Vol. 90 No. 2
I have allowed Senator Robinson to raise the following matter:
The fact that the Minister for Social Welfare has not yet made regulations providing for the determination of appeals as referred to in section 7 of the Social Welfare (Supplementary Welfare) Allowances Act 1975.
Will the Minister be present for the debate? He may not realise that we are adjourning slightly earlier than had been anticipated.
He is expected at 8 o'clock.
I would prefer to speak with the Minister present. I intend to be very critical. I do not like to be so critical of him in his absence.
I cannot guarantee that he will be here at 8 o'clock. It has taken me somewhat unawares. I suggest the Senator proceeds and I will do my utmost to have somebody here as soon as possible.
I welcome this opportunity to raise what I regard as a very important issue on the Adjournment this evening. It concerns the continuing failure by the Minister for Social Welfare to make the necessary regulations under the Social Welfare (Supplementary Welfare) Allowances Act of 1975 to provide for the procedure and rules for determining appeals under that Act. First of all I want to make a legal point about this failure by the Minister, and then I want to draw attention to the very serious and harrowing situation that results for people who are extremely vulnerable. It affects people who are at the lowest end of the scale, people who are in circumstances of great poverty and circumstances of great need, and I shall illustrate how harshly and unfairly it affects them. I particularly wanted the Minister to be present because this is not the first time I have drawn his attention to the matter, and would like him to hear and to respond to what I am going to say.
The Social Welfare (Supplementary Welfare) Allowances Act, 1975 came into operation on 1 July 1977. It therefore coincided more or less with the term of office of the Fianna Fáil Government. The Act was intended to effect an important change in the whole approach to the welfare payments at the most minimal level: the replacement of the old home assistance by a scheme of supplementary welfare allowances. The qualitative change that was intended was to abolish the discretionary home assistance—with its connotations of public charity and its uncertainty for the individual concerned—and to replace it with a structure of legal rights to supplementary welfare including a right of appeal. Section 2 of the Act sets out the basic legal entitlement to supplementary welfare allowance to be available to "... every person in the State whose means are insufficient to meet his needs and the needs of any adult or child dependent. ..." In the appendix to the Act, and in successive regulations, the minimum allowance that an adult with or without dependants will get is set out clearly. It is therefore a departure from the discretionary home assistance which is replaced by a legal entitlement to a minimum supplementary welfare allowance if a person is not getting some other allowance under the Social Welfare Code. There is also intended to be a supplement if necessary in the case of somebody who is getting another kind of allowance—such as a disability benefit or a deserted wife's allowance or whatever it may be—on the basis of an assessment of his needs. The point at issue here in this motion on the Adjournment is that there is also provision for a right of appeal. That is contained in section 7 of the Act which I feel I must read for the second time onto the record of the House.
"7. (1) Where a person who is dissatisfied with the determination of an officer of the health board of a claim by him for supplementary welfare allowance an appeal shall lie against such determination to a person (being either another officer of the health board or a person not such an officer) appointed or designated by the Minister."
Subsection (2) of section 7 says
The Minister may by regulations made under section 21 of this Act provide for the making and determination of appeals under this section.
Since the Act came into force on 1 July 1977 the Minister has been pressed by various bodies and individuals—including to my personal knowledge, by the Association of Professional Social Workers, by Deputy John O'Connell in the other House, by various individuals, and by me in this House on 8 February last on another Adjournment matter and subsequently in correspondence—to make the necessary regulations in order to establish a proper procedure and rules for exercising that right of appeal. During the discussion on the Adjournment on 8 February 1978 I referred to the absence of these regulations in Volume 88 at column 316:
Regrettably the appeal is to one person rather than to a three-man appeal tribunal, but that is the clear meaning of the section. However, no such regulations providing for an appeal structure have been made by the Minister. He informally designated the programme officer in each health board area. That, again, I would maintain is entirely inadequate when we are talking about rights of beneficiaries—a right for beneficiaries in very real need—who are entitled to appeal from what they claim to be a wrong determination of their needs in the particular case. The whole approach seems to be one of continuing the discretionary aspect and of playing down or indeed disguising the fact that it is a question of rights which includes a right of appeal.
On that occasion also the Minister was not able to be present for the' Adjournment Matter, but he wrote to me subsequently about some of the other matters I had raised concerning the inadequacy of the forms for supplementary welfare applications. I replied to the Minister's letter and referred again to the need for regulations establishing the basic procedure and rules for an appeal under this Act. I received a reply from the Minister, dated 12 April 1978, in which he referred to the matter I had raised and stated:
As regards the appeal system itself, I cannot agree that I am required by section 7 (2) of the Act to make regulations and I am advised that the section confers a discretionary power. I agree, entirely, that the rules of natural and constitutional justice must apply to appeals under the Act but these rules apply quite independently of any regulations.
I am not aware that the present informal system of appeals is causing any serious problems. However, I have received a number of suggestions regarding the introduction of a more formal appeals' system with more elaborate structures. I am weighing all the considerations involved in these suggestions and I hope to be in a position shortly to decide on a system which will best serve the interests of the claimants to Supplementary Welfare Allowance.
If the Minister were present I would like to ask first of all whether the "advice" he has obtained is the legal advice of the Attorney General's Office, or whether it is merely the internal advice from officials of his Department? If he has not obtained a legal opinion from the Attorney General's Office, then I feel the issue is such an important one—on which I disagree basically with the advice referred to in his letter—that the opinion of the Attorney General should be obtained in the matter.
Secondly, I do not know whether I move in entirely different circles from the Minister—I presume I do—but I fail to see how he can be unaware that the present informal system of appeals is causing serious problems. It is causing very serious problems indeed for all those who have applied for supplementary welfare, are refused their application, and who then try to appeal. I believe it is the considered view of professional social workers that the system is not working properly. What happens in reality is that even if the person who is making the appeal specifically asks for an oral hearing he never gets an oral hearing. People never get any proper process of appeal in any sense that I understand it. The rules of natural justice went out the window and were never there at all in relation to appeals against a refusal of supplementary welfare. How the Minister can try to suggest that they are safeguarded, or that they have any legal significance under the present system i cannot understand.
Also, what the Minister has done creates internal problems with the staff in that he has informally designated a programme manager who is the superior of the community welfare officer who will have refused the allowance in the first place. The person who exercises the right of appeal does not get any oral hearing on it, does not know the grounds on which the appeal may be considered favourably, or not, and ultimately does not know the grounds on which the appeal was refused. Alternatively, he does not know why the appeal was allowed in part but not allowed in full.
I am glad to be able to continue now in the presence of the Minister. I wanted to have him here, to be in a position to respond to the points that I am making.
It is certainly my personal experience—and the experience of the members of the Association of Professional Social Workers who have met with officials of the Minister's Department time and again and who also have always raised this question—that the present system is working very badly because it is not an effective system of appeal.
As I said earlier, I take issue with the Minister on the question of whether he has a legal discretion to issue the necessary regulations, and since he is now present in the House I would like to put the question to him as to whether he has obtained a legal opinion from the Attorney General's Office on whether or not he has this discretion. In my opinion as a lawyer reading that section, once there is a legal entitlement to supplementary welfare and a statutory right of appeal, as there is in section 7, this connotes the establishment of procedures which guarantee that the applicant will have the normal protection of the rules of natural justice including the right to a hearing, the right to be able to put the particular case—certainly in written if not in oral form—the right to know the grounds on which it is being considered, the grounds on which it may be refused or on which it may be partially granted. None of these rules operate at the moment. Any request for an oral hearing is ignored. It may be occasionally that an official of the Department will visit a particular applicant and investigate his circumstances, but that is in no way—in any sense I understand as a lawyer—the exercise of a statutory right of appeal.
I would like to contrast the position of people who try to secure their rights in the area of supplementary welfare with another area where we created a legal entitlement but built a much better kind of structure for enforcement, and that is those who seek entitlement to equal pay. Contrast the position of somebody who tries to appeal from the refusal of her legal entitlement to supplementary welfare and somebody who does not get her entitlement to equal pay. In the case of equal pay, there is a possibility of referring the complaint to the equality officer, who then actively investigates the matter and issues a recommendation. It may go further—either to the Labour Court or to the High Court itself. However in the case of the refusal of an application for supplementary welfare there is no structure at all. There is no set procedure at all, and if the Minister believes otherwise then I think he is out of touch with what is happening on the ground—I really mean that. What is happening on the ground is that we are back to the old discretionary home assistance. It is probably worse now than it was because there was the illusion that we were moving away from that. I believe that the position is worse in Dublin than it is in some other parts of the country and it is certainly very bad indeed in Dublin.
The problem is that it affects the most deprived sections of the community, so that the need is an acute and immediate one, whether it is help with rent, whether it is help in buying clothing for children, whether it is a need of old people to have blankets for the winter, whatever the specific needs of the application for supplementary welfare may be, or whether it is simply an application for the minimum income under the Supplementary Welfare Act. The worst problem is the delay incurred through this totally informal and non-legal approach to the exercise of a right of appeal. Months often go by, and the person hears nothing. It is only if the person has a lawyer or a social worker to write a letter on their behalf, or persuades a body like the Coolock Law Centre to take up the matter on their behalf, that they may make some progress on it, but usually only after weeks and perhaps months have gone by.
Again this reinforces the basic point I am making that the Minister must be prepared to issue regulations providing a proper procedure for making the appeal. It would be necessary to have a simple form because the people who want to appeal are not very good at setting out in a letter what they consider to be the grounds on which they would like to make the appeal and there should be a basic form for that. There should be rules establishing when they will get a hearing—it can be a very informal hearing but they should be entitled to that—and rules establishing when they will get a decision. It is unacceptable that there would be any undue delay so that we should be talking in terms of a decision within a week or at the most a fortnight in relation to most of these applications.
I was interested during a recent discussion with some social workers to learn that the Department officials had referred on a number of occasions when representations have been made on this issue to the fact that there are only a very small number of appeals. If so, this is a further illustration of how bad the appeals system is. There are so many people who do not even know they have a right of appeal; who do not know what their rights are in the matter and who cannot feel encouraged to pursue their appeals because they have no visible sense of anything happening. It just gets lost in the bureaucracy and the individual may or may not get some kind of letter ultimately saying "yes" or "no" or "you can have part of what you asked for". There is no sense of respecting the attributes of the rules of natural and constitutional justice. Unfortunately this area is not considered to be lawyers' territory. It is not considered to be an area where barristers and solicitors have a primary concern, or where they are building up an expertise. Otherwise I believe the present system would be tested in the courts over and over again, because it is one of the most flagrant transgressions of what should be the proper rule of law and operation of the rules of natural justice in circumstances where the particular recipients are very poor and deprived.
If anybody has any doubt about the depth of need, I would refer them to a file of letters which was sent in response to an initiative by some professional social workers who had advertised in the papers to people who are living on social welfare to write in and explain how they budget for the week, to itemise what they spend their money on. I have a file of some of these letters here. I am also aware that the Minister was given the file of letters. No, of course, it is not "scientific"—the only people who could do it scientifically would be the Department under the urging of the Minister—but it is very harrowing and very pathetic. By not ensuring that the full legal safeguards exist, and by not leaning over backwards to facilitate applicants and to provide access through the existing procedures we are denying basic rights—basic legal rights, basic human rights and basic social rights—to those most in need in our society. That makes us a very selfish society. Having raised this matter in the Seanad on the 8 February last, having corresponded with the Minister and having tried in other ways to see whether there would be a response by issuing the necessary regulations, I am glad to have the opportunity of hearing the Minister himself on the matter. It is probably the greatest flaw or indictment so far of his term as Minister for Social Welfare, so I shall now sit down to give way to him to hear what he has to say.
I am aware of the fact that the supplementary welfare system has given rise to a number of complaints from time to time since its introduction. One of the principal complaints has been that there is a lack of information to the general public about the provisions of the legislation and what their rights are and what the benefits to which they are entitled are. We have taken a number of steps to try to correct that particular aspect and bring home to the public in general and those who are more specifically in need of this particular service that the service is there and how it can be availed of.
Recently when there was a strike in one of the employment exchanges in Dublin and a large number of people were likely to be left in dire circumstances as a result of not being able to procure their benefits because of the strike we were able to bring the supplementary welfare machinery into operation very rapidly and ensure that everybody who was discommoded by the strike was looked after. That was a fair test of the supplementary welfare allowances machinery and it stood up well to that crisis situation.
I am aware also of the letters which the Committee of the Association of Social Workers received. They sent me copies of these and I mentioned at the time that I thought it was not a very scientific way of carrying out research because all they did was put a letter into the papers and invite everybody who had a complaint to write to them. We all know that if you put a letter into the papers asking for complaints from the general public you will be inundated with them.
Not complaints—just how they spend the money.
I did mention it to them and they agreed with me that it was not a very good type of research, though they did maintain that it gave some indication of the situation throughout the country generally. I suppose there is a combination of factors involved in the situation. First, I want to make the point that every deciding officer is bound and is under an obligation to make an applicant aware of his rightful position.
That would not happen often.
It is a valid complaint that it does not happen often and it is something we will have to tighten up on but it is there and that is the situation that should obtain. I would agree that if it is not happening it has to be made to happen. I have not made any regulation providing for a formal appeals system at the moment because I have not been persuaded that it is the best method but I think we may be driven to it. A large number of people working in this area would prefer if the whole system like all the other systens would be one system, one scheme, one service where an informal helpful co-operative attitude could prevail. I do not know whether some people are too impatient. After all it is a change over from what Senator Robinson mentioned that was the old home assistance system, the old home assistance outlook. It may take some time for that outlook and that tradition to disappear, but it would be desirable if we could bring about a situation where this was a service which was administered by a caring, competent, considerate corps of officers with a reasonably smooth informal system of appeals where these are necessary. Many people are indicating to me that in their view that it is certainly not happening at present and is not likely to happen. The most I can say to the Seanad on this occasion is that I am on the verge of taking a decision on it. There certainly should be no problem of providing a formal appeals' system, no legal or other difficulties in the way, and in fact I could make regulations very quickly if I were finally persuaded that this is the right thing to do—not so much the right thing because perhaps it would be second best. A formal appeal system would be second best to what would be the ideal system. If it seems that it is necessary and if there is a sufficient volume of complaints to the existing informal system to justify the introduction of a formal system, then there should be absolutely no problem and no particular legalistic or any other sort of objection on my part to introducing it. I have had draft regulations prepared and I have asked the chief executive officers of the health boards to have a look at them and have them sent out to the union which represents the community welfare officers. In general the situation is in a very fluid state at this moment because if I am persuaded that this should be done and it must be done, it can be done very quickly indeed.
Who can persuade the Minister that this must be done?
I have listened to what the Senator has said.
Why not talk to the people involved, for instance, the Coolock Law Centre people?
The Minister, without interruption.
Not everybody agrees on this. However, there will be no formalistic or legalistic objections if we decide to do it; it can be done quite quickly. We have practically everything ready to do it. There is one other time factor involved, and that is that the temporary employment of appeals officers who have been appointed to get the scheme under way will end in December and if we are going to do it that might be the time to bring it in to coincide with the termination of their temporary appointments. All I can say to the Seanad this evening is that there is no particular policy objection, no particular bureaucratic administrative objection, to the introduction of a formal appeals system. It can be done and is more likely to be done than not. In any event a decision will be taken very soon on it.
The Seanad adjourned at 8 p.m. sine die.
