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Seanad Éireann debate -
Wednesday, 10 Jul 1985

Vol. 108 No. 15

Social Welfare (Amendment) (No. 2) Bill, 1984: Committee and Final Stages.

An Leas-Chathaoirleach

I want to bring to the notice of the House that amendment No. 2 has been disallowed on the grounds of involvement of a potential charge upon the revenue.

Section 1 agreed to.
SECTION 2.

An Leas-Chathaoirleach

Amendments Nos. 1 and 7 are similar and may be discussed together.

Government amendment No. 1:
In page 3, line 14, to delete "1984" and to substitute "1985".

This is a technical amendment. Section 2 provides for the insertion of a new Schedule into the Social Welfare (Consulidation) Act, 1981. Schedule 3 to the Consolidation Act contains the rates of benefit and they are up-dated every year. When the Bill was circulated in December last, the most recent up-dating had been affected by the Social Welfare Act, 1984. Since then we have had a further Social Welfare Act, 1985 which inserted a later Schedule. The amendment now proposed simply makes reference to this later stance.

Amendment agreed to.
Amendment No. 2 not moved.
Section 2, as amended, agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."

Could I ask the Minister what is the definition of an "adult dependant" which is mentioned in the section? Section 199 of the Principal Act defines adult dependant as meaning a person who is wholly or mainly maintained by that person and does not include a person in employment other than employment specified in paragraphs 4, 5 and 10 of Part II of the First Schedule. As I understand it, employment specified in paragraphs 4, 5 and 10 of the First Schedule of the Principal Act really relates to employment which is incidental or minor and which is so specified under the regulations made by the Minister to be minor. The Minister is right to exclude that as being significant. He then goes on: "a person who is self-employed". Do the limitations in paragraphs 4, 5 and 10 of the First Schedule, which relate to incidental employment, also cover people who are self-employed but who are self-employed doing a job which is in itself incidental? This could be read that anybody who is self-employed, no matter how low his or her income, no matter how incidental the work, would not be able to qualify as an adult dependant. Paragraph 4 says: "Employment specified in regulations as being of such a nature that is ordinarily adopted in subsidiary employment only and not as the principal means of livelihood." Paragraph 5 says: "Employment specified in regulations as being of inconsiderable extent". Paragraph 10 refers to a different matter. Basically, what about a person who is self-employed but is doing a very minor job? Are such people covered by this? By reason of the fact that they are self-employed, no matter how minor the employment or incidental the employment, are they taking themselves outside the definition of adult dependency?

First, I would like to say that this section redefines the concept of adult dependency to provide for equality of treatment for men and women. It is the key principle in the legislation. It abolishes the automatic presumption that wives are almost always dependent on their husbands. Under existing provisions, a married woman is a dependant and her husband receives an increase of benefit for her simply if she is living with him or where they are living apart if she is wholly or mainly maintained by him.

A married woman can claim an increase for her husband only if he is incapable of self-support by reason of physical or mental infirmity and if wholly or mainly maintained by her. Under the new definition either spouse will be regarded as a dependant, if he or she is wholly or mainly maintained by his or her spouse. Such dependency will be deemed not to exist where the spouse is in employment but not part-time employment of a subsidiary nature or of an inconsiderable extent; is self-employed, or is in receipt of benefit in his or her own right.

A new non-discriminatory financial and economic basis for dependency is being substituted for the existing one which will enable men and women to qualify for increases under similar conditions. The change will mean that married women will be able to claim their husband's dependence in circumstances where they cannot at present. It will also mean, however, that some married men will lose out as their wives, in employment or on benefit in their own right, will no longer be regarded as dependants. Of the 170,000 married men receiving increases for wives, only about 20,000 would be affected by this change. Special measures will be introduced to alleviate the effects in many of these cases.

The new definition enables the Minister to specify additional persons to be adult dependants, that is in paragraph (c). It is intended to provide by regulations that persons with earnings of less than about £50 per week will be deemed to be adult dependants. This will be a permanent feature of the new arrangements. Paragraph (c) would also apply to the self-employed. That is the intention, to provide by regulation that persons with earnings of less than approximately £50 per week will be deemed to be adult dependants. It will be necessary to make separate regulations for each because in both the regulations for insurably employed people and the regulations for self-employed people the principle will be the same — about £50 per week. They will be dealt with under separate regulations. I think that answers the Senator's query.

I thank the Minister for that explanation. It is very important that we would get it. A problem would arise, for example, if a woman was doing knitting at home or something of a very minor and incidental nature. Under the old regime that would not have made any difference but under the new regime it would, except that the Minister has now indicated that the incidental nature of the employment, which is going to be covered by the regulations will extend both to a person who is in employment and a person who is self-employed, if the activity which is being carried on is one of a minor nature. I think this is a very significant statement by the Minister and one which will protect these incidental bits of work that people do from time to time and not take them outside the range of the social welfare legislation, merely by reason of that.

Question put and agreed to.
Section 4 agreed to.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill."

Section 5 deals with increase of maternity allowance and the rules for that. Would the Minister like to comment on that? He is introducing a new part to section 26 of the Principal Act. Like a lot of these things, to make any sense of them we really have to go back to the Principal Act. The old section 26 was quite simple. It said "Subject to this Act, the weekly rate of maternity allowance shall be as set out in column 2 of Part I of the First Schedule". Now, it is proposed to add an additional portion to that section. I would like to direct the Minister's attention to subsection (3). To examine it, we should look at subsection (1) which says: "That the amount a weekly benefit shall be that set out in Part I of the Second Schedule". Subsection (2) says:

The increase payable pursuant to subsection (1) in respect of a qualified child who normally resides with the beneficiary and with the spouse of the beneficiary shall be payable at rate of one-half of the appropriate amount in any case where the spouse of the beneficiary is not an adult dependant.

I understand that a married woman who is living with her husband who is working, and who is entitled to maternity allowance, will be entitled to an increase in respect of any dependant child of one half of the amount specified in the Schedule. I want to raise another point with the Minister in regard to subsection (3). It states:

The provisions of subsection (2) shall not apply in any case where the spouse of the beneficiary is living apart from the beneficiary and is not making a financial contribution to the maintenance of the qualified child.

It appears that we are introducing an increased maternity allowance in respect of a person who is living apart from a spouse. The provision in subsection (2) is, as I understand it, a reduction to one half of the rate. It says it shall not apply in any case where the spouse of the beneficiary is living apart from the beneficiary. In other words, where a wife is a deserted wife or a separated wife, she will be in receipt of the full amount specified in the Schedule. It seems extraordinary that we are going to pay a bigger maternity allowance in respect of people who are separated as compared with people who are living together. I understand that these are some of the quirks that can arise from time to time. It strikes me as rather odd. If my interpretation of the proposed legislation is correct, a person who is living apart from her husband will receive in respect of a dependent twice the increase, that is, twice the additional amount in respect of that child as compared with a person who happens at that time to be living with her spouse.

This section provides for the payment of dependent child increases to recipients of maternity allowance. As the House is aware, the directive itself does not apply to maternity schemes but, because of possible anomalies that might arise, the section was put in. Under existing provisions, increases are not paid in respect of dependent children with maternity allowances. The provision is now being made because women who will receive child dependant increases, with disability or unemployment benefit, under the equal treatment arrangement would suffer losses if they moved on to maternity allowance. The rates of child dependant increases are the same as the rates payable for disability benefit and unemployment benefit. Subsection (2) provides that the child dependant increases shall be payable at 50 per cent of the full rate where the husband is not an adult dependant, that is where he is in the labour force or he is on benefit in his own right.

Again, as in the case of section 4, because of the way the legislation is drafted it is necessary to provide that the halving arrangements do not apply, the full increases being payable where the husband is living apart and not contributing financially to the support of the children. About 2,000 women will benefit from the provisions at an annual cost of £0.8 million. I have explained that section 5 is not required by the terms of the directive but is being included because women who are on unemployment benefit or disability benefit prior to the maternity benefit claim would, under this legislation, be receiving 50 per cent of child allowances. Of course, if this section was not put in they would suffer the loss of the child allowances when they would go on maternity benefit. The section enables them to continue to a great extent on the same level of benefit, with the same level of entitlements as far as dependants are concerned.

If they are in a situation where their circumstances permit them to have the full child dependency rates then, of course, they continue to have those also when they go on maternity benefit. That is simply what the section is doing.

I understand the point the Minister is making and I agree with it. Am I right in saying that there will be the differential between the person who is living with their spouse and the person who is not living with their spouse?

There is a differential in any event if under unemployment benefit or disability benefit the spouse — a wife in this case — is living apart and not getting any financial assistance from the husband, is totally on her own and the children are totally dependant on her income, be it social welfare or whatever. In that case she would get the full amount of the child dependant's allowances, as she was getting under her claim for UB or DB.

Question put and agreed to.
Section 6 agreed to.
SECTION 7.

An Leas-Chathaoirleach

Government amendments Nos. 3, 4 and 5 are similar and may be discussed together.

Government amendment No. 3:
In page 6, lines 4 and 5, to delete "the Principal Act", and to subsititute "this Act".

This is purely a drafting amendment. Section 7 provides for the amendment of the Social Welfare (Consolidation) Act, 1981, which is referred to as the Principal Act by the insertion of new subsections. However, the insertions themselves contain references to the Principal Act, which is incorrect as they will become part of the Principal Act. The correct expression is "this Act." This amendment makes the necessary textual changes.

Does the Minister think that Homer nodded, that the parliamentary draftsman got it wrong? I want to put it on the record for the next time we are told that something cannot be done because the parliamentary draftsman said it cannot be done. Sometimes he gets it wrong too.

Amendment agreed to.
Government amendment No. 4:
In page 6, line 36, to delete "the Principal Act", and to substitute "this Act".
Amendment agreed to.
Government amendment No. 5:
In page 6, line 54, to delete "the Principal Act", and to substitute "this Act".
Amendment agreed to.
Section 7, as amended, agreed to.
Sections 8 to 11, inclusive, agreed to.
SECTION 12.
Question proposed: "That section 12 stand part of the Bill".

This section was discussed at length in the other House, and rightly so because it seems very wrong that two unmarried people could receive more by way of benefit than a married couple. It is unfair and I would argue that there is an element of discrimination, perhaps not on the grounds of sex, but it is a discrimination that must be acknowledged. I would have thought that that would not be allowed happen. I know the Minister has given a great deal of thought to this and has indicated that the constitutionality question had been examined and legal advice sought. Nonetheless, it seems to me, according to ordinary basic rights, that it is a wrong provision to have in any legislation.

This is the second time I have heard this kind of moralising. One gets rather tired of this. The question of benefit from the State cannot be related to the moral or immoral behaviour of any person or individual. The question of married or unmarried people living together has nothing to do with State benefit. It should not have anything to do with it. The way they live is a matter for themselves. They must make the decision to live whatever way they like and the State benefit cannot and should not come into it. One could nearly argue that it is a human right if they want to live in sin. Again, I repeat, it is a matter for themselves. Let me make an observation in general terms. In the European context more emphasis must be placed on anti-discriminatory laws. That is what this Bill is about. This State has been directed to cure the anomalies inside this legislation to meet the criteria laid down by the European standards of anti-discriminatory law. That is what should be emphasised, not the question of two people living in sin. All the moralists all over the country would cut their benefits because they are living immorally. Such rubbish. It is a human right if they want to live like that. I will contest any TD or Senator publicly who dares involve himself or herself in such matters as relating State benefit to moral behaviour in this or any country in the EC.

Let me make two more observations about anti-discriminatory legislation. Again, the European context outlaws all discriminatory practices. Recently there was a court decision given against the Belgian Government. The State had denied what we call national assistance in the North and what we call unemployment assistance here, that is no contributory benefits were coming so that State had to step in with this bedrock thing, no one shall be in need — the phraseology as used by the Labour Party. An English couple who went to Belgium had a residential qualification — I think it was six months — and the courts in Strasbourg ruled the law invalid. That is how important it is. It meant that the Belgian Government were actually discriminating against a person from another member state. I will give the House another example of discrimination on the moral plane as has been put forward twice here. I was chairman of the National Assistance Board in Northern Ireland when it was first introduced and I continued in that post for a long time. Some of the very respectable puritans from a town called Ballymena did not like the idea of a prostitute with nine children — she was not very professional — getting income under the national assistance legislation. They did not like that and did their best, under my chairmanship, to starve that woman and her nine children, that is, cut off the benefits. We have the same kind of thing rearing its ugly head in the Republic and I will fight it. I did not allow that kind of thing to happen unless it was proved to my satisfaction that she was getting other income. Eventually they did this. She was getting payment in kind. They actually tried to get her put out of a caravan but they could not because a caravan is not a house and the legislation did not cover caravans. That is how far they went. They tried to cut off the money from the whole family first and then the money was cut off from her. They tried to cut off the money for the nine children. That is discrimination. In a wider context this is what we should be talking about.

Quite apart from the very fine job that has been done to remove the anomalies in our legislation, the emphasis must be on discrimination. We are too fond of talking about the religious discrimination that was practised and is still practised in the North of Ireland. There is very fine machinery there. In a European context religious discrimination is practised by sectarians whether they be Catholic or Protestant. There are Catholic sectarians in the North. There is no mistake about that. They have fitted themselves into the jigsaw there very well, especially in the professional classes. They will not rock the boat. We all know that.

There is a very fine mechanism in the North called the Fair Employment Agency. I can rightly claim that it is a very fine piece of machinery because I monitored that legislation when I was Ombudsman. I was ex officio a member of the Human Rights Advisory Commission. We monitored the legislation and advised the Secretary of State accordingly. The Fair Employment Agency must be made stronger. I am still talking in the discriminatory field because that is what this legislation is doing. It is meeting the position inside an anti-discriminatory context, in a European context. The Fair Employment Agency must be made stronger, if that is possible. The British as members of the European Community——

An Leas-Chathaoirleach

Much as I dislike interrupting you, Senator, I wish you would get back to section 12.

I am finished on that point. Thank you.

Question put and agreed to.
SECTION 13.
Question proposed: "That section 13 stand part of the Bill."

Section 13 goes far beyond the actual change in seeking to eliminate the discriminatory aspect of our social welfare legislation because — now that the Second Stage speech is over — it re-enacts the whole method of calculation of means in respect of all the means-related benefits under the Social Welfare Act. It is true to say that it is a completely new regime. It may well be that it is re-enacting what was there before but there are differences. As we are re-enacting the whole question of the calculation of means, there is one matter which I should like to bring to the Minister's attention which has come to me as a problem, that is the definition of what is now going to be section 146 (1) being inserted by section 13 of this Bill. It refers to the actual way in which one should calculate the yearly value, ascertained in the prescribed manner, of all property "belonging to him or to his spouse...which is invested or otherwise put to profitable use or is capable of being, but is not, invested or put to profitable use."

The problem that has arisen there is in relation to people who have fallen on hard times and who own substantial pieces of property. There are two circumstances where the problem can arise. One is where the property is not actually lettable in the present economic climate even though in theory it is lettable. As a result of that, people are being disqualified for means-tested benefits of one kind or another.

The other problem, which is probably even more prevalent, is that many people who find themselves in financial difficulty have substantial properties which are mortgaged to financial institutions and from which they are getting no net benefit in a year. The way the section is drafted means that the gross value of the income rather than the gross value of the income net of any payment which the person may make in respect of the property with the financial institutions, combines to bring about a situation where a person who is penniless and is in receipt of no income is in receipt of a theoretical income by the operation of this section. The Minister will be making regulations under this section. He talked about the yearly value ascertained in the prescribed manner and presumably there will be a new prescribed manner because it is a new section. Will he take into account what I have said and see whether adjustments can be made which will take into account the very real hardships which are being encountered by people who, though they are theoretical owners of property, have it mortgaged with financial institutions and are, therefore, in receipt of no net income but are disqualified from any means-related benefit?

The points raised by the Senator are not relevant to this Bill but that does not mean that what he said cannot be looked at. It cannot be looked at in the context of this Bill because section 13 makes little change. It only adds the words "or his or her spouse". The section provides for amendments to section 146 of the 1981 Consolidation Act which deals with the calculation of means for unemployment assistance purposes. Under existing provisions the husband can only apply and any earnings of his wife are taken into account under the heading of the actual or estimated amount of any income he may reasonably expect to receive as head of the household. Under equal treatment both spouses will be entitled to apply for unemployment assistance.

The expression "head of household" is felt to be incompatable with the concept of equal treatment. At the same time, unemployment assistance being a means tested, family type scheme there is no reason, in principle, not to take the income of the applicant spouse into account. This is a feature of all means tested schemes. We are not dealing with the means tested schemes as such today. We are dealing with the various necessary changes in the legislation to cover the equal treatment provisions.

It may well be that the main purpose of the legislation is to do precisely what the Minister says, but the reality is that we are re-enacting — we are not just inserting — a complete section which deals with all means related and means testing. We are putting in a section which will cover means related benefits and means tested benefits, not only in respect of the anti-discriminatory aspect of it, but the whole thing. It may well be that the vast majority of what the Minister has said is already law, but we are re-enacting it. The Minister is not inserting words. He is actually re-enacting a complete section. We are reinforcing the concepts that are already there. It is reasonable that the Minister should have a look at at the problem I am raising. I was careful to examine the position and to make sure that it was properly within section 13 of this Bill.

I am quite confident it is, because we are re-enacting the complete method of calculating means. We may not be changing it but we are re-enacting it. As such, it is proper to have a problem raised if there is a problem. I would appreciate very much if, in looking at the matter, the Minister would give us an indication that he would at least consider the points I have raised.

These points will, of course, be taken into consideration at the appropriate time. This enactment is for a specific purpose. If we were to look at each section in the context that it is suggested we should look at section 13, we would take a long time to get through the important provisions and urgent provisions in relation to equal treatment. I am not disagreeing with the points raised by the Senator. What I am saying is that they are more appropriate to a different time and we can have a look at them at that time.

I must disagree with the Minister. They are not more appropriate to any time. I am not asking the Minister to change the Bill or to come back on Report Stage, but this is the time to raise them. We are enacting legislation which, because of the way it is drafted, goes far outside the narrow provisions which the Minister has set. I am not asking for any commitment from the Minister to change this legislation. I am merely saying that, in pursuance of the insertion of a new section for section 146 in the Principal Act, the Minister would obviously have to consider whether the present regulations are adequate to cover it because of the changes which he agrees are being made. In doing so, all I am asking him to do at that stage is to consider at that time the points I made.

Question put and agreed to.
NEW SECTION.

I move amendment No. 6:

In page 11, before section 14, to insert the following new section:

"14. — It shall be an offence under this Act for an investigating officer to ask discriminatory questions of a woman who is being investigated consequent on the repeal of section 136 (3) (d) of the Principal Act.".

I believe that the very nature of this legislation warrants, in some way or another, an amendment and considerable discussion even on Committee Stage. I accept that the Minister in his Second Stage speech gave us a very detailed examination of this whole area. It may not be just sufficient to have appropriate guidelines available. Any attempt to make this aspect of the legislation stronger should, and would, be welcome. We all know that child care responsibility is just one of the very many aspects or factors in dealing with claims. The very fact that a married woman would arrive with one or two children straight away might lead to a natural or logical conclusion where a deciding officer would wonder who would look after the children or is she really out looking for extra work and so on.

In this day and age, the fact that there are so many ways of making arrangements for child care responsibilities and for domestic responsibilities generally, in itself is not placing any restriction on people out seeking work. Nonetheless, there is a possibility of questions being asked which might be regarded in some way as discriminatory. We should give assurances that that will not happen. I am not suggesting that we even put this to a vote, but it is no harm that we raise it again to emphasise the fact that the very guidelines may not be sufficient and that deciding officers should be fully aware of the whole discriminatory nature of this legislation and that they would treat cases with human dignity, as we all hope they would.

The amendment tabled by Senator Fallon would have it as an offence for investigating officers to put discriminatory questions to married women. The amendment raises a number of issues. First, it is clearly unthinkable that a deciding officer, who could be a relatively junior member of the staff, could be put in the position of committing an offence if in a particular case he asked in all innocence what seemed to him to be a harmless question, but which by some standard could be deemed discriminatory. The legal adviser was consulted in this matter and he considered it altogether too vague to have any particular line of questioning deemed an offence.

The amendment contains no definition of the concept of discriminatory questioning. It is not worded in a way which expresses and confers a clear and specific right as to how prosecutions for committing such an indefinite offence could be taken. The amendment does not set out at all what action should or could be taken if an offence is thought to have been committed. The penalties provisions in our existing legislation could not apply and new provisions would be needed.

It needs to be emphasised also that under the equal treatment provisions, legislative and administrative being implemented, all persons, male and female, in similar circumstances will be asked the same questions. As between similar type applicants no discrimination will occur. A clear undertaking has been given that guidelines to that effect will be issued to deciding officers. I dealt extensively with his point in my Second Stage speech yesterday. I said that in order to ensure that the controls are applied without any hint of administrative discrimination against women applicants the Minister stated clearly in the Lower House — and I repeated it here yesterday — and also 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 benefit schemes explaining clearly the requirements of the EC directive. No discrimination, either in laws or administrative provisions, is permissible. In applying availability for one criterion there must be no discrimination 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 all claimants on the relevant form. Men and women will be treated equally in this regard.

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 as far as we could go. The Senator should realise that in my Second Stage speech yesterday and what I have repeated today sufficient assurance is included so that every care may be taken to ensure that nobody will depart from the guidelines that are being set down.

I would like to say a few words arising out of the Minister's reply to this. He has given the undertaking of guidelines and he has talked of monitoring. I would like the Minister to give a further assurance that this monitoring would be a thorough monitoring. The Minister, by mentioning monitoring, indicates that the mere issuing of guidelines is not enough. There must be a follow-up to ensure that these guidelines are being properly operated. He said earlier that it would be possible for someone to ask a discriminatory question out of ignorance in this regard. We must all appreciate that we have a very great distance to go in this country before all members of my sex fully appreciate how circumstances which appear to them not to contain an element of discrimination can in fact, objectively be discriminatory and can, subjectively, be extremely disturbing to an applicant. So the mere imposition of guidelines such as the Minister has indicated would certainly not be sufficient.

I do not think that to talk of guidelines at all is an adequate answer to the concerns expressed by Senator Fallon. It is when the Minister goes on to talk of monitoring that he is beginning to come to grips with the situation. If that monitoring were to be an occasional and a light monitoring, I do not think it would be adequate to deal with the problem that could arise. I would ask the Minister to assure us that this monitoring will be thorough and consistent and will not be merely occassional and in cases where there are, as a result of monitoring, repeated breaches of the guidelines, disciplinary action will be taken to officers who are guilty of such repeated offences against the guidelines.

On that point, could I get an assurance from the Minister that in regard to the guidelines that will issue dealing specifically with child-care responsibilities, such guidelines would be totally relevant to the claimant's availability to work in that area only?

I would like to make a comment on the amendment in so far as it relates to trying to ensure that no discriminatory questions are asked of a woman. The fact that the amendment is not well drafted is irrelevant. Senator Fallon in proposing the amendment made it quite clear that he was not really interested in the wording of the amendment but was anxious to get a concept across to the Minister, which is a concept we would all support. To spend too much time worrying about how it is drafted is not really solving the problem. There is a very serious problem here, because the theoretical and objective standards which we would expect in legislation and their application on the ground are very difficult things to actually reconcile.

The Minister struck a very positive and correct note in his Second Stage speech. He outlined the fact that availability for work is for the moment an essential part of our social welfare code. One of the factors which might affect that is child-minding activities of one spouse or another. That is reasonable. If you were to do anything else the reality is that every woman in Ireland would be in receipt of unemployment assistance. That is the reality.

If you were to say that child-minding per se was not to be taken into consideration, we would set up a system where every woman in the country would get unemployment assistance. There is nothing terribly wrong with that either, except that it reduces the amount of money which is available. There is a limited amount of money available and, therefore, the rate which you would be paid would be reduced or else taxation would increase. Because there is a limit to taxation, the level of social welfare benefits in general would decrease. What we are trying to do, surely, is to direct our social welfare assistance to areas where it will have the maximum benefit and where it is needed to the maximum extent.

The Minister is faced with a very difficult job in trying to reconcile these two points. The attitude which the Minister portrayed in his Second Stage speech strikes the right balance. I support what Senator Dooge has said that in monitoring that, particularly in the early years, it would be very important that the Minister should have an active monitoring procedure. The pattern that will be established in the first few years will tend to repeat itself. If that pattern is non-discriminatory, the matter will be correct for all time. If on the other hand, it is done in a discriminatory fashion, then we will have a continuing problem in this area. I certainly support the views behind the amendment moved by Senator Fallon. It is a valuable contribution to the debate on this Bill.

As I stated, we have gone as far as we can go in relation to this matter. The next step would be to establish an additional legal basis for banning discriminatory questions. On this question of having such an illegal basis, the legal advisor has advised that it would be inapprorpriate to reinforce in our statutes what will, in effect, be the law already. It should be remembered that, on the enactment of this Bill, the directives will formally be part of Irish law. Under Article 5, States are obliged to abolish all discriminatory practices. Whether that refers to questions or statements or anything else, all discriminatory practices have to be abolished. This, of course, we will be doing. Under Article 5, machinery must exist to enable persons who consider themselves wronged by failure to apply the principle of equal treatment to pursue their claim by judicial process.

The Attorney General advised in 1980 that the existing practices, that is, the appeals machinery etc., comply with the directive in this regard. The practice under the law is, therefore, that any persons who feel that they are not getting equal treatment in accordance with the directives have a legal basis for pursuing the complaint. To try to reinforce the existing legal basis would, as the legal advisor advises, only complicate the matter by adding a new and ill-defined statement of rights to the clear statement already contained in the directive itself. In the final analysis what the amendment seems to want is to debar the asking of any questions about an applicant's child minding arrangements. As Senator O'Leary has stated — and I agree with him — there is simply no way we could dispense with the power for deciding officers to ask whatever questions are necessary. This must, of course, be on a non-discriminatory basis, because deciding officers will have to satisfy themselves that applicants are available for work. In the Second Stage debate a number of other Senators, including Senator McGuinness, accepted the legitimacy of asking questions about child minding where such questions are relevant to a person's availability for work.

Could I ask the Minister where he thinks such questions should be put? Would it become the practice, where a male applicant whose wife was working, would be asked the question as to what his responsibilities in regard to child minding might be?

Whatever questions are necessary will be asked. The questions have to be put on a non-discriminatory basis. Certainly if the deciding officers feel it appropriate and necessary to ask a question for the purpose of establishing the person's entitlement to unemployment benefit, then the question will be put to a male applicant in the same way as to a female applicant, provided, of course, that it is——

I would like to ask the Minister, following up this idea that we need an active form of monitoring, how long does he think it would take until one would get an equal frequency of such questions being put to a man and to a woman?

That is hard to say. I would not hazard a guess at this stage.

Would the Minister say that he would do his utmost to bring it about as soon as possible?

It is in everyone's interest that that be established as quickly as possible. Whatever time span is required to provide the most representative result should be the time span.

Amendment, by leave, withdrawn.
Section 14 agreed to.
Sections 15 to 19, inclusive, agreed to.
SECTION 20.
Question proposed: "That section 20 stand part of the Bill."

Section 20 contains the provision for the special payments of £10 in cases for one year or the duration of the claim, whichever is the shorter. I wonder if the Minister would comment on how this money will be paid. Is there a mechanism for that payment?

This section enables the Minister to make special arrangements for the purpose of continuing rights. It is proposed to make regulations under the section providing transitional alleviating measures for cases where both spouses are on benefit when equal treatment is introduced. In such cases the husband would normally be receiving an adult dependant's increase in respect of his wife even though she is on benefit in her own right. The social welfare system is, therefore, paying on the double for that person. This will be changed by the equal treatment provisions and henceforth a spouse on benefit will not be deemed an adult dependant. There are about 8,000 cases where a husband receives an adult dependant's increase for his wife who is on benefit. He would stand to lose this increase of about £25.60 while the wife would gain £4.80. There is a net family loss of about £20 per week. It is proposed to pay the husband £10 per week, which is half the loss, for one year or the duration of the claim, whichever is the less, to cushion the effect of equal treatment.

Question put and agreed to.
Section 21 agreed to.
SECTION 22.
Question proposed: "That section 22 stand part of the Bill."

It appears to be an unusual situation to have in legislation a section that is described as "Removal of difficulties." Does the section not indicate that we have made our social welfare code so complex that even the draftsmen and the officials in the Minister's Department who produce the legislation now admit that it may be necessary by Ministerial order to simplify it and remove difficulties which we as legislators introduced but which, by and large, this Minister's Department introduced, making the code so difficult and so impossible for all but the most experienced explorer to understand?

This section enables the Minister with the consent of the Minister for Finance to take any action necessary to remove difficulties arising in implementing the provisions of this Bill. Subsection (2) specifies that any orders made under this section must be laid before both Houses of the Oireachtas. Subsection (3) limits the period during which orders may be made under this section to one year from the date of the commencement of this Act. This is a common contingency feature of Social Welfare Acts which rarely has to be used.

I would like to join Senator Durcan and say that however customary this is, it is in a sense a reflection of an undesirable situation. As the Minister has said, it is a feature of every Social Welfare Act and Social Welfare Acts are frequent. I would ask him to make at least one small change in the next Social Welfare Bill. In fact, what we are doing here is adding, as it were, a sixth stage to the present five stages of consideration of legislation. It is, in fact almost a further Report Stage. I would suggest to the Minister that it would be more appropriate, in bringing such a regulation before the Houses of the Oireachtas, it should be a positive regulation rather than a negative one. In other words, rather than bringing forward an order which is subject to annulment by the Houses of the Oireachtas, it should be brought forward in future legislation on the basis of an order which requires the positive assent of both Houses of the Oireachtas.

The point raised by Senator Dooge can be taken into consideration in future Social Welfare Bills.

Arising out of that and the use of the word "difficulty" one difficulty which administrators, lawyers and people in public life have in understanding the code and this Bill is that there are now so many separate pieces of legislation in existence and that the consolidating Act has been amended now in so many respects. Could I suggest to the Minister that, for the ease of all who have to find their way along the social welfare road in terms of helping people to understand the code, he should direct his Department with the assistance of the Government Publications Office to produce annually the entire code, the consolidating Act as amended in one volume.

I understand that this was done in relation to the income tax code. It is done in relation to other complex codes. It would make the entire corpus of social welfare law much easier to follow and understand for those who have to have recourse to it. I say this not merely from the viewpoint of a public representative but also from the point of view of those trying to administer the system. We all frequently come across people employed by the Minister's Department at local level who have great difficulty in finding a particular provision because the Social Welfare Act, 1981, has been amended in so many respects. This is something which could be done on a bi-annual basis as this is the Social Welfare (Amendment) (No. 2) Bill, 1984. I make this as a practical suggestion to make the entire social welfare code more easily available to those who have to use it.

Because of the very nature of the social welfare enactments which change every year, — the rates of benefit and other changes, — the Department would require a substantial increase in resources to have a consolidation Act every year. Every effort is being made to have a further consolidation Act as quickly as possible. The last was in the period of 1981-1982. Meanwhile, I would like to say that the Department make every effort to get as much imformation as possible to claimants in a reasonable and clear way. As stated in my Second Stage speech yesterday, there will be a further intensive information campaign on the provisions of this Bill.

I think we can compliment the Department on the manner in which they do give information. We are all glad to hear that further information will be made available. I would join with Senator Durcan in urging a new consolidation Act. I would not go as far as say Senator Durcan and say we should have it every year. The Minister has a good opportunity to do this. The last consolidation Act was in 1981. Why not 1986 and why not at five year intervals? It is easy to count. I would suggest that if the Department could give us every five years a consolidation of the social welfare code, the people who are concerned with it — legislators, practitioners of the law, advisers and social services — would benefit greatly. It might mean savings for the Minister's own Department, because nobody has to be more familiar with the provisions than the staff of his own Department.

I agree with the previous speakers and, as I said in my Second Stage speech, I believe this present system is cumbersome and costly. Improvements can be made all over and the sooner we have a more up to date social welfare code the better it will be for everybody.

The Minister and perhaps Senator Dooge as well may be missing the essential thrust of what Senator Durcan was saying. When the Finance Acts are presented to the House every year there are usually amendments to a basic piece of legislation such as the Income Tax Act, 1967. Everything that has been published over the years in draft since the time of consolidation is provided in loose leaf form by the Department. Every year a loose leaf insert is published and therefore, one has not an official consolidation but a loose leaf binder in respect of all the Income Tax Acts and VAT Acts. It is a tremendous benefit to anybody who has to look up the law in that area whether they are doing it on a professional basis or to advise people politically. If the loose leaf system were adopted by the Department it would get over the problem — obviously you cannot have consolidation every year. In addition to that you can have consolidation from time to time as suggested by Senator Dooge, but the loose leaf system which is used for the Finance Acts is entirely suitable for the Social Welfare Acts also because they come as frequently as the Finance Acts. There would be quite a sale for those. They would represent almost a self-financing exercise once the initial investment was made.

Senator O'Leary has taken up precisely the point I was going to make. I belive there is a professional firm called Professional Books which at the moment is bringing out a complete set of Irish statutes in updated form and an amendment to every basic Act will be contained within that Act with a notation on the amendment. This could be done so far as the social welfare code is concerned by the production annually or biannually, or however frequently we have social welfare legislation, in loose leaf from to ensure that the entire code is available in one volume. That would be in ease of the Minister's Department, in ease of all administrators and of legislators and lawyers.

I would like to assure the House that the suggestion about loose leaf inserts will be examined. As I stated already, the consolidation Act will be produced as soon as possible. At the moment the regulations are being consolidated and this is at an advanced stage so that when this work is completed attention can be given to the consolidation Act.

Question put and agreed to.
Section 23 agreed to.
SECTION 24.
Question proposed: "That section 24 stand part of the Bill."

I am aware that High Court actions have been initiated by two married women but can I assume that there is absolutely no element of retrospection in regard to this?

As I stated yesterday the outcome of the High Court cases will oviously have a major bearing on the issue of the operative date for payment. At this point we should not or could not look at any part of the equal treatment proposals in isolation from the point of view of retrospection. That is all I can say at this stage.

Question put and agreed to.
Section 25 agreed to.
First Schedule put and agreed to.
Second Schedule put and agreed to.
TITLE.
Government amendment No 7:
In page 3, line 8, to delete "1984", and to substitute "1985".
Amendment agreed to.
Title, as amended, agreed to.

An Leas-Chathaoirleach

I have to report specially to the Seanad that the Committee has amended the Title to read as follows:

Bill entitled an Act to provide for equal treatment for men and women in matters of social welfare and for that purpose to amend the Social Welfare Acts, 1981 to 1985.

Bill reported with amendment, received for final consideration and passed.
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