This Bill provides for equal treatment for men and women in the social welfare system. This is required in accordance with the terms of an EC directive adopted by the Council of Ministers in 1978.
The main area of discrimination in the social welfare code concerns the entitlement of married women. This Bill is a reforming measure which will remove fundamental inequalities in the code affecting married women. The changes will have a major impact both on the thrust of the social welfare code and on the operations of my Department on which they will place substantial new demands.
The implementation of equal treatment in our social welfare system raises complex issues and so that Senators will have a full picture I should like initially to outline in detail the background to the Bill.
The directive — the number, for the record, is 79/7/EEC — on equal treatment was adopted by the Council of Ministers on 19 December 1978. It applies to certain schemes only and these are statutory schemes providing protection against sickness, invalidity, old age, unemployment and accidents at work and occupational diseases. It does not apply to survivors' benefits nor to family benefits and, naturally, the implementation of equal treatment does not preclude provisions relating to the protection of women on grounds of maternity.
Social assistance, in so far as it is intended to supplement or replace similar social insurance schemes, is also embraced by the directive. In accordance with the directive all sexual discrimination in the schemes referred to whether this is direct, or indirect by reference to marital or family status, must be removed and the Bill provides accordingly.
There are four distinct areas of such discrimination all of which have been part of the social welfare code for some considerable time now. First, certain married women receive lower rates of benefit than men and other women in the schemes of disability benefit, unemployment benefit, invalidity pension and occupational injuries benefits. The married women so affected are those deemed by the social welfare system to be dependants of their husbands which, in effect is any married woman living with her husband. Her personal entitlement to flat-rate disability or unemployment benefit is £34.70, whereas the standard rate for most other beneficiaries is £39.50 per week. These are the new rates applying from this month which I will be using throughout this speech.
Secondly, the maximum duration of entitlement of a married woman to unemployment benefit is 312 days which is 52 weeks of benefit. For most other categories it is 390 days, a difference of 13 weeks. In relation to unemployment assistance, married women are effectively debarred under existing legislation from applying for assistance. For a married woman to qualify, either her husband must be dependent on her — and under existing legislation this means that he must be wholly or mainly maintained by her and incapable of self-support by reason of mental of physical infirmity — or she must not be a dependant of his. In this regard, the present definition of dependency provides that all married women are dependent on their husbands as long as they are living with them. In practice, therefore, the vast majority of married women cannot apply for unemployment assistance.
The final and most complex element of discrimination relates to the payment of increases in respect of adult dependants. Differences exist in the conditions under which increases are paid to men and women in respect of adult and child dependants and these differences are heavily biased in favour of men. As I mentioned, a married woman is almost always regarded as her husband's dependant and accordingly he qualifies for an increase of benefit in respect of her regardless of her employment status. A married woman on the other hand can qualify for an increase for her husband only if he is invalided. Neither of these definitions reflect dependency in a way which conforms to present day realities and they must be revised.
The other aspect of dependency concerns the payment of increases for dependent children. Married women can qualify only rarely for these as the children are deemed by the legislation to be normally resident with the father. The expression "normally resident", which Senators will see in the Bill and elsewhere in social welfare legislation, is a mechanism to determine who should receive increases in respect of dependent children. Where children are living with both parents the existing legislation deems them to be "normally resident" with the father rather than the mother. To comply with the requirements of the directive this situation must be changed.
These four areas describe the scope of the problem which must be tackled and the Bill now before the House does this in, I submit, a balanced and equitable manner. I will return to the provisions of the Bill and the manner in which equality is to be implemented later.
Before that, however, Senators might wish to consider in a general way what exactly is meant by this concept of equality which we are attempting to introduce into the social welfare code. First, I would point out that the present directive is the third in a series concerned with equal treatment for men and women in the social affairs area. The first of these, in 1975, was concerned with the application of the principle of equal pay for equal work for men and women. The next, in 1976 dealt with matters relating to access to employment, vocational training and promotion, and working conditions. These two directives in essence dealt with inequalities existing between the sexes in the labour force. Finally, we are only concerned, in this third directive, with matters relating to social security schemes provided by the State. Senators may, for instance, feel that women are still not treated equally in the labour market notably, though not exclusively, as regards levels of pay. Such discriminations inevitably spill over into other areas. Whilst they are a cause of concern to everyone and should be put right we cannot address or redress all these inequities in our present Social Welfare Bill.
We are obliged by the directive to provide equality of treatment in matters of social security. The principle of equality in the directive could be described as a neutral concept. It must be applied unconditionally to all. Within the broad area of application defined in the directive we cannot apply it on a selective basis seeking to have equality here and there but not in schemes or parts of schemes where it does not suit us. We must remove the fundamental inequalities which exist against married women and give them the same entitlements as others. However, it would be wrong to go to the other extreme and implement equality by applying to them out-dated rules and definitions which now have the effect of favouring men. What we have to do is to get rid of concepts and rules in the social welfare code which are inconsistent with the changed role of women in society, and define a new set of principles which will be both relevant to current and future needs — so far as we can foresee them — and which at the same time will be neutral in their application as between men and women.
The implementation of equal treatment thus provides us with the opportunity, not to say the obligation, to review and, where necessary, to replace some concepts and rules which we have maintained in the social welfare system through the years though the social situation they were intended to reflect has changed so radically.
We are faced with a number of serious discriminatory factors in our system which we must eliminate. But let me say here that the fact that person A is entitled to a benefit — of any sort — to which person B is not, does not necessarily imply discrimination against B. Even where it does, it does not follow that the only or the best way to remove the discrimination is that B should automatically receive the same entitlement as A has got up to now. A's entitlement may in fact be legally well founded but totally unjustified in the light of current facts and another solution may be called for. The resolution of inequalities can, therefore, be approached in a number of ways. For example, where the discrimination relates to differences in the rates of payments, equal treatment could be affected by bringing all payments up to the highest level. An alternative would be to equalise entitlements at the lowest level. There are any number of possibilities in between. The main point is that in implementing an equal treatment principle the main aim must be a balanced overall result which reflects today's social and economic relationships and does not perpetuate those of another era.
In fact, the discrimination we are faced with in the social welfare code, which is clearly contrary to the EC directive, cannot be dealt with by applying in a simple, straightforward way on a universal basis to both sexes the rules or conditions now applied to one sex only. While the elements of the discrimination in the code as it stands can be individually distinguished they are all related back to the principle, which is embedded deeply in the code, that in principle married women are financially dependent on their spouses. That is what has to be tackled first and all the other elements of reform will then fall into place fairly readily in a logical structure.
The underlying concept in the social welfare code always has been that the husband was the breadwinner and head of household and the person to whom the full benefits of the social security system should be available. Consequently, the husband is also deemed by the existing social welfare legislation to be the person to whom increases in respect of dependants should be paid. Any married woman living with her husband has up to now been regarded as his dependant and any children are also regarded as his dependants. Only where the husband is incapable of self-support through mental of physical infirmity can the wife at present claim him as her dependant. As a consequence, the husband almost always qualifies for increases in respect of his wife and children even where the wife is in employment or receiving benefit in her own right. In such circumstances the needs of a married woman have not been seen, up to now, as being the same as those of a married man. This has led to the inferior personal entitlements such as lower personal rates of benefits which I have described.
This approach may have been legitimate at a time when it was most exceptional for a married woman to take up employment outside the home but this is no longer the case. In present circumstances it results in many thousands of married men being paid adult dependant allowances in respect of wives even when the wives are either in employment or receiving a social welfare payment in their own right on the basis of an insurance record built up when in employment. If equal treatment were applied without rethinking the concept of dependency, simply by giving married women exactly the same rights as married men now have it would lead to ludicrous results.
If that were done it would result, for example, in the case of a married couple where both are absent from work due to illness in a situation in which each would be given a separate entitlement to disability benefit with increases for each other and for any child dependants. Even more ludicrously, it would enable a wife claiming disability benefit, for instance, to get an adult dependant increase in respect of her husband — and child dependant increases to boot — even though he was in employment earning a large salary sufficient to support the whole family in comfort on his own.
Simply to extend to women the present conditions which men enjoy would mean that a wasteful and inequitable payment of adult and child dependant increases, even in respect of spouses at work in well-paid employment, which occurs at present would be expanded enormously and would indeed reach gigantic proportions. For example, it would mean that a family where both husband and wife had been at work but now had separate entitlements to social insurance benefits would receive twice as much in weekly payments as a family where only one spouse had a recent employment record. Equal treatment on those lines would cost about £100 million to implement. But cost aside, no Minister for Social Welfare could justify the allocation of very scarce resources to such inherently biased and inequitable an approach.
I am grateful that the review of the dependency concept which has taken place in the context of implementing the EC directive has highlighted the need to redefine dependency in economic terms rather than basing it on sex or marital status. That is precisely what one of the key sections of the Bill, section 3, sets out to do.
This is a major step forward in defining the implications of equality but it has tended to be overshadowed by the arguments about some consequences of the new economic definition of dependency. The new economic conditions of dependency defined in the Bill, which will apply uniformly to men and women, are based on the principle that one spouse will be regarded as dependent on the other spouse only if he or she is being wholly or mainly maintained by that spouse. Under the provisions of the Bill, the existing presumption that any married woman living with her husband is automatically a dependant will disappear and any person, male or female, who is in employment or in receipt of a social welfare benefit in his or her own right will, in general, not be deemed their spouse's dependant for the purposes of qualifying for increases of benefit.
There are necessary exceptions to this general principle in certain cases to which I will return later. A great deal of illinformed comment was made about this proposal when it was first announced and, in outlining for Senators the effects of the Bill, I will show just how wide of the mark this reaction was. For the moment, however, I would like to complete the outline of the Bill's provisions.
The effect of this revision of the dependency conditions will be that there will be no a priori presumption about whether either married women or married men are dependent on their spouses. All married persons, qua married persons, will have the same status within the social welfare code. Several changes in entitlement follow from this.
Section 2 of the Bill, with the Second Schedule, provides that married women will have the same personal rates of disability benefit, unemployment benefit and invalidity pension as other persons, while section 7 provides for the payment of the corresponding higher rates of occupational injuries benefits. In this case equality is being applied by a levelling up process because it can be so done without creating any new forms of discrimination.
Secondly, the discrimination in the matter of the duration of the payment of unemployment benefit is being removed under the provisions of section 6 of the Bill. For the same reasons as in section 2, a levelling up approach is also being adopted here. This section also contains the usual transitional measure in such cases where the period of the payment of a benefit is being extended. It provides that anyone whose benefit expired before the section comes into effect and who would still have been entitled to benefit if the provision had always existed, shall be so entitled to the end of the now extended period.
Thirdly, married women will be entitled to apply for unemployment assistance. The condition debarring them at present is contained in section 136 (3) (d) of the Social Welfare (Consolidation) Act, 1981 and reference 4 in the First Schedule to the Bill provides for the abolition of this provision. After the passage of the Bill, therefore, married women who are unemployed, available for and genuinely seeking employment will be eligible to apply for unemployment assistance on the same basis as other unemployed persons in similar circumstances. Unemployment assistance is a means-tested scheme and, in common with the other assistance schemes, in assessing means the income of the spouse is taken into account. There would be no reason to depart from this principle in the case of the extension of the scheme to married women and the means test will continue to apply. Section 13 contains the necessary changes to enable the existing test to be applied in the context of the new situation where either spouse will be entitled to apply. Where both spouses have entitlement the means will be aggregated and split between them and section 12 (2) contains the necessary provisions in this regard.
Section 12 also provides a mechanism to ensure that the unemployment assistance scheme is not used simply as a means of topping-up family income. This provision was the subject of a great deal of discussion when the Bill was debated in the Lower House and I would like to outline for Senators what exactly is involved in the provision. Subsection (1) deals with the situation where both spouses apply for unemployment assistance. It provides that each will receive half the rate appropriate to their family size. Subsection (4) refers to the situation where one spouse is on benefit and the other is on unemployment assistance. In this case the amount of unemployment assistance will be such that added to the other spouse's personal benefit entitlement, their overall entitlement will equal the appropriate married benefit rate.
During the debate in the Lower House, fears were expressed by some Deputies that this provision would remove any financial incentive for married women to apply for unemployment assistance in their own right. This is simply not so. When this Bill is enacted married women, for a start, will have the same right as all other unemployed people to apply for unemployment assistance. Even where their husbands are also drawing unemployment assistance they will have, for the first time, a direct personal right to half the family entitlement. There is, therefore, a positive incentive for them to sign on where they are seeking employment.
Some Deputies also wondered whether the provision could be discriminatory either within the terms of the directive or on other legal grounds. It was suggested that the fact that a married couple would not receive the same amount of assistance as two unmarried people could be discriminatory on marital grounds within the terms of the directive and that it could be unconstitutional in the light of the judgment in the Murphy income tax case.
The personal rate of unemployment assistance, at £32.75 a week, is higher than the adult dependant's increase paid with benefits generally. The effect of this section is that the total entitlement of married couples who are both claiming unemployment assistance will be no greater than the appropriate rate for a husband and wife — and children as the case may be — where only one spouse is claiming assistance and the other is an adult dependant within the terms of the Bill. Each of two unmarried people living together could, on the other hand, be entitled to a personal rate of unemployment assistance giving them a higher household income than the married couple. The same situation could arise where one of a couple had a benefit claim and the other an unemployment assistance claim.
But that does not constitute a form of discrimination within the terms of the directive. The directive outlaws all discrimination on grounds of sex, whether the discrimination is direct, or whether it is indirect by reference to distinctions made on grounds of marital or family status. Section 12 of the Bill contains no discrimination on the basis of sex either directly, or indirectly by reference to marital status. An inequality of entitlements may arise as between married and cohabiting couples, but that is not an inequality which will be reflected in a sex-based bias. I have had this and the constitutionality question examined thoroughly and the legal advice available to me indicates that the subsections are sound on all legal grounds.
There remains the issue of two unmarried people receiving more by way of social welfare payments than a married couple. This is a very complex issue. It has wide-ranging social and other implications. It cannot be tackled in this Bill to ensure equality between the sexes in accordance with the terms of the EC directive. All that subsections 12 (1) and (4) propose to do is to provide that families are compensated at the appropriate rate in respect of the contingency of unemployment and that the unemployment assistance scheme will not be used to over-compensate some families.
The other change of significance in the Bill concerns the proposed new arrangements for dealing with increases in respect of child dependants. The removal of the presumption of dependency and the treatment of married women in the labour market as in principle financially independent in exactly the same way as married men, automatically provides a basis for recognising within the social welfare payments system their role in contributing to the support of their children. At present only the husband can, in general, qualify for child dependant increases. In future where one spouse only is in the labour force, be it husband or wife, that person, when claiming a social welfare payment, will qualify for the full increases in respect of children. Where both spouses are in the labour force clearly the full increases could not be paid to either spouse when claiming benefit. To do so would be to ignore the contribution which the other spouse makes to maintaining the household. The Bill provides that in such circumstances each spouse will have an entitlement to 50 per cent of the appropriate increases when claiming benefit. The relevant sections of the Bill in this regard are section 4, in relation to benefits generally, section 11 in relation to unemployment assistance and section 14 in relation to old age pensions.
Provision is being made in section 5 for the payment of increases for children with maternity allowance. I would like to emphasise to Senators that this is not required by the terms of the directive. The additional provision is being made because prior to receiving maternity allowance a woman may have been in receipt of disability benefit and entitled to increases in respect of her children. On becoming entitled to maternity allowance, therefore, it is appropriate that the level of her entitlements should remain the same and the new arrangement, provided for in section 5, will achieve this. Where the husband is in employment or in receipt of benefit the payment of the child dependant increases with maternity benefit will be at half the standard rate in line with the principle described earlier. The inclusion of this extra provision demonstrates that the Government's primary concern in implementing the directive is to achieve a balanced overall package which ensures that equality is achieved in a real and coherent rather than in a piecemeal sense.
These then are the main provisions to provide for equality of treatment. The Bill contains a number of other changes which are of a technical nature to permit the implementation of equality on the basis outlined.
I should like now to discuss the effects which these equality measures will have. As I mentioned earlier, these examples are based on the rates due to take effect this month and which are provided for in the Second Schedule to the Bill. Over 46,000 married women on social welfare will benefit from the provisions of the Bill. For a start they will be entitled to higher rates of benefit. The vast majority would be on disability or unemployment benefit. They will, quite apart from the effect of the other proposals entitling them to increases for dependants, each receive an increase of £4.80 per week at current rates of benefit. Married women on unemployment benefit will have the duration of their benefit entitlement extended by 13 weeks. Furthermore, all married women will be eligible to apply for unemployment assistance subject to their being capable of, available for and genuinely seeking employment in the same way as other applicants and to their satisfying the means test.
The most complex area in regard to equality of treatment is that relating to increases in respect of dependants and much of the debate on the equality of treatment proposals — to the extent of overshadowing the other major reforms contained in the Bill — has been concerned with the proposed new dependency conditions. Demands have been made that all benefits must be levelled upwards and that no one should suffer a reduction in entitlements. I have explained why the present conditions which apply to men cannot automatically be applied to women. To do so would imply that in order to achieve equality all married men should automatically be regarded as dependants of their wives claiming benefit, irrespective of employment or economic status. Equal treatment on these lines could not be defended on rational grounds and would require a massive injection of financial resources. Equal treatment, therefore, must involve a revision of the present dependency conditions. What the Bill does is not alone to define dependency in a non-discriminatory way but in a way which also reflects the concept in a socially and economically realistic manner. Only spouses who are wholly or mainly maintained by their partners will be deemed to be dependants and this will be deemed not to be the position where a spouse is employed, self-employed or entitled to benefit in his or her own right. However, where the employment is part time work of an insignificant nature or of inconsiderable extent — and this is defined under existing regulations — the spouse will continue to be regarded as a dependant and the full dependant increases payable.
Married women will benefit substantially from this change. In the case where only the wife works and her husband is a dependant — in a reversal of the traditional roles — she will now be entitled to the full adult and child dependant increases as long as her husband is not on benefit — at present she can qualify only if her husband is an invalid. This would give married women with three children in such circumstances a gain of £54.20 a week compared with the present provisions, in addition to the higher personal rates to which she would now be entitled.
In families where both spouses are economically active there will be offsetting gains and reductions. A married woman with three children, for example, whose husband is employed or on benefit, would, when on benefit, gain about £14.30 per week in addition to the increase of £4.80 in her personal rate of benefit. Reductions in the entitlements of some husbands will occur but such reductions are inevitable because the present adult dependency arrangement is not defensible. As I stated earlier, it gives a husband an increase for his wife not alone where she is in employment but even where she is entitled to benefit in her own right. In effect, the social welfare system is at present paying on the double for the same person. This must stop. There is no objective reason why such families should receive more from the social welfare system than families in which only one spouse is claiming benefit and the other spouse is not economically active.
There are at present over 170,000 payments being made per week by way of increases of benefit in respect of adult dependants. Almost all of these would be payable to married men in respect of their wives. In the vast majority of these cases, however, that is where only the husband works, there will be no change whatsoever in his entitlements and he will continue to be entitled to full increases in respect of his dependants.
The information at the disposal of my Department indicates that only in about 20,000 cases of married men in receipt of benefit with wives in employment or also on benefit would entitlements have been affected and steps will be taken to alleviate the effects of the revision in many of these cases.
Of this figure of 20,000, in about 12,000 cases the wife is in employment. In a small proportion of these cases the earnings of the wife would be low and the reduction in the benefit entitlement of the husband would represent a substantial loss of income to the household. From the beginning, these cases were a cause of particular consideration and when the Bill was drafted the necessary powers were included to enable alleviation to be provided in such cases. The new definition of adult dependant in section 3 enables the Minister for Social Welfare, by regulation, to specify other persons to be adult dependants. This provision will be used to ensure that where the earnings of a spouse are below a specified figure she — or he, for it will be applied equally to both sexes — will continue to be a dependant and full increase for dependants will be payable. This will be a permanent feature of the new dependency arrangements.
The introduction of an earnings floor has operational consequences in that it would further complicate the payments delivery system. Its effect on the overall level of service which the Department can give to the public is therefore a crucial issue at a time when staffing restrictions and a massive increase in the claims load are already combining to put the system under enormous pressure. For this reason the rule must be simple and straightforward so that it will be easy for claimants to understand and will not increase significantly the amount of time needed to process applications and make payments, which would disimprove the service to clients.
Ideally, an earnings rule might be graduated so that benefit is reduced as earnings increase. This will simply not be possible in operational terms in the near future and accordingly the earnings rule will initially consist of a single cut-off point of about £50. The possibility of introducing some element of graduation at a later date will be kept under review in the light of staffing and other constraints. The introduction of this rule will mean that in about 3,000 of the 12,000 cases where the wife of a beneficiary is in employment no reduction in benefit entitlement will occur. Of the remaining 9,000 cases the wife will have earnings in excess of £100 per week in over half of these.
The situation where both spouses are separately in receipt of social welfare payments was also a matter of concern. About 8,000 such cases are affected by the new provisions. After equal treatment each spouse will have the full personal rate of benefit and between them they will have the full increases for children. It must be accepted that the social welfare system is providing fully for the family within the system and the level of benefits provided. However, the net reduction of about £20 in household income compared with their present entitlement could represent a substantial loss and equal treatment will be phased in in these cases by an arrangement which will repay some part of the loss.
Section 20 contains a general power enabling temporary and transitional arrangements to be made on a limited basis and this will be used to make a special payment of £10 in these cases for one year or the duration of the claim, whichever is the shortest. No permanent arrangements could be considered under this heading as any steps that are taken are themselves in conflict with the principle of equal treatment. All 8,000 cases will benefit from this arrangement.
To summarise, of the total number of 20,000 cases affected by the revision of the dependency conditions steps will be taken to alleviate fully or partially the adverse effects of the revision in over half of them. Debate on the alleviating measures should not obscure the main purpose of the Bill which is the removal of fundamental inequalities in the present system. The Bill in its entirety is a positive and logically sound response to the provision of equal rights in the social welfare code for married women who pay the same social insurance contributions as other employees. They will, by virtue of the provisions of this Bill, now have the same benefit entitlements.
I am satisfied that in this measure we are providing for equality of treatment in an equitable and practical way. Forty six thousand married women will gain substantially. Of the 170,000 married men in the system 150,000 are not affected at all and only about 20,000 stand to lose to the extent I have mentioned at this stage. Alleviating measures will be provided in about 11,000 of those cases which will wholly or partly eliminate such losses. That is a fair balance.
During the debate in the Dáil some Deputies sought to get highly selective mileage out of the reductions which would occur in the entitlements of some married men without offering any alternative set of principles on which a realistic concept of dependency could be constructed while avoiding this effect. As I explained above, loss of benefits as a result of this Bill will occur in a small number of cases only and it will occur, unavoidably, because any revision of the concept of dependency which has existed in our code made necessary by equal treatment must result in some reduction in entitlements. Those who would seek otherwise should at least make some attempt to define the concept of dependency they wish to substitute for what the Government propose and say clearly what would be its financial and other implications.
Previous Ministers for Social Welfare faced with the problems arising from equal treatment came to the same conclusions as are provided in the Bill. When the equal treatment directive was adopted by the Council of Ministers in 1978 the then Minister for Social Welfare, who is now the Leader of the Opposition, had a statement inserted in the Council minutes to the effect that the Irish delegation, in accepting the adoption of the directive, considered that nothing in the directive prevented arrangements being made to control dependency payments so as to avoid paying increases of benefit in respect of a spouse when that spouse is already receiving benefit or is in employment, or to control payments of increases for children.
Quite clearly the then Minister envisaged that a revision of the concept of dependency involving controls on the payment of increases for a spouse in employment or on benefit in his or her own right would be required. His policy in regard to equal treatment was exactly in line with the proposals I have now outlined. This is, I consider, the only realistic approach to implementing equal treatment and now that Senators have had an opportunity of reflecting on the issues involved I feel that they will conclude likewise.
Before leaving the question of the changes being made in the social welfare system by the Bill let me assure Senators that my Department will be extensively advertising the changes when the legislation has been enacted so that the public will know clearly their rights under the new provisions.
Before ending, I should like to mention two further matters. The first is very much related to the fundamentals of the equal treatment debate. It has been raised by many commentators though it is not a matter which needs to be provided for in the Bill. This concerns the application by my Department of the statutory condition which requires applicants for unemployment benefit and assistance to show that they are available for work. I want to put on record that this condition is a fundamental principle of all unemployment insurance and assistance schemes and is recognised as such in social security conditions drawn up by the International Labour Office.
In the legislation this condition is phrased in a non-discriminatory fashion and does not need to be amended in the Bill now before the House. I propose to deal with the issue in some detail here today, however, because it has given rise to proposals in the Lower House to amend the Bill and because I believe the discussion has tended to get out of perspective at times.
The need for an "availability for work" condition in unemployment payment schemes is evident. The purpose of the unemployment payment schemes is to provide income maintenance for persons who are involuntarily unemployed and who are available for and genuinely seeking employment. In determining availability for work it is necessary to establish whether persons claiming payments genuinely wish to and are seeking to obtain work, whether commitments of a domestic or other nature exist which might limit the person's freedom to accept, or might prevent acceptance of, full time employment which would normally be suitable, and whether restrictions are being imposed by the person on the kind, place or hours of employment acceptable to them, any of which would unreasonably diminish the prospects of obtaining work. The determination of availability for work is made by deciding officers and appeals officers, in the exercise of their statutory functions, through the interpretation and application of any or all of these broad criteria in relation to the facts and evidence available in each particular case.
In determining claims to unemployment benefit or assistance, deciding officers must satisfy themselves, in the light of those broad criteria, that the claimant concerned is available for work. To so satisfy themselves they must try to ascertain all of the facts of the case. In the first instance, that is done by issuing claimants with a claim supplement form which contains a list of questions related to their overall availability for work. In the light of the response and any other information available to the deciding officer, the claim will be allowed if there appears to be no doubt. If, however, there is any element of doubt about a claimant's availability the deciding officers are obliged to query the position by asking the claimant any questions which they feel may be relevant to the case. Information may, therefore, be sought about what efforts the claimant has made to obtain employment since becoming unemployed, whether he or she has registered for work with the National Manpower Service, what type of work the claimant is seeking, whether there are any factors which would prevent the claimant from taking up work if it were offered and so on.
In the Lower House, a number of Deputies said that questions about child minding arrangements were a form of administrative discrimination against women applicants. Obviously many married men and women with young children are able to make child minding arrangements which allow both spouses to take up employment. Does that mean that child care responsibilities or domestic responsibilities generally never place restrictions on a married person's availability for work? Those responsibilities can and do affect the availability for work of one or other spouse in certain circumstances. In such cases it is fair and reasonable that a deciding officer should be in a position to know whether applicants' child care responsibilities adversely affect their availability for work.
Child care responsibilities are, however, just one of the factors a deciding officer might have to take into account in determining whether a claimant is available for employment or not. In fact it should seldom be the determining factor; the main factor is the efforts the person concerned has made to resume employment.
Questions relating to child care arrangements are designed to try to establish whether the claimant is really available for and seeking employment and therefore entitled to unemployment benefit. A deciding officer or appeals officer is concerned with a claimant's circumstances only in so far as he needs to be satisfied that the claimant is free and willing to take up employment. It is not the case that claims are rejected merely because the claimant has a young child. In fact a small survey carried out in an employment exchange here in Dublin confirms that the vast majority of married women who claim unemployment benefit receive it, that the vast majority of married women in receipt of unemployment benefit have children and that they have a very wide range of child minding arrangements.
Those who would argue that this type of questioning should not occur often imply that the mere fact of persons presenting themselves at an employment exchange and indicating that they are available for employment should be accepted without further inquiry. To those I would say that this is simply not realistic. The vast majority of people presenting themselves for unemployment payments are, I am convinced, genuine cases of people who through no fault of their own are in that situation. On the other hand, and Senators should be in no doubt about it, there are those who will seek to exploit the social welfare system if given the opportunity to do so. To dispense with the controls that now exist would I feel leave the schemes open to abuse.
I am satisfied that the controls that are now in place are not excessive. In order to ensure that they are applied without any hint of administrative discrimination against women applicants the Minister has stated clearly both in the Lower House and to groups who made representations to him that he will be taking the necessary steps to ensure that in the future all conditions relating to entitlement to unemployment benefit, and all inquiries made in connection with these conditions, are applied impartially as to sex.
New guidelines will be prepared for the staff administering the unemployment payment schemes explaining clearly the requirements of the EC directive that no discrimination either in laws or administrative provisions is permissible and that in applying availability for work criteria there must be no discriminations on the basis of sex, directly or by reference to marital status, in questions asked or conclusions drawn. In general, the guidelines will specify that questioning about child care arrangements should only arise when it is directly relevant to the claimant's availability. In many cases there will be no need to question the statement which must be answered by claimants on the relevant form. Men and women will be treated equally in this regard. For instance, where one spouse is in employment and the other is claiming unemployment benefit or assistance, the claimant, whether a man or a woman, may be asked about child care arrangements if it is clear that the question is relevant to their availability for work.
Staff will be asked to exercise special care and consideration in asking any questions in this regard and monitoring arrangements will be put in place to ensure that direct or indirect discrimination does not occur. This is, I think, as far as we could go. In the Dáil amendments were tabled by Deputies seeking to have discriminatory questions made an offence under the Acts and to have some part of the provisions of the directive inserted into the Social Welfare Acts. Apart from the fact that the tabled amendments suffered from a lack of necessary definition, on the basis of the legal advice available to me there are more fundamental legal objections to such provisions.
When this Bill is enacted the legal provision for equal treatment in social welfare matters will consist of the directive as well as the Act. The directive itself will be formally part of Irish law. Under article 5 of the directive we are obliged to abolish all discriminatory practices, not alone in the statute law but also administrative provisions which conflict with the principle of equal treatment. Under article 6 machinery must exist to enable persons who consider themselves wronged by the failure to apply the principle of equal treatment to pursue their claims by judicial process. I am advised that the existing mechanisms comply with the directive in this regard.
The position under the law will be, therefore, that any persons who feel that they are not getting equal treatment in accordance with the directive have a legal basis for pursuing the complaint. To try to reinforce the existing legal basis by quoting or paraphrasing parts of the directive would be unnecessary and would only complicate the matter by adding a new and ill-defined statement of rights to the clear statement already contained in the directive.
I think there is no argument about the need to end any discriminatory practices that may exist. All that might be at issue would be how best to do this. I am satisfied that the approach I have outlined in some considerable detail is fair and reasonable and is an adequate basis both in legal and practical terms for ensuring that the system will not be discriminatory either at statutory or administrative level.
Finally, I should like to deal with the operative date of the provisions. The deadline contained in the directive for implementation of its terms is 22 December 1984. High Court actions have been initiated by two married women, and plenary summons issued on behalf of over 100 others, seeking to have the provisions of the directive deemed directly applicable and equal treatment in accordance with its provisions implemented from 22 December last. The President of the High Court has submitted a reference to the European Court in Luxembourg for a preliminary decision and we must await the outcome of this case before we know where we stand in the matter. In passing, I might add that arising from the provisions of the directive a case is already before the European Court concerning the implementation of the directive in the Netherlands. Clearly, therefore, we are not alone in the difficulties we face in introducing the concept of equality of treatment into our social security system.
For the information of Senators I should mention that while a directive is binding on a member state as to the results to be achieved it leaves it open to national authorities the choice of form and methods to be adopted. Senators will realise from the outline I have presented that in implementing equal treatment in the Irish social welfare code we are dealing with a complex issue which could not be proceeded with until the Houses of the Oireachtas had discussed the issues involved and passed the necessary amending legislation.
In this regard also the suggestion has been made in some quarters that some parts of the proposals involving the increased rates of benefit should be made retrospective to December last. The outcome of the High Court cases will obviously have a major bearing on the outcome of this issue. At this point I can only say that we should not or could not look at any parts of the equal treatment proposals in isolation from the point of view of retrospection. The package, as a whole, is a balanced and equitable approach to providing equal treatment, involving the removal of the automatic presumption of dependency of married women and conferring on them in consequence full entitlement to social welfare rights. Retrospection obviously cannot arise in the case of the elements of the package which involve reduced entitlements and I see no case in principle for providing for it on the other elements.
In putting this Bill before the Seanad I have attempted not only to give a clear explanation of the details of the Bill itself but to present an analysis of the many complex issues that lie behind and arise from the application of equal treatment in our social welfare system. I am happy to have the opportunity of addressing Senators on this reforming measure and I strongly recommend the Bill to them. I look forward to hearing their views and will respond to them as fully as I can at the end of the debate.
