendment No. 1:
In page 5, to delete lines 20 to 25, and in page 6, to delete lines 1 to 30.
I resubmitted this amendment, which we also discussed on Committee Stage. It relates to the definition of "medical assessor" and consequential amendments. We had a lengthy debate on this on Committee Stage and I propose the deletion of these lines.
I tabled two of these amendments, which are consequential on the proposed change. I do not have a major problem with the definition of "medical assessor" but my problem is that this change will facilitate the use of employment agencies instead of hiring medical practitioners directly. On Committee Stage, I reflected the practice in Britain when agency staff were introduced and the health service went outside public practice. A standard was set for medical assessors to achieve reductions in payments. A report in The Guardian about this, which I quoted, stated that this led to the death of a number of people because they were assessed as being fit for work when they were not. That put stress and pressure on them and forced them back into work when they were not ready. It needs to be ensured that what was done in Britain will not be replicated here. The Minister of State gave us an assurance that this is not the intention but, in the past, the Minister for Social Protection has sought support, for instance, for the re-employment of social welfare inspectors in the social welfare appeals office. We did not oppose that because the intention was good, which was to address a huge backlog of cases, and it was timebound. However, it involved a contract directly between the Department and the individuals in question for 11 months. That led to a reduction in waiting times. Nobody wants to exacerbate the current situation. There are not enough medical assessors and there is a significant delay in social welfare payments dependent on medical assessment.
It is difficult to figure out why hiring someone through an employment agency rather than through a recruitment drive or via direct contracts with the Department would be better. It will result in an increased cost to the Exchequer because normally employment agencies charge a premium of between 15% and 20% on top of the remuneration of the staff they provide. If the salary is €100,000 a year, this means it will cost the State €120,000 a year. I am concerned that the Department is going down this route, especially since most medical professionals can access the Internet to find work through agencies. In addition, quite a number of doctors who are the basic equivalent of a medical assessor leave the country every year. I may be wrong but this is an attractive job in that people can take up contracts for a short duration while backlogs are addressed.
In the long term, we have an ageing population. This will result in increased demand for assessments under the carer's allowance scheme, for instance. People who apply to care for elderly relatives will have to go through this process because an assessment must be made that the relative is in need of full-time care. Given advances in medical technology, people are living longer with complicated disabilities where previously they would only have survived for a few years. This is resulting in more medical intervention at an earlier stage and, therefore, the State is incurring increased social welfare payments on medical grounds, which will continue to increase in the future. There has been a significant jump in recent years as people who cannot afford the care required have become aware of the payments that are available and how to access them.
Nobody denies the need for medical assessors and, therefore, my proposal is to delete the reference to employment agencies because my problem is that we will impose an additional cost on the Exchequer. We should support the other amendments to ensure people are not put under undue stress because of delays in processing applications for disability allowance, invalidity pension, domiciliary care allowance and so on.
The other issue with bringing in agency staff is they will have to be trained to be medical assessors but they could disappear in the morning, although no more so than somebody employed directly. However, usually somebody who goes to the trouble of being employed directly has a little loyalty.
At the moment we have a significant problem with medical assessments, which has not arisen of late but has been there for a while. On appeal over 50% of those assessments are overturned. They are not all due to a bad assessment. Many are due to additional medical documentation. However, it is still a high number, which means that work must be done to ensure staff, whether the current medical assessors or ones employed in future through this contract system, are fully aware of everything required, take their job as seriously as they can and give it as much care as they can. The medical assessors cannot do that if they are under pressure to move things along as quickly as possible. That is the pressure they are under because the in-pile on their desks is getting bigger and bigger. They need help, but the employment agency part is a bad move.
We discussed this on Committee Stage and I have submitted another amendment, which attempts to take on board some of the defence the Government side gave when it came to the concerns that were raised by us at that stage. The Government said that there is, or can be, difficulty in getting qualified people to be medical assessors on a permanent, full-time basis, and for that reason they needed the option of getting people from employment agencies. Taking the Government in good faith in that regard, I have put forward an amendment that allows the Government that option, but only after the option of directly engaging people on a full-time, permanent basis has been exhausted. That is a fair compromise because it is not ideal that we should have agency people coming in. It can be more costly and is more haphazard because people are going in and out and not developing the necessary expertise.
Another issue I will raise in regard to some of the other amendments I have tabled is that we need some discussion about the medical qualifications of these assessors. Are they specialists? Are they people who have specialised, expert knowledge in the particular areas they are supposed to be dealing with? I suspect they are not. As we will discuss later, even worse is the fact that we often have unqualified, non-medical people as deciding officers, second-guessing qualified medical practitioners who give diagnoses on the care and support needs of people with disabilities, which is totally unacceptable. We will come to that in a minute.
At the very least, if the Government is saying that it is forced, in a non-ideal situation, to take agency people on for this staff sometimes, then it should only be as a last resort when the possibility of getting full-time, permanent and appropriately qualified people to make these medical assessments has been exhausted. Let us not forget, these applicants are very vulnerable, disabled people with real needs, who should be our absolute priority in this regard, never mind the need to have decently paid, proper jobs, for people performing this important task. My amendment is a fair attempt to deal with the Government's difficulty in getting medical assessors while prioritising the objective of getting full-time, permanent, directly employed people wherever possible.
I certainly agree with the thinking behind these amendments. We are all dealing, day in, day out, with constituents who are suffering because of inordinate delays in medical assessments. As I understand it, the Minister of State said on Committee Stage that the Department is quite willing to take on extra medical assessors. I presume the money is available to do that, but it cannot get people to apply for the jobs. I do not for one minute doubt the Minister of State's bona fides, but I find that difficult to understand because, as has been said, people who qualify as doctors are leaving the country looking for employment. It is not as if we are confined to Ireland when we are seeking to recruit these people. We have the whole world from which to recruit.
As has been said, and for all the reasons stated, it would be preferable to recruit people directly to work full time in these jobs if possible. Deputy Boyd Barrett's amendment seems to be a reasonable compromise. My understanding is that the Department wants to recruit permanent people, it cannot get them so it proposes therefore to fill the gap by resorting to people from agencies. If that is the situation, then amendment No. 4 is only putting into legislative form what is happening in practice already. I do not see any difficulty, therefore, for the Government to incorporate that into the legislation.
I thank Deputies for their contribution. As Deputy Collins said, we debated this extensively on Committee Stage. The Public Appointments Service recently conducted a competition to recruit permanent medical assessors for the Department. Following that competition, ten doctors were placed on the panel. One doctor has since withdrawn from it and four of them will start on 27 April. In addition, PAS will be asked to run a similar competition again. I reassure Deputy Ó Snodaigh that it certainly is not the British model as he outlined. Was it discussed in The Guardian or The Daily Telegraph?
"Panorama" and The Guardian.
That is not the intention of the Department. There are obvious benefits in being able to use agency medical assessors as required in the case of a backlog. It does not make sense to recruit them on a permanent basis in the long term. Why establish additional services we do not need long term? However, we are committed to keeping the current demand of 25 permanent medical assessors in place. This gives us additional ability to draw on five agency medical assessors as required. I think I explained on Committee Stage that they would be embedded in the Department, they would be given full training and the aim is to carry out the service in a more efficient manner, to deliver a better outcome to applicants and to reduce further the existing backlog. I accept that Deputy Boyd Barrett's amendment was intended to be constructive. However, the ability to access agencies gives us additional flexibility in that regard. I accept the good intentions and the merits of what he outlines, but I would like to see us making significant inroads into that backlog. At the moment, we should be looking at a permanent base of about 25 medical assessors, with the possibility of drawing on five additional agency medical assessors as required to deal with that backlog. For that reason, I do not propose to accept the amendments.
I also tabled an amendment to this section on the basis that the Minister of State would not accept the deletion of the section itself. My amendment was to add that agency staff were:
only to be engaged for short term, specific work loads or backlogs and only after all attempts to fill permanent positions to be agreed between workers representatives and the Department.
I do not understand why the Minister of State also cannot accept that amendment as it stands, because it states that while it can happen under certain circumstances, in general the idea would always be to recruit directly into these positions.
I have listened and I welcome the progress that has been made in ensuring we will achieve the maximum number of medical assessors.
The population is ageing. Is the Minister of State confident that putting the full complement of 25 in place and addressing the backlog would be sufficient to deal with future needs, or will there be a continuous need for agency staff? This is my concern. I have no problem with using contract staff for a while to deal with a backlog. I am realistic enough about this and I supported it for dealing with the social welfare appeals backlog because it was time-bound. Will the Minister of State assure us that once the backlog is dealt with the need for contract staff will end?
Will the medical assessors' contract be on the basis of being paid by results or by case, or of being in situ? There is an issue of accountability. A promise was made in the Haddington Road agreement that work would not be outsourced and the Department would be protected. I want to ensure we are not doing something which flies in the face of this and undermines it or lays the basis for future outsourcing.
I am not quite sure, given the Minister of State's response and the fact that he seems to accept the points we made-----
I stated that I accepted the constructive way in which they were put.
He suggested that his objective was the same as ours in terms of the issue of concern in that he is trying to get full-time people, and I accept this. I am not entirely sure why the Minister of State will not accept what I think is a reasonable compromise amendment, because it would set it out clearly in the legislation that while the option is retained to use agency people where they are needed, the optimum situation is for us to employ people on a full-time permanent and direct basis rather than on an agency basis. The amendment I have tabled is in line with what the Minister of State said, and deals with his concern that this option should be available. I am not sure why he will not accept it.
To answer Deputy Ó Snodaigh, as is the case for all staff in the Department, the need for medical assessors is kept under constant review. Everybody in the House realises that while we have quite a young population at present, we face very large challenges in the future, and it will have to be reviewed by future Governments as time goes on. As the make-up of the population changes there will be demands not only on social protection but also on health and other services. It will have to be constantly kept under review. The medical assessors will operate as they do at present. The Deputy can correct me if I am wrong, but his concern is that when they were introduced in England they were paid on a results basis according to the number of people they knocked off the system. I reassure the Deputy that this is not my intention, nor that of the Tánaiste. Our intention is to have a more practical operational mechanism in the Department. As I outlined earlier, we will recruit more permanent people. The intention is not to do as the Deputy outlined, which is payment based on results, whereby medical assessors would be paid on the basis of the number of people to whom they disallow benefit. This is certainly not my intention, and I would view it as being quite serious if this operational procedure was introduced in the Department. I would not be at all happy with such a mechanism with regard to dealing with people in a respectful and dignified manner. I give the House this commitment.
I know what Deputy Boyd Barrett is trying to do, but we are trying to have flexibility. Amendments Nos. 4 and 5 tabled by Deputy Boyd Barrett and Joan Collins would significantly restrict the circumstances in which medical assessors would be engaged through agency arrangements. This would likely make the system unworkable and would remove the flexibility required in the new arrangement. We are actively engaging; four new doctors have been recruited and will start on 27 April if they take up the positions, and the indications at the moment are that they will. We will hold another similar competition. On Committee Stage, Deputy Collins asked about their salary. Everyone in the House is on a respectable salary; I can certainly live on it, as can anyone else in the House. There are restrictions in the way the Deputies have formatted the proposals. We will hold a competition to recruit more doctors for the panel. On any one day we have between 17 and 19 doctors available for medical assessments, and we want to ensure we have efficiencies. We will deal with the backlog that Deputy O'Dea spoke about in a Private Members' debate. I have a strong commitment to this. There is a willingness and commitment in the Department to reduce as much as possible any backlog that exists.
Amendment put and declared lost.
I move amendment No. 2:
In page 5, to delete lines 23 and 24.
Amendment put and declared lost.
I move amendment No. 3:
In page 6, lines 5 to 8, to delete all words from and including "or" in line 5 down to and including line 8.
Amendment put and declared lost.
I move amendment No. 4:
In page 6, line 6, before "employed" to insert the following:
"where the Minister is unable to engage directly a registered medical practitioner, and only where this is the case,".
Amendment put and declared lost.
I move amendment No. 5:
In page 6, line 9, after “Minister” to insert the following:
"only to be engaged for short term, specific work loads or backlogs and only after all attempts to fill permanent positions to be agreed between workers representatives and the Department".
Amendment put and declared lost.
Amendment No. 6 has been ruled out of order.
Amendment No. 6 not moved.
Amendments Nos. 7 to 11, inclusive, 15 and 16 may be discussed together.
I move amendment No. 7:
In page 6, to delete lines 31 to 38, and in page 7, to delete lines 1 to 30.
This was discussed on Committee Stage, and in an effort to be reasonable and take on board the Government's concerns while addressing the issues we raised, we have tabled a series of amendments which shift the balance of presumption about people's entitlement to carers and supports towards the positive and away from the negative. To clarify what I mean, the Bill states, "For the purposes of the definition of 'relevant person' in this Chapter, a person shall not be regarded as requiring full-time care and attention unless the person has such a disability that he or she requires from another person" continual supervision throughout the day, and other requirements outlined in the Bill. This series of amendments proposes that the Bill should state that a person shall be regarded as requiring full-time care and attention.
It is a positive rather than a negative. I think the negative wording in this Bill is symptomatic of what is actually going on in the Department. We will come to this again later when we are dealing with another issue in the context of other amendments, some of which bizarrely have been ruled out of order.
The bureaucratic default position of rejecting people's applications is probably influenced by budgetary considerations. Many vulnerable people, including some who are disabled, are being put through unnecessary hoops in order to access their rights and entitlements. These people, who are already suffering in difficulty, need to be supported. The framing of this whole legislation, not just this section or this part of the Bill, is about tightening up and providing the legislative back-up to say "No" as the first response. If it is not the case that it will place a bigger onus on the applicant who is seeking to get resources or supports, and if our anxieties and concerns that this is the inclination of the Department and the Government are misplaced, the Minister of State should have no reason to refuse our amendments. If the intention of the Bill is to provide support to anybody who is entitled to that support, as it should be, there is absolutely no reason for the Minister of State not to accept these amendments. The only reason to refuse to accept them would be a desire to retain a provision that will make it easier to say "No" without good cause. I hope that is not the case, but some of us on this side of the House suspect that it is.
We are dealing with this section again. We all feel we are expressing the negativity of this section when we say that the inclusion of the word "not" is negative law-making. This has quite clearly been outlined by the Free Legal Advice Centres, which have major concerns about this section. We are questioning why the Department and the Minister of State want to change the current legislation in this way. Given that it has worked effectively up to now with no negative content in it, why do the Department and the Minister of State specifically want to change it now?
When we debated this matter on Committee Stage last week, I tabled an amendment which would have provided that a person would not be regarded as requiring full-time care unless "the nature and extent of the person’s incapacity has been certified in the prescribed manner by a medical practitioner including the person's own General Practitioner". I intended that this certification would determine the eligibility of the person's application on medical grounds. The Minister of State suggested that the amendment tabled by Deputy Boyd Barrett and me last week was too broad because it would affect the means testing of the whole application. That is why I have tabled a similar amendment that refers specifically to the "person’s eligibility on the medical grounds eligibility of the application". I think it is a very practical amendment to the Bill.
I will conclude by reiterating that I want to know why this section of the Bill is necessary. There is concern on the Opposition benches that it is being introduced to tighten up the process that has to be followed by vulnerable people when they are looking for grants and benefits and to put the onus on such people to prove they have illnesses that are so bad that they require carers to assist them.
These amendments relate to the obstacles that have to be overcome by a person in order to qualify for and receive carer's allowance or carer's benefit. Every Deputy in the House will know from his or her experience in his or her constituency that people do not apply for carer's allowance lightly. I accept that some people do not meet the criteria. People do not apply for it lightly. Deputies will also be aware that in practice, it is extremely difficult to get carer's allowance. That is not to say that many people who apply for it do not ultimately get it. As the Minister of State told us on Committee Stage, the figures with regard to people qualifying may have improved. The number of hoops through which applicants now have to jump to get carer's allowance is not measured. It is probably not possible to measure it.
On Committee Stage, I instanced cases in which people who were extremely ill - in some cases, they died before a final decision was made - were refused carer's allowance in the first instance because they were deemed not to be sick enough. In fact, it was brought to my attention this morning that an unfortunate constituent of mine, in respect of whom I have been making representations for carer's allowance, is being removed from a funeral home this evening. I was told initially that he was not sick enough. That was a couple of months ago. The man died yesterday. It is difficult. People who are ultimately determined to have been entitled to carer's allowance all the time, having gone through the appeals system and the review, etc., are experiencing inordinate delays and terrible stress as they wait for the their applications to be finalised. I could also mention the stress on their family members who have to support them in the meantime.
The legislation governing carer's allowance that is on the Statute Book at the moment - the Social Welfare Consolidation Act 2005 - is pretty neutral. Obviously, it puts the onus on applicants to apply and produce certain documentation with regard to medical conditions in order to satisfy the Department that the person being cared for fulfils the requisite criteria. It is now proposed that our legislation will, for the first time in history, put the burden of proof very firmly on the unfortunate applicant. I suggest we should stand back from all the technicalities and look at the effect of this proposal. I suggest it can only make it more difficult for somebody to qualify for carer's allowance. To look at it the other way around, it can only make it easier for the Department to say "No". That is the net effect. It cannot have any other possible effect. If one looks at the way this Bill is written, one will see it provides that a person will "not" qualify "unless" he or she meets certain conditions. The onus is firmly on the applicant.
The Minister of State said something I found quite extraordinary during the Committee Stage debate. He said "it has always been the case that the onus has been on the claimant", but I believe that if one examines the wording of the 2005 Act, one will see that this has patently not been the case. He suggested that the provisions of this Bill will retrospectively justify what has always been the reality and what has been happening all the time. That is tantamount to saying that the Department has been misapplying the original legislation all the time, and that an amendment must be passed to retrospectively justify that misapplication. It is difficult to get carer's allowance. It is difficult for the unfortunate ill people who are waiting for the money to come through. It causes great stress to such people because they feel they are a burden on their relatives. In my experience, it causes enormous financial stress for the relatives in many cases. The last thing we want is legislation that makes it more difficult to qualify, or easier for the Department to say "No". I earnestly entreat the Minister of State, even if he makes no other amendments to this legislation, to withdraw this section of it or to adopt the wording of the amendments as outlined. As I have said, it is difficult enough already. There is no point in making it any more difficult. Only the vulnerable will suffer.
Like the other Deputies who have spoken, I find this change in the legislation odd because it is changing the presumption. As the Free Legal Advice Centres have indicated in their submission, this is negative legislation. I would like to remind people of exactly what is provided for in the relevant legislation at present.
In respect of carer's allowance, section 179(4) of the Social Welfare Consolidation Act 2005 states, "For the purposes of subsection (1), a relevant person shall be regarded as requiring full-time care and attention where". The new provision states, "For the purposes of the definition of ‘relevant person’ in this Chapter, a person shall not be regarded as requiring full-time care and attention". The use of "not" puts a different emphasis on the criteria or the burden of proof that someone who is applying for carer’s allowance needs to achieve. It is difficult, as other Deputies have said, to get carer’s allowance. Some of this is due to complications such as not providing enough documentation. Some of it is due to incomplete medical assessments. Now, an additional hurdle is being put in place. The Minister of State might claim this is not the case as it is just a different way of drafting it. We are supposed to be promoting plain English and ensuring legislation is accessible. Once one starts writing in the negative, it makes it more convoluted and difficult to understand where someone qualifies or does not. As a rule, legislation should not be written in the negative but this is what this provision does.
In its submission to the legislation, FLAC, the Free Legal Advice Centres, and the Community Law and Mediation group also made this point. It stated:
In practice, the proposed amendments to carer’s payments will allow decision-makers to adopt a presumptive position; that is, it will be presumed that a person is ineligible for a payment, “unless” it can be proven otherwise. This is an unacceptable shift in the burden of proof that falls to a prospective claimant; it is negative law-making. Referring to the existing definition, the conditions for receipt of the relevant payments are clear, a person must need full-time care and the applicant must prove this need exists. When determining a person’s eligibility decision-makers must make a reasoned finding from a position of neutrality and objectivity. The amendments if passed will have the effect of placing a greater burden of proof on the applicant, as the decision-maker will be considering the evidence from the perspective that the applicant is ineligible in the first instance.
We are in no doubt that this will have the effect of increasing the number of legitimate claims that are rejected, and this will in turn lead to a corresponding increase in the number of appeals that will be submitted to the Social Welfare Appeals Office. Notably, according to the Social Welfare Appeals Office report 2013, an average of 58% of those appealing decisions in respect of carers payments were successful. Lengthy appeal processing time for carer’s allowance, benefit and respite care grant currently stand at 22.6, 20.1 and 19.1 weeks respectively as of January 2015. The proposed amendment could increase the rate of appeal and cause further delays in processing appeals also resulting in undue hardship and distress for claimants who are entitled to these payments.
We recommend that section 3 ... is deleted as it does not present as having a purpose other than to make it more difficult for carers to access income supports since it does not alter the actual conditions for eligibility other than introducing a presumption that claimants are ineligible unless they can prove otherwise. If passed, prospective claimants will be presumed to be ineligible for a payment unless they can prove otherwise. This constitutes an unacceptable shift in the burden of proof placed on an applicant.
We should not be changing legislation unless there is a purpose to doing so. Is there some other purpose to this legislative change from the positive to the negative emphasis that we, FLAC or the Community Law and Mediation groups have not understood?
I already gave the figures which show an increase in the numbers being awarded carer’s allowance. The figures do not bear out Deputy O’Dea’s assertion the Department is operating the scheme in a different fashion.
There appears to be a misconception that section 4 is in some way shifting the burden of proof from the Department to the claimant and that a negative presumption is being introduced that a person is not entitled to the allowance. I am aware that Deputy O’Dea made such a comment on Committee Stage and FLAC has also stated this. There is no such negative presumption being introduced. It is always the case that the onus is on the claimant, whether for carer’s allowance or any other social welfare payment, to provide the necessary information in support of his or her application to prove eligibility. There is no change in this regard.
Deputy O’Dea has also argued that he not seen the word “unless” used in such legislative measures. The use of the unless clause is already found throughout the Social Welfare Consolidation Act 2005 such as in sections 40, 44 and 45 for illness benefit, sections 62 and 67 for jobseeker’s benefit, section 141 for jobseeker’s allowance and section 128 for widow’s pension.
Deciding officers make no presumption as to the eligibility or otherwise of any claimant for any scheme. Each claim is made on merit and the information available to the deciding officer and in accordance with the statutory conditions for eligibility set out in the relevant legislation. The current legislative provision for the carer’s scheme states a relevant person shall be regarded as requiring full-time care and attention where he or she requires continual supervision and frequent assistance throughout the day in connection with normal bodily functions or continual supervision in order to avoid danger to himself or herself. The legal advice I have received indicates that this provision could be read as meaning a relevant person, as defined under section 179(4) of the principal Act, could be regarded as requiring full-time care and attention in other circumstances. In other words, the current definition is not an exhaustive one and, in essence, it is ambiguous.
For the avoidance of doubt, section 4 of Social Welfare (Miscellaneous Provisions) Bill 2015 provides that a person will only be regarded as requiring full-time care and attention of the purpose of the carer’s scheme where he or she requires continual supervision and frequent assistance throughout the day in connection with normal bodily functions or continual supervision in order to avoid danger to himself or herself. In other words, the person will not be regarded as requiring full-time care and attention unless he or she satisfies those conditions.
These changes bring the legislation into line with how these schemes are actually operating since their inception. I refute any suggestion that these changes are being made to make it more difficult for persons to qualify for carer’s allowance.
I do not believe the Government on this one. There is no justification to the changes it is making. From an objective analysis of the current legislative wording, any sane and sensible person will see the Government is tightening the criteria around the eligibility to justify current practice which is completely wrong and unfair.
It inflicts unnecessary hardship on legitimate applicants who, I repeat, are vulnerable and disabled people who are being refused supports and benefits they should get when they are ill and vulnerable and need support. That is what is going on. It relates to people who are being refused at first instance and who subsequently get it on appeal when they go through hoops or come to Deputies' clinics. These Deputies go to oral hearings or submit letters to get these people through the hoops to get them benefits and supports they should have got in the first place.
Bizarrely, our amendments suggesting that the medical eligibility criteria and the diagnoses of GPs and qualified medical practitioners be simply accepted and not second-guessed by unqualified, non-medical deciding officers have been ruled out of order on the basis that they are a charge on the Exchequer. If someone meets the medical criteria for a benefit they are entitled to apply for and a medical practitioner testifies that they are eligible, how can that be a potential charge on the Exchequer? That is rubbish. It is a disingenuous way of trying to cover up what is going on here, which is a tightening up of eligibility rules. There is no doubt about it.
I must concur with Deputy Boyd Barrett. Nothing the Minister of State has said has convinced me and many other people that there is a need for this. FLAC has come out and said that section 3 should be deleted as it does not present as having a purpose other than to make it more difficult for carers to access income supports since it does not alter the actual conditions for eligibility other than introducing a presumption that claimants are ineligible unless they can prove otherwise. If passed, prospective claimants will be presumed to be ineligible for a payment unless they can prove otherwise. This constitutes an unacceptable shift in the burden of proof placed on an applicant.
I believe what FLAC is saying. My experience of dealing with cases heretofore leads me to believe that this is what it will do. Over the past three years in our areas, we have seen a pulling back in many instances, from community welfare officers into the city centre, particularly in Bishop's Square. Tightening things up all the time makes it more difficult for people. There is no flexibility on the part of community welfare officers in dealing with individual cases, clothing allowance, etc. We now see a very specific knot in our legislation relating to carer's allowance.
Our amendments relate to medical criteria. They do not affect means testing, which must accompany an application. The amendments propose that a GP's recommendation or determination regarding a person's medical needs be accepted. Obviously, a deciding officer can look at the other aspects relating to getting carer's allowance.
The Minister of State said I had indicated that this is completely new in social welfare legislation. I did not say that. I said I am aware it appears in various aspects of social welfare legislation but I also said it was new in respect of applying for carer's allowance. I said it is a reversal of the words of the 2005 Act which cover carer's allowance.
We can argue about numbers and the numbers qualifying have increased. The number of people qualifying for carer's allowance may have increased but the obstacles they must undergo to get it have also increased quite appreciably. It is a pretty devastating indictment of the system that more than 50% of people who were initially refused carer's allowance, in the main because they were deemed to be medically ineligible, ultimately qualify when they go through either a review or the appeals process. That takes months and sometimes up to a year and a half. I have known cases that took two years from beginning to end. That means that people who were entitled to this State benefit under the laws of the State were messed around and delayed for up to two years before they got their benefit. This is a travesty in respect of some of the poorest and most vulnerable people in this country.
The Minister of State says there is no change in the legislation even though the legislation we are debating today differs from the initial qualifying legislation. The Minister says this makes no difference. The 2005 Act sets out when a person is entitled to carer's allowance. This legislation is saying they are not entitled to carer's allowance unless certain conditions are met. Any lawyer from one end of the country to the other will readily conclude that this is a very definitive shift in the burden of proof. It places the burden of proof firmly on the shoulders of the applicant. FLAC has indicated that and its views have been set out in this House. FLAC did not give that opinion lightly. It has access to the best legal advice possible in this area. I have the greatest respect for officials in the Department but if it comes to a legal dispute and the officials are on one side and FLAC is on the other, I know which side I would be on.
If, as the Minister of State says, this makes no change, why write it in? What are we doing? We ask questions every day and we will be asking them shortly about promised legislation that has yet to appear. What are we doing putting clauses in legislation that are not needed and that by the Government's own admission make no difference? This can only tighten up the provisions relating to carer's allowance. We should remember that this is a means-tested payment. Millionaires do not qualify for carer's allowance so the poorest and most vulnerable people in the country are the ones who will be adversely affected.
If there is no substantial purpose to this and there is just a change in wording that reflects a negative element, I do not see why we should proceed with it. An applicant always has the burden of proof, which is understandable, but the language in the past was positive rather than negative. I will not delay matters further. I read what FLAC had to say and it captured my view. I am a firm believer that our legislation should be simplified rather than made more complex. Making it negative will result in the latter.
Deputy O'Dea knows that we normally get two social welfare Bills per year. This period is also used as an opportunity to tidy up legislation. The Deputy knows that from being in Government over many decades. I will be very clear. Our legal advice is that there is no shift in presumption. I refute the suggestion that these changes are being made to make it more difficult for a person to qualify for carer's allowance. Deputy O'Dea is aware that the statistics, analysis and facts show that more people have been on carer's allowance during the lifetime of this Government than at any other time.
I am not surprised that Deputy Boyd Barrett does not believe the Government. I have never heard him say that he believes the Government or any individual on this side of the House. I hope he will accept the facts as I have set them out.
On Deputy Joan Collins' point regarding the transfer of services to the Intreo offices at Bishop's Square, the Intreo offices act as a one-stop-shop. As result of this move service provision is now much more efficient, in particular for the customer. I have gone out of my way to talk to people across the country who have interacted with the new Intreo offices. They have nothing but good to say about them. People welcome that they now need to interact with only one office on a range of social protection issues, including re-entry into the workforce.
I am unable to accept the amendments.
I do believe the Minister of State but I do not believe the Government's intent in terms of this legislation. We have all seen, in practice, what is going on. The Government needs to get its head around what is going on and the actual intention of this legislation. When one looks at this issue in the round one begins to wonder if the thought process behind this Bill is to shave a particular budget to cover the cost of the back-to-work family dividend. Whether or not this is the overall thinking behind this Bill, people who are vulnerable and disabled, who are entitled to care or support, are being refused it because of the default position of "if we can refuse them, we will refuse them." The people in FLAC are very reasonable. Under the principal Act, the term "relevant people" is defined as follows:
(4) For the purposes of subsection (1), a relevant person shall be regarded as requiring full-time care and attention where—
(a) the person has such a disability that he or she requires from another person—
(i) continual supervision and frequent assistance throughout the day in connection with normal bodily functions, or
(ii) continual supervision in order to avoid danger to himself or herself,
(b) the person has such a disability that he or she is likely to require full-time care and attention for at least 12 consecutive months, and
(c) the nature and extent of the person’s disability has been certified in the prescribed manner by a registered medical practitioner.
That is positive. To get support a person needs only to meet those criteria and the medical practitioner's certification of eligibility is taken as fact. However, this legislation as drafted seeks to tighten up this provision in line with the practice over the past few years of deciding officers second-guessing doctors. Unqualified, non-medical people are second-guessing the diagnoses of general practitioners and medical professionals in order to deny people supports to which they are entitled.
Interestingly, our amendments, which seek to provide that a general practitioner's diagnosis be accepted, have been ruled out of order. They were also ruled out of order on Committee Stage. When we asked on Committee Stage why they had been ruled out of order we were told it was because they would result in a charge on the Exchequer. What does this mean? It means that budgetary constraints are overriding medical diagnoses. That is clearly apparent. The fear of the Department is that if the word of GPs in regard to whether a person needs care or support is accepted this will impact on its budget. This is not the basis on which care and supports should be provided. It should be the case that where a doctor certifies that a person requires care or support that support is provided. This legislation provides that somebody else, who is not a doctor or a qualified professional, can disagree with the GP and not provide the support. Applications are being delayed in the hope that some of the applicants will go away out of frustration, which many of them do. This is what this legislation seeks to do. There is no doubt about that.
I propose to press this amendment because too many people are suffering unnecessarily as a result of this.
Amendment put:
The Dáil divided: Tá, 37; Níl, 62.
Tá
- Adams, Gerry.
- Boyd Barrett, Richard.
- Broughan, Thomas P.
- Calleary, Dara.
- Collins, Joan.
- Collins, Niall.
- Colreavy, Michael.
- Daly, Clare.
- Donnelly, Stephen S..
- Ellis, Dessie.
- Ferris, Martin.
- Fleming, Tom.
- Grealish, Noel.
- Healy, Seamus.
- Healy-Rae, Michael.
- Kelleher, Billy.
- Kitt, Michael P.
- Lowry, Michael.
- McConalogue, Charlie.
- McDonald, Mary Lou.
- McGrath, Finian.
- McGrath, Mattie.
- McGrath, Michael.
- McLellan, Sandra.
- Martin, Micheál.
- Mathews, Peter.
- Naughten, Denis.
- Ó Fearghaíl, Seán.
- Ó Snodaigh, Aengus.
- O'Dea, Willie.
- Pringle, Thomas.
- Ross, Shane.
- Shortall, Róisín.
- Smith, Brendan.
- Tóibín, Peadar.
- Troy, Robert.
- Wallace, Mick.
Níl
- Bannon, James.
- Breen, Pat.
- Butler, Ray.
- Buttimer, Jerry.
- Byrne, Catherine.
- Byrne, Eric.
- Cannon, Ciarán.
- Carey, Joe.
- Conaghan, Michael.
- Connaughton, Paul J.
- Coonan, Noel.
- Corcoran Kennedy, Marcella.
- Costello, Joe.
- Coveney, Simon.
- Creed, Michael.
- Daly, Jim.
- Deenihan, Jimmy.
- Deering, Pat.
- Doherty, Regina.
- Donohoe, Paschal.
- Dowds, Robert.
- Doyle, Andrew.
- Durkan, Bernard J.
- English, Damien.
- Farrell, Alan.
- Feighan, Frank.
- Gilmore, Eamon.
- Hannigan, Dominic.
- Hayes, Tom.
- Humphreys, Heather.
- Humphreys, Kevin.
- Keating, Derek.
- Kehoe, Paul.
- Kenny, Enda.
- Kenny, Seán.
- Kyne, Seán.
- Lawlor, Anthony.
- Lynch, Kathleen.
- McCarthy, Michael.
- McEntee, Helen.
- McFadden, Gabrielle.
- McGinley, Dinny.
- McHugh, Joe.
- McLoughlin, Tony.
- McNamara, Michael.
- Maloney, Eamonn.
- Neville, Dan.
- Nolan, Derek.
- O'Donovan, Patrick.
- O'Reilly, Joe.
- O'Sullivan, Jan.
- Penrose, Willie.
- Phelan, Ann.
- Rabbitte, Pat.
- Reilly, James.
- Ring, Michael.
- Ryan, Brendan.
- Stagg, Emmet.
- Stanton, David.
- Tuffy, Joanna.
- Twomey, Liam.
- White, Alex.
Tellers: Tá, Deputies Richard Boyd Barrett and Willie O'Dea; Níl, Deputies Emmet Stagg and Paul Kehoe.
Amendment declared lost.
Debate adjourned.