I move: "That the Bill be now read a Second Time."
It gives me particular pleasure to introduce this Bill, though there is a slight note of scepticism given the way the Department of Social Welfare chose in their recent press release to ignore a Supreme Court judgment about fuel allowances. I am not so sure whether they feel entirely bound by the provisions of the law or not. Nevertheless we will carry on and assume that the law does apply to the Department of Social Welfare the same as it applies everywhere else.
I introduced this Bill in the Seanad because of the enormous number of representations made to me and a considerable number of letters I received from a large number of very concerned groups and organisations. The objective of the Bill is to reform, reorganise and fundamentally improve the system of social welfare appeals. This Bill affects 37 per cent of the population, the one-third of the country that is dependent on social welfare as a source of living. How that one-third, or over a million people, are treated by that social welfare system is, therefore, a matter of considerable importance. The Bill focuses on one area: how a claimant is treated if he or she is refused a claim.
The Bill focuses on the mechanism for the redress of grievances or, as it is properly called, the appeals system. The existing system of appeals is deficient and in many respects it is seriously inadequate. Therefore I have introduced this Bill in the hope of stimulating a response, stimulating consideration of the issue and perhaps increasing the priority given to this issue within the Department of Social Welfare.
The present appeals system was laid down in the 1952 Social Welfare Act, sections 43 and 44 of which state that a person dissatisfied with a decision may appeal to an appeals officer. The appeals officer will make a final and conclusive decision subject to revision by a chief appeals officer if an earlier decision was erroneous by reason of the law or facts. An appeals officer may require a person to give evidence and award expenses. Subsequent regulations were laid down under the Social Welfare Insurance Appeals Regulations 1952, that is, statutory instrument 376/52 and the Social Welfare Assistance Decisions and Appeals Regulations, 1953. These regulations provided for a 21-day time limit on appeals and appeal hearings. An appeals officer is empowered to dismiss the case summarily. Provision was also made for assessors, one employer, one trade union officer to attend employment assistance or benefit appeals. The 1952 Act was subsequently integrated into the Social Welfare (Consolidation) Act, 1981.
Numerous problems have arisen since this scheme was first introduced. I was extremely disappointed that the previous Minister for Social Welfare asserted early in this session that he was not aware of any serious problems in this area. The best documented case on the widespread nature of the concerns in this issue was in the report of the Coolock Law Centre produced in December 1980 called quite simply, Social Welfare Appeals, Special Report No. 2. The type of problems highlighted were as follows. In the first case, information given for the refusal of a claim was paltry. Cases were documented of people suddenly getting a disqualification notice. The form simply states, “Benefit is not payable on the grounds that you are not available for work.” A case was documented of a woman refused assistance on this basis. She was not told the facts that had led to this decision; she was not told she could bring someone else to the appeals hearing; she was not told the appeals officer had the power to award costs or expenses, important had she wished to have a solicitor. She was not given the opportunity to question the deciding officer; she was invited to sign away her right to have two assessors present at the appeal, without the role of an assessor being explained to her.
Secondly, clear evidence emerged of decisions being taken without due regard to the facts being ascertained. Cases were documented of people refused disability benefit, but of claimants being at a severe disadvantage at their hearings. One woman faced a fitness for work hearing without knowing the evidence arguing that she was fit for work, without her doctor being directly consulted before the ruling was made. Decisions were taken by officers without medical expertise and without independent medical opinion being sought.
These are not exceptional or unusual cases. These cases fit a pattern, not a pattern of wilful oppression but certainly one of neglect, of lack of care for principles of basic justice. It is a system loaded against the claimant from start to finish. It is very hard to argue a case when you are given only cursory information as to why you were refused a claim, no facts for the refusal and only a minimum of information about the nature of the appeals process. That is the social welfare appeals system.
The appeals system for supplementary welfare introduced in 1977 is even more basic. An appellant is simply told he or she has the right to appeal and must hand in his or her reasons to the community welfare officer. Again he or she is not told the reasons for refusal. One person whose case was documented was simply told it was not "policy" to pay towards fuel costs, a legitimate claim under the supplementary welfare allowance scheme. How he was expected to formulate a response to this argument mystifies me. If you are told it is not policy, how are you supposed to produce an argument against that fact? It is quite a mystery. His appeal in writing — for there is no right to a hearing on supplementary welfare — would then wind its way to the welfare officer's superior, who would then decide. The duration of SWA appeal is three months.
The speed of an appeal is an extremely important issue. Cases have been documented of social welfare incomes being cut off so that a person could be investigated. It is denied that this happens. From time to time one does receive cases where people get a notice stating that because of this or that their allowance is being cut off and the allegation is being investigated. In one case a person so cut off was told he could appeal if dissatisfied. I refer to the Dáil Official Report of 8 May 1985. For a person's basic income obviously such a suspension can be catastrophic and it cannot be justified. The consequential potential long wait for an appeal can be devastating. It really only involves transferring people from one area of State expenditure to another. If they have no income under social welfare and they have no other income, they go to supplementary welfare and the State ends up paying the money anyway and it becomes a quite meaningless operation.
Just as the information made available to claimants before a hearing is inadequate, so too is the information made available afterwards. Again, according to the Coolock Law Centre report of 1980:
The appellant received only a memorandum of the appeals officer's decision, and he is not permitted to see the actual decision...
This memorandum amounts to a bare statement of rejection or allowances of the appeal and nothing more.
The miniscule information that is supplied to appellants is so tiny as to be offensive.
Robert W. Clarke, in his major study of the social welfare appeals system in "Social Welfare Insurance Appeals", Irish Jurist, vol. XIII, 1978, pages 280-282 points out that the reasons are given on a standard form with what he describes in dry legal language as a “rather cryptic list of alternative reasons... those reasons that are inapplicable are deleted”. Clark argues that this procedure is simply not adequate, either legally or on grounds of natural justice. He pointed to Flick's study of administrative adjudication which argued that reasons had to be provided in detail. A reasoned opinion, presented in detail, was likely to be better thought out. The reasons given would also help the appellant to determine if he had grounds for an ultimate court appeal on a point of law. Reasoning would make appeals more amenable to the supervisory jurisdiction of the courts. Reasoned appeals would encourage public confidence in the appeals process and prevent arbitrary conduct.
Proposals that the system of social welfare appeals be reformed have, I am perfectly certain at this stage, wide support. On 22 September this year, four voluntary organisations, the Free Legal Aid Centres, the Independent Poverty Action Movement, the Simon Community and the Coolock Law Society all proposed a series of administrative reforms in the appeals system. The Free Legal Aid Centres in particular drew attention to the fact that the system of State legal aid did not cover social welfare appeals, thus reducing further the claimant's belief in his or her ability to successfully pursue and appeal.
Regrettably, Government responses to requests to re-examine the appeals system have been slow. I have already adverted to the view of the previous Minister for Social Welfare in this matter. The issues raised by the Irish Jurist and by the Coolock Law Centre did not lead to a reasoned departmental or ministerial response. One of the great frustrations the people in the Coolock Law Centre encountered was the fact that not only did they get no action but they found it extremely difficult to get any sort of a reasoned response to their complaint.
On 24 August, 1981, Walter Walsh, editor of FLAC FILE, in an article entitled “Fighting an Invisible Opponent”, which was published in The Irish Times argued:
The social welfare appeals machinery is presently incapable of meeting the needs of the most powerless members of society. There is a strong case for the abolition of the present structure and its replacement by a body similar to the Employment Appeals Tribunal.
Walter Walsh was critical of a number of other aspects of the appeals system. Its independence, he said, was undermined by close departmental ties. Hearings took place on departmental premises. The hearings were run by officers who were, in effect, departmental officials. I want to emphasise that the integrity of the officials involved is not an issue. I have never heard a suggestion that there was anything other than an attempt to operate scrupulously within the officer's understanding of the job he or she had to do. There is no suggestion of any malpractice or misbehaviour by the officers. I am talking about a perception of how the system operates.
Because of the non-attendance of deciding officers, appeals officers had to take over their departmental files in order to air both sides of the case. As a result Walsh said "a claimant cannot be blamed for confusing the hearing with a higher stage of administrative review rather than a truly fresh and independent look at this case". That is true, irrespective of the commitment of the officials involved to do their best, to be independent and detached. This is not intended to be an attack on the officials. I have been known to be critical of officials but in this case this is not the issue.
Clark described the social welfare appeals system as little more than an additional level of administrative review — this because of the process, not because of the individual's activities involved. In clinical, legal, precise terms Clark is exactly right. He argued that social assistance schemes, with their historic roots in poor relief and charity — unlike social benefit schemes from 1911 on which were purchased — never considered they were conferring any rights on claimants in the first place. There was no provision for appeals in the 1939 Public Assistance Act. Hopefully, times have moved on since then. The 1975 Supplementary Welfare Allowance Act laid down the basic principle of a right to a minimum income. Now, 11 years later, it is time to lay down the principle of legal rights to appeal if that minimum income is denied. A right to an income must be balanced by a right to redress of grievance if that income is not provided.
It has to be emphasised that at present there is no right to an oral hearing under the social welfare appeals system. This is quite contentious and is something on which there are a number of views. But there is no right, under present legislation, to an oral hearing. In 1976 Walsh estimated that 45 per cent of cases were being decided without any oral hearing. Clark reported in 1978 that disability benefit appeals tended to be dismissed summarily. It is worth quoting from the Department's own information leaflet on appeals, SW 56, which states:
If an appeals officer feels an oral hearing is necessary, a place and date are set as soon as possible.
Imagine if we had a provision that if a judge felt a court hearing was necessary he would have a court hearing, but otherwise he would decide without hearing the evidence of the people involved.
Subsequently it emerged from the Commission on Social Welfare Report, 1986, that up to 60 per cent of appeals were dismissed summarily — the information contained in the report of the Commission on Social Welfare is the most up-to-date information I have at my disposal: I could usefully spend another week discussing the report of the Commission on Social Welfare.
It is certainly true that some appellants may not have been statutorily entitled to their claims and one would expect therefore that some appeals would be refused. It may well be true, as the Minister's predecessor told the Dáil, that when a person seeks an oral hearing he is never refused — Dáil Official Report, 7 December, 1983, column 1354. Nevertheless, I cannot believe that justice is invariably done if 60 per cent of all case are summarily dismissed. If 20,000 appeals take place each year that means 12,000 summary dismissals. Not only is the claimant not given the benefit of the doubt but the claimant's doubts are not even given the chance to be presented. That is not in accordance with the system of administrative review in our neighbouring country, upon which our social welfare system is modelled, where the Franks Committee Report, 1957, laid down that administrative reviews should be characterised by openness, fairness and impartiality. Summary dismissals have none of these characteristics, not because the officials involved behave wrongly but because of the nature of the process.
The importance of a right to appeal is fundamental if one looks at reversal rates of appeals. In 1978, according to the Dáil Official Report of 20 February 1979, column 1574, reversal rates were 36 per cent. It varied from one scheme to another, for example 39 per cent on unemployment benefit, 46 per cent on unemployment assistance and 23 per cent on disability benefit according to the Coolock report, 1981.
Clark concluded:
These reversal rates indicate that the quality of first instance decision-making is unsatisfactory.
Summary dismissal of cases is clearly an unacceptable form of treatment of claimants. It is worth remembering and there is ample evidence of this — that social welfare claimants, being poor, being those with the least education, articulateness, familiarity with bureaucratic procedures or assertiveness, are those least likely to appeal in the first place. Conversely, when such a person organises an appeal — many will be sceptical about the value of so doing — it is a very major statement of doubt as to fair treatment.
For those in authority to justify dismissing cases summarily on the basis of appeals being frivolous, stupid, vexacious or based on wrong information — and I have heard all these arguments — is of doubtful validity in even a small number of cases. But when it happens in 60 per cent of cases that appeals are dismissed summarily, miscarriage of justice on a truly giant scale may be taking place. It is extremely important to understand that people who are the dependants of the social welfare system do tend to be less articulate, less assertive, less well-educated and all the other characteristics, and they do not lightly undertake what threatens to be an intimidating process of appeal. Therefore, it seems to me that to suggest that 60 per cent of appeals can be dismissed summarily is to completely understate the need of the person who makes the appeal.
Even if the Minister does not agree with this contention, or my contention that there is an intrinsic right to a hearing, there is still a need to bring the law into line with the Supreme Court judgment of 16 February 1977. In the case of Kiely versus the Minister for Social Welfare decision of Henchy, Parke and Griffin, Justices (Irish Reports 267, 275), Mr. Justice Henchy ruled that an oral hearing must be held if there is any conflict of evidence. The British National Insurance Commissioner, Sir Robert Twaite, in 1976 strongly objected to the idea of selection of some appeals for hearing and others not, on the basis that difficulty and complexity are not always evident and sometimes emerge at the hearing for the very first time. It is a presumption of insight and a presumption of knowledge and understanding to presume that everything that may emerge in an appeal can be spotted from the documentation in that appeal.
As far as the procedure of hearings goes, the Department of Social Welfare now provide that appellants may be represented by a doctor of solicitor for whom an appropriate fee may be paid. Appellants may now make opening and closing statements, call witnesses and cross-examine. Obviously this represents a considerable improvement and development of the original appeals procedure of the early fifties. Nevertheless it remains the case that many appellants are inadequately informed of these procedures. Very few appellants are, in any event, legally represented. This is an important issue because the only comparative study available from Britain shows that the reversal rates for unrepresented claimants were 16 per cent, but for represented claimants from 39 per cent to 50 per cent.
It is extraordinary that when claimants actually had representation they had a two to two-and-a-half times as good chance of having the appeal upheld than if they went unrepresented. It indicates the whole fragility of the process of appeal that the absence or presence of legal representatives can make such a profound difference to the degree or the possibility of success of the appeal. Secondly, it is worth adding that several schemes of social assistance either have a different or an even more limited procedure, for example supplementary welfare, or none at all in the case of DPMA.
It has been argued from time to time that assessors fulfil the role of guardians of independence for the appeals system. This is neither the case in practice nor in law. Assessors are given little notice of cases. Having been on a panel of assessors I can enthusiastically elaborate on that if anybody wishes. It can be often a half day or a day's notice when you are invited to sit on a panel of assessors. I gather it has improved somewhat but at least in Cork these occasional requests appeared out of the blue without any prior notice.
To the average assessor, particularly on the trade union side where I was, a day's notice to organise getting away from work was far from adequate. As well as the shortage of notice, the assessors are not given the social welfare file or the deciding officer's comments and decisions are made in their absence. Secondly, their role is one of being allowed to speak only when spoken to. The Supreme Court, in ruling on the role of medical assessor under the Social Welfare (Occupational Injuries) Act, 1966, made it clear that assessors are not to take an active part in proceedings. The Court ruled they were to be only a "medical dictionary available for consultation", in the words of Mr. Justice Henchy. They were not to cross-examine, prompt questions, or submit opinions on the merits of an appeal. Having looked at and heard about and wondered about the whole role of assessors, I think the least that can be said is that they serve little purpose in continuing in their present role. They should either be abolished or made a full and equal partner in the appeals process.
Incidentally, the appeals system appears to remain a largely maleoriented one. I mention this because of the special interest of the present Minister for Social Welfare on the issue and I am sorry she is not here. Until 1983 there were no female appeals officers and I do not know if any have been appointed since. This is a very serious matter. It is not just a matter of balance of the sexes. It is important first, because of the greater number of female social welfare recipients in recent years and secondly because of the greater number of female social welfare recipients who tend to be involved in the appeals process. There is evidence of a higher degree of refusal of social welfare, particularly to married women, on the grounds of non-availability for work.
It is men who are taking the appeals decisions over such matters as women's availability for work and unmarried mothers' and deserted wives' claims. It is a classic case of men deciding how men's laws should affect women. I hope the present Minister will at least endeavour at that very limited level to redress that imbalance.
That fairly comprehensively covers the huge defects in the present appeals system. It would be wrong, incidentally, to treat the appeals system simply in the context of the number of appeals each year. This is part of the procedure of justice available to everybody who is dependent on social welfare. It therefore affects more people in this country than any other area of legislation. It is part of the values which underlie the social welfare system. It is not just a problem for those who appeal; it is a way of saying what we think of the whole of our population who depend on social welfare. I had to introduce this Bill because successive Governments, despite the submissions of voluntary organisations and the overwhelming legal arguments, failed to reform the system of social welfare appeals. This Bill is necessary because of the need for reform which I have outlined and also the need to recognise what I believe to be compelling legal judgments entered since 1952.
The Bill remedies the defects in the existing system which I have described. In doing so, it builds on existing law. In particular, it draws on the experience and structures of the Employment Appeals Tribunal and on the social welfare tribunals established in 1982. These social welfare tribunals have had limited testing under procedures related to payments to workers locked out in an industrial dispute. When it was introduced in the Seanad the Minister specifically told this House in relation to that particular social welfare tribunal system that it was uppermost in his mind to introduce a method of adjudication that was "fair and independent".
The system of tribunals introduced under my Bill is similar to that in the Social Welfare (No. 2) Act, 1982. This Act has not produced any major difficulties or problems — quite the opposite in fact. To be logical, anybody arguing against my Bill must also explain away the need for the 1982 appeals tribunal legislation which applied the principle that I suggest in my Bill to one limited area. Otherwise you are saying there are two different kinds of social welfare recipients, those who are entitled to a proper hearing and those who are not. I do not think in that context that we have many takers for the idea that we should abolish the whole system.
As I said, my Bill builds on existing legislation and adapts and amends what is there. To that extent it is a conservative piece of legislation. There is a minimum amount of repeal of existing law. My Bill is constructed on well-documented evidence and on detailed legal arguments. It extends the position of welfare claimants from one of limited access to limited administrative review to the rights inherent in citizenship in this country.
The need for an independent welfare appeals system was discussed in detail by the Commission on Social Welfare. This Bill provides the Minister with a real opportunity to begin to implement a significant component of the commission's report. None of the allegedly overwhelming arguments about the cost of some areas of the report of the Commission on Social Welfare applies in the least in this area. This is not a high cost undertaking. The cost attached to this element of the commission's report is quite low.
The Minister has been criticised for postponing decisions in the commission's report that would cost money. A reform of the system of social welfare appeals would provide real and tangible benefits to all claimants, extend rights, enhance citizenship and lead to a sense of justice in an administrative system. It would do so at little financial cost to the State and for substantial administrative gain.
What I detailed earlier in what I had to say, overwhelmingly states the case for reform in terms of the right of the claimant, of the perception of the claimant, of the status of the claimant, the right to know what is going on, the right to an independent hearing, the right to participate properly in that hearing and the right to be informed in detail about the decision taken on something as vital as a person's income. The only objection is that it will involve some small extra cost. But the small extra cost involved in setting up an independent process of social welfare appeals, covering the whole spectrum of social welfare, has to be balanced against how we deal with the people who are at the margin in social welfare and whose income depends on the decisions of the Department of Social Welfare.
How we deal with those people is a measure of our attitude to people on social welfare. Are they treated as small units conveniently disposed of by an administratively convenient system, or are they dealt with as people with all the need to have their dignity respected that the rest of us take for granted? None of us would be happy if major decisions about our lives were to be taken with that amount of limited information, with that amount of limited access to the evidence against us and with that amount of limited information why a decision was taken. We would not tolerate it. We should not tolerate it for people who are far less well off than ourselves and, therefore, I happily ask the House to give the Bill a second reading.
