Amendment No. 1 has been ruled out of order as there is a potential charge on the Revenue.
Social Welfare Bill 2019: Committee Stage
Amendments Nos. 3 to 7, inclusive, are physical alternatives to amendment No. 2. Amendments Nos. 2 to 7, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 2:
In page 9, to delete lines 19 to 43, and in page 10, to delete lines 1 to 26.
It is regrettable that the amendment put forward by my colleagues on class K payments was ruled out of order because it is an important issue. Even though that is the case, perhaps there may be a chance to discuss it when discussing the section. Amendments Nos. 2 to 7, inclusive, propose very small changes, but I hope the Minister might agree that important issues arise in terms of inconsistency with some of the previous language and with the language in the new proposal relating to self-employed persons and the services or supports they may seek to access relating to social protection services. The Minister is aware that we have discussed with her the importance of a positive approach to activation. We have common views on that, namely, that there should be a positive perspective whereby we ensure that people are offered appropriate employment, training or educational opportunities and that we also ensure that each person individually in his or her interaction with Intreo and the social protection or activation services of the State is appropriately supported and given choices and options. I am concerned that the section as currently worded has slightly more punitive language and what I believe could be construed as a narrowing of the options for the individual, which is a little bit inconsistent with what we previously had. Perhaps that is intentional or perhaps it is inadvertent.
Specifically, amendment No. 2 proposes the deletion of these sections. If the Minister does not wish to accept my amendments, she will have an opportunity to submit a revised version of those two sections on Report Stage. Amendment No. 3 suggests that rather than the language of refusal or failure to attend activation meetings related to jobseeker's benefit being the lead point, perhaps it might be a more positive and constructive engagement if we were to talk about activation services related to jobseeker's benefit for the self-employed, which may well include situations where persons do not engage as well as situations where they do engage. While the payments are represented in different sections, the activation supports are almost primarily identified through the question of refusal or failure to attend. There is a danger of a climate, which I do not think we should be pushing forward, of distrust or, to some degree, of blame. A positive framing of the activation services would be better.
Amendment No. 4 suggests the deletion of the section with the hope that the Minister might put forward an alternative framing or phrasing of it. Those are some of the key points. Amendment No. 5 concerns lines 33 and 34 in page 9. Rather than simply stating "may require the person to whom it is given to do", we would substitute "may make available to the person". Again, I am trying to promote a positive support-based approach to activation rather than one that assumes that citizens must be prodded and poked and reluctantly forced to engage. That is not my understanding of most citizens. I believe most people are very keen and some people in the self-employed section who are coming through have shown in the past their eagerness to work and to engage. That should be our primary assumption in how we speak to them.
Of more specific concern is the phrase in line 42: "attend for or submit to an assessment of that person's education, training or development needs". Attending for an assessment of one's educational, training or development needs is one thing. That is an important and appropriate requirement and it is one that is put on others who engage with the social protection system, but the phrase "submit to" gives rise to concern. What do we mean by that? Does it mean that any questionnaire that relates to any aspect of one's development or personal training must be filled in and submitted to? How do we know, for example, that it is a necessary and proportionate assessment that is taking place? What recourse is there if, for example, a person finds an assessment to be intrusive or inappropriate? "Submit to" is dynamic because a person who has contributed in the past to the State, no doubt in all the different ways people contribute, is now being required to submit to whatever may be assessed. There are real concerns here.
The Minister is aware there are concerns with amendment No. 7. We will come to them shortly. That is the reason I want to say explicitly in a new section that: "The signing of a personal progression plan shall not be considered a requirement in terms of either attendance or submission to assessment." We know there have been situations, because we have heard of them and we have heard them testified in the Joint Committee on Employment Affairs and Social Protection, where people have been told while sitting in a room that they must sign off on a plan that has been written for them, in many cases by private companies contracted by the State, and that they must agree that this is their route for progression, and that this is what they want to do with the rest of their life and the rest of their energy and what they have. We know there have been issues with the signing of those plans. We debated it more than two years ago whereby persons were told they needed to sign the plan to show that they had attended for interview.
The fact they were in the room, willing to engage and interested in discussing options was not enough if they did not agree to sign a personal progression plan. There are personal progression plans from Intreo services and others, but in those cases the personal progression plan is put together in some cases by a private company. There have been concerns internationally about the practice of a large number of persons emerging with very similar, if not identical, personal progression plans that direct them to particular routes that may not reflect the full range of each person's options.
We also know from the hearings at the social protection committee meeting that in some cases, although not all, the Department, when determining payment to these private companies, considers the signing of personal progression plans one of the clear ways in which a company may claim that it has supported somebody or delivered services to a person. That should not be the case. It is an inappropriate financial incentive or pressure to put on a private company in order for it to put pressure on vulnerable persons. Although the amendments may appear to be technical they are about the ethos of the State and of the engagement. Amendments Nos. 6 and 7 are very important and I hope the Minister might consider taking them on board.
With great respect to my good friend, Senator Higgins, who is well motivated on these issues, I cannot see the difficulty with the personal progression plan. The plan is to establish what the person's position is in respect of education and personal development, in the sense of self-confidence and self-awareness, or where the person is on that ladder, for want of a better term, and to try to work out an empowerment process for the person in terms of education and learning to take the person further. If the administrators of such a plan were abusing their position and engaging in inappropriate, intrusive questioning or inappropriate activity, the person would have recourse to the courts and the normal constraints of the State. In other words, they would be subject to the law of the land if it were to come under the heading of some sort of abuse. One assumes that would seldom happen or is most unlikely to happen, but in the sad event of it happening there would be recourse to the law. The departmental officials would see it as their duty to interfere and get rid of a private operator who was acting inappropriately.
The function of such a plan usually would be to establish somebody's aptitudes, skill sets, possibilities for the future and their potential and to help guide them onto that path. It would be sad if people were just being sent off down a particular avenue. I doubt that would be the case. I would have thought, and perhaps the Minister will elucidate this, there would be a supervisory element at senior Civil Service level whereby somebody would be monitoring the nature of these plans or monitoring the operation in a random way. However, one would assume that anybody who is successfully designated to do this work would have the level of responsibility and circumspection not to abuse that position. If that person does, the full rigours of the law should be applied. If they are private contractors, they should immediately lose their contract if they are misappropriating or doing the wrong thing. I believe a progression plan should be embraced as a good thing, with the person's personal development built on it.
On the question of personal progression plans, my amendment does not seek to remove them. When I debated this issue with the Minister in the past I proposed that she set guidelines on personal progression plans. That would have been a useful step in moving towards the wished-for situation described by Senator O'Reilly. However, my amendment specifically states that the fact of a person having attended a meeting should not be dependent on having the person sign a piece of paper to say that he or she agrees to a particular progression plan for his or her journey and life. Under the scheme at present the Minister may move towards a penalty if somebody is construed as having refused to attend a meeting. The experience of people who have spoken to us is that they have found themselves in a situation where they have been told that unless they sign a plan they will be regarded as having walked out of the meeting because they did not agree to an agreed conclusion. My point is simple. Where somebody attends a meeting and he or she wishes to consider the proposals that are being put forward for his or her progression for the next one, five, ten or 15 years of life - perhaps the person wishes to seek advice on them and examine other options - the fact that the person is not willing to sign the plan at that meeting should not be construed as he or she not having attended the meeting and thereby being subject to penalty.
On the quality of personal progression plans, it is not for the individual to take a case on this. Individuals at a meeting such as this may well be living on a payment from week to week and will not be in a position to have recourse to the courts, and certainly not before they might find themselves hungry or without heat. In that regard, it is up to the State to set standards. I have spoken to the Minister on this and called for setting standards for personal progression plans. However, this specific amendment is trying to deal with the situation where an attendance and, therefore, the signalled willingness to engage with the State regarding possible options could be denied. Somebody's attendance at a meeting should not be denied because he or she has refused to sign off on a plan at that meeting. It is simply that that their attendance should be registered separate from whether the individual has signed a plan.
I agree with Senator Higgins on this. I taught in further education for the best part of 25 years. Those who find themselves out of work for whatever reason and trying to plan their future or a way ahead sometimes feel pressurised into making decisions they ordinarily would not make. The fact that somebody attended should be enough. Trying to force somebody to accept a particular plan at the meeting is an unfair call. The person needs time to think about it. In my experience in Dún Laoghaire, we were very lucky with our adult guidance service. It was good at fitting people into the niche that suited them best, but that was not true of all the services. Sometimes people started on a course, lasted five or six weeks and found it was not for them. I found myself unemployed in my 30s and trying to find a way around the problems one encounters with that. One has enough trouble just trying to cope with what has happened without being forced into signing off on something with which one is not comfortable. I support Senator Higgins on this.
I do not propose to accept the amendments. They relate to the new section 68I which concerns activation measures, claimants and jobseeker's benefit for the newly self-employed scheme. The measures relating to amendments Nos. 2 and 7 are precisely the same measures that apply to both jobseeker's allowance and jobseeker's benefit for the employment cohorts.
They are an integral part of the activation process. Claimants are required to attend meetings for the purposes of providing them with information intended to improve their outcomes and their knowledge of the opportunities for work, education and training available to them. The meetings also allow for an assessment to be carried out to help officers determine claimants' education, training or development needs so they can be directed to the right place to get the type of job they wish to do after they avail of the opportunities offered. The meetings also provide an opportunity to address the supports the people themselves identify as necessary with regard to education, training or development needs, which they may wish to be included in their plans. The legislation also includes the safeguard that any opportunity identified must be appropriate to people's needs and the circumstances in which they find themselves.
The section also provides for the penalty rates that can be applied to payments. These only apply in cases where a person does not adhere to the requirements of the current jobseeker's scheme. We are mapping all of the opportunities and supports available under the jobseeker's benefit and jobseeker's allowance schemes for the employed to the self-employed cohort who do not avail of them today. These measures are straightforward and reasonable and they are consistent with the existing jobseeker's benefit and jobseeker's allowance schemes.
The Minister is quite correct in what she is saying; this is just a reflection, mapping or mirroring of the current legislation in respect of jobseeker's benefit and allowance. What we are hearing in the House today is a reflection of what we are hearing on the ground. With the very low unemployment rate, which is very welcome, we are now dealing with legacy issues and intergenerational unemployment in our workforce. We sometimes hear about progression plans. I accept the aim of the legislation. It relates to the self-employed and how we will deal with them. What we are hearing about in the House, and what we are seeing, is the day-to-day lived experience of people with regard to Intreo offices, progression plans and so on. We were at 10% or 14% unemployment; we are now below 5% and still dropping. We are now dealing with people who, unfortunately, have issues other than unemployment. That is why we are getting bad press in respect of the system. I will not be supporting the amendment, but I ask the Minister to look at how we deal with difficult cases in respect of long-term unemployment and how they are dealt with by different agencies and the traditional mechanisms. Many of the people with whom I am dealing and who have had negative experiences with the support services have many other issues outside of unemployment. I accept what Senator Higgins is trying to do in respect of the legislation, but I do not believe we are getting to the nub of the issue. It is about the current legislation, intergenerational unemployment and citizens who have other issues such as addiction to drugs or alcohol, issues with anger management or a lack of educational opportunities when they were most needed. We really need to hone our responses to people who have been unemployed in the long term because they are affected by many issues outside of unemployment.
I note that the Minister is interested in mirroring language. My next set of amendments speaks to the differences between this legislation and current schemes. There are parts where the legislation does not mirror the current language. Is the phrase "submit to" used in the current legislation, or is it "attend for"? I would like to tease out that specific issue. If it is the case that "submit to" is used rather than "attend for" I will seek to amend that by way of the other legislation. The circumstances have changed. This is not simply a like-for-like mirroring of what we previously had because when the previous legislation was put forward, private companies with specific targets and profit motives - and the issue of their role is a separate debate - were not operating in the sector. That is why an extra layer of clarification with regard to whom the service is serving, the power dynamic and where the emphasis should be with regard to the delivery of services is important.
Personal progression plans are another specific issue which has changed. I accept the Minister's point that these changes may need to relate not only to supports for the self-employed, as outlined in this section of the Bill, but more widely. I may need to table amendments mirroring this in respect of jobseeker's benefit and other similar benefits. The signing of a plan is related to payment. The Minister may be able to confirm that but at a meeting of the Joint Committee on Employment Affairs and Social Protection officials from the Department gave the strong impression that the signing of plans has at least some relationship to payment. If that is the case, there is a concern that people who are commercially motivated may decide they need to get a given number of personal progression plans signed and may put pressure on somebody by threatening to say he or she has not attended or co-operated. That is an issue. We know that inappropriate plans are made. I worked with young, unemployed people in Wexford. I remember talking to a young girl who had worked breaking horses and in animal training. She was told that she should do childcare. She knew that she has the opposite set of skills and that it would not be appropriate for her to do a childcare course and that caring for children would not be appropriate for her. She felt it was an inappropriate match for her but that if she did not agree to it her payments would be vulnerable. I know there are many more such instances.
The Minister is not going to accept these amendments. It is a wider issue, but a new circumstance. With regard to personal progression plans and my previous amendments with regard to guidelines and assurances, what assurances can the Minister give in respect of those guidelines?
On the Senator's first question, these are precisely the same measures as exist for jobseeker's allowance and jobseeker's benefit for the employed. There is no deviation in respect of the wording. We will be talking about progression plans in the context of a later amendment, so I will keep some of my preamble for that amendment.
That is fine.
The Senator is under the impression that progression plans are how Turas Nua and Seetec get paid. They do not get paid based on whether claimants sign plans. Personal progression plans are not unique to Turas Nua or Seetec. They are used in our Intreo offices and for community employment schemes, Tús schemes, JobPath, JobsPlus and JobBridge. They are used in every single scheme under which we try to get people work or re-education. Without a plan, I do not know how one gets from A to B. When somebody comes into us fresh and raw, regardless of medium or representative body, we sit down and work out a plan. That is normal and natural if any progress is to be made. That is instilled across all platforms employed in the Department. If the Senator is really asking me whether these plans are being used as some sort of bullying tactic, these companies do not get paid based on whether plans are signed so I do not see how or why they would be used in that way. As Senator O'Reilly said earlier, if there is any evidence of anybody being abused that evidence should be brought to the local Intreo case officer looking after that Turas Nua or Seetec office or to me. That is not the intention of any office acting under the aegis of our Department. It is purely proactive.
I have a very specific question to conclude. Is it the case that if somebody attends a meeting to review the options available to him or her and, at the end of that meeting, does not sign a personal progression plan, that person will nonetheless be regarded as having attended that meeting? Is that the Minister's understanding?
If one attends a meeting, one attends a meeting. We cannot say that a person did not attend a meeting just because a plan was not agreed at the end of it.
I thank the Minister for that clarification.
With the Acting Chairman's indulgence, there is another amendment coming much later, amendment No. 39, again in the name of the Senator.
A personal progression plan is an administrative document. It is for the individual and the case officer, be they an Intreo, community employment, Tús, rural social scheme supervisor or Turas Nua case officer. This document sets out a plan between the two individuals involved to help the jobseeker get a job.
The plan contains the customer’s contact information; contact details for the personal adviser; the details of the customer’s skills, competencies and aptitudes; the fields of work the jobseeker deems appropriate; the barriers to employment he or she is facing and agreed actions between the jobseeker and the case officer to overcome those barriers; the customer’s job, employment or training goals; an agreed set of skills, training, education and development goals and actions; and an agreed set of potential employment related experience interventions. The most important word in all of this is “agreement”. The case officer cannot decide what is best for the person without the person’s input.
It is purely an administrative document to provide a plan to work forward a year in Tús, three years in community employment, a year with JobPath and, hopefully, less than a year with an Intreo case officer. It is only an administrative document but the most important element of it is that it must be an agreed document. Otherwise, it does not work.
The Minister has answered my question in that agreeing to one is not necessarily the requirement of having attended a meeting. That is the key point I wanted to communicate. I thank the Minister for giving me that assurance.
One has a variety of meetings with one’s case officer.
It may be a long process to reach agreement. It may take several meetings.
There is not a set of guidelines. To answer the Senator’s later question, they already exist and I do not need to write them again. There is no guideline that states that someone comes in on day one, a progression plan is agreed and he or she goes home at 4 p.m. It is a flowing document. We are here as the services of the State in all our forms from the ILDN, Irish local development network, JobPath, jobs clubs, LES, local employment service, community employment, Tús, rural social scheme, Seetec and Turas Nua to help people get work or trained to be able to get work. It is only a service. There is nobody making people come and avail of jobseeker’s benefit.
Is the Senator pressing the amendment?
I suggest that the need to eat, to live, to clothe one’s children and to heat one’s house make people apply for jobseeker’s benefit in many cases.
With respect, there are other schemes for which people can apply. One of the conditions of jobseeker’s benefit is to be actively seeking work. We will help somebody actively seek work but that person must be actively engaged in seeking work.
It is the nature of the help. I want people to find work. People want to find work but it is about an approach of assistance or an approach of prescription. We will come to that later.
I move amendment No. 3:
In page 9, to delete lines 19 and 20 and substitute “Activation Services relating to jobseekers’ benefit (self-employed)”.
I move amendment No. 4:
In page 9, to delete lines 25 to 32.
I move amendment No. 5:
In page 9, lines 33 and 34, to delete “may require the person to whom it is given to do” and substitute “may make available to the person”.
I move amendment No. 6:
In page 9, line 42, to delete “or submit to”.
I move amendment No. 7:
In page 9, after line 43, to insert the following:
“(4) The signing of a personal progression plan shall not be considered a requirement in terms of subsection 3(a) or (b).”.
Amendments Nos. 9 to 21, inclusive, are physical alternatives to amendment No. 8. Accordingly, amendments Nos. 8 to 21, inclusive, are related and may be discussed together.
I move amendment No. 8:
In page 10, to delete lines 27 to 43, to delete page 11, and in page 12, to delete lines 1 to 19.
This goes back to the heart of two issues the Minister has raised. The first is the question of mirroring in these new provisions the language we have in existing social welfare legislation insofar as possible and appropriate. The other issue is the question of helping people and ensuring we are offering a full range of services. The Minister spoke eloquently on this issue in the past. I recall when she spoke about people having the opportunity to come back to become physicists, for example. She spoke about providing educational training and employment options.
The concern, however, is that there is one specific change in the language. In the previous legislation regarding unemployment benefit and the question of disqualifications, it stated that a person may be disqualified from receiving unemployment benefit where he or she has received an offer of suitable employment or has, without good cause, refused or failed to avail of any reasonable opportunity of providing or receiving training or has failed or neglected to avail himself or herself of any reasonable opportunity of obtaining suitable employment. The language in this Bill speaks to an opportunity. It is singular. It is different requiring somebody to take up some of the panoply of offers or engage in some reasonable opportunity of training.
The section now states, “a request is made by or on behalf of the Minister to that person to participate in, agree to participate in or avail himself or herself of an opportunity of participating in any scheme or programme of employment or work experience, or a course of education, training or development, which is prescribed for the purposes of this section”. We are moving from a situation where somebody has to show he or she is willing to engage in any reasonable opportunity of training or form of employment to one where a person declines a scheme or course, where the term “reasonable” has been removed. Who considers it appropriate? It would seem to be the case officer.
The other term that is concerning is “prescribed for”. For example, I can say I have prescribed for an individual a specific job in a multinational chain or a specific course. If the person says “No” to that specific course or job, then that person is leaving himself or herself vulnerable regarding his or her payments.
My amendments seek to be consistent and ensure reasonableness is a requirement in the wider sense. They also aim to move away from a climate of prescription of a specific option for persons.
I also ask that we restore the language, which is in other parts of the Social Welfare Consolidation Act, whereby it provides for any reasonable opportunity of training or of obtaining suitable employment. If a person is in the unlikely situation where he or she is able to take a case to the courts, at least he or she will be in a position to say the courts could determine whether it was reasonable and that would give people a recourse of some kind. I do not believe people will take cases to the courts but if they were to, that is a reasonable phrase to include.
We would not want to flip that in the sense that most people act properly. We would not want to create a situation with respect to social welfare recipients where efforts are being made to create employment or educational opportunities for them and they would be able to use the word "reasonable" to avoid a level of personal responsibility or making a real effort. Therefore, it is a vexed question. While we do not want anybody abused, misplaced or anything like that, and I am all for supervision of all these measures and, having good standards, we cannot remove the element of personal responsibility. Our taxpayers have to know that while our welfare system is a support for the vulnerable whom we cherish, and it is such a part of our DNA that we want to preserve it, keep it and improve it every year, they also have a reasonable expectation that recipients of it, insofar as they can, would be preparing themselves to leave it.
Sinn Féin welcomes the Bill. At last we will get some recompense for people who have been left stranded, our self-employed, and they will have some supports. We very much welcome that.
Senator O'Reilly and I get on well but I would take issue with the idea there is a cohort of people who are out to screw the system.
Yes. We have to pass Bills and make laws on the basis that everybody seeks to do their best and has good intentions. We do not legislate for the one or two people who not operate on that basis; rather we legislate for the good of communities and families. When I heard the word “prescribed” mentioned it brought me back to the world of medics and nursing. We prescribe this and that medication but if we get it wrong we would get it wrong all the time. The prescription is constantly changing because if one medication does suit, the next one will not suit. We have to find something that fits the individual. Senator Higgins's suggested amendment is reasonable and it should be inserted. I am not saying we lack compassion but this Bill does not seem to encompass all we could do to have compassion for people who lose their employment and livelihoods and, as a consequence, cannot afford to heat their homes or feed their children. I support Senator Higgins’s amendment. It is well-intentioned.
Did Senator O'Reilly indicate he wanted to come back in?
No, I am fine. I will leave it for now.
Can I confirm that we are taking all amendments Nos. 8 to 21, inclusive?
Yes, Nos. 8 to 21, inclusive.
I do not propose to accept the amendments because they relate to section 68J, which provides for activation measures to the new scheme of jobseeker’s benefit for the self-employed when a person refuses to engage. I advise Senator Higgins the language is precisely the same in the old legislation as in the new legislation and it has to apply to both the jobseeker’s allowance and benefit schemes as they form an integral part of our activation process. There is no difference between the language used.
The section includes the prescribed courses and training opportunities that are available to develop somebody’s education or development needs and that is appropriate to only their individual circumstances. It does provide for - because it must - a penalty rate when a person does not avail of the opportunities that are suggested to him or her without a good reason for not availing of them, and we all have good reasons.
I take on board Senator Devine’s point. Of course, we must have legislation that assumes everybody acts in the best interests of themselves and others and the State must act in the best interests of the people it serves, but the reality is there are some people who do not and, therefore, the penalty clauses need to be included in case of instances where people do not want to avail of the opportunities without having a good reason to do so.
The legislation also includes provisions that courses must be appropriate to the development and needs of the person. This ensures only reasonable opportunities can be considered and has regard to each individual person’s personal circumstances. We believe they are straightforward and reasonable, and the most important thing I can say to the Members today is that they are and must be consistent with the existing jobseeker’s benefit and allowance schemes.
Unfortunately, they are not consistent and the language is not the same. I did not want to delay the House by reading into the record the language used but, specifically, it is quite different. As I said, the existing legislation with respect to unemployment benefit and other benefits states: "has refused an offer suitable employment", "has without good cause refused or failed to avail himself or herself of any reasonable opportunity of receiving training provided or approved by An Foras Áiseanna Saothair as suitable in his or her case", and "has failed or neglected to avail himself or herself of any reasonable opportunity of obtaining suitable employment".
This Bill on pages 11 and 12 explicitly states: "an opportunity of participating ... any scheme or programme of employment or work experience, [the word "reasonable" has been removed] or ... a course of education, training or development ...", again the phrase "any reasonable" has been removed. I am sorry to have to correct the Minister in a sense but the language used is not the same. It is different. Perhaps that is something we can discuss in the interim and return to it on Report Stage but in terms of speaking to the language being the same, it is not.
When I discussed the question of how personal progression plans were used, the response I got became a spirited defence of the existence of personal progression plans. I am not arguing against their existence or the existence of penalties; rather, it is a matter of how it is determined.
I have tabled amendments proposing the removal of sections because I believe they need to be redrafted to be consistent with the language used in the existing legislation. That is a fundamental point. My goal, which I believe should be the main goal, is that persons will be presented with a number of options and as a result they will be able to have a better outcome. We have heard in testimony before the Joint Committee on Employment Affairs and Social Protection that one of the main problems in terms of educational placings is that people are placed in the wrong course, one that does not suit them or where there are timing and other issues. I will not go into the education area at length as it is covered in a later amendment. This is about ensuring we get this right, which would save the State money and ensure people progress in a meaningful way at an earlier stage in their lives.
The Minister spoke about the word "agreed". If the word "agreed" was included instead of the word "prescribed”, we would have a very different message. Perhaps that is an amendment that she or I may wish to put forward on Report Stage. The word "agreed" would be different from the word "prescribed" as the latter would be used in the context of the professional telling the person involved. We do not negotiate or discuss to any great extent, besides what the symptoms may be, what a doctor may prescribe to treat an illness but we do discuss and negotiate what might be an appropriate course of action. That is where language is important and that is a word that has been added also. It is a little different. The phrasing "any reasonable" is what should be included. We can return to this on Report Stage. These amendments have been tabled in a constructive spirit and I want to ensure there is not a slippage in the language.
Senator Higgins is dogged and has a great eye for tiny detail. It has taken me three years to grasp that. The word "an" or any other small word that is missing from text or added to it raises the Senator's antennae.
Words are important.
They are very important. The smaller the word, the more importance it can have. For me, the word "an" means exclusive or just one. The phrase "any reasonable" allows room for manoeuvre.
All of our lives manoeuvre in different ways and we need to allow that. Why has the word "reasonable" been removed? The realist in me would say there is a reason for that removal so perhaps the proposers of this Bill would explain to us why it is different to the previous occasion.
The purpose of the legislation is not to be any different. Given the jobseeker's benefit and allowance that currently exist for employed people, it was my initiative to bring this forward for self-employed people, probably because of my background. It certainly is not to make it any different or distinct; it is to make it exactly the same.
I will ask Senator Higgins for a favour, and that is to withdraw her amendments. This is only because the information I have in front of me tells me that the legislation is mirrored, word for word, with the exception of the amount of time one needs to be unemployed, which is different in this Bill for an employed person. The language is supposed to be exactly the same. I do not have the original Bill with me so I cannot tell the Senator she is wrong and I will not do that. I would like to go and check. If the Senator would withdraw the amendments, I will talk to her tomorrow.
I am very happy to engage.
If I am wrong, I will be happy to accept all her amendments with regard to any reasonable measure. There is no trick here, although the Senator probably does not believe me. The only justice for saying that is to think of the people I am trying to reach. They are the people who created not only their own job but, in the main in this country, tens of thousands of jobs for other people. These are not chancers, not that we have legislation for chancers. These are self-starters. These are people who have provided their own employment. They will not want to stay on the live register and they will want to get off it. This is just to give them a break. I ask the Senator to withdraw the amendments and I will come back to her tomorrow. If I am wrong, I am happy to say I am wrong and we will fix it. If I am right, I hope the Senator will be happy to say I am right.
I am happy to withdraw in that context and to engage with the Minister in regard to those issues.
Is the amendment being pressed?
I will withdraw and reserve the right to reintroduce.
I move amendment No. 9:
In page 10, line 27, to delete “prescribed”.
I move amendment No. 10:
In page 10, line 33, to delete “an” and substitute “any reasonable”.
I move amendment No. 11:
In page 10, line 38, to delete “which is prescribed for the purposes of this section and”.
I move amendment No. 12:
In page 10, between lines 38 and 39, to delete all words from and including “which” where it firstly occurs in line 38 down to and including “appropriate” in line 39.
I move amendment No. 13:
In page 10, to delete lines 38 to 41.
I move amendment No. 14:
In page 10, line 43, to delete “an” and substitute “any reasonable”.
I move amendment No. 15:
In page 11, line 12, to delete “or submit to”.
I move amendment No. 16:
In page 11, line 16, to delete “an” and substitute “any reasonable”.
I move amendment No. 17:
In page 11, lines 19 and 20, to delete “which is prescribed for the purposes of this section and”.
I move amendment No. 18:
In page 11, lines 19 to 21, to delete all words from and including “which” in line 19 down to and including “appropriate” in line 21.
I move amendment No. 19:
In page 11, line 30, to delete “an” and substitute “any reasonable”.
I move amendment No. 20:
In page 12, line 6, to delete “an” and substitute “any reasonable”.
I move amendment No. 21:
In page 12, line 15, to delete “an” and substitute “any reasonable”.
Amendments Nos. 22 and 23 are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 22:
In page 13, between lines 4 and 5, to insert the following:
“Amendment of section 242 of Principal Act
6. Section 242 of the Principal Act is amended—
(a) in subsection (4)—
(i) by the substitution of following paragraph for paragraph (a):
“(a) his or her Public Services Card,”,
(ii) by the substitution of following paragraphs for paragraph (b):
“(b) a card that has been issued to the person by the Minister under section 264 and such other information or documentation as the Minister, an officer of the Minister or a payment service provider, as the case may be, may reasonably require for the purposes of authenticating the identity of that person,
(c) an Irish Passport and such other information or documentation as the Minister, an officer of the Minister or a payment service provider, as the case may be, may reasonably require for the purposes of authenticating the identity of that person, or
(d) such information or documentation as the Minister, an officer of the Minister or a payment service provider, as the case may be, may reasonably require for the purposes of authenticating the identity of that person.”,
(b) in subsection (6)(b)—
(i) by the substitution of following for subparagraph (ii):
“(ii) such other information or documentation as the Minster, an officer of the Minister or a payment service provider, as the case may be, may reasonably require for the purposes of authenticating the identity of the appointed person, or”,
(ii) by the insertion of the following new paragraph after paragraph (b):
“(c) such information or documentation as the Minster, an officer of the Minister or a payment service provider, as the case may be, may reasonably require for the purposes of authenticating the identity of the appointed person.”,
(c) by the substitution of following subsection for subsection (7):
“(7) Where a person fails to comply with subsection (4) or (6), payment of benefit may be withheld until such time as the identity of the person is authenticated. Possession or production of a Public Services Card shall not be a mandatory requirement for the payment of a benefit.”.”.
Amendments Nos. 22 and 23 are very close to amendments which I had initially put forward in 2017. There are issues on which the Minister and I have agreed and made progress together. However, issues on which we have had many disagreements are in regard to data protection and the public services card. I raised concerns in June 2017 about the public services card. In the Social Welfare Bill of that year, I put forward amendments specifically seeking to ensure that the State would be cognisant of and careful in regard to its legal responsibilities in regard to the public services card. In those debates, we also spoke about the concern as to whether or not people had adequate information in regard to the decisions they were making and in terms of the purposes for which their data would be used. I spoke at that time not simply because I was concerned about the rights of individuals, but because I was very concerned that the State was acting in a way that left itself open to charges of legal negligence, at the least, if not recklessness.
At that time, I put forward amendments which were basically the same as these amendments Nos. 22 and 23 and have the same principle. I sought to ensure that no individuals would be required to have a public services card or have their information registered in an associated single customer view dataset in terms of accessing any services they may need. Amendment No. 22 relates to the accessing of social welfare services and amendment No. 23 relates specifically to other specified bodies.
The concern I expressed at that time has, I think, been vindicated. It is extremely unfortunate that, even as an investigation was under way - a section 10 investigation into the public services card - the Department consistently went ahead in the active promotion of and pushing of the public services card as a requirement, whether mandatory or compulsory, whichever the phrase may be, for those who are accessing services. Indeed, just weeks before the original draft report was produced by the Data Protection Commissioner over a year ago, a new contract was signed.
When we look to the report we have, the figures are very striking, with costs of over €60 million and the associated savings estimated at about €2 million, which is very short. Either way, while the economic argument is very strong and a real concern, there is also a huge concern in regard to the State.
At a time when the State had appointed its own arbiter, an independent body which was investigating one of the largest Departments with one of the biggest budgets which most directly affected the lives of citizens in this State, the Department did not pause to consider this contract, or even whether to sign a new one. It is not just important in the context of the Minister's Department - it is important in the context of Ireland and our international reputation. We are one of the key data protection regulators in the world and we have a huge international reputation to maintain. I have been deeply disappointed in some of the ways the response to the office of the Data Protection Commissioner, which has been doing its job, has been framed. I do not claim that I was unique in raising concerns in 2017 because many others did, in particular in civil society. We need to listen when alarm bells are rung because this is a legal process, notwithstanding the fact that the State intends to challenge the findings. Aside from the actions advised by the Data Protection Commissioner, many individuals are also entitled to take cases if they are not given satisfaction by the State.
While these amendments do not address all the concerns, they would have addressed some of them. Specifically, amendment No. 23 sought to make it clear that it is not legally appropriate to require somebody to have a public services card to access a specified service. The Minister for Transport, Tourism and Sport, Deputy Ross, is one of the many Ministers with specified bodies under their aegis and he made a change to this policy, which I acknowledge. He listened and showed why listening was important. We will come to other arguments when the report relating to biometric data is published. This is another area in which the State needs to review some of the arguments which it has put forward with certainty. We can expect the outcome of this investigation shortly and I am not confident in any way that the State's arguments will stand up.
My amendment No. 22 gives an opportunity for the Minister to ensure that in this interim period, whether the actions of the Data Protection Commissioner are being delivered or the State is challenging them through legal processes, an individual who wishes to access services from the Department of Employment Affairs and Social Protection should be required to sign up to a public services card. If somebody has a new child and wants to get child benefit, how can they be expected to add themselves to a database that is potentially facing deletion, with serious concerns having been raised about data protection? Accepting the amendment would allow the Minister to accept other forms of identification, which would allow her to fulfil the key purpose of satisfying herself as to the identification of persons.
I wish we had paused in 2017, and again in 2018 before a new contract was signed. However, accepting this amendment gives the Minister the ability to accept alternative forms of identification when the contract expires in January 2019, as well as use other methods to satisfy herself as to a person's identity. It would allow us to stop digging.
This is a very worthwhile amendment and quite apt in view of the Data Protection Commissioner's report, which I believe the Minister intends to challenge following advice from the Attorney General's office that this is lawful, despite the Data Protection Commissioner saying it is unlawful. A lot of unlawful activity is being found out in Britain but the Attorney General advised that something was lawful and his job may be in peril as a result. Data are more valuable than oil in this day and age. Every time we click on something on our phones we are asked to accept cookies. I do not know what this means or where it is going but whenever I go onto social media, or google something in which I am interested such as holidays, the adverts and other sites come up again, so it is certainly going somewhere. We need to be very careful. We are in a grey area so making this mandatory for jobseeker's allowance amounts to diktat.
I do not propose to accept the amendment. This is because it would change the requirement of persons presenting for a payment in a social welfare capacity, in respect of themselves or another person, to have identified themselves or authenticated their identity by using a public services card. The Data Protection Commission finds that there is an entirely robust and legal basis for the Department of Employment Affairs and Social Protection to make it a requirement in order to access social welfare payments, though it is neither here nor there whether we call it mandatory or compulsory. On that basis, we will not be removing the practice, which we have employed and enjoyed for the past number of years.
The Data Protection Commissioner may say the Minister is entitled to do this in relation to the services of her Department but in respect of the public services card database, that is, the single customer view data set, there has been a huge issue and a requirement around its deletion.
That is not true. The findings are not about the PSI dataset but about the supporting documentation people use to identify where they live.
There are a number of findings. There are findings relating to getting or producing a public services card to access a service-----
That is for other specified bodies and it has nothing to do with the Department of Employment Affairs and Social Protection.
-----and there are findings relating to the requirement for persons to have a public services card, which show that there has been a lack of clarity in the information provided on the purposes for which it will be used. Because of the lack of clarity, there is a very serious concern over the legality of retaining the data that were taken. Even if there is a better and more informative process in the future, and a better version of the public services card meets the requirements for somebody accessing a payment, there remains a concern about the current database.
The Minister has not indicated any change in the process or the information. Therefore, using the current database and system presents a genuine concern. A genuine question has arisen over how the data set has been put together.
I beg to differ. I do not believe this is an appropriate time or place for me to go into this on the basis that I am to be before the Dáil tomorrow and the joint committee in the coming weeks. The findings do not relate to the data set in any shape or form. They do not even refer to it. They relate to the database of supporting documentation. The only discrepancy in the finding is the nature of the indefinite retention. It has nothing to do with how the data are stored or their security; it has to do with the phrase "indefinite retention". We obviously reject the findings as presented to us on 15 August. They are not in any legally enforceable or challengeable form today but if they ever are, we will use the legal advice we have been given, which we know to be very strong and robust, to defend the policy of successive Governments in delivering efficient services across any Government platform.
The Minister is proposing that, in terms of accessing new social welfare services, an individual should be willing to agree to the blanket indefinite retention of personal data. Concern was expressed over this in finding 3. Finding 4 states, "The Data Protection Commission is not satisfied that the Social Welfare Consolidation Act 2005 alone provides data subjects with sufficient information on the PSC and Safe 2 registration, particularly with regard to purposes of processing, to meet DEASP's transparency obligations under section 2D of the Acts." Finding 5 states, "The Data Protection Commission is not satisfied that DEASP's privacy statement provides data subjects with sufficient information in relation to processing of personal data in connection with the issue of the PSC and Safe 2 registration to meet DEASP's transparency obligations under section 2D of the Acts." Has that privacy statement been changed? It is a concern. Will that same privacy statement be the one that applies to persons who are now joining this register and who are getting new public services cards? I could go on. There are other amendments. There is another related amendments and we will have an opportunity to discuss it.
Let us be clear: there are findings and concerns. Nonetheless, my amendment simply gave the Minister the space. I had other amendments ruled out of order because of a potential charge regarding the contract of the State with the private company providing public services cards. The contract has already been signed and there is a tendering process under way. My other amendments were more modest because they simply sought a six-month hiatus that would at least allow for these issues to be resolved and ensure that, at least for the six-month period, individuals who wished to access much-needed payments would not have to undergo a process requiring them to accept an inadequate privacy statement and would not find themselves adding to the problems. In addition to referring to the concerns expressed by the Data Protection Commissioner on the principles of the law, I refer to the fact that there is recourse available to individuals. I believe the Minister would want to seize the opportunity to ensure new individuals do not have to add themselves inappropriately in terms of the public services card and so she will not continue with a business-as-usual approach despite very serious concerns.
The Department of Employment Affairs and Social Protection is an immensely important one and that is why I am proud to be a member of the social protection committee. I take my role in scrutinising legislation concerning the Department very seriously. It is a Department of which Deputy Regina Doherty is very proud to be Minister. While it is an important Department, this issue is much wider than it because it relates to Ireland's credibility regarding international regulation and some of the issues that even the Taoiseach was speaking about very recently, namely, the global digital realities we face. It will be very hard for Ireland to be seen as a credible regulator of the data processing of some of the largest international corporations in the world if we do not take our own regulation seriously and if we do not show that we are willing to abide by and engage with directions and findings when presented to us.
Never the twain will meet. The Minister has a view that obviously does not coincide with that of the Senator. Is the Senator pressing amendment No. 22?
Colleagues and members of a couple of the other parties are not present but I hope they will support my amendment. On the grounds that I would certainly like to engage with other parties to ensure I can put forward something very similar to amendment No. 22, with support from across the House, I propose to withdraw it. I will be reintroducing it and seeking to press it on Report Stage. I hope I can find a formulation that suits. I am happy to work with the Minister if there is a suitable formulation. I realise it might not be the case but I hope there is a formulation that is acceptable to everyone in the House. I would at least like a time period to be put in place to address the issue with the requirement. I will be seeking to put forward something to that effect.
I move amendment No. 23:
In page 13, between lines 4 and 5, to insert the following:
"Amendment of section 263 of Principal Act
6. Section 263 of the Principal Act is amended by the substitution of the following subsection for subsection (3):
"(3) A person shall produce his or her Public Services Card or other appropriate form of identification at the request of a specified body for the purposes of a transaction. No specified body shall make possession of a Public Services Card a mandatory requirement for the purposes of a transaction.".".
The legal opinion has already been given on this issue. The paragraph I was adding to section 263 was designed to be helpful and constructive but perhaps it is not necessary because the legal interpretation of the existing law in the Data Protection Commissioner's report matches the amendment I am putting forward. Therefore, I am not going to press it but I will be following the issue with great interest.
The provision will amend section 307 of the Social Welfare Consolidation Act 2005. It will provide that, in all cases where an appeal is made against a social welfare decision made by an officer of the Criminal Assets Bureau, the appeal will have to be submitted to the Circuit Court.
The chief appeals officer has discretionary powers under section 307 to certify that the ordinary appeals procedure is inadequate to secure the effective processing of a particular appeal and to direct the person to submit the appeal to the Circuit Court. The Circuit Court may, on hearing the appeal, either affirm or substitute the decision of the deciding officer in accordance with the Social Welfare Acts. A key difficulty facing the chief appeals officer in Criminal Assets Bureau cases is that, for very understandable reasons, insufficient information is provided by the bureau to the officer as to why a person's claim is being investigated by the bureau and on the nature of the alleged criminal conduct that the person is facing. This difficulty is often compounded by the fact that, while information relating to the investigation and the nature of the alleged criminal conduct is recorded on file, it is not evident that the person being investigated is advised as to why his or her claim is being investigated by the bureau and-or the relevant provision of the Criminal Assets Bureau Act that is being relied upon. If the chief appeals officer were to base his or her consideration on the information, it would be incumbent on him or her to advise the appellant accordingly; however, the chief appeals officer does not enjoy the anonymity afforded to Criminal Assets Bureau officers and, in these circumstances, she or he would be the first person advising the appellant of these facts. That is clearly undesirable and the amendment will address these difficulties directly.
In practical terms, the appeals against social welfare decisions made by a bureau officer of the Criminal Assets Bureau will continue to be made to the Social Welfare Appeals Office in the first instance and the statutory timeframe for making the appeal will apply but the chief appeals officer will be required to cause a direction to be issued to the appellant directing the person to submit the appeal not later than 21 days from the receipt of the direction of the Circuit Court. In line with section 307, the Circuit Court may, on hearing the appeal, affirm the decision or substitute the decision of the deciding officer in accordance with the Social Welfare Consolidation Act and on the same evidence as would otherwise be available to the appeals officer. The Criminal Assets Bureau and the Department of Justice and Equality are both supportive of this amendment.
I have a couple of questions to seek clarification.
In the instance where a case is put forward, when a decision is made, and someone wishes to appeal that case, can I clarify that this is a third stage or is it a replacement for the second stage of an appeal? Let us take as an example a case where someone disagrees with a decision by a case officer or someone else regarding a payment where this decision has been taken on the basis of some of the circumstances we discussed earlier. One ambiguous aspect of this legislation which I would like to have defined is the meaning of the term "good cause". If a deciding officer determines that a person did not have good cause for non-attendance at a meeting or whatever it might be, does the Minister envisage that the process will move straight to this stage or am I correct in saying that this is a third stage? This is a technical question.
I know exactly what the Senator is saying.
I am just trying to figure out if that is the first step because it would seem to be quite an extreme first step following such a decision. Does this step occur after the chief appeals officer stage? I apologise but I am just trying to clarify the point.
That is fine.
Is it envisaged that this provision will apply to individuals or companies? The Minister indicated she wishes to challenge some of the issues concerning false or forced self-employment, whereby companies, following investigation, are determined to have been falsely registering persons as self-employed when they are in fact employees. Does this process relate to such companies?
If a direction is made to take a case to the Circuit Court, how would that work financially, for example, for individuals who may have very low financial resources? Is that feasible? Should they do this without representation? Is it foreseen that this process will give rise to legal aid costs? These are technical questions. I am not necessarily opposed to the principle involved.
That is not a problem. The example given by the Senator is so far down the scale of what we are discussing as to be irrelevant. We are talking about people who are being charged with very serious criminal offences. The Department becomes involved when it stops somebody's payment on foot of such charges. The amendment is simply to protect the chief appeals officer whereby he or she will not be the person who tells the criminal that this is the reason a payment is being stopped. Members of the Criminal Assets Bureau are anonymous and would not place themselves or their families in jeopardy or danger in the way our chief appeals officer would in such circumstances. It is not another layer.
This only relates to criminal assets cases.
It is only for individuals and has nothing to do with bogus or false self-employment. The financial element does not come into play. This is just a protective measure to ensure the safety of our staff, particularly from a personal perspective.
I thank the Minister's clarification that this relates only to the Criminal Assets Bureau. My apologies as I had not seen the placing of it. This is useful.
Subject to those observations, I understand the amendment is agreed.
Amendments Nos. 25 and 26 have been ruled out of order as they would impose a charge on the Revenue.
On the concern regarding maintenance payments, I accept that Senator Ruane's proposed amendment No. 25 falls short technically. I ask that we engage to find some way of moving forward before Report Stage. The current maintenance system is flawed. The need for a maintenance body and to have maintenance payments reflected in income assessment has been raised by Senator Ruane and me, as well as by the Committee on Employment Affairs and Social Protection and the Minister. I hope we will be able to engage and find an appropriate action, mechanism or amendment that can satisfy the requirements of the Cathaoirleach.
I also mention amendment No. 26, which would also give rise to a charge. I urge the Minister to act because she does have the capacity to propose amendments which give rise to a charge. Her predecessor, An Taoiseach, took on board certain of my proposals on voluntary payments. These would affect people in self-employment-----
I cannot allow debate on amendments that have been ruled out of order.
I am just indicating that it would be useful if we could find a way of moving forward and making it easier for people to make voluntary contributions and to pay into the State's coffers in order that they then can access supports and services at a later stage.
I, too, wish to raise a number of issues with the section. How does the State recover overpayments? I raised the issue of self-employed people, particularly sole traders, who laid off staff during the recession or had no choice but to close their businesses because they had failed and were then required to pay redundancy of two weeks per year to all staff. When a business was unable to make those payments the State stepped in and paid the two weeks' redundancy per year. This provision operates under the 2003 Act, which was amended to increase the number of weeks of redundancy payments to employees from one week to two weeks per year. If I recall correctly, the State's decision to amend the legislation in 2003 was a knee-jerk reaction to a company in Waterford, Talk Talk, going bust and laying off between 400 and 500 employees overnight.
In any event, in this legislation sole traders are being treated completely differently from companies. A company can fold and the State will carry the can for two weeks' redundancy per year for its employees. In the case of a sole trader who has been a good employer for maybe 40 or 50 years but was unable to continue in business during the recession and had to close down, the State, as I said, stepped in and paid the two weeks per year when the employer was unable to pay. Now the State, in a number of instances that I am aware of, is pursuing such people for the return of this money. It is to be taken from the person's estate if he or she is unable to reach an agreement, presumably with the State. The person's estate will have to cough up when he or she dies. This is very serious as the sole trader is being treated differently from companies. I ask the Minister to examine the amendments made to the 2003 Act. In effect, the State, in that Act, introduced a retrospective provision requiring sole traders to pay moneys if they go bust or close their business. In January 2003, a sole trader may have been caught for a redundancy payment of one week per year, whereas in February of that year, a sole trader would have been caught for two weeks per year, possibly going back to the 1960s or 1970s. This was an awful position to place on sole traders.
The Senator is referring to legislation introduced long before my time, as I am a new Deputy. I will look at this issue and revert to him. If he is referring to a particular company or individual, I ask him to provide me with the details, which will provide a focus for me.
I do not believe it was the intention of this House or the Dáil at the time to treat anybody differently. It may be just the case that if there are assets, the State should not pick up a bill when a company or somebody else could pick it up. I am aware from personal experience of dealing with people that when there is an overpayment we try not to impinge on people's lives in having them repay it. I am also aware of cases where recovery is made from a person's estate after his or her death. I ask the Senator to give me the details of case and I will certainly look into them.
This does not involve companies but sole traders who ceased trading or closed their businesses for one reason or another, whether they could not make a go of it or got into difficulty.
The State stepped in and made redundancy payments. Ultimately, a person's estate will have to pay and that will involve selling a private dwelling house in most cases. It is very-----
I hear the Senator.
I know the Minister understands the situation. It is not just one or two cases; this happened to quite a number of sole traders during the recession.