I move amendment No. 5:
In page 12, between lines 24 and 25, to insert the following:
“Exceptional Needs Payment
12. Section 201 of the Social Welfare Consolidation Act 2005 is amended by the addition of “which is not necessarily unforeseen” after “by way of a single payment to meet an exceptional need”.”.
This is an amendment to section 201 of the Social Welfare Consolidation Act 2005, which states:
The Executive or deciding officer may, in any case where the Executive or deciding officer considers it reasonable, having regard to all the circumstances of the case, so to do, determine or decide that supplementary welfare allowance shall be paid to a person by way of a single payment to meet an exceptional need.
I want to add the words “which is not necessarily unforeseen”. In 2017, the Minister informed me that, under the supplementary welfare allowance scheme, "the Department may make a single exceptional needs payment, ENP, to help meet essential, once-off and unforeseen expenditure which a person could not reasonably be expected to meet out of his or her weekly income". She also told me the scheme was demand-led and was costing €32 million in 2017.
I have received many complaints from constituents and I have received advice from their legal advisers to the effect that the addition of this reference to unforeseen expenditure is illegal and is not in the legislation. When one reads over it, one sees that there is no basis for adding this administrative condition regarding the exceptional needs payment. One example I encountered is where, say, a grandmother had a fatal illness and when the issue of funeral expenses arose following her death, while it may have been an exceptional expense for the family, it was not necessarily unforeseen. The test in the 2005 legislation is that payment may be made if exceptional circumstances arise but it appears the Department is erecting a further hurdle to make it more difficult to secure exceptional needs payments. The Department's interpretation of the matter is basically illegal. With regard to the definitions, the statutory test in the 2005 Act includes the word "exceptional". I am informed that to seek to add the further statutory hurdle of "unforeseen" is unlawful.
In 2016, Mr. Justice Hogan gave an explanation of the meaning of the word "exceptional" in the case of McE v. Residential Institutions Redress Board. From this decision, it is clear that "exceptional" means exceptional circumstances simpliciter, with the standard of exceptionality measured by reference to contemporary standards prevailing within the general public. To include the additional standard of "unforeseen" appears unlawful. A number of the legal advisers of constituents have pursued legal actions in respect of this definition. It is notable that those cases were settled before the matter went to court. The reason they are being settled by the Department is that the Minister does not have a leg to stand on in legal terms. She should accept the amendment and change the 2005 Act.
It appears that a gross anomaly has arisen on foot of the implementation of austerity from 2008, when the Government crushed the social protection budget and tried to, at all costs, keep it under €19 billion. The area of exceptional was most vulnerable at that time and it was where the Government made the biggest savings.
One of the major problems that arises relates to the fact that the Government does not keep records of the people who have applied. The Minister provided detailed information from 2017 and earlier this year which shows that approximately 9,000 applications per month are successful. However, the Department does not keep a record of the applications that have not been successful, particularly those that have been refused because of this additional administrative law that the House has not sanctioned. I am informed that, of the 100,000 successful applications for exceptional needs payments per year, it is impossible to know how many eligible applicants are being refused due to what is clearly an improper test being applied. As stated, the Department is continuing to apply this test and it is clear that this is due to the powers granted to deciding officers under section 201 of the Social Welfare Consolidation Act 2005. The Minister's predecessor made law on the hoof during the years of austerity, which was wrong. The Minister should accept the amendment.