First of all I should like to join with Senator McGuinness in welcoming the Minister to the House. We are extremely fortunate to have such a good Minister for Social Welfare. She has shown in that position all the characteristics which she showed previously as Minister for Education and as a very eminent Member of this House. Indeed, if I were to pick out members of the Cabinet who had more than justified their selection by the Taoiseach, I would certainly include the present Minister for Social Welfare as very close to the top of that list.
It is very easy, of course, to be a Minister for Social Welfare who promises everything and who seeks only to accentuate the positive aspects of that very important job. In a Department of this magnitude there are inevitably some policing roles to be done and there is a question of ensuring that the budget which is available and which is made available by the people of the State to people who are on social welfare is used in a constructive fashion, that the interests of the various interest groups are balanced properly and that an undue weight is not given to one section of the community over another section of the community.
In the recent controversies over social welfare I think insufficient attention was focused on the fact that the very difficult position which had been brought about in the Department of Social Welfare, as a result of circumstances outside the control of the Department, were very skillfully handled by the Minister to such extent that the political controversy was focused on a very small area indeed of the potential problem. It is an indication of the Minister's skill in that regard that in point of fact the political controversy was so narrowly based. I hope that the Minister will bring the same political skill to bear on this very difficult problem, which is presented to us in a very stark and a very effective way by the Private Members' Bill presented by Senator Ryan and supported by Senators Robb, Ross and McGuinness.
The attempt by Senator B. Ryan and the other Senators to bring this important matter to the forefront of public debate is to be welcomed. It represents a challenge to the Minister to respond positively to what is perceived to be an important and growing area of contention. The Minister now must realise that, as a result of this Bill and also as a result of the report of the Commission on Social Welfare, the question of appeals in social welfare matters has gone from the backburner to the top of the priority list in the question of social welfare reform. The Minister will be tempted to subscribe to a lot of the angry reaction from taxpayers about social welfare dodgers. It is important that in doing that — and I support the Minister in that regard — she should balance that argument and that policy thrust with a recognition of the fact that social welfare represents a very important instrument of social equality and she, as the Minister charged with defending that system, has an important duty to vindicate the rights of those people who are entitled to benefit from that social welfare system.
It is easy in the present economic climate to emphasise too strongly the savings which should be made on social welfare and the changes which should be made to avoid abuses. I think that these things obviously need to be done, but they need to be balanced by the application of the social welfare system to those people who are entitled to benefit thereunder in a way which is consistent and understandable to the lay person. There is a heavy responsibility on the Minister to respond to that need. I hope that the Minister, having heard the debate on this Private Members' Bill, will be in a position positively to respond at the end of the Second Stage to the needs which are highlighted by this Second Stage and to respond either by accepting the principle by accepting Second Stage or, alternatively, by indicating what alternative proposals she has to put before the House.
In considering a Bill like this there is a fairly substantial problem as far as I am concerned. I am 100 per cent in support of the Senators who are proposing this Bill in regard to the need for a change in the appeals system. However, I think the tribunal system which they are proposing to institute is very very deficient. I have some doubt as to whether it would stop me supporting the Bill on Second Stage. However, all my instincts are to support the Bill on Second Stage, and I may well decide to do that. I look forward to what the Minister has to say. I look forward to hearing what Senator B. Ryan, who proposed the Bill, has to say in reply to the various problems which I and other Senators have and will identify with regard to the operation of the system.
I should like to make a number of comments with regard to the present system. I have during the course of my career as a public representative — now fast coming to a close — the privilege of representing quite a number of people at appeal hearings dealing with social welfare matters. Therefore, my experience is to that extent first hand. My experience is aided and assisted by the reports which I had got from other people on the way they have been treated in appeal cases. I must say to the Minister in as straightforward a fashion as possible that I perceive a different response to those who go and represent themselves as compared with those who are represented by other people. I do not think that should be the case. Inevitably, if a person goes to the trouble of getting somebody else to represent them, whether that is a professional person or just an ex-friend, I suppose that there is a way in which it raises what would be otherwise a routine hearing for an appeals officer to a different level. The very fact that there is some class of organisation to the presentation of the appellant's case itself separates that particular appeal from the dozens of other appeals that are being processed at the same time. To a certain extent that explains why there are differences. However, it is a bit more fundamental than that.
The way in which I perceive the present appeal procedure to be deficient is as follows. I do not know what happens in other parts of the country; I can only speak about the part that I live in, and that is Cork. Overwhelmingly, the appeals that are held in the Cork area are held in the offices of the Department of Social Welfare. That is, in my opinion, a mistake. I have attended many appeal hearings in the building which is known as the labour exchange in Cork. There is nothing wrong with the labour exchange as a building; it is quite a reasonable building and it has a lot of people passing through it. But many of the people who are the subject of these appeal proceedings would have used this building in another context. They would associate it with a relationship between themselves and somebody behind the counter, which is, to say the very least of it, an unequal relationship.
The relationship between the person who walks into a labour exchange and the person behind the counter is unequal. It is unequal because the person who is actually behind the grill, the person who is on the other side of the counter, is vested with an authority out of all proportion to what rational analysis would accept as being reasonable. This phenomenon has been the subject of sociological study, that a person in a position of authority behind a grill or behind a counter in some way assumes an atmosphere or a status of dominance over a person who is seeking from that person a service which is damaging to their relationship. This applied even more so in the case of people who go to sign on at the labour exchange or to make other inquiries of that kind. Therefore, I think that this whole system, as I know it in my part of the country, is founded upon a relationship between the person receiving the service and the person giving the service, a relationship which is unequal. There is, of necessity, a sense of arbitrary justice in a way in which the person at a labour exchange deals with the people who come to him or her. I am not blaming them; that is reality. They are dealing with a large number of people, they must make quick decisions and they cannot afford the time for social intercourse while they are making their decisions or while getting people to sign the documents on a routine basis. But I think it is important to establish what actually happens inside there.
When a person falls foul of the system and that person is disqualified from receiving benefit, the same person who may be using this building for signing on on a weekly basis is actually called to an appeal hearing in the same building. I think it is very hard in the mind of that person to separate the unequal relationship which they have with those who work in the building from the new type of relationship which should exist between an appeals officer and a person who is making an appeal before him.
This sense in which the appellant feels that the appeals officer is in fact just another deciding officer is reinforced by the fact that very often — I think it is commented on in the report of the Commission on Social Welfare — the deciding officers are not present. In other words, the judge also appears to be the prosecutor, and I do not think that is a good system. I know there are very good reasons sometimes why deciding officers cannot be present, but I think some system should be devised whereby it would not be just the appellant and what he perceives to be another officer of the social welfare, a mere higher level administrative review of the administrative decision which has already been taken. What is necessary is that the person should perceive the review to be completely independent, and this is why I agree with so much of the thrust of the proposed legislation. It is very important that the person would be satisfied in their own mind that the decision is being taken by a person who is truly independent. That is not to offer any criticism whatsoever of the people who at present are operating the system, because this is an area in which fine judgments have to be made. It is an area of considerable importance to those who are the subject matter of the appeals, but it is also an area in which they must feel that justice is being done. It is very important that they would be satisfied that justice is being done to their case.
The other reason I feel that these appeals procedures are deficient is because very often when the original decision is taken by the deciding officer he is under no obligation to adequately explain to the person why he is taking a particular decision. In some cases that might not be very important, but there was last year a wide-ranging controversy in the rural parts of this country concerning the decisions of deciding officers. The Minister will be aware of the changes that were brought about as a result of the Finance Act, 1984, whereby smallholders were to be reassessed on some kind of a notional basis in respect of their holdings to determine whether they were going to continue to be eligible for unemployment assistance or for what is generally known as the farmer's dole. In order that that was done, what happened was that, having given due notice, officers attended at the premises of the smallholder and assessed to the best of their ability what the income of the smallholder should have been from the holding — I am not quite sure whether it is what it should have been or what it actually was, I think it is what it was. As a result of that they applied this scale and said that if it was over £45, £46 or £50 a week, depending on whether the person was single or not — that figure is not to be taken as accurate — but if it was over a certain amount the person was not entitled to any social welfare. They lost the unemployment asistance which they had been previously entitled to. It must be said that in most of these cases they got the decision right. Officers were sensible people and assessed the holdings sensibly. But, of course, in every case, whether they got the decision right or wrong, where it meant a reduction in the amount of unemployment assistance which a person was receiving, that person felt aggrieved.
There was a normal appeals procedure. The big controversy preceded the present Minister for Social Welfare, but she will be aware that the type of information which was given to the smallholders was: "Your income for the past year is estimated to be £5,257 and you are, therefore, ineligible." The reality of the situation was that, in order to arrive at an assessment, there was a certain procedure to be gone through. A person's gross income had to be taken. He was given allowances for running a motor car, if it was necessary for his business, and all the various other things which were necessary expenses in the running of his business or her business. At the end of the day a figure was arrived at. Very many Members of this House and the Dáil, on being consulted by these people and being asked to represent them at the appeal proceedings or at least to prepare a document which would support their case, asked the question: "How was this figure of £5,000 calculated?" The important thing is that the figure of £5,000, or whatever the amount he decided the income was, had to be calculated according to a particular formula and it was necessary for the social welfare officer, in deciding what the person's income was, to actually go through a step by step procedure and to write it down on a sheet of paper which he then kept secret. As a result of that the person was disqualified or reduced in their entitlement. As a result of the officer deciding, for example, that the person had sold five cattle during the year or sold four cattle or that his veterinary expenses were £100 instead of £150 or £150 instead of £100 and the various other decisions that they make, the person was disqualified or reduced in his or her entitlement. The simple request of the public representatives was that, when a decision like that was being taken you should be told what the basis of the £5,000 net income was.
This applies not only to the rural area; it applies to other means-tested benefits as well. I think that it should be the entitlement of every person who is the subject of a means-tested decision to be given a copy of all the information and back-up which forms part of that decision. The mere fact of indicating to the person that he has exceeded the income is quite inadequate for allowing them the opportunity to actually appeal in a meaningful fashion as distinct from appealing in a kind of — I could not describe it as anything more — gombeen-cap touching sort of way. That is the other reason I think that many of the appeals represent a kind of unequal struggle. Very often the appellant is not given sufficient information on which to make a rational appeal. It is a very important part of the process that there would be built up a system whereby an automatic quantity of information would be made available to the appellant which would form the basis of the appeal.
I am conscious of what was said in the report of the Commission on Taxation about the small number of appeals and so on, but I am also conscious of the fact that, of the 17,000 appeals which were considered in the report in 1985, a substantial number of them were reversed on appeal. This says something for the independence of the appeals officers. It also says something for either the deficiency of the information on which the original decision was made or, alternatively, on the inaccuracy of the decision which was arrived at if the full information was available. I suspect — and this is borne out by a number of comments, including the comments from the Commission on Social Welfare — that many of the successful appellants are those who overcome the system and supply additional information. It is not a different decision is made on the same facts, but that a different decision is made on facts that are more favourable to the appellant.
Any appeal system which replaces the present one must take into account that very often inadequate information is available at an early stage. If there is to be an appeal ab initio, if there is to be a rehearing, as is the intention of everybody, it is important that, the preliminary administrative type decisions having been taken, the maximum amount of information be made available to the appellant in order to see what case he is meeting.
What should we aim at as being an appropriate system? What we should not aim for is a mini-court. This is not right. The idea of going into what is almost like a court room situation, while it might be fair, it is off-putting as far as the appellants are concerned. They are going to run a mile from it. The swearing, opening statements and cross-examination and formalities of that sort are doing precisely the reverse of what we are being told is so important in another area of our developing legal system, which is the area of family law. In the area of family law, where personal matters are involved, we are being told that informality rather than formality is to be the kernel of what we should be aiming for. The same applies in this respect. Section 8 (2) states:
(2) Without prejudice to any provisions of this Act, at the hearing of an appeal before the Appeals Tribunal an appellant or, with the exception of paragraph (c), his representative may——
(a) make an opening statement,
(b) cross-examine any witness called on behalf of any other party,
(c) give evidence on his own behalf,
(d) address the Appeals Tribunal at the close of evidence
To lay that down in statute is to invite the creation of a kind of an employment appeals tribunal situation. I practice before the Employment Appeals Tribunal, which is an important body. There is a case to be made that the Employment Appeals Tribunal has become too structured, that it is not in touch with the ordinary people who are appealing before it and that it has become the preserve of lawyers and professional trade union representatives who are indistinguishable from lawyers once they get some practice — you could walk in and listen to one and wonder what firm he represents, you may think that it was Arthur Cox and Company. Therefore, that is a defect in the Bill. However, it is not the most serious defect.
The most serious defect in the Bill is the elaborative, administrative procedure which it proposes to set up — the establishment of what it calls a social welfare appeals tribunal. What it appears to do is to set up a system whereby mini-courts will be spread throughout the country and will function on a fairly structured basis.
I suggest that the Minister might consider, during the course of her examination of this problem, the successful system which has operated vis-á-vis the Revenue Commissioners and the appeal commissioners, whereby the latter are an independent body, which is important and I support that concept in the Bill 100 per cent. The appeal commissioners are slightly different from what is in the Bill. I must explain that appeal commissioners are completely independent of the Revenue Commissions; they operate and control their own workload except in one significant area, and I think that is changing as well. They decide and arbitrate on a vast number of cases. This is the crucial element wherein the proposals of Senator B. Ryan will come up a cropper. There are 17,000 cases to be dealt with each year. You cannot do this in a Perry Mason courtroom situation; it is not possible. Therefore, you have to try to create a situation which will have the potential for formality in cases where it is necessary and will retain the simplicity which is an essential part of processing claims fairly quickly.
I recommend that the Minister look at the appeal commissioners' system whereby they go around the country and appear on their own but where there is a provision whereby they can appear in twos or in threes in important cases. They normally sit in such cases where there is an important point of principle to be decided as a result of a preliminary hearing. However, with regard to the ordinary routine appeal matters which come before them, they sit on their own with a minimum of formality. They permit legal representatives and other representatives to attend; but, as a matter of practice, it does not take place except where there is a particular reason for it. This system works. They process a lot of appeals. This kind of system works well rather than a three-man or three-woman system, which is a recipe for disaster, because the length of time which it will take three people to hear an appeal will be a lot more than three times the length of time it will take a person on his own to hear it.
While recognising the necessity for leaving the possibility of more than one appeals officer hearing a case, the Minister should seriously consider an appeals system operated under an independent body. I do not care whether it is directly responsible to the Minister or to another Minister, or to the Minister for Finance. I do not care whom it is responsible to, but it should be sufficiently independent of the other decision-making process. It is important that they should hold their hearings in places which are not associated with the administrative functions of the Department of Social Welfare. They are very important criteria. Separate buildings, separate people but only one of them with the possibility of doubling or trebling up in particular cases where there is an important point of principle to be decided. The other crucial fact is that people should be given as much information as possible about the reasons decisions are being taken refusing them or limiting them in some way in the benefits for which they have applied.
I am anxious to hear what the Minister has to say. I am also anxious to hear what Senator Brendan Ryan has to say in reply. The issue is very important. The Bill is very timely and it is very important that the Minister should respond to it in a positive manner either by adopting this Bill with modifications — it could not possibly be adopted without modifications — or, alternatively introducing at an early stage her own legislation to grapple with this important administrative problem which has such a far reaching effect on the relationship between the most vulnerable member of the community and the State. I can think of no Minister in the Government, with the possible exception of the Taoiseach, who is more suitable for tackling this problem than the Minister herself and I wish her well in that regard.
