Social Welfare (Appeals Tribunals) Bill, 1986: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

On a point of order before Senator McDonald resumes on this Private Members' Bill put forward by Senator Brendan Ryan, I would like to refer to the very unusual context in which this Bill has been ordered today. I do so on a point of order because I was distressed to see that the Minister caused a letter to be published in the national newspapers by her public relations officer which implied that it would be normal that this Bill would be resumed for debate today and that Senator Brendan Ryan, in publicising the manner in which the debate had taken place on the two occasions on which it had been ordered for Private Members' Time, was somehow misleading the public. I would like to defend Senator Brendan Ryan and indeed to compliment him on having made a sufficient fuss about the very deplorable way in which the Minister failed to come in on the debate when it was ordered for Private Members' Time, which would normally have meant that it would not be re-ordered during the lifetime of this Government. I supported Senator Ryan in the House on the occasion when we sought to have the Minister come in on the Bill in the normal way. I congratulate him on having made — and properly made — a sufficient fuss to have so embarrassed the Minister that she has caused this Bill to be specially ordered for debate today. It was wrong of her——

On a point of order——

On a point of order——

It is clear that this is specially ordered. Private Members' Time was not taken yesterday. A Fianna Fáil motion that would have been taken yesterday was not. I do not believe this is normal. I welcome the fact that the Minister has been so embarrassed. I welcome the fact that we are having this debate, but it is not normal.

Acting Chairman

I am sorry, Senator, I have to call on Senator Dooge.

I want to make it clear, in the most emphatic terms possible, that the decision that an hour should be given to this Bill at an early time in the New Year was agreed between me and the Minister before the appearance of any letter from Senator Brendan Ryan.

On a point of order instead of defending Senator Brendan Ryan, I should like to attack him, but for me to do so would be as out of order as it was for Senator Robinson to defend him, so I shall not.

I would like very briefly to conclude the remarks I was making on the last day by way of saying that those of us in public life who are in day to day contact with the Minister's huge Department find very often that there is a certain amount of frustration in the way decisions are handed down by the deciding officer. Reading sections 3, 4 and 5 of the Social Welfare (Appeals Tribunals) Bill as sponsored by Senators Brendan Ryan, Robb, Ross and McGuinness, I cannot but give a certain amount of support to them. The only reservation I would have is that the volume of appeals is so great that the very fact of putting them through a system of appeals tribunal could very well tend to slow them down unless we had a tribunal in each and every county; perhaps that would be possible.

Another difficulty that one daily comes across is the inability of many applicants to put forward the case in their own favour — to make their own case sufficiently succinctly and well to gain for them in justice what very often politicians feel they are entitled to. I am confident that the Minister, in considering improvements to this portion of the administration of social welfare will consider improving the present situation. I know that the Department of Social Welfare and the officials do a tremendous job, but any legislation dealing with social welfare is of tremendous importance, not so much by virtue of the fact of its being social welfare, but that it is now the biggest spending Department in the State. There are so many thousands of people depending on it. I hope the Department and the Minister will examine this area to see what further improvements can be made in the administration of this very important part of the public service.

I am delighted to have the opportunity this afternoon to make a contribution on this Social Welfare (Appeals Tribunals) Bill introduced by Senator Brendan Ryan. It is unfortunate that statements have been made in the press and elsewhere which allege reluctance on my part to make a contribution to this debate. It is important that I should assure Senators and, in particular, Senators Ryan and Robinson that I am not at all reluctant to make that contribution — far from it. I was sorry to hear Senator Robinson speak as she did here just a few moments ago. I would have preferred if she had established the facts as set out by Senator Dooge before she had spoken, because it is uncharacteristic of Senator Robinson to be so ill-prepared as to present an outburst of that kind.

I would make the point that I do not have a public relations officer. The press officer of the Department of Social Welfare answered some letters in the newspaper which had made an attack on me arising out of the last time that this subject arose in the Seanad. He felt it was necessary to do so to put the record straight. An interesting aspect of that was that the same letter from the Senator appeared in the local newspaper of my own constituency for some reason.

On a point of order, does——

I will continue to speak about this Bill.

On the point, because I think it is relevant——

Because Senators wished to participate in the debate, there was not sufficient time for me to speak on the last occasion. I want to assure the House that I am not going through the motions here. As a former Senator myself, I am very conscious——

I am just making the case——

I am asking Senator Robinson to resume her seat, please.

The point I want to make is that Senator Ryan says he did not know about the ordering of the business. It is so unusual that he could not have known about it.

It has been agreed in the House. There is nothing I can do about it.

Senator Ryan could not have known and that is what made me so angry. I am not normally intemperate. I really do not think I am being unfair to the Minister. It was unjustified.

Senator Ryan was given an assurance by me that every effort would be made. He made no inquiry of me.

The Leader of the House is out of order. Would the Minister continue, please? I shall adjourn the House if I do not get order.

I have been accused of various things here.

If Senator Ryan does not resume his seat, I shall adjourn the House. Please resume your seat. You are completely out of order.

I have a right to reply.

I have ruled two other people out of order.

At the moment, in the Department of Social Welfare we are in the throes of examining the report of the Commission on Social Welfare who have recommended a number of major changes in the social welfare system, not least in the social welfare appeals system. There is, undoubtedly, a need to review the operation of the system and to see how it can be adapted to meet the circumstances of today. This debate gives us the opportunity to discuss the form these changes should take and, in particular, whether the system put forward by Senator Ryan is the best one.

I welcome the opportunity which this debate has given to hear the views of Senators on the system and to set out my impressions and views on the existing system and how I see it developing in the future. I also notice that in Senator Ryan's opening remarks on this Bill he expressed the hope that the introduction of the Bill would evoke a response, stimulate consideration of the issue and, perhaps, increase the priority given to it in the Department of Social Welfare. Judging by the contributions to the debate in this House so far, Senator Ryan can feel confident that he has already achieved some of his objectives and I can assure him of my concern and my Department's concern also in this matter.

I have been following with great interest the debate so far and I would like to assure Senators that all the points that are being raised will be carefully considered. Let me emphasise this: I am totally committed to ensuring that we have the best possible decision and appeal mechanisms so that we can be confident that our decisions on entitlements under the social welfare system are fair and correct and are seen to be so. There are, undoubtedly, deficiencies in the present system and I would not attempt to deny this. I think, however, that we must look at the present system in an objective way and examine its strengths as well as its weaknesses before we draw a definite conclusion as to the changes which need to be made.

It is necessary to consider first the whole decision and appeals procedures that operate in the Department of Social Welfare and to put them into context. It is a fundamental aspect of our social security system and one which up to now has not got the attention it deserves. The central issue, of course, is how to maintain the balance between achieving effectiveness and efficiency in the administration while at the same time protecting the rights, constitutional and legal, of the clients.

As any public representative knows the social welfare system is highly complex and highly legalistic. There are about 30 different social welfare schemes each with its own set of rules, regulations and conditions. Obviously, there are some basic ground rules but because the system developed in a piecemeal fashion, responding to particular needs identified at certain times, we have a compartmentalised system that results in the myriad of conditions that have to be satisfied. When one looks back at the development of the social welfare system it is easy to understand how this has happened; the real challenge lies in deciding how best to develop this patchwork system.

The Commission on Social Welfare recognised this and made a number of fundamental recommendations which would assist in rationalising and streamlining the social welfare system and, as I have said, these recommendations are under consideration. One result of the complexity of the present system is that it creates difficulties for the clients of the system who may find it difficult to establish their rights, for the administrators who must ensure that their actions are legal and fair and, indeed for us, the legislators, who must continually be seeking ways of improving the system so that it continues to meet the changing needs of the community which it is there to serve.

Each year my Department receive over 1.2 million claims to social welfare payments and benefits of one kind or another. This represents some 24,000 claims per week on which decisions have to be made. However, this is not the whole picture; cases are constantly being reviewed to reflect changing circumstances or to establish whether a person's situation has changed since the original decision in his or her case. Each of these has to be processed. This may include examining a person's record of social insurance contributions, assessing means, establishing dates of birth, domestic situation and so on.

Basically there are two types of social welfare payments — one based on insurance records and the other based on means. By far the majority — over 70 per cent — of claims received are for benefits based on social insurance records. In these cases the person must satisfy what are called contribution conditions, that is, he or she must have paid so many social insurance contributions over a certain period, and also other conditions specific to the particular pension or benefit. For instance, in the case of an old age pension the person must have reached pension age or, in the case of disability benefit, must be incapable of work. In most cases the issues relating to contributions can be established fairly readily. My Department maintain, for each insured person, a record of contributions paid over the years. Since 1981 this information has been held on computer systems and this has significantly improved the efficiency of the system. The number of contributions paid is a matter of fact that can be quite easily determined in the vast bulk of cases and only occasionally does a dispute arise on this matter.

The main area of contention relates to specific conditions that a person must satisfy under particular schemes. These conditions are quite specific — it is, however, in trying to establish that these conditions are fulfilled that most difficulties arise. For instance, to get an unemployment payment a person must, apart from satisfying a contribution test or a means test, also be both available for work and genuinely seeking work. To be entitled to a deserted wife's benefit or allowance a woman must be deserted. In areas like this we must be particularly careful to ensure that our decision-making processes are adequate and that adequate arrangements exist for the redress of any grievance which clients of the system may have.

It is the practice in most countries to provide a formal system of administrative decision making and some formal avenue of redress for a citizen who feels aggrieved by an administrative decision. In Ireland the normal procedure is for Ministers to be held personally responsible for decisions. More recently, of course, we had the creation of the Office of the Ombudsman and this provides people with a mechanism to ensure that the laws are being applied correctly and fairly. Decisions and appeals in the social welfare area are an exception to the general position in relation to ministerial responsibility. In this area there is formal delegation to decide issues to officers who are appointed by the Minister under the legislation. As most Senators will be aware a similar situation applies in relation to the inspectors of taxes. Our Constitution recognises the need for these types of situations.

Article 37 of the Constitution lays down that any person or body of persons duly authorised by law may exercise limited functions and powers of a judicial nature, in matters other than criminal matters, notwithstanding that such body of persons is not a judge or a court appointed or established as such under the Constitution.

The complexity of modern social legislation has meant that Article 37 has been utilised in a large number of fields by the setting up of what are known as "administrative tribunals". These can take the form of departmental tribunals where an Act vests the power to settle disputes between the applicant and the administration in the hands of a designated officer. The best example of this type of tribunal is the decision making system we are discussing today; where both the original decision and the appeal are decided by officers of the Department of Social Welfare.

Despite appearances, and this is something I intend returning to later, this does not mean that the machinery is merely an adjunct of the administrative process or that these designated officers are no more than civil servants carrying out the wishes of their Minister. The Supreme Court has made this very clear. In the often cited case ofMcLoughlin v. Minister for Social Welfare nearly 30 years ago the Supreme Court laid down that the appeals officers and deciding officers under the Social Welfare Act are required to be free and unrestricted by ministerial control in discharging their functions under the Act.

The distinguishing features of the present system are that it is a quasijudicial process which involves, as I have said, the concept of legal entitlement together with discretionary elements. All claims and questions relating to the various benefits, assistance and pensions that are administered by my Department as well as questions as to the insurability of employment are decided by deciding officers who are statutorily appointed by the Minister for Social Welfare and hold this position for as long as the Minister thinks fit. This is a very formal process. Section 295 of the Social Welfare (Consolidation) Act, 1981, contains the relevant provision.

In determining entitlement to a benefit, pension or allowance a deciding officer or an appeals officer is expected to make every inquiry necessary to satisfy himself that the relevant conditions for entitlement are satisfied or not satisfied as the case may be. He must ensure basic fairness of procedure to the citizen. There is in our Constitution an implied guarantee to this effect. The officers must also be satisfied that the conditions for receiving benefit are fulfilled. The responsibility has been placed on them by the legislation and they are responsible for the correctness of their decisions — this applies as much in cases where payments are awarded as it does where claims are rejected.

Reference was made in the debate previously and at some length by Senator Ferris, to the process of decision making in relation to disability benefit and I would like to refer to this. Disability benefit is paid, in the first instance, to qualified persons who are certified as being incapable of work due to medical incapacity by their own doctor. Obviously deciding officers cannot, on their own, make a judgment as to a person's unfitness for work and their decision must have regard to the medical evidence. In the administration of this scheme medical supervision by the Department's own doctors is also necessary to ensure that only persons who are genuinely ill and incapable of work are paid benefit. Accordingly, it is the practice to refer claimants for examination by the Department's medical referees. The medical referee system was introduced following consultation with representatives of the medical profession and I believe the system has proved to be effective in-combating abuse, that system has stood the test of time.

Where a medical referee finds a person capable of work it is normal practice to discontinue payment of benefit. Senator Ferris is not happy with this practice in the case where the person appeals but, in practical terms, I do not think there is any reasonable alternative. Otherwise, any person who is disallowed would automatically appeal whether or not he had any grounds for such an appeal. We have a duty to exercise an adequate degree of control of the system of disability benefit payments. If the person concerned appeals against the decision, a further medical opinion is sought from a different medical referee who also examines the appellant. If the second medical referee is of the opinion that the person is incapable of work, benefit is normally restored by the deciding officer from the date on which it was originally discontinued. Otherwise, the case is submitted to an appeals officer for determination.

In all cases where a claimant is summoned to attend a medical referee examination, the claimant's own doctor is advised of the proposed examination and invited to submit an appropriate medical report. I might add here that a report is only, in fact, received in a small number of cases. The medical referee will take such a report into account when arriving at his or her opinion of the case. Furthermore, the claimant's own doctor is invited to the examination if he or she so wishes. Again, this offer is very infrequently taken up.

Where additional medical evidence is submitted by or on behalf of a claimant, for example, a specialist report, it too will be fully taken into account by the medical referee. There is no question that reports of this type are ignored as has been suggested. People are entitled to submit whatever evidence they consider worthwhile in support of their claim and this will be fully considered. Where a medical referee feels that further medical information is needed he or she will arrange for it to be supplied.

Senator Ferris referred to a particular disability benefit appeal case which took over two years to complete because of difficulty in establishing the medical evidence of incapacity for work. This, of course, would be very exceptional and I imagine that no matter what type of appeal structure or system we adopt there would always be a possibility of lengthy delays in the odd case where difficult medical determinations have to be made.

It is inevitable that a control system such as the medical referee one will attract a certain amount of unfavourable mention. People do not like being knocked off benefit. It is difficult, however, to see how you could replace it with any better procedure that would do the required job as efficiently or as effectively. The medical referees are carefully chosen for their work and are professionally committed to doing a fair and non-biased job. I am satisfied that every medical referee opinion is given following an appropriate medical examination and in the light of all medical evidence available to the medical referee such as the GP's report and any specialist reports, X-rays etc., that are relevant.

I should, perhaps, also say a few words about means testing as this is another area which was mentioned as one where difficulties can arise. The means test is a mechanism for channelling scarce resources to those in need; those with nothing receive the maximum rate of payment and those whose circumstances are better need, and receive, less assistance. The net result of the means tests is, generally, to enable payments to be made according to need. Thus, the payment a social assistance beneficiary receives and his means, if any, from other sources, when added together, will give a standard of living on a par with that of other beneficiaries whose family circumstances for example, family size are similar.

Before a decision is taken on individual cases involving means, a social welfare officer interviews the person for the purpose of determining entitlement to, and the appropriate weekly rate of, the social assistance payment. The officer obtains information on all items which, under the statutory provisions relating to a particular scheme, must be taken into account.

The principal items which constitute means under the various social assistance schemes are, cash income, net income from farming in the case of farmers, value of other property, investments and capital. The value of a claimant's home is not included in the assessment. In the case of certain schemes for example, unemployment assistance, single women's allowance, rent allowance, the value of any benefit or privilege, such as board and lodging, is also taken into account as means.

Based on the information reported by the social welfare officer and any other relevant information the deciding officer decides on the person's entitlement in accordance with the legislation. If a person's claim is rejected he or she is informed of the basis of the decision.

The actual form of notification of deciding officers' decisions, particularly where these decisions are unfavourable, is obviously of crucial importance and Senator Ryan in his Bill proposes that certain requirements be set out in legislation in this area. Perhaps I should outline briefly, therefore, what happens at present in the generality of cases. When a decision is made on a person's claim the person is notified by way of a standard letter. There are different types of letters issued for different decisions, for example, where a person is awarded a full payment, reduced payment, or where a person's claim is rejected or where the person's existing payment is reduced or increased. These letters give the broad reason including the statutory provision on which the decision is based. For example, where a person is refused benefit the decision will normally list all of the qualifying conditions and those conditions which are not satisfied are indicated.

Where a person is refused benefit or receives a reduced payment, he is notified of his/her right to appeal the decision. This notification is highlighted on the form and the person is told that if he/she is not satisfied with the decision they may appeal against it by writing to the Department within 21 days. In cases where means assessment are involved the amount of means assessed is notified. In those cases where means are derived from a land and where the income and expenditure must be itemised, it is now normal practice for the person to be given a copy of the actual report of the social welfare officer which details how all income and expenses of the holding are determined. This procedure has meant extra work for social welfare officers and deciding officers and has, undoubtedly, meant that they must be very particular in making their assessments. Nevertheless, it has clearly helped to remove much of the mystery which surrounded means assessments in the past and is an area where the benefits outweigh the costs.

The whole area of notification to the public by the Department is an area where procedures are constantly being reviewed and revised and I fully accept that it is an area where further improvements are needed. My Department are conscious of the need to improve communications with members of the public.

When a person appeals a decision the deciding officer may, at that stage, reinvestigate the claim if any new relevant facts or evidence come to light, for example, where a claimant for a contributory pension is refused pension because of insufficient contributions and appeals on the grounds that he feels that he has the appropriate contributions, the deciding officer can reinvestigate the claim, because of the new information, to try and determine if there were further contributions. Only if the matter was still in dispute following this investigation would the appeal be forwarded to the chief appeals officer. The deciding officer sends with it a statement showing to what extent the facts and contentions put forward by the appellant are admitted or disputed. All documentary evidence furnished by the appellant is also forwarded to the chief appeals officer, who will normally refer the case to an appeals officer.

The decision-making system has been in operation for many years and it has, I believe, served us well. There is, of course, always room for improvement in our systems, be they clerical or computer, in our dealings with members of the public and, indeed, in the manner in which information and the extent of the information is conveyed to the public. A number of improvements have been made over the years and I have touched on some of these earlier. It is an area that is constantly being reviewed and revised. Procedures are already in place in most of the areas highlighted by Senator Ryan in his Bill in relation to the decision-making process. Persons are notified promptly as soon as decisions on their claims are made. They are notified of their right to appeal if dissatisfied with the decision and there is an information leaflet which sets out in reasonable detail the whole appeals process, including I might add, the fact that the person may be accompanied at the appeal hearing by another person.

I am not satisfied that the procedures proposed in the Bill in relation to the decision-making process would not over-complicate and be a cause of delay. As I said at the outset, a balance must be struck between maintaining efficiency and effectiveness in the administration process and ensuring that people are treated in a fair and equitable manner. I realise there is room for improvement and I am satisfied that the reviews and the modernisation of systems that are taking place in my Department will help make the process more efficient while at the same time ensuring that people continue to be treated in a fair and humane way.

I would now like to turn to the appeals system itself and begin by giving a brief outline of the existing system. Existing legislation provides for the appointment of appeals officers from officers of the Department to decide appeals against the decisions of deciding officers. Appeals officers are of a senior grade and would normally have served for many years in the Department. Normally in the course of their career they would have had direct experience of administering social welfare schemes and they are selected with the aim of ensuring that they have extensive and detailed knowledge of the system. I am pleased that in the criticisms which Senators have made of the appeals system in this debate, they have been very careful to place on record that these criticisms in no way reflect on the calibre of individual appeals officers.

On average each year about 18,000 appeals are decided. Well over half of these not surprisingly involve entitlement to unemployment payments. An appeals officer has power to decide cases summarily and in recent years up to 60 per cent of cases have been determined in this way. The balance are heard orally and appeals officers have wide powers to summon papers and persons, to take evidence on oath and to award costs and expenses. Their decisions are final and conclusive unless appealed to the High Court on questions of law. An appeals officer may revise an appeals decision in the light of new facts or evidence and the chief appeals officer may revise an appeals officer's decision if there is a mistake of law or facts.

I would like at this point to refer to the important role of the chief appeals officer in the whole appeals system. The person appointed is usually a senior principal officer in my Department and as chief appeals officer is responsible for the distribution and prompt consideration of appeals. By virtue of the fact that he is empowered to revise decisions if there is a mistake of law or of fact, he also contributes to ensuring that the decisions arrived at are fair and consistent.

Appeals hearings are kept as informal as possible. Appeals officers endeavour to create an atmosphere that will not inhibit or intimidate the appellant but will enable him or her to provide all the information in relation to the case that the appeals officer needs to know to enable a correct decision to be arrived at. Appellants may be accompanied by a member of the family or by a solicitor or, with the consent of the appeals officer, by any other person. In practice appeals officers allow any bona fide person to accompany appellants that they require to speak on their behalf and who is genuinely interested in the case.

When appeals relating to unemployment benefit and assistance are being heard, other than cases involving questions relating to contribution conditions or means tests, assessors representing employer and employee interests are asked to sit with the appeals officer. Panels of assessors are appointed in the centres throughout the country where oral hearings are held. Their function is to assist the appeals officer through their experience and local knowledge in arriving at decisions. In appeals where medical assessment is a determining factor independent medical assessors are appointed where necessary.

The outcome of the whole appeals process, of course, is decisions on individual claims and a good appeals system will above all produce decisions which are fair to the individual appellants and fair — I must say this — to the taxpayer in being in accordance with the legislation under which the various benefits are provided. Senator Brendan Ryan quoted certain figures in relation to the rate of reversal of decisions on appeals — 39 per cent on unemployment benefit, 46 per cent on unemployment assistance and 23 per cent on disability benefit and he quoted Professor Robert Clark in his article inThe Irish Jurist, to the effect that reversal rates of this sort

... indicate that the quality of first instance decision making is unsatisfactory.

I am not satisfied that we can draw conclusions of this kind from the figures quoted. The Commission on Social Welfare put their own interpretation on the figures and, perhaps, I can quote what the commission said in this regard:—

The level of reversal of the deciding officer's decision is relatively high, ranging from one-third to almost half. The complexity of the conditions governing eligibility for the deserted wife's scheme may account for the high proportion of appeals upheld for those schemes. There is a general difficulty in interpreting these figures. They may not indicate that the original decision was wrong but that new information subsequently came to light. They would also appear to indicate that the appeals officers' decisions are, in fact, made on an independent and impartial basis. Furthermore, there is a consistent approach at the first tier of decision making as evidenced by the fact that a relatively small number of claimants appeal the decisions in their case. In 1985 for example there were approximately 1.2 million claims for all schemes while the number of appeals in that year was 17, 228, representing 1.4 of the total.

I think that this is a very good and balanced analysis of what happens and it sets the figures in their proper context, that is in the context of the whole social welfare decision-making process.

A number of criticisms of the appeals system have been made in this debate, many of which were also made to the Commission on Social Welfare. The criticisms can be divided into two broad categories — those which concern the existing procedures and whether they offend against principles of justice such as openness, fairness and impartiality and, secondly, those which are concerned with the independence of the system and, in particular, the perception that its ties with the Department undermine that independence.

One of the more significant criticisms levelled at the appeals procedures concerns the fact that there is no right to an oral hearing. There have been suggestions that if cases are decided summarily that this, in some way, denies or reduces a person's rights. I do not accept this point. Appeals are only decided summarily if they involve straighforward questions of fact. Senator Brendan Ryan in his speech stated that it emerged from the Commission on Social Welfare report 1986 that up to 60 per cent of appeals are dismissed summarily.

In fact, the report did not state that they were dismissed summarily and the exact reference in that report is that

The Appeals Officer has power to decide the case summarily, if he feels that it can be properly determined without an oral hearing, and about 60 per cent are determined in this way.

Determining a case summarily does not automatically result in it being dismissed and, although no exact figures are available for these cases, it is estimated that in about a third the original decisions are in fact reversed, mainly as a result of new information provided by the appellant to the appeals officer.

In dealing with this matter Senator Brendan Ryan also considered that it was worth quoting the following from the Department's own leaflet on the appeals system:

If any Appeals Officer feels an oral hearing is necessary, a place and date are set as soon as possible.

It would have been more helpful, however, if he had also quoted the paragraph immediately preceding that sentence which would have put it in context and clearly explained why oral hearings are not held in certain cases. The paragraph reads as follows:

If the Appeals Officer considers that he has enough information to decide an appeal, he will make his decision without an oral hearing. For example, if the claimant does not have enough contributions to qualify for payment, or if he/she does not satisfy a means test, an oral hearing may not be necessary. Otherwise the Appeals Officer will arrange to hold an oral hearing of the appeal.

This clearly illustrates what the actual position is — that appeals are only dealt with summarily when they involve straightforward questions of fact relating, for example, to means tests and contribution conditions. Appeals officers when they receive an appeal, if the information to hand is insufficient, do seek whatever additional information is required. In the case of means tests which form the vast bulk of these cases, they will, if necessary, ask a social welfare officer to reinvestigate the appellant's means. If an appeals officer remains unclear as to the factual position, or if there is a conflict of evidence, or if it is felt that the appellant would benefit from explaining the factual position orally, an appeals hearing will be arranged. However, where this is not the case and where an appeals officer is satisfied that he has obtained all the information required to arrive at a decision, holding an oral hearing would serve no purpose and would be a waste of time and resources. Moreover, in cases where the original decision would clearly be upheld on the basis of the facts of the case, it would hold out unrealistic hopes to the appellant.

It is the experience of my Department over the years that many persons who are disappointed with the decisions on their claims and appeal those decisions do not clearly distinguish between the actual provisions of the law on which the decision is based and its application. People may in fact feel that by appealing a decision they may succeed in having the decision is based and its appealing rules bent or set aside because of what they consider are the special circumstances of their case. Giving appellants an automatic right to an oral hearing in cases where the factual position regarding their claim is clear to the appeals officer and no further clarification of that position can be gained from such a hearing could merely serve to mislead appellants into considering that despite the factual position there might be some possibility of having the decision reversed.

I agree, however, that if the factual position was explained in more detail both when the claimant is notified of the original decision and if he or she appeals when the outcome of the appeal is notified that this could lessen the dissatisfaction there is with my Department's decision-making and appeals procedures. As I have stated earlier, significant improvements in this regard have already been made and improvements will continue to be made in this area as resources permit.

Another series of criticisms of the appeals system concerns the actual conduct of appeals hearings and in particular the fact that very few applicants are legally represented. Applicants, of course, have the right to be legally represented at appeals and the appeals officer is empowered to award a fee to lawyers or other professional persons appearing on behalf of appellants. However, in the vast majority of appeals, no significant legal expertise is required to determine what is at issue and I consider that this explains to a great extent why very few appellants are legally represented. This also raises questions about the British study referred to by Senator Ryan and whether in the study they were comparing like with like. In any case, as the Commission on Social Welfare found, the reversal rates under the Irish appeals system range from one-third to almost one-half, roughly the same proportion as for those referred to in the British study in which there was legal representation. As the majority of appellants are not legally represented in Ireland one could conclude that it is highly questionable whether legal representation in most appeals cases is as necessary as claimed. In fact, the experience of my Department is that lawyers may not, in fact, be the persons most conversant with social welfare legislation and that other persons involved in cases, such as social workers, trade union officals and public representatives, all of whom may attend hearings, can be as helpful or more helpful in enabling appeals officers to arrive at their decisions.

It is very important also in this regard that the nature and purpose of the social welfare appeals system is not lost sight of. One of the main purposes of the system is to enable decisions to be arrived at quickly and informally. This is the main justification for any administrative tribunal and why they operate in well defined areas separate from the normal court system. The Franks Committee already referred to in this debate listed in their report the characteristics which give administrative tribunals advantages over the courts and these are cheapness, accessibility, freedom from technicality, speed and expert knowledge of their particular subject. The social welfare appeals system has all these characteristics and any measures that would call for significantly greater involvement of the legal profession in the appeals system resulting in appeals hearings more and more resembling court hearings could well run counter to some of the main purposes for which the appeals system exists.

Reference has also been made to the role of assessors and there appears to be confusion between the roles of medical assessors and that of assessors who attend hearings on unemployment benefit and unemployment assistance appeals. Senator Ryan queried whether assessors, in fact, fulfilled any useful purpose at all. Senator Ryan mentioned a particular court judgment which related specifically to the role of medical assessors and which stated that medical assessors are not supposed to take an active part in proceedings but are intended to be available merely for consultation on technical medical matters. The role of assessors on unemployment benefit and assistance appeals which was the case referred to by Senator Ryan, is somewhat wider in that they can express views on a wider range of issues affecting the claim.

The assessor's knowledge about the availability of employment and conditions of employment in the locality is of particular assistance to the appeals officer in arriving at a decision. Having heard the views of the assessor or assessors and, if necessary, discussed such views the appeals officer makes the decision in the case. In virtually all cases the appeals officer makes a decision on the spot in the presence of the assessors. Very occasionally an appeals officer may inform the assessors that he wishes to defer the making of his decision so as to give further consideration to the case, including any opinion that may have been expressed by an assessor.

Accordingly, in practice an assessor at an appeals hearing involving unemployment benefit or assistance does play an important role. The final decision on the appeal, of course, rests with the appeals officer. It has been the experience of my Department over the years that the dissatisfaction of some assessors with their role stems from the fact that they do not clearly accept that their role is not that of an advocate for the appellant but rather that of assisting the appeals officer, from a neutral standpoint, in arriving at a decision as to whether the appellant meets the statutory requirements for entitlement to the benefit or assistance sought. Accordingly, they may be dissatisfied when the decision arrived at by the appeals officer is not the one they had hoped for but this, of course, would not mean that the decision was incorrect.

I would now like to refer to criticisms regarding the independence of appeals officers under the present system. The powers and responsibilities of appeals officers are laid down in the Social Welfare Acts and their independence is, therefore, guaranteed. They make their decisions in accordance with the facts and the legislation independently of any other person and the only constraints are decisions made by the High Court and the Supreme Court. The appeals officer's independence was stated explicitly in the Supreme Court judgment in 1958 in the McLoughlin case to which I referred earlier, as follows:—

That duty is laid upon him by the Oireachtas and he is required to perform it as between parties freely and fairly as becomes anyone who is called upon to decide on matters of right and obligation.

I am satisfied that appeals officers make their decisions independently and I find it difficult to accept the inference that being civil servants of the Department makes them somehow less fit for the role of deciding entitlements, or makes them biased towards disallowing appeals. Despite the fact that Senators in this debate have been careful to state that they have no reason to criticise individual appeals officers, it is still proposed in the Bill to expressly exclude civil servants or former civil servants from being chairman of the appeals tribunals it is proposed to set up. This proposal calls into question the fairness and impartiality of civil servants and as such I could not go along with it. I have no grounds for questioning the fitness of civil servants to conduct appeals and I consider that no solid evidence has been advanced in this regard. It has been said that as Department officials it might be expected that they would be more likely to take the Department's line in relation to appeals. I am not sure what is meant by the Department's line in this case. The Department exist to ensure that claimants receive the benefits to which they are entitled just as much as to ensure that those who do not qualify do not receive them. No pressure is placed on appeals officers by the Department to arrive at particular decisions one way or another. On the contrary, the only pressure that is exerted in this regard is from outside the Department through efforts to have adverse decisions reversed on behalf of people who, understandably, want to have their appeals allowed and benefit paid.

The conclusion of the Commission on Social Welfare in their report was that the decisions of appeals officers are made on an independent and impartial basis. This conclusion does not surprise me. It should be clear to any impartial observer that the nature of the system is such that appeals officers have no personal interest, enticement or inclination to come to a particular decision and their only concern in each case is to make a correct decision fairly and equitably on the basis of the evidence before him or her.

I consider, therefore, that the present appeals system which has been in operation for over 30 years has, all things considered, performed well. I quite accept that there may be a problem in relation to the perception of the system and that we need to improve this perception. I am also concerned at improving the efficiency of the system in operational terms, improving the level of information given and communication with clients and eliminating the delays which, unfortunately, have become a feature of the system.

I would at this stage like to comment on the appeals system under the supplementary welfare allowance scheme which it is also proposed in the Bill to have replaced by the appeals system for social welfare schemes generally. A person claiming supplementary welfare makes the claim directly in person to the community welfare officer of the health board and can fully explain his or her circumstances in support of the claim. Appeals officers have been appointed by me to deal specifically with appeals against the decisions on those claims. The person usually appointed would be the programme manager of the individual health board with responsibility for the administration of the scheme in that health board area. Such appeals officers are in a good position to decide these appeals having obtained the information on the claimant's circumstances supplied by him or her to the Community Welfare Officer and by having direct knowledge through the course of his/her work of the area where the claliant lives and of the administration of the supplementary welfare scheme in the health board area where the claim is made.

A number of criticisms of this appeals system were made to the Commission on Social Welfare. These were mainly that it lacks a defined procedure and that there appears to be a considerable degree of divergence between the approaches adopted in different health boards. The commission has recommended that responsibility for the entire administration of the supplementary welfare scheme should be transferred from the health boards to my Department and obviously if this were done it would mean that the appeals under this scheme would be included in the arrangements for appeals generally. This wider question of the administration of the scheme is under active consideration in the context of the examination of the commission's report generally and the question of the appeals system is being considered in this context. I am satisfied from my own information that appeals officers of the health boards operate in a fair manner in deciding appeals but obviously if we are talking about the perception of appeals officers as being independent there is a greater problem in this area in that in most cases the appeals officer is also the person responsible for the administration of the scheme. I fully accept the need to review the existing arrangements from this point of view.

I hope it is clear from what I have said that I fully accept the need for improvements to the present appeals system. I am not convinced, however, that the way to achieve the improvements we need would be to set up the sort of structure proposed in the Bill.

The main feature of the proposals in the Bill, of course, is the establishment of appeals tribunals with a chairman and two ordinary members each having equal voting rights. I agree that the employment appeals tribunals and the social welfare appeals tribunals on which the proposal is based are operating satisfactorily. But the areas in which they operate, concerning employer/employee relations in the case of the employment appeals tribunals and the nature of an industrial dispute in the case of the social welfare appeals tribunals require a system involving an employer representative and a trade union representative with an independent chairman. Such a system is not necessary in relation to social welfare appeals as there is not an employer's dimension to the cases at issue or a trade union dimension. What is at issue, normally, is whether the appellant satisfies the statutory requirements for entitlement to the benefit claimed. A system of three person tribunals, therefore, would appear to be unnecessarily cumbersome for social welfare appeals in general and could greatly slow up the whole process.

The Commission on Social Welfare in their report stated:

Because of the nature of the service being provided by the social welfare system, it is important that the appeals system be simple, informal and speedy.

The present appeals system has these characteristics. Under this system 18,000 appeals per year on average are being decided by 13 appeals officers. In contrast 9,000 appeals approximately were decided in 1985 by the employment appeals tribunals which currently employ one chairman, 13 vice-chairmen and two panels comprising 20 members each. This indicates that a major increase in staff resources would be required if a system based on three-person tribunals were to be established for social welfare appeals especially as it would take such tribunals longer to decide appeals than a single appeals officer. In addition the whole process would be further complicated if there had to be an oral hearing in the case of every appeal as envisaged in the Bill. As stated earlier this only occurs in 40 per cent of cases on average at present which means that appeals officers have more time to devote to oral hearings for the cases where these are required. I agree that cost should not be a decisive factor in the establishment of a fair and impartial appeals system but it still has to be taken into account in considering whether a particular system is necessary to achieve fairness and impartiality. I am very doubtful that the extra cost involved for the very questionable advantages, if any, of the proposed system over the existing well tried system would be justified.

It is important that the existing appeals system be developed and undoubtedly some changes, organisational and procedural, need to be made. The present appeals system can be improved and a review of the system is currently under way in my Department in the context of a general reorganisation of the Department following the publication of the Government's White Paper on Public Service reform. Senators will be aware that a separate executive office, the Social Welfare Services Office, has been set up which is responsible for the payment of benefits and that responsibility for policy matters remains with the Department. This reorganisation has been done on a non-statutory basis pending the enactment of the appropriate legislation which is currently being prepared.

It is in this context and in the context of the recommendation made by the Commission on Social Welfare that the review of the appeals system is taking place. I expect to be in a position to put proposals to Government on the matter and Senators can be assured that the legitimate concerns in relation to the appeals system expressed in this debate and in the commission's report are being taken into account, in particular, the questions concerning the perceived independence of the appeals system from the Department and the provision of more detailed information on the reasons why claims and subsequent appeals have been rejected. The question as to whether a separate report on appeals should be published annually including, where appropriate, policy recommendations on the lines of the Ombudsman's report would also arise for consideration in the context of this review.

As I stated at the beginning of my speech I welcome this debate on the social welfare appeals system, particularly, as it is so timely in view of the review of the system currently under way in my Department. For the reasons I have outlined I have reservations on the main proposals in the Bill for the establishment of appeals tribunals. I will be bringing forward proposals for the reform of the appeals system in the context of the reorganisation which is now taking place in my Department and I would urge the House to await these proposals which will be designed to meet many of the concerns expressed on the matter by the contributions to this debate.

I welcome the Bill which has afforded us an opportunity of enabling the Minister to give us a very elucidating reply. She has in her contribution given us a fair, balanced and comprehensive appraisal of the entire social welfare system, something which I have found very enlightening. I want to take up the cudgels on the Minister's behalf. Allegations in relation to lack of courage or reluctance on the Minister's behalf to come into this House, are most unfair, based on the Minister's previous record as Minister for Education when she had to take indelicate, difficult and at times very trenchant measures in relation to certain issues and when time and time again in the media, in the other House and in this House she came forward, validated, vindicated and defended them to the maximum. My only regret is that the Minister will not unfortunately have sufficient time in the Department of Social Welfare to bring about the restructuring, reorganisation and reforms to which she has committed herself in this House today. She has outlined the whole warren and complexities of the schemes that exist within the Department of Social Welfare, 30 schemes in all. She has set in very stark perspective the difficulties and the vast array of complexities, decisions, appeals and so on that have to be made. She pointed out that in annual terms we are talking about 1.2 million claims, 24,000 per week, and 15,000 appeals. In arriving at decisions there will, at times, be miscalculations and misjudgements.

By and large, the citizens have been fairly well looked after by the social welfare system. The people who administer the scheme have been humane in their application of it and whatever alleged misdemeanours have come about, have arisen not from any deliberate misapplication of the guidelines or the rules or regulations but by pressure of time by other demands and by the sheer pressure and burden of work. Nevertheless, a number of us who come from rural areas have had time and again to draw to the Minister's attention and to the attention of officers in her Department the hardship that has been caused particularly in relation to areas affecting us in rural Ireland and that is the area of unemployment assistance — small farmers dole and the area of prescribed relatives' allowance. I have been dealing, with other public representatives from the west, on an intimate level with constituents and applicants for small farmers dole and there have been a number of alleviating measures that have gone a great way towards redressing what people would regard as their legitimate grouses in relation to cutting back in this area. I welcome in particular the introduction of the UB 35 oral appeal form and also the allowance in respect of expenses for cars, and for other expenses that up to now were not taken into consideration. Nevertheless, a new dimension has been introduced that is the whole area of prescribed relatives' allowance. One of the qualifications——

An Leas-Chathaoirleach

Much as I dislike to interrupt you, I understand it was the decision of the House to adjourn this debate at 2.10 p.m. and to return to item No. 1 on the Order Paper.

Debate adjourned.