Amendment No. 27 is out of order.
SECTION 41.
I did not receive notification that amendment No. 27 is out of order.
The Deputy would have been notified. Amendment No. 27 seeks to have the period of limitation within which the Minister may recover debts due to the State, that is, overpayments or wrongful payments of assistance, reverted to two years in lieu of the six year period proposed in the Bill. The effect of this amendment would be to maintain the status quo which is two years. The amendment is a direct negative of section 41 of the Bill and is, therefore, out of order within the meaning of Standing Order 49. The purpose of the amendment can be achieved by voting against section 41.
Amendment No. 27 not moved.
Question proposed: "That section 41 stand part of the Bill."
If the amendment is out of order, we will oppose section 41. I am concerned about the change from two to six years. This move would allow the Department of Social Welfare to delay the conclusion of estates for six years. If the estate was concluded within two years and a matter arose in the third or fourth year, how will it be determined whether the estate is closed?
I do not understand how this provision can delay the conclusion of business in relation to the estate of a deceased relative. The purpose of the provision is to ensure that, where a person was in receipt of a payment before they died to which they were not entitled, it can be recovered from the estate. We are seeking to enable sufficient time to be provided in cases where there may be a complex series of protracted correspondence between the personal representatives and the Department; where the estate includes property held abroad; where there may be a dispute concerning the contents of the estate; where the sale of assets is required to repay the debt, or where the amount of the debt is in dispute and the decision which gives rise to the payment is appealed at a late stage to the social welfare appeals office. There are many reasons the executors of the estate may seek to delay settling to allow the current two year stipulation to run out. The purpose of this amendment is to protect the interests of the taxpayer where the resolution of the estate has been delayed by a factor outside the control of the Department of Social Welfare. The Department can at the moment become the victim of such delay because of the two year stipulation in the legislation.
If an unmarried pensioner's estate is left to his 25 nieces and nephews was fixed up within the two year period — as would normally be the case — and the Department of Social Welfare decided to query it three or four years later, would it question all 25 nieces and nephews?
The Department cannnot legally query an estate four years after it has been settled. Legally, the person representing the estate — the solicitor or the executor — is obliged to inform the Department of the position with regard to the estate before it is distributed.
The Department of Social Welfare would not be informed of the position of the estate of every person in the country.
It has to be, and it can be.
When I die and leave a will, will the Department have to be notified before my estate can be distributed?
Only if the Deputy is in receipt of a social welfare payment at that stage. I presume she is not at the moment.
It seems extraordinary that the Department is notified of the estate of everyone who has ever received a payment from the Department of Social Welfare.
The current provisions were introduced by the Deputy's party colleague. We are extending the current two year period to six years, so that in difficult cases where there are delays of over two years in the settling of estates we will not be left out in the cold. We are seeking to protect the taxpayer from a loss of revenue when those dealing with estates are delayed in concluding their business with the estate, for legitimate reasons or otherwise. As I indicated, there can be situations where property is held abroad, there are disputes among the inheritors and so on. It is reasonable to at least provide for a period equivalent to the statute of limitations.
If the estate was ready to be concluded within a matter of weeks, could the Department of Social Welfare prevent the estate from being concluded?
No. The vast majority of estates are concluded in a relatively short time. The obligations of the estate to the Department have to be met.
I do not know why the Department needs this extra four years. If the Department is not clear of its position it can hold up distribution of somebody's estate.
If, for example, a solicitor is handling an estate for six people inheriting property or income from a deceased relative, and there is a great deal of dispute or legal challenges on the ownership of the property and so on, in those circumstances, it can take many years before the estate is finally settled. If we allow the current two year limitation to stand, where it takes longer than two years to deal with an estate we will be left out in the cold.
The present obligations on a personal representative of an estate are to inform the Minister in writing within three months of distributing the assets of the person's estate of his or her intention to do so and to provide a schedule of the assets and, if required by the Minister within three months from the date on which the schedule of assets and the notice to distribute the assets are received, to ensure sufficient assets are retained to repay any assistance paid to which the deceased was not entitled. It only applies where a person was in receipt of a social welfare payment when he died.
What time limit is on the Department of Social Welfare?
It must be within three months.
If the Department of Social Welfare must communicate with the estate within three months, what happens if four months elapse without the Department seeking a refund?
The personal representative is obliged to inform the Minister in writing three months before distributing the assets of a person's estate of his or her intention to do so. If the Minister requires, within three months from the date on which the schedule of assets and the notice to distribute the assets are received, the representative must ensure that sufficient assets are retained to repay any assistance paid to which the deceased was not entitled.
I wish to have this important matter clarified. Must the personal representative of every person who dies in receipt of a social welfare payment communicate with the Department of Social Welfare to say that the person has died and will, therefore, be no longer in receipt of a pension from the Department, and their affairs will be fixed up within three months?
Yes, if the payment is means tested, for example, an old age non-contributory pension.
Is there an obligation on all personal representatives?
It does not arise if it is a contributory pension, for example, a widow's contributory pension. It only arises in the case of means tested payments. If it is found that a person who died has an estate of £100,000 and was in receipt of a non-contributory old age pension, then clearly something was amiss.
Is there an obligation on the personal representatives of all those in receipt of a non-contributory pension to comunicate with the Department of Social Welfare that the person has died and their affairs will be fixed up in three months time?
Yes, under section 280 of the 1993 Act.
Therefore, there is an obligation on solicitors to contact the Department if their client was in receipt of a non-contributory pension.
Section 280 of the Social Welfare (Consolidation) Act, 1993, states:
(1) The personal representative of a person who was at any time in receipt of assistance shall, not less than 3 months before commencing to distribute the assets of that person
(a) inform the Minister, by notice in writing delivered to the Minister, of his intention to distribute the assets, and provide the Minister with a schedule of the assets of the estate, and
(b) if requested in writing by the Minister within 3 months of the furnishing of the notice and schedule of assets referred to in paragraph (a), ensure that sufficient assets are retained, to the extent (if any) appropriate, to repay any sum which may be determined to be due to the Minister or the State (as the case may be) in respect of—
(i) payment of assistance to the person at a time when the person was not entitled to receive such assistance or
(ii) payment of assistance to the person of an amount in excess of the amount which the person was entitled to receive.
Subsection (3) provides:
A personal representative who contravenes subsection (1) and distributes the assets of the person whose estate he represents without payment of any sum which is due to the Minister in respect of—
(a) payments of assistance ...
shall be personally liable to repay to the Minister an amount equal to the amount (if any) which the Minister would have received if, in the administration of the estate of the person, the sum aforesaid had been duly taken into account and repaid to the Minister ...
Those powers are in the Social Welfare (Consolidation) Act, 1993.
Is the obligation on the solicitor to inform the Minister that the person owned, for example, a bungalow, X acres of land and had X amount in a bank account?
The solicitor must inform the Minister of all the assets. A sum of £3 million was recovered in 1995.
There are a number of problems in this. Cases where this arises usually involve people with relatively small amounts of property. There would seldom be cases where pensions or social welfare officers would grant a pension or assistance to somebody with visible assets worth a substantial amount of money. Most of these cases involve people with relatively small holdings and assets.
The first difficulty is that when the person in receipt of assistance or a non-contributory pension dies it takes some time to tidy up his or her affairs. The beneficiary in many cases receives a small property or farm. A demand from the Department of Social Welfare for cash might follow and the beneficiary has no option but to dispose of the property although he or she had nothing to do with the problem, which was created by the person in receipt of the assistance or pension who did not disclose all his or her means.
There are also many cases of elderly people making savings from their pension, even though they might be in receipt of considerations from the St. Vincent de Paul and, perhaps, meals on wheels. On their death it is discovered that they have been putting aside part of their non-contributory pension. When the estate is revealed, the Department claims that the claimant had means in excess of the threshold for qualification for the pension. In such circumstances a repayment must be made in cash.
The second problem is the extension from two to six years, which is excessive. During discussion on the previous section, we were told that it was too bad for applicants if they did not apply within three or six months for an entitlement. However, when it is the other way around and the Department stands to benefit, it claims two years is not enough and seeks a period of six years to recover an overpayment.
The first problem is that there is a demand for cash in cases where the means exceeded the statutory limit for non-contributory or means tested payments. The second problem is the extension of the length of time from two to six years. The Department says that three to six months is adequate for an applicant so when the shoe is on the other foot the Department should be satisfied with two years. Consideration should be given to reducing the period to two years or, at most, three years if that length of time is believed necessary. Could it be looked at again?
I regret I am unable to accept the Deputy's proposal. There is no comparison between the person who applies late for an entitlement and this extension from two to six years. The obligation is on the representative of the deceased person to carry out the administration of the estate in an efficient way. If that is done no problem will arise. There is no reason the estate should not be settled within the two years provided.
However, there have been instances where, for reasons of disupte over an estate, it has taken longer than two years for the estate to be settled. That has nothing to do with the Department of Social Welfare; its claim is there from the beginning. However, because it has been impossible to resolve disputes between claimants to an estate, it has often taken more than two years to resolve them. If we allow the two year stipulation to stand, the taxpayer will lose.
We are providing that there will be a period of up to six years, which is the statute of limitations period in any event. It will provide for clarity in relation to the statute of limitations and, in cases where there is delay — it cannot be caused by the Department of Social Welfare, that does not arise — because the representative of the deceased is not in a position to conclude within the two years, the Department's claim, where it is legitimate, will stand. The assets and moneys are not the property of the person administering the estate. The person is administering the estate on behalf of the deceased. The estate belongs to the deceased who has either failed to decide how it should be distributed or decided it should be distributed in a certain way.
Where it has been shown that the person who died was in receipt of a means tested payment or a level of assistance to which they were not entitled because they did not declare their full assets, the Department, on behalf of the taxpayer, has a legitimate claim against the estate. We are providing for a six year period to ensure that, where there is a delay in resolving a problem with an estate, we will not cut ourselves from our claim on behalf of the taxpayer by having a self-imposed two year limit in the legislation.
Can this section be looked at again, at least in its implementation? Hardship is caused in some cases and usually to the executor. If an elderly person dies and a younger person is left the property, the younger person is usually of the opinion that the property is a great windfall for them and their family. However, it then emerges that the elderly person was in receipt of a pension or payment to which they were not entitled. If cash is bequeathed it is often divided among other relatives and the executor is left with a small piece of land or property.
The demand from the Department is usually hefty. I am not aware of the average amount but one could be talking about between £10,000 and £15,000. If the executor is a person with a young family the demand can cause tremendous hardship. I have made representations to the Department of Social Welfare to ask for more time to make the repayments or to reduce the amount. The Department is good about allowing more time but it remains adamant that it wants the full amount. It causes untold hardship, particularly in rural Ireland where land is usually not worth much and cannot be exchanged for cash. Perhaps the Minister and the Department could take the human aspect of this problem into account.
The Deputy said the Department adopts a sympathetic view. That was my experience also as an Opposition Deputy. The Department is not going around with a big stick trying to extract resources which do not exist. If the resources are not there, the claim cannot be sustained; it cannot take blood from a stone. The Department only has a claim on those assets if they are left behind by a deceased person. This situation would not arise if there were no assets because there would be no way of showing that the person was not entitled to the assistance in the first instance. The Department has reclaimed £3 million as a result of this provision, which is not an insignificant sum of money. We would be neglecting our responsibility to the taxpayers if we did not allow such a situation to be rectified. It is not a question of taking something to which the Department is not entitled. It only arises because the deceased person was not entitled to the assistance they were receiving or they were receiving assistance in excess of what they were entitled to because they did not declare their assets.
Could the Minister confirm that most of the £3 million which was reclaimed relates to undisclosed capital? If a person puts £20,000 in the bank, they will get 0.25 per cent or 0.5 per cent interest, but the Department of Social Welfare will get 10 per cent. It will become a dwindling asset once it is declared. This is a penal rate. A pensioner might not declare money because they could lose 20 or 30 times its value. It is not that people are unwilling to declare their assets, but that the rate is penal in some circumstances in rural Ireland.
I draw the Deputy's attention to the fact that we have already discussed that point. I will not allow the Deputy to do so at this stage. I ask the Deputy to confine his remarks to this section.
Extending the time adds to the severe problems already faced by rural people who are trying to keep their heads above water. People have enough difficulties with headage payments and waiting for transfer of title — the Minister is not aware of these as he represents Finglas — without adding another delay in finalising their affairs. Two years should be enough for the Department to sort out this problem. Nobody is holding back finalising transfers and taking out probate because of the need to do so to get headage payments.
If that is the case, the problem does not arise. We are only providing for an extension of time if the executors of the estate cannot close the administration of the estate. If the estate is sorted out within six, 12 or 18 months or two years, that is fine; the vast majority are resolved in those periods. If, for reasons outside the control of the Department of Social Welfare, an administrator has not been in a position to settle an estate within the two-year period, it is reasonable and legitimate for us to maintain our claim on that estate beyond those two years. Why should we not do so?
Because many of the delays in these cases relate to the Land Commission, etc.
That is my point — they have nothing to do with the Department of Social Welfare. Why should the Department of Social Welfare, on behalf of the taxpayers, forgo its claim because of an artificial self-imposed two year limit in the Act?
Because most of the delays are caused by the State.
The Deputy also said that most of the estates are settled within months because of headage payments.
Yes, unless they run into difficulties.
The Deputy cannot have it both ways.
I can.
The Deputy can try but he will not get far.
The Minister had it both ways during his time in Opposition.
I did not often get away with it.
Most delays in finalising title in the west relate to old congested district board estates.
What is the Deputy's problem? Does he not want people to pay their entitlements?
The attitude of the Department of Social Welfare to savings has already been discussed and I do not want to challenge the Chairman's ruling. I will not take the moral high ground on this issue. The Minister is robbing the poor to give to the rich and that is his prerogative.
Is the Deputy accusing me of robbing?
Robbing the poor to give to the rich. Most delays in these issues relate to matters outside the power of the recipient. It is therefore unfair to hold them up.
We are not holding them up.
The State is holding them up.
This Department is not holding anyone up.
Perhaps the Department of Social Welfare is not holding them up, but the Minister is part of the Government. The Minister and his advisers must examine transfers of title in the west.
The Deputy is mixing up the two issues.
I am not.
The Deputy is. The Department of Social Welfare is implementing a provision which the Deputy's party introduced. Is the Deputy listening?
I am listening.
We are protecting taxpayers' rights by providing for an extension of——
We are all taxpayers.
——the time within which we can legitimately claim a refund of money which people received but to which they were not entitled. The Department of Social Welfare is not causing any delays. Other people cause delays in the administration.
That must be the State.
It may be in some cases, but not in them all.
It is because I deal with it everyday.
In some cases delays are caused by the inefficiency of the administrator who may be a lay person, not a solicitor, and who may not know how things should be done. This is basically a protection of taxpayers' rights to reclaim money which should not have been paid in the first instance. It does not create a delay in the administration of or the resolution of the administration of an estate.
I wish to establish a few facts. The solicitor must notify the Department that within the next three months they will distribute this estate. Within the same three months the Department must notify that solicitor they would like to reclaim X amount of pounds that has been overclaimed.
No, it is a different three months. After receipt, say, within three months, an administrator informs the Department they intend to divide the assets within three months of receiving the schedule from the administrator. The Department may require them to retain sufficient assets to refund to the Department the money owed to them. Therefore, the maximum period that can elapse from the date on which the administrator decides he or she is ready to divide the assets should be six months.
I am not sure about that. If the Minister's Department received the letter today saying that someone died and had left an estate to be distributed in three month's time it will distribute it in June. That is the same three months the Department will have. From the day of receipt of that information the Department must notify the estate it has a claim.
No, it is within three months.
Today it would say that in three months' time it will distribute this estate. Here are the facts and it has three months to let them know if you have a claim. It is the same three months. By June the Department will have had to go back to them. There is obviously a time limit in the Department if it does not respond to its solicitor by June this year to say it has a claim.
If they do not get a response from the Department they can proceed and distribute.
When the Department responds, does it have to state the figure being claimed?
My understanding is that that is the normal procedure.
Is the Department obliged to state that amount?
Where we have sufficient information to assess entitlement or overpayment we will inform them, but there may be occasions when we require additional information to make that assessment.
This goes back to the point made by Deputy Ó Cuív, that it is possible the Department might go back to the solicitor before June and seek further information saying it has a claim, although it cannot say for how much because it has not fully assessed it. By doing that, the Department has brought its claim against the estate within three months but has not specified the amount because of lack of information and, therefore, there is a delay on the Department's side.
It depends how quickly the administrator of the estate responds. If we know there is an overpayment and the administrator has given us a schedule of assets, we know we have given X amount of money to the deceased, but we need some further clarification about income and how much money is in this or that bank account. It is then in the hands of the administrator as to how quickly that additional information is supplied.
Since today is 26 March, my concern is that as of 26 June this estate will be wrapped up, but the Department could reply to the solicitor on 20 June saying it has a claim, but does not know how much it is because it needs information. If the Department is in any doubt with regard to ten pensioners, it could delay those ten estates as long as it has a claim before the 26 June, and it does not have to specify the amount. I am sure the Minister shares our concern. We do not want to be in a position where the State is holding up the estate.
What incentive would the Department have in delaying the resolution of the issue? Our purpose is to recover money as quickly as possible. The purpose of the administrator is to administer the estate as quickly as he or she can. There is no incentive on anybody's part to delay.
I am not saying there is an incentive. However, a person dealing with any particular file in the Department of Social Welfare goes home at 5 o'clock when the day's work is over, and does not worry about it after that.
Would that that were true, Deputy.
I worked in a nine-to-five job before I came into the Oireachtas.
This is not a nine-to-five job, I assure the Deputy.
No one in any Department will sit up all night working on a file because the estate is being held up. It is possible that files will pile up and before we know where we are it is 20 June.
It does not work like that.
I have had a pension application in with the Department since January and the woman is due to retire in April. I keep asking the old age pension section to tell her whether she qualifies for that contributory pension.
That is paying out money. We are talking about getting money back in, which is a different thing.
I cannot get the Department to say she has enough contributions and that, therefore, she can stop worrying. She has been worrying about it since January.
That is a different issue.
It has taken three months to solve that one, and nobody is going home at the weekend worrying about her. The only one worrying about it is the claimant who rings me every weekend to say she has still not heard from the Department of Social Welfare as to whether she has an entitlement to that contributory pension. The same can apply with regard to an estate. We are dealing with people's real concerns and I am worried that if we were to pass anything here it would cause people further undue delay.
The best thing Deputies can do is urge people to make sure their affairs are in order before they die. They should make sure they do not have undeclared assets if they are on a means tested payment. They should make a will and should not leave this pain, worry and concern to those they leave behind. That is the best advice, rather than fighting a false and losing battle here.
I always stress that people should make a will. I have made my own will and I presume that everybody in this room has also. However, even if you have made a will, you are not helped by the possibility of a delay under this section.
You are. The other leg of my advice was that they should declare their assets if they are on a means tested payment. They should not hide assets from the Department of Social Welfare if they are claiming tax-payers' money.
I do not have a problem with that.
As public representatives we have an obligation to protect the taxpayer.
We also agree with the Minister on that point except that in these cases we will be dealing with deceased persons. We are dealing with their estate, and the concern that the 25 nieces and nephews will be gone with X amount of pounds while the one poor fellow left with the hopeless few fields will be stuck with the Department of Social Welfare holding up the estate. I have a very simple question to ask.
Neither cash nor property can be distributed until the Department's claim has been settled. None of this can be resolved, money cannot be given out and then the claim left to be dealt with by the one person who might inherit the field.
The concern is that the Department may be in a position to hold up distribution of the estate. For how long has the two year limitation period applied?
I will get that information for the Deputy. I do not know when the legislation was introduced but it applies from the introduction of the original legislation.
Why at that time was it determined that the two years was sufficient and why do we think today that it is not?
It was new legislation and presumably it was considered that two years was an adequate period. Practice has shown that in some cases estates can be extremely complicated and complex and can be delayed for a variety of reasons arising from circumstances which are completely outside the control of the Department of Social Welfare. In those circumstances, if it takes four years to resolve the administration of an estate the claim of the Department on that estate can be ruled out of order under current legislation because it was not settled within two years. We are simply protecting the Department's claim on behalf of the taxpayer for over-payments to a person of money to which he was not entitled in the first place.
I would have no problem if the Department was confined to a three month limit. If there was a chance the family might delay the procedure to prevent the Department's claim it might need a six year limit to ensure matters could not be held up so as to exclude the Department. However, I am concerned that as it stands the two year limit also applies to the Department. The Department is also getting an extension and there is a concern that the Department could hold up somebody's estate for up to six years.
This is a hypothetical argument. There is no evidence that the Department of Social Welfare is delaying unduly the settling of estates. It cannot delay the conclusion of the preparation for administration of an estate. A person need only give the Department three months notice of his intention to distribute the assets of the estate and within three months the Department must oblige him to keep money on hands to repay over-payments of benefit. He is not prevented from distributing the estate. He is being obliged to retain in his control sufficient money to cover the Department's claim. The estate could be for £100,000 and he may only owe the Department £5,000. The distribution of the other £95,000 is not prevented as a result of that.
I propose to suspend this session until 7 p.m.
We have almost finished with this section.
Do you mean to work through until we finish?
Yes.
That is fine with me, if that is what you want.
We will finish by 7 p.m.
Since you are the spokesperson for Fianna Fáil I will accept that.
I would have no problem if the Department was in a position to tell the executor that only what is owing to the Department must be kept but at an earlier point in the debate the Minister suggested the Department could seek further information. The family might not be able to supply this information and quite some time could be spent dealing with correspondence on it. If, for instance the Department spent six years asking questions and receiving answers that would be unreasonable.
That would be unreasonable and I have no evidence to suggest that the Department has at any time delayed the process unduly. However, the Department is entitled to pursue a claim and the practice as I understand it is that if we do not have an accurate assessment because of the absence of information we give an estimate of what is likely to be due. The legislation obliges the administrator to retain sufficient assets to reimburse the Department. If the Department estimates a figure of £5,000 but asks the administrators to retain £7,000, that is a reasonable approach. The rest can then be distributed and the final claim can be dealt with.
That is easy enough where cash is involved. Where fixed assets are concerned, where they have to be sold off, that brings in other complications but nobody has made a case yet to me that distribution of an estate has been delayed unduly by the Department of Social Welfare. The only obligation of the administrator is to retain sufficient money to pay what is likely to be due to the Department based on the claim or the estimate given to him by the Department. It is not a case worth wasting any more time on.
When the six years are up, is the £7,000 dead as far as the Department is concerned?
Not necessarily.
Is it the case that they must only submit the claim within the six years?
No. I understand the six years is the period within which the Deparment may take proceedings. If the estate refuses to pay the Department, it can take proceedings within six years.
I have a problem with that. If the Smith family in County Mayo is trying to fix up their uncle's estate and they have no idea how he lived, how many cattle he had or what he did with four fields, the Department will say that, since the family will not give the information, it will estimate that he owes a certain amount.
If he had cattle, presumably he would have received headage payments. The Department could check that aspect.
There is no such thing as headage payments in my county so perhaps I should use County Meath as an example.
There are more than a few herds of cattle there. One is talking about hundreds of herds of cattle and people would not get the non-contributory pension.
In my example, the Smith family is trying to fix up their uncle's will, but the Department says the family will not give information regarding the number of cattle he had, etc. However, it is not that they will not give the information, they cannot give it because they do not know how he lived. He just left his assets to the family in his will and they are not in a position to give the information. The Department says that is their problem and it estimates that the family owes £20,000 until such time as they can provide more details. The Department then lodges that sum against the family. In such a scenario the Department can hold up the estate for six years on an estimated account because the unfortunate family does not have more details.
The Deputy is putting forward a hypothetical case.
It is a likely case.
The Deputy is saying it is likely but where is the evidence that any such problems have arisen to date?
There must be some reason the Department wants another four years.
The Deputy is trying to place onus on the Department of Social Welfare in relation to claiming money which is paid out improperly to somebody who was not entitled to it. However, the Deputy should be urging that the uncle ensures he declares his assets to the Department of Social Welfare before he dies and that he is properly assessed for his unemployment assistance or non-contributory old age pension, etc. The Deputy should urge that people act honourably in relation to their assets and not hide sheep or cattle in another field when the social welfare officer calls.
The Minister should leave his paranoia about small farmers aside for a few minutes.
We were talking about big farmers in County Meath a few minutes ago.
There are small farmers and poor people in County Meath and every other county and the Minister should set aside his prejudice. The Minister is proposing that the Department can take proceedings any time up to six years after the schedule of assets has been produced. The Minister probably does not encounter such cases as often as I come across them, but my understanding is that if somebody dies and an asset was not declared — sometimes it is money — the Department issues a demand for what it considers the overpayment. I understand that in the event of the family, the administrators of the estate or, most likely, a solicitor not providing the information it requires, the Department issues a demand which covers what it considers any reasonable eventuality or likelihood. The Department can proceed to claim that and unless the person defends it in court, the Department gets its money. the person either coughs up or provides the information at that stage.
Or provides the information.
The person must either cough up the money or provide the information. Since the Department has all the running in this matter, surely two years is sufficient for any Department to take proceedings in such cases. If the Department has a reasonable doubt that it has not been told everything, all it must do is slap on a demand and proceed to court if it feels it is in the right. If the person does not then provide the information, they must cough up the money. The Minister's comments will send shivers down people's backs. He is saying the Department could hold off for five years and 11 months and then decide to take proceedings. This is nonsense because, as the Minister is aware, the Department has all the powers in such matters. It can make the demand based on the information. The problem is simple.
The problem is that the Deputy does not want people to pay what they owe.
The problem is simple. Somebody could have £10,000 in the bank when they die and could own a small farm. This ordinary, reasonable situation is typical of some of the older people who live frugally in the west. If they did not declare the £10,000 and they had that money in the bank for 20 years, the Department would claim back £20,000. The Department would not only hold up the case, but also the farm, and the Minister is proposing to give the Department six years to do so. To add insult to injury, half the problem arises as a result of the lunatic rates which apply. Although the banks reduced their rates, the Department of Social Welfare is still refusing to deal with the actual rates of nominal charge on capital. However, that is another day's work.
The Deputy was not present for most of the discussion.
We are wondering if the third banking force will pay the 15 per cent interest rate.
The Deputy is prejudiced against the banking system.
No more than the Minister, I am not the greatest fan of the banks.
I ask the Deputy to confine his remarks to section 41.
Does the majority of this matter relate to undeclared capital? Has the Minister any geographical information regarding the £3 million which is claimed?
I understand most of it relates to undeclared capital.
It all relates to this silly rule.
Will the Deputy allow me to answer the question?
No more than the Minister in another life when he felt people should not pay water charges because it was an unjust tax——
I ask the Deputy to confine his remarks to section 41 which has nothing to do with water charges.
The Minister has been moralising for a long time. He claimed the water charge was an unjust tax and that people should not have to pay it.
I still think that is the case.
Many people think that when one is earning 0.25 per cent interest from a bank——
As I said previously, that part has been debated.
The Minister has his view and I have mine. No doubt the Minister accepts, since he saw the water charges in a similar way, that I consider this the biggest sin ever. The way in which the Department handles it is immoral.
We will not get into that aspect.
I am glad the Minister is backing off the moral high ground on which he was on all afternoon regarding the taxpayer.
I am still on that high ground.
The Minister is still robbing the poor to pay the rich.
This section provides the Department with the power to oblige the administrator of an estate to set aside money from an estate if the Department believes it has a legitimate claim regarding the overpayment of moneys to a person who was not entitled to them when they were alive because they did not fully declare their assets. This is a legitimate claim on behalf of the taxpayer for whom the Deputy and I are responsible as elected representatives.
As we are responsible for the water charges.
That provision exists. It was introduced by the Deputy's party when it was in Government.
I have no problem with the provision.
I am improving it by enabling a claim to be pursued after the two year period, which is stipulated in the Bill at present, for a period of six years. A delay in settling an estate is not a matter for the Department of Social Welfare, but rather the administrator of the estate. This provision seeks to ensure that if for reasons outside the control of the Department——
Will the Minister give an example?
If for reasons outside the control——
Will the Minister give an example? How can it be out of——
Will the Deputy please allow the Minister to reply without interruption? I will suspend the session if the Deputy persists in interrupting. I ask the Deputy to obey the Chair.
Part of the Deputy's problem is that he arrived in the middle of a debate which has been going on for some time.
I have a monitor in my room.
The Deputy may have been watching the montior but he obviously was no listening to the debate.
I could hear it.
I have given examples. If the Deputy will allow me to continue——
They were not examples.
Will the Deputy please allow the Minister to reply?
The Minister is getting upset.
I am not getting upset; what the Deputy is going on with is a joke.
Will the Minister explain how the Department could not make its claim within two years?
I am in the middle of trying to explain it to the Deputy in words of one syllable.
Perhaps the Minister could explain it to me in Irish.
B'fhéidir go mbeadh sé sin níos fearr.
Will the Deputy please stop interrupting?
Ba mhaith liom é sin a dhéanamh ach ní dóigh liom go bhfuil sé i ndán é a thuiscint, is cuma dá mbeadh sé i mBearla nó i nGaeilge——
Tuigim i bhfad níos fearr i nGaeilge.
——nó i bhFraincís nó in aon teanga eile. Níl sé sásta an cás a ghlacadh — sin an fáth go bhfuil sé ar argóint anseo.
Tá mé sásta. Coinnigh ort anois i nGaeilge agus mínigh dúinn i nGaeilge — b'fhéidir go dtuigfinn ansin.
The fact is——
Beadh sé níos fearr domsa i nGaeilge. Táim as an Ghaeltacht.
Tá tú as an Ghaeltacht anois — cheapas gur rugadh thú i mBaile Átha Cliath.
Rugadh mé i mBaile Átha Cliath ach tá mé im chomhnaí sa Ghaeltacht.
Níl tú as an Ghaeltacht mar sin, an bhfuil?
Tá mé as an Ghaeltacht anois.
An bhfuil? Agus an feirmeoir beag thú?
Níl aon fheirm agam.
Mar a bhíos a rá, the fact is that I gave examples to the Select Committee.
Níl tú sásta é a mhíniú dom i nGaeilge.
There is no translation service in this room.
Tuigfidh mise tá.
Some Members are not in a position to follow an argument in Irish. When I speak in Irish in the Dáil there is a translation service for those who have not had the opportunity to learn Irish. It would be improper to continue this explanation in Irish for that reason.
I gave examples of property being held abroad, or disputes between those inheriting property or an estate. There is a whole range of reasons for delays in the settling of an estate. Currently, if the delay goes beyond two years, because of the self imposed limitation of two years in the legislation, the Department would be precluded from taking proceedings in pursuit of a claim. I am protecting the taxpayer by extending that to six years. It is a reasonable and proper course of action. The Deputy would be better employed advising his constituents to tell the Department of Social Welfare what their assets are when they apply for unemployment assistance, old non-contributory pension or any other means tested payment.
An bhfuil tú ag rá liom nach ndéanaim é sin?
In that way, all of this hassle would not arise in the first place.
Níl sé fairáilte agus tá fhios agat nach bhfuil sé fairáilte. Sin an áit a bhfuil an bun-fhadhb anseo.
Question put and agreed to.
Sections 42 and 43 agreed to.
NEW SECTIONS.
Amendment No. 28 is out of order. Amendments Nos. 29 to 34, inclusive, form a composite proposal and may be taken together by agreement.
Amendment No. 28 not moved.
I move amendment No. 29:
In page 36, before section 44, but in Part IX, to insert the following new section:
"PART X
44.—(1) The Minister shall, following consultation with representative bodies, including representatives of claimants, establish a "Charter of Rights" for claimants.
(2) Without prejudice to the generality of the foregoing, the Charter of Rights shall contain provisions in relation to——
(a) the right to have all personal dealings conducted in a manner and place which is conducive to privacy and is easily accessible;
(b) the right to be treated with courtesy and respect;
(c) the right to be presumed honest;
(d) the right to full access to services and fair treatment irrespective of politics, religious, cultural or sexual orientation;
(e) the right to confidentiality and to have access to all relevant information contained on his or her computer file;
(f) the right to an explicit and transparent system for making complaints and the right to a speedy response to such complaints;
(g) the right to an oral hearing in the event of an appeal;
(h) the right to full and total information including eligibility criteria at the time of application;
(i) the right to be advised within a period of not more than four working days of the lodgement of an application within the meaning of this section, to be advised of the identity of the person empowered with the task of determining the application.".
The purpose of this amendment is to put in place a charter of rights for recipients of social welfare. This matter has been highlighted in a number of reports, in particular the recent report of the National Economic and Social Forum and a review of the quality of welfare assistance throughout the country.
There was a recent study by the INOU of the quality of social welfare provision. Fairly simple changes, which would not cost a great deal of money, could and should be put in place to make life easier for those availing of social welfare. For example, only 45 per cent of employment exchanges in urban areas and 18 per cent of those in rural areas had reception desks or someone from whom a person could seek information. Only 50 per cent of employment exchanges in urban areas and 29 per cent of those in rural areas had up to date information to take away. Only 14 per cent of employment exchanges had safe places for children to wait. Only 20 per cent of urban employment exchanges and no rural employment exchange had toilets, and no employment exchange had nappy changing facilities. We have all seen people queuing outside buildings in bad weather to collect social welfare payments, which is humiliating and degrading. In 71 per cent of cases people had to queue outside the exchange.
On the positive side, in all cases the staff of the Department of Social Welfare were helpful and courteous and tried to do what they could. However, there are problems in regard to privacy and confidentiality in employment exchanges. Only 30 per cent of exchanges had glass partitions between claimants and staff. In very many cases, a room was not available for private interviews and people had to outline their personal details behind a shutter.
We are endeavouring to improve the quality of social welfare provision rather than the actual payment. Without incurring additional costs, we are trying to make the lot of those on welfare a little better. In relation to appeals, we want to ensure the person gets a comprehensive statement within a number of days rather than having to wait for a considerable time. We also seek the establishment of advisory groups. These are reasonable rights to which people are entitled. We are not demanding they should be put in place immediately but that a start should be made on them. We talked about women's rights a while ago and how the lot of the homemaker has improved substantially as a result of this Bill. We are making progress by degrees and we should make a start on treating people better.
I cannot quibble with much of the amendment although I thought many of these provisions were already in place. The Department of Social Welfare in Cork already has them. In many ways we have a perfect system there within a new purpose-built building and I understand that this was the standard to which the rest of the country would be brought.
One aspect of the amendment with which I have a problem is the comprehensive statement within a four working day period. This would be a huge job for the system and how it works from the client's point of view. Explanations for decisions on appeals are usually straightforward. There are standard forms and boxes are ticked off in respect of the reasons why the person is disqualified or will be paid at a reduced rate. I cannot see the system being speeded up by seeking a comprehensive statement. I have no problem with the other provisions in the amendment but the requirement for a comprehensive statement would be impossible to implement and would slow down the system.
The system of informing people is clear and there are seldom problems in determining why somebody does not qualify. Often problems arise in respect of the amount of time or general information given about the appeals system but most people are informed by Department staff about it. Sometimes there are huge delays in that area and seeking a comprehensive statement for every person who applies for increased social welfare payments would slow down the system even more. That would worry me.
I do not propose to accept the amendment although I support its underlying objectives. I do not agree with the approach. We should not set out to achieve a better quality service in a fragmented way and in the manner proposed by the Deputies. We should take a more co-ordinated approach to social services generally and the Government's strategic management initiative provides an ideal mechanism to enable this to be done.
Considerable progress has already been made by my Department in improving the quality of service in the context of the strategic management initiative. The initiative has presented the Department with the opportunity to build on various initiatives and developments of recent years. High priority within the SMI process has been given to the development over the past year of a customer service strategic action programme, the primary objective of which is to develop and build upon the existing customer service culture across all activities of the Department.
This programme is now in place and its principal objectives are: to equip our staff to deliver quality customer service; to specify and publish measurable customer service quality standards and to support action to ensure standards continue to be met; to identify new and improved methods for systematically measuring and responding to customer needs; to put in place participative structures for customers; to provide quality information and advice; to provide reasonable choice for customers in relation to methods of service delivery, to promote an integrated approach with other public services to the local delivery of social services and to develop the one stop shop concept.
The objectives of this programme are in line with the recommendations of the NESF report on quality delivery of services which was published in February 1995. My Department is giving priority attention to the implementation of these recommendations. Significant progress has already been made, a fact acknowledged in the NESF report. The following are some of the initiatives taken by the Department over the last few years: more services provided locally; substantial improvements in the time to process claims; introduction of different methods of payment; provision of new offices and systematic refurbishment of older offices; better access and more privacy; introduction of a regional management structure which has enabled a more focused and co-ordinated approach at local level to the delivery of a quality service to customers. This has, in addition, enabled better co-operation with local and community groups involved with social welfare customers.
As part of the formulation of the strategic management initiative process to date within the Department, a set of values has been established which underlines the principles within which the business of the Department will be conducted both now and in the future. While these are not presented as a charter they nonetheless represent the foundation on which the various elements of the strategic management initiative process has been established and are being further developed. The formulation of the process to date has involved extensive consultation throughout the organisation and incorporates the feedback gained from the mechanisms in place for customer input, for example, surveys, customer panels and comment cards.
My Department's values are the following. Recognising that the generation of economic progress with sustainable employment is the most important way of furthering the well being of society, we are committed to ensuring that individuals, families and communities are afforded the opportunity of becoming more self reliant and of contributing towards and sharing in that progress. We value partnership and cohesion in society as expressed in voluntary activity and community development, the contribution of taxpayers and contributors to the social insurance fund and occupational and other provisions for social protection. We will place the interests of the public as customers and clients at all levels first, accord them the dignity that is their due as individuals and as members of our society and take account of their views and ensure their right of redress for legitimate grievances. In our dealings we will act with integrity in an open, fair, caring and non-discriminatory and courteous manner. We will treat the personal information we hold with the highest degree of confidentiality. We will be accountable for the funds entrusted to us and we will ensure that taxpayers and social insurance contributors get value for money. We presume that those who deal with us are open and honest, while always ensuring that abuses are dealt with vigorously. We value the commitment and contribution of all who serve in our Department. We also value the work we do and the capabilities we maintain and develop to do that work effectively and to respond to changing needs.
The strategic management initiative process within the Department, particularly in relation to customer service, will be developed in line with the propased service quality initiative that is expected to be launched shortly by Government as part of the renewal programme for the Civil Service. My Department will continue to implement the recommendations of the NESF report in relation to the quality of services that it provides. The improvements outlined will be implemented over a period as a part of the widening and deepening of the SMI process within the organisation.
Experience elsewhere would indicate that the publication of a charter will not of itself improve the quality of service. It is necessary in the first instance to involve those availing of the services and the front line staff in identifying how services can be improved in a realistic and meaningful way. The objective is essentially to seek to improve the quality of services where feasible. Charters, particularly those designed with a top down approach, can at times fail to make a real difference for the client and efforts tend to be directed at the exhaustive measurement and analysis that it entails.
In addition to work being undertaken in the context of the SMI, I also wish to bring to Deputies' attention the commitment in paragraph 71 of the Programme for Government to introduce, following consultations with the social partners, an administrative procedures Bill aimed at securing the maximum compliance with the tenets of good public administration. This Bill will vest in the office of the Ombudsman monitoring and rgulatory functions and will incorporate requirements on minimum response time to a citizen's case, the level of guidance to be given to the public and the form in which decisions are comunicated which will set out, first, the basis of decisions, second, the right of appeal, third, the right of access to all relevant information on the case and, fourth, the right of a citizen to confer with officials making the decision concerning that citizen.
The Government's programme also provides that legislation will be introduced to extend the remit of the Ombudsman to include the administrative procedures Bill. Interdepartmental consultations are currently taking place with a view to finalising proposals for consideration by Government in advance of the promised discussions with the social partners.
I believe the developments I have outlined represent a better and more comprehensive approach than that proposed in the amendment for achieving the highest possible quality of social services. Consequently, I do not propose to accept the amendment.
I commend the improvement in the standard of service over the past ten years — which largely took place under Deputy Woods as Minister — and in the provision of services by social welfare officers. Since the Department of Social Welfare operates well, it would make sense to put practice into law. There is a difference between practice and a statutory right. We are now trying to make general practice in the Department a statutory entitlement.
Two amendments are relevant to problems I must deal with in practice. Amendment No. 30, for example, states: "All general guidelines issued by the Minister in relation to the operation of the social welfare system shall be published". However, I have been unable to get a comprehensive guide on means testing. Although I have been dealing with constituents' problems for years, I still come across new problems in relation to means testing of which I am sure the Minister is not aware. Such guidelines should be available to the public and to public representatives as a statutory right. In most cases people are given the reasons certain decisions are made. I presume the Minister knows what IN 93 is.
I will explain it. When officials from the Department means test a small farmer——
The Deputy will have to define the term small farmer.
A small farmer is someone with ten or fewer cows or, if he lives on the Aran Islands, two cows and two calves. Officials carry out a detailed means test on these small farmers. They ask how many cows they have and they then tell them to go to the district veterinary office. They also know how much subsidy they get. The officials will assess the income from the number of cows, subsidies and the expenses incurred in running the farm. He or she will then calculate the income derived from the small farm, the fishing enterprise, a bed or breakfast business or whatever a person in a rural area does on a seasonal basis. The claimant will then get a notice stating that they will get £45 unemployment assistance. If they want to dispute the calculation, they will need an IN 93, which is the detailed breakdown of the calculations. In most cases, although not all, people will get this breakdown if they ask the Department for it. However, if a full payment is not made, it should be sent out automatically to the farmer.
It would be simpler for the social welfare officers and the claimant if such information was available as a statutory right. Urban payments are more simple in that people are entitled to them if they have enough stamps. However, in most cases decisions which give rise to disputes relate to means testing in rural areas. The vast bulk of rural appeals to the social welfare appeals office relate to means testing. However, people cannot appeal the means assessed unless they have details of how they were calculated to the last penny. The provisions of amendments Nos. 30 and 31 should be accepted as statutory rights. The practice is good but the person should have a legal right to such information.
Is the amendment being pressed?
I have not received a reply yet from the Minister.
I gave a comprehensive reply earlier.
The Minister is saying that a person does not have a legal entitlement to such information.
Previous Ministers and I have been gradually moving away from using guidelines as private instructions to the officers concerned and, instead, we have been trying to incorporate the decisions into legislation.
Not in legislation.
That is an ongoing process. I am not saying that all present guidelines are in legislation but we are gradually trying to incorporate them and to make them public as far as possible. Last September I published for the first time the guidelines on the supplementary welfare allowance exceptional needs payments.
That makes sense.
I spent many months and years urging former Ministers for Social Welfare to publish these guidelines, but they refused to do so. I am using that as an example to show that we are trying to publish as much information as we can for clients and claimants.
The means assessment of small farmers to which the Deputy referred is given to the small farmers concerned. If the Deputy knows of particular cases where the farmer has not received or has been refused such information, he should let me know and I will try to resolve it.
My local officers are obliging.
I am not suggesting they are not.
I will deal with that issue locally as I would not want to bother the Minister.
The Deputy is making a claim that some people——
I am making a statement.
——are not receiving information to which they are entitled while others are receiving it. If the Deputy knows of specific cases where people have been denied information on how their means were assessed and this has militated against their making an appeal, he should bring the details to my attention and I will ensure it does not happen again.
Is the Minister saying they have a legal entitlement to that information?
I do not know if they have a legal right to that information. One must presume that if they want to appeal a decision on means they are entitled to know the basis on which the decision was made. As a lay person I presume they have that right. In general they receive such information but if there are specific cases where people are not receiving it, the Deputy should let me know and I will ensure it does not happen again.
The amendment seeks to ensure that people have a legal entitlement to such information. The Minister would then know it was included in a particular section of the Act. A charter of rights should include legal entitlements.
We have legislation and a Constitution which protect people's rights, therefore we do not have to enshrine them all in specific legislation. Legislation tends to curtail rather than expand rights. As far as I am concerned, a person already has the right to know the basis on which their means have been assessed. Such information is provided, but if there are circumstances in which it is not, please let me know and I will examine them.
I made a lengthy statement on my approach and that of the Government to the question of charters, rights, information and so on. The commitment in paragraph 71 of the Programme for a Government of Renewal to introduce, following consultations with the social partners, an Administrative Procedures Act aimed at securing the maximum compliance with the tenets of good public administration is being implemented. We are currently co-ordinating our views on this. In the course of time we will discuss it with the social partners and legislation will emerge giving the Ombudsman more power etc. I support the objectives underlying the amendments but do not believe the Deputy's proposal is the correct way to proceed.
Will the Minister explain why it is not possible to get on one form, a simple copy of all the regulations and guidelines with regard to means testing?
There is a guide to social welfare schemes, which has always been of invaluable use to me, which incorporates the provisions with regard to how a person applies for and complies with the various means tests and the basis on which means are assessed etc.
I have the guidelines.
S.I. No. 417 of 1994 entitled Social Welfare (Consolidated Payments Provisions) Regulations, 1994 contains 103 pages detailing means testing provisions.
Will the Minister make this available?
It is available since 1994 in the Oireachtas Library under reference S.I. No. 417 of 1994. It was made available by the Deputy's colleague, the former Minister for Social Welfare, Deputy Woods.
It will be invaluable. The former Minister did much to make information available.
He is an excellent man. It is a pity he is a member of the Fianna Fáil Party.
We want the Minister to build on this information, but unfortunately he is trying to halt the progress the then Minister was making.
That is not what the Deputy's colleagues have been saying here. Before the question is put I advise the committee that I propose to introduce amendments to sections 45 and 46 on Report Stage. The purpose of these amendments will be to exempt certain categories of people from liability for the health contributions and employment training levy. It will mainly affect cross Border workers.
Amendment put.
The Select Committee divided: Tá, 7; Níl, 12.
|
Tá |
|
|
Ahern, Dermot. Ahern, Noel. Kirk, Séamus. |
Leonard, Jimmy. Éamon Ó Cuív. Walsh, Joe. Woods, Michael. |
|
Níl |
|
|
Bhamjee, Moosajee. |
Kenny Seán. |
|
Bradford, Paul. |
Lynch, Kathleen. |
|
Bree, Declan. |
McGinley, Dinny. |
|
De Rossa, Proinsias. |
Nealon, Ted. |
|
Flaherty, Mary. |
O'Keeffe, Jim. |
|
Hogan, Philip. |
Pattison, Séamus. |
Amendment declared lost.
Amendments Nos. 30 to 34, inclusive, not moved.
I move amendment No. 35:
In page 36, line 8, after "6 months" to insert "in total".
Section 44 states:
"Notwithstanding subsection (2), the Minister may, where he considers that the circumstances so warrant, extend, by not more than 6 months, the period within which the Agency [The Combat Poverty Agency] is required to draw up and submit for the Minister's approval a strategic plan.".
It is in order to give six months, but it should not be repeated.
The proposal is for not more than six months and, therefore, any extension beyond that is precluded. The effect of the Deputy's proposal is that it could not be used again in the three year strategic plan. The proposal is to give a lead in to a new board to develop a strategic plan. However, the effect would be to deny the Minister of the day the right in for instance three years time to extend by six months the period available for the development of the strategic plan. I oppose this unnecessary amendment, which will not have the effect the Deputy believes it might. In fact, it would have the contrary effect. The extension in any one strategic plan cannot be more than six months.
I accept the Minister's explanation.
Amendment, by leave, withdrawn.
Section 44 agreed to.
Sections 45 and 46 agreed to.
Schedule A to I, inclusive, agreed to.
Title agreed to.
Report of Select Committee
I propose the following draft reportThe Select Committee has considered the Bill and has made an amendment thereto. The Bill, as amended, is reported to the Dáil.Is that agreed?Report agreed to.Ordered to report to the Dáil accordingly.
I thank the Minister, his officials and Members of the committee for their work on this Bill.
The Select Committee adjourned at 7.15 p.m.