I thank the Chair and members for inviting us here today to discuss the operation of the appeals office and the regulations covering its operation. I am joined by Ms Gordon, who the committee also invited to attend. We will both be pleased to take questions from committee members.
As members will be aware, decisions regarding a person’s application for benefits or assistance payments are taken by deciding officers appointed by the Minister. These deciding officers mostly operate at clerical officer and, in some cases, executive officer and higher executive officer level. Their role is to apply the conditions specified in legislation to assess whether a person is eligible for the benefit or assistance sought. In doing this, their primary aim and that of the Department is to ensure that a person who has an entitlement to a benefit or assistance payment can receive and access that entitlement as quickly as possible. In some cases, they will have access to an expert opinion of a medical assessor with respect to a person’s capacity for work or requirement for care or to a Department inspector with respect to other aspects of conditionality including, for example, whether the person’s means or income is within the thresholds specified for the particular scheme. I should emphasise that, in accordance with legislation, deciding officers act independently in the exercise of their statutory functions and cannot be directed as to the decision that they are required to take.
Given that, as I have said, our primary interest is to ensure that a person who is entitled to a benefit can access that benefit, the Department also provides review and appeal mechanisms. A person who believes that a deciding officer has erred in a decision can seek a review of that decision from the relevant scheme area. In addition, appeals can be submitted directly to a separate appeals office, which is provided for in legislation and headed by the chief appeals officer.
Before turning to the legislative framework governing the operation of the appeals office, it may interest committee members to know that, in any given year, less than 1% of deciding officer decisions are appealed, with about 55% of these having a favourable outcome. In other words, just over 0.5% of all claim decisions are revised when appealed. It should also be noted that about 20% to 25% of those claims which are revised are revised by the Department prior to a formal appeal assessment. This is typically because additional information submitted by the appellant at the appeal stage is provided to the deciding officer who, taking this information into account, revises his or her original decision. This trend of additional information being provided at appeal stage is particularly prevalent in medical schemes.
Turning to the legislative framework which governs the operation of the appeals office, the genesis of the current arrangements is found in the report of the Commission on Social Welfare published in 1986. As part of its brief, this commission considered whether it was necessary to establish a clearer separation between the appeals function as it then operated, whereby appeals were administered and determined by officers associated with each scheme area, and the function of the Department generally. The commission noted that how the appeals function then operated might give rise to a perception that the Minister was in a position to influence the decisions of appeals officers. It stated that this was not the case but that, to deal with this perception, it might be appropriate to somehow distance the appeals function from the appearance of ministerial control.
It proposed that this could be achieved through the establishment of a separate office. This would be required to produce an annual report and be assigned dedicated staff to fulfil the appeals functions previously carried out by staff in each individual scheme area. It further proposed that, where these staff rejected an appeal, they should provide reasons for this rejection and that the appeals function itself should be located in offices physically separate from those of the Department. It also suggested that people whose claim was not granted by a deciding officer should be advised of the right to appeal, that the availability of oral hearings should be advised to appellants and that responsibility for supplementary welfare allowance appeals should transfer from the health service to the Department. In putting forward these proposals, it also stressed that, because of the nature of the services provided by the Department, the appeals system should be “simple, informal and speedy” or, in other words, that it should continue as an administrative appeals system.
These proposals were largely given effect via the Social Welfare Act 1990, which established the appeals process as a separate office within the Department by providing for: the function and role of a chief appeals officer, to be appointed by the Minister; the functions and roles of appeals officers, also to be appointed by the Minister; and the production of an annual report on the activities of the chief appeals officer and appeals officers, to be laid before the houses of the Oireachtas each year.
The Act also provided that the procedures to be followed on appeals would be prescribed in regulations. The current set of regulations date back to 1998. A consolidated version of these has been provided to the committee for convenience. In essence, these regulations provide for: the management responsibility of the chief appeals officer; procedures relating to appeal submissions and notifications and information be provided by appellants and the Department; the determination of appeals on a summary basis; the discretionary use of oral hearings and the procedures for such hearings; the decisions of appeals officers, including reasons for decisions where a decision is not in favour of the appellant; and the method of sending documents.
Taking the regulations and the governing Act together, it is the case that, as with deciding officers, appeals officers act independently in taking decisions on appeals cases and, subject to a right of review by an appeals officer where new facts are provided or the chief appeals officer in other cases and a further appeal on a point of law to the courts, a decision of an appeals officer is, under the Act, "final and conclusive".
In addition, it is important to note that appeals officers are not confined to the grounds on which the decision of the original deciding officer was based but can consider new information and decide the appeal as if the question of entitlement to a benefit or assistance was being decided for the first time. This is known as a de novo decision or appeals process. The advantage of a de novo approach is that it allows appellants to submit new information and focuses the appeals process on taking a fresh look at the question of the person’s entitlement on its own merits, rather than on examining and then overturning or confirming the position determined by the original deciding officer. By way of information, compared with deciding officers, most appeals officers are higher civil servants, appointed at assistant principal level, and receive significant training in the legislation and regulations governing entitlement to social welfare benefits and assistance, including updates arising from court determinations. An externally accredited level 8 programme, specifically developed for the social welfare appeals office and delivered in conjunction with the National College of Ireland, was introduced in recent years and is being rolled out to all appeals officers, more than half of whom have already completed the programme.
Given the elapse of time since 1998 and developments in the intervening period, a number of changes have been made to the governing regulations and legislation. Specifically, regulations were introduced providing for responsibility for appeals in respect of supplementary welfare allowance to be integrated into the function in 2011 and, in 2020, regulations were introduced, in response to Covid-19 restrictions, providing that oral hearings could take place by remote means. It may interest committee members to know that remote hearings have proven to be an effective and efficient means to conduct hearings and the data show that appeal outcomes are, overall, the same as in-person hearings. Nevertheless, while appeals officers have continued to utilise remote hearings, they have, since restrictions were relaxed, also offered and held in-person hearings where there is a valid reason to do so.
As committee members will be aware, the work of the Department, and by extension the appeals office, has expanded significantly over the past 20 years, in particular the past ten years. Not only has the volume of work increased but the overall complexity of schemes has also increased, in particular with regard to the assessment of work capacity or care requirements relating to illness, disability or infirmity. The Department and the appeals office have responded to these developments in a number of ways, including the training and development programmes already referenced, but also by significantly increasing the staffing complement of the appeals office. The number of appeals officers has increased from approximately 16 in 1998 to 40 today.
Given concerns expressed at this committee and at the Committee of Public Accounts regarding appeals processing times, we also conducted an internal review of appeals operations in 2019, with these operations also being subject to a review by the Comptroller and Auditor General in 2021. In addition, the appeals office has been preparing for some time to upgrade and modernise its IT system, a task which, of its nature, requires a review of operating processes. The internal review concluded that the regulations need to be updated to, among other things, provide for appeals officers to have sight of medical opinions and specify more clearly the timelines for processing appeals. In addition, it concluded that the Department, working with the appeals office, should proceed with the new IT system, both to enable the progress of appeals to be tracked and a database of appeals decisions to be maintained, streamline the review and appeals process to eliminate duplication of work, and make some technical updates to the regulations. The review also raised the question of whether the practice of the Department making submissions to the appeals office in respect of appeals added any value, given that the appeals office was empowered to determine appeals on a de novo basis.
The Comptroller and Auditor General report made a number of recommendations, including that written guidelines for appeals officers should be prepared that clearly establish the circumstances that usually result in an oral hearing being held and that this information should be published on the appeals office website. It also recommended that the Department and the appeals office should progress as a matter of priority the appeals modernisation project, or in other words a new IT system. It also recommended that the Department should carry out periodic reviews of successfully appealed cases where no new or additional material information was provided in order that the Department would be assisted in learning from cases determined by appeals officers. It also recommended that the appeals office should consider establishing a quality assurance system to aid consistency in decision-making.
Arising from these reviews and the ongoing work on the IT system, an updated set of regulations is in draft format to give effect to a number of measures. These include providing for some specific management functions of the chief appeals officer, including the application of effective systems of quality assurance. The measures also enable the chief appeals officer to delegate certain duties to deputy chief appeals officers. This is to free up the chief appeals officer to devote more time to the management of the enlarged office. A legislative amendment was enacted by the Oireachtas in 2021 providing for the appointment of more than one deputy chief appeals officer. The measures also increase, from 21 days to 60 days and up to 180 days in certain circumstances, the time afforded to an appellant to make an appeal. The measures also seek expressly to provide for clients to have the right to request an oral hearing and to be given a reason if an appeals officer determines that an oral hearing is not necessary. At present this is not the case. The measures also require the Department either to review and revise the original decision or furnish all documentation relevant to an appeal to the appeals office within three weeks of request. At present the Department is not explicitly required to review decisions on appeal, nor is there a deadline by which the Department must respond. The measures also reinforce the de novo approach to determining appeals as provided for in the primary legislation. The measures also remove the requirement on deciding officers to prepare a statement to the appeals office setting out the extent to which the facts and contentions of the appellant are admitted or disputed. The measures also require appeals officers to have access and regard to the opinion of a qualified medical assessor in cases relating to a person’s capacity for work or care requirements. The measures also require appeals officers to set out reasons for their decisions in all cases. At present, this only applies where a decision is negative or unfavourable. The measures also provide a role for the chief appeals officer, based on experience of appeal cases, in providing guidance and advice to deciding officers on the correct interpretation of legislative provisions. This is similar to how other regulatory and appellate authorities issue guidance to practitioners. The measures also provide for all appeal decisions to be notified within 15 working days to the parties affected by the decisions. The measures also provide for the mechanism by which appeals decisions will be given effect, to be agreed between the chief appeals officer and the Secretary General of the Department.
These are all measures to provide additional rights to appellants and impose a greater responsibility on the appeals office and the Department to meet publicly committed and legislatively required timelines. They also provide for additional management oversight and reporting responsibility for the chief appeals officer and improve feedback to the Department consistent with the recommendations of the Comptroller and Auditor General. These draft regulations are with the Minister for her consideration. We hope, subject to her approval, to be in a position to publish them and, subject then to operational arrangements being completed, to have them signed into effect in the first part of 2023. We would welcome any comments and observations from the committee.
We hope this information has addressed the points of concern to committee members. We also wish to stress that, in developing these draft regulations, the Department, working with the chief appeals officer, is concerned to preserve the administrative nature of the appeals process to ensure it does not become overly legalised or unnecessarily adversarial and to ensure that, as far as possible and in the interests of clients, it is simple, informal and speedy, as emphasised by the Commission on Social Welfare. The chief appeals officer and I will be pleased to take any questions members may have.
