Select Sub-Committee on Social Protection debate -
Wednesday, 25 Mar 2015

Social Welfare (Miscellaneous Provisions) 2015: Committee Stage

Chairman

This meeting has been convened for the purpose of considering the Social Welfare (Miscellaneous Provisions) Bill 2015 which was referred to the select sub-committee by order of the Dáil on 4 March. The main purpose of this Bill is to amend the Social Welfare (Consolidation) Act 2005 to provide for the introduction of the back-to-work family dividend which was announced in budget 2015 to help jobseekers with families and lone parents return to work. The Bill also provides for a number of other changes relating to the jobseeker's allowance, the authentication of the identity of a person presenting for a social welfare payment, the use of personal public service, PPS, numbers by the Pyrite Resolution Board and the recovery of social welfare benefits in personal injury cases.

I welcome the Minister of State at the Department of Social Protection, Deputy Kevin Humphreys, and officials from the Department. I ask members and guests to turn off their mobile telephones or to put them on safe or flight mode. Otherwise they will interfere with the broadcasting equipment.

We have the use of the room until midnight if members wish to be here that long, but the objective is to finish this afternoon if members are agreeable. Second, I refer members to the grouping of amendments. It is proposed to group amendments Nos. 2 and 8 and amendments Nos. 3 and 18 for the purpose of debate. Amendments Nos. 1, 4, 5, 7 and 10 to 22, inclusive, have been ruled out of order. I will explain the reason when we reach each amendment. All other amendments which are not grouped will be discussed individually.

SECTION 1

Chairman

Amendment No. 1 is out of order as it is in conflict with the Bill.

Amendment No. 1 not moved.

Question proposed: "That section 1 stand part of the Bill."

Deputy Joan Collins

I tabled the amendment. The reason I considered it important to insert the provision in this section or to generate a debate on it was that while it might be in conflict with the Bill it certainly is not in conflict with the Labour Women in 2012, when this was originally going through. The National Women's Council of Ireland, NWCI, had an amendment at its conference stating that seven years of age was too young and the social welfare Bill should not provide for that. I will quote from what the Labour Women said:

I want to start by saying that seven is too young for any child to be left alone without the supervision of his or her parent or another responsible adult. I commend Frances Byrne and OPEN for their campaign which has highlighted the reduction in age limit of the youngest child of families in receipt of the one-parent family payment and the effect this could have on single parent families, the majority of whom are headed by women and 40% of whom are at risk of poverty. OPEN's campaign has rightly focused on the lack of affordable after-school child care available to families in Ireland, and the provision of which would allow more parents to work, as most have expressed a wish to do.

The statement finished by saying:

I believe that working together with the Minister towards something on which we are all agreed in principle is more likely to succeed than calling for removal of the section of the Act that is already going ahead. I know that OPEN and the NWCI have expressed concerns regarding the practicality of introducing adequate child care provisions in such a short timeframe. Of course, the flip side to demanding the provisions is to hold the Minister to her promise not to proceed with the cuts if the provisions are not in place. I believe we should support this approach as the NWCI does...

That was from the Labour Women, and 15 women signed it.

While the amendment is in conflict with the Bill, the provision should not be in the Bill. We should not cut one-parent family payments when children reach the age of seven. The Labour Party members should hang their heads in shame. This is what they issued at the time. It was a smokescreen to get what they wanted in 2013.

Chairman

Amendment No. 1, which Deputy Collins mentioned, proposes that the provisions pertaining to sections 4, 5 and 6 would not proceed without the introduction of adequate affordable child care provision and would be reviewed within six months of the enactment of the Bill. The proposed amendment would impose an external conditional element on the commencement of these sections and therefore the amendment must be ruled out of order in accordance with Standing Order 131(1) as it is in conflict with the principle of the Bill as read a Second Time.

Minister of State at the Department of Social Protection (Deputy Kevin Humphreys)

I realise you have ruled the amendment out of order but if we do not accept section 1, we would delay section 4, which is the extension of jobseeker's allowance to transitional arrangements. It would also delay section 6, which is the back-to-work dividend. It is difficult to speak to a motion that is ruled out of order, but I heard what the Deputy said in that regard. At a later stage, under section 5, I might have the opportunity to make a more comprehensive response.

Deputy Willie O'Dea

I look forward to the Minister's response on section 5 but it is regrettable that this amendment has been ruled out of order. The amendment seeks to change section 1. It represents a final plea to the Minister. We have been through the impact on working lone parents ad nauseam. The changes that will start in May have no impact on non-working lone parents, but they will have an impact on working lone parents. This appears to fly directly in the face of the Minister's stated intention to encourage lone parents to work. The family income supplement, FIS, scheme encourages people to take up low-paid employment because it makes them financially better off, but what is happening here will make working lone parents financially less well off. It is no coincidence that the number of lone parents participating in the workforce has diminished considerably on the Minister's watch.

We have raised all of those issues with the Minister. The nearest thing to an answer I can recall receiving is that people would be much better off because they can take up more work and qualify for the family income supplement, for which they would not have qualified up to now. That presupposes that there is more work available or that they are in a position to take up more work with their child care responsibilities.

In conclusion, the Minister stated unequivocally in the Dáil that she would not trigger this change until such time as we had a Scandinavian type system of child care in this country. The amendment, whether it is in order or out of order, is simply asking the Minister to honour the promise that was solemnly given by her to Dáil Éireann on 18 April 2012.

Are we to understand that promise has been abandoned?

Chairman

The amendment in the name of Deputy Joan Collins was ruled out of order. We need not deal with it any further, unless anyone wants to make a particular point.

Question put:

The Committee divided: Tá, 5; Níl, 2.

Tá

• Butler, Ray.
• Conaghan, Michael.
• Humphreys, Kevin.
• Ryan, Brendan.
• Tuffy, Joanna.

Níl

• Byrne, Catherine.
• O'Dea, Willie.

Question declared carried.

Chairman

Deputy Aengus Ó Snodaigh abstained.

NEW SECTION

Chairman

Amendments Nos. 2 and 8 are related and will be discussed together.

Deputy Kevin Humphreys

I move amendment No. 2:

In page 5, between lines 15 and 16, to insert the following:

"Definitions

2. In this Part—

“Act of 2010” means the Social Welfare and Pensions Act 2010;

“Principal Act” means the Social Welfare Consolidation Act 2005.".

The amendments involve minor changes to the Bill to include additional definitions in section 2. Amendment No. 2 inserts a new definition which provides that the term "the Act of 2010" will mean the Social Welfare and Pensions Act 2010. Amendment No. 8 amends section 5 as a consequence of amendment No. 2. The reference to the Social Welfare and Pensions Act 2002 in section 5 is being amended to refer to the 2010 Act. This is a basic social welfare law which is set out in the Social Welfare Consolidation Act 2005 and amended on a regular basis.

Amendment agreed to.

Section 2 deleted.

NEW SECTION

Chairman

Amendments Nos. 3 and 18 are related and will be discussed together.

Deputy Kevin Humphreys

I move amendment No. 3:

In page 5, between lines 17 and 18, to insert the following:

"Definition of medical assessor and consequential amendments

3. (1) Section 2(1) of the Principal Act is amended by the insertion of the following definitions:

" 'employment agency' has the same meaning as it has in the Employment Agency Act 1971;

'medical assessor' means—

(a) an officer of the Minister who is a registered medical practitioner,

or

(b) such other person who is a registered medical practitioner—

(i) engaged by the Minister under a contract for services or otherwise, or

(ii) employed by an employment agency under a contract of employment (within the meaning of the Protection of Employees (Temporary Agency Work) Act 2012), to provide medical services to the Minister;".

(2) The Principal Act is amended—

(a) in section 46(1)(b)(iv) (amended by section 5 of the Act of 2007), by the substitution of "an officer of the Minister or a medical assessor" for "an officer of the Minister",

(b) in section 46D(1)(a)(iii) (inserted by section 12 of the Act of 2010), by the substitution of "an officer of the Minister or a medical assessor" for "an officer of the Minister",

(c) in section 91(1)(d)(iii) (amended by section 11 of the Act of 2007), by the substitution of "an officer of the Minister or a medical assessor" for "an officer of the Minister",

(d) in section 118(3)(d) (amended by section 16 of the Act of 2007), by the substitution of "an officer of the Minister or a medical assessor" for "an officer of the Minister",

(e) in section 186B, by the deletion of the definition of "medical assessor" (inserted by section 26 of the Social Welfare (Miscellaneous Provisions) Act 2010),

(f) in section 186C (amended by section 26 of the Social Welfare (Miscellaneous Provisions) Act 2010), by the deletion of subsections (2) and (3), and (g) in section 212(1)(d) (amended by section 26 of the Act of 2007), by the substitution of "an officer of the Minister or a medical assessor" for "an officer of the Minister".

(3) In subsection (2) "Act of 2007" means the Social Welfare and Pensions Act 2007.".

These amendments provide for a new definition of the term "medical assessment" for the purpose of the Social Welfare Consolidation Act 2005 and for a number of consequential amendments and clarify the role of the medical assessor in the social welfare decision-making process. The purpose of the amendment is to facilitate the provision of medical assessors.

Deputy Willie O'Dea

Is the Minister of State simply using the agency system to replace medical assessors the Department is unable to recruit or is he increasing the number of assessors?

Deputy Kevin Humphreys

We have had a problem in recruiting and retaining assessors. This provision will facilitate a speedier process and provide for the recruitment of additional assessors who will I hope deal with backlogs when they occur. The backlog is 12 weeks and it is our intention to reduce it.

Deputy Aengus Ó Snodaigh

I have concerns about the use of agency staff and the definition of "agency staff". Perhaps one of the reasons there is a problem in recruiting additional staff is they are faced with a backlog and, therefore, a significant workload. It is obvious that there are not enough posts, given the huge backlog of medical assessments in the case of all social welfare benefits, not just carer's allowance and disability allowance. Some of the assessments are questionable, given that many of them have been overturned on appeal. This also raises a question.

I do not oppose recruiting people on a contract basis to deal with a backlog. Previously, there was a substantial backlog, for instance, in the social welfare appeals office and a number of social welfare inspectors were taken on using a specific contract to deal with the issue. When the Department goes beyond this, however, and begins to use agency staff, it is adding a cost because most agencies charge a premium of between 15% and 20% on top of the remuneration of the recruits. The experience in Britain of medical assessors is scary in the extreme. Atos was a company investigated by the BBC "Panorama" programme a number of years ago. The company set targets for medical assessors to drive down the number of people who could qualify for sickness and disability benefit. At the time The Guardian reported that 32 people were dying every week as a result of being declared fit for work in the medium term. People were being put under pressure to return to work or to at least sign off so as not to receive their disability or employment support payments.

I am not saying such a thing would happen here but it is a concern where profit is the motive, as is the case when one involves employment agencies. This is a highly skilled job and anyone who has dealt with social welfare applications or appeals will understand the complexity of the system. It can be very difficult for a person who sits behind a desk without seeing an applicant, but that sometimes happens. Not all medical assessors see the individual applicant but have to rely on scribbles from a consultant, which no one can make head nor tail of, and not all the medical records are available to the assessor. If there are vacancies, they should be filled through a public process in order that they are full-time positions. They should be re-advertised unless they are for short-term, specific contracts to deal with a backlog in dealing with applications for social welfare payments or appeals. I would, at the very least, delete two of the references to employment agencies in amendment No. 3. I will bring forward an amendment on Report Stage to give effect to that if the Minister of State's amendment is accepted today.

Deputy Richard Boyd Barrett

I am against this amendment because if we need people to make medical assessments, they should be employed full-time. We do not need agency people. The reason we have a backlog is the moratorium. Many Departments have massive backlogs because we are understaffed and that is having a detrimental effect on people who are awaiting decisions. It is also having a detrimental effect on the quality of the decisions made because they are made on the basis of ticking a box and without any real concern for the human beings involved. The way to deal with this is to recognise that we do not have enough staff in these areas and to take people on full-time and pay them properly, rather than using agency workers.

There is another aspect to this which concerns me. I do not understand why amendments in the same sort of area, and to which we will come in a minute, have been ruled out of order. They concern the basis on which we make adjudications where medical opinion is required. If, as is often the case, a GP says a person is in need of full-time care or is not able to work, why do we have people second-guessing him or her? The ultimate decisions are made by deciding officers who do not have any medical qualifications whatsoever and that is completely unacceptable. The Government could save the cost of taking on agency people if it accepted the word of a GP. If a GP says a person is in need of full-time care or is not able to work, that should be it - case closed. The decisions could be made on that basis, but instead we have a huge backlog and people who are not qualified to make decisions are second-guessing medical professionals. I assume they do so on the basis of looking to refuse people benefits to which medical professionals say they are entitled. It is unacceptable that people should have to jump through hoops when they have medical testimony from their own GP to the effect that they should be entitled to medical benefits or supports.

Deputy Joan Collins

I am opposed to this section and agree with the sentiments expressed so far. I know the Minister of State can bring an amendment creating a charge to the State, such as regarding the employment of agency workers, because the Minister of State is part of the Government, but how does an amendment which allows a medical practitioner, including a person's general practitioner, to determine a person's eligibility create a charge on the State? Does the Government think GPs are going to start giving false information saying people are not able to work when they can? I do not think that will be the case and I do not understand the logic behind this. I hope the Minister of State will explain.

If we want medical assessors to work in this area, they should be permanent and full-time. Yesterday we heard about zero-hours contracts for Dunnes Stores workers, whose jobs have been eroded in the past 20 years. If the people are there, why are they working in agencies and not going directly through public procurement to get jobs? Will the Minister of State indicate the wages these medical assessors are earning? Are they low paid or paid in line with average pay rates? Rather than medical assessors waiting for work through an agency and having between 15% and 20% of their wages taken from them, surely they would be better off getting permanent full-time work with a public administrator.

Deputy Ray Butler

Deputy Boyd Barrett said the onus should be put back onto the doctor, but if I was in a practice I would not like the onus put on me solely. People sometimes go to their doctor with an ailment and look for a disability payment, but in certain cases they are fit for work and that puts the doctor in the position of being judge and jury, which is a terrible thing. They are under enough pressure as it is and that is why we have to bring in medical assessors. I have some sympathy with what other Members are saying but it would be catastrophic to make doctors judge and jury.

Deputy Richard Boyd Barrett

I am assuming that any GP who gives a diagnosis of someone's condition does so in good faith and in accordance with their responsibilities as a medical professional. It is not about putting pressure on them. Day in, day out GPs write letters in which they state someone is not fit for work or permanently incapacitated and, in their professional opinion, needs care. I do not believe non-medical people should be second-guessing doctors on those medical judgments. An official in the Department would want a very good medical reason for denying care to people. The intelligence and professional integrity of GPs and even consultants is being insulted by non-medical people overruling their diagnoses about people's capacity to work. That is absolutely unacceptable.

The proof that this is completely unacceptable behaviour is that when these people go on to appeal, a huge number of cases are won. I do not have the exact number but it is over 50% of cases.

People with serious disabilities and medical conditions are being forced to jump through hoops or into an appeals process to get their just entitlements and desserts, many of which are being delayed for unacceptable periods because somebody who is not a medical professional, presumably under pressure of budgets and so on, is making wrong decisions. This has to end.

Deputy Ray Butler

It would be wrong to put anybody practising medicine in the position being suggested by Deputy Boyd Barrett. The person concerned would end up being judge and jury, the pressure of which would be untold.

Deputy Brendan Ryan

Perhaps the Minister of State would quantify for us the level of the problem which the amendment seeks to address. He might also indicate the optimum number of assessors required, the number in place at peak, the shortfall in this regard and the extent of the current backlog. Also, would acceptance of this amendment allow for greater face-to-face engagement between Department officials and applicants rather than the current practice of desktop assessments? I know from the many constituents I have met over the years who have been refused benefits that people are frustrated that their applications are being refused based on desktop assessments which provide no real indication of the extent of their illness.

Deputy Kevin Humphreys

Many of the issues raised were discussed during the debate on the Private Members' Bill introduced by Deputy O'Dea regarding the setting of minimum times for appeal, during which debate statistics and analysis in that regard were put on the record of the House. During that debate, I made the point to Deputy O'Dea that at every step of the process provision is made for submission of additional information, which provision is not provided for in many other countries. In other words, at review and appeal levels the applicant is permitted to provide additional information. This, in many ways, leads to an increased success rate of appeals. On many occasions, people do not submit sufficient information at the start of the process.

In regard to the question raised by Deputy Collins, I think the salary is approximately €80,000 per annum, which is equivalent to the Deputy's salary or that of a principal officer.

Deputy Joan Collins

It is equivalent to the salary of all Deputies.

Deputy Kevin Humphreys

Yes. The Department has sought to recruit additional medical assessors. Deputy Ó Snodaigh referred to the UK experience. However, that is not the intention here. The staff will be trained and embedded in the Department. The intention is that these staff will be in addition to the current complement. We are experiencing a particular problem in regard to retirements and retention. There is a high demand for medical doctors. I have not read the article in The Examiner to which the Deputy referred.

Deputy Aengus Ó Snodaigh

It was in The Guardian.

Deputy Kevin Humphreys

I do not read many of the UK papers. There is no question of a target for refusal of applications being introduced. That does not form part of the process. There is no intention to introduce here the British mechanism referred to by Deputy Ó Snodaigh. We have reduced waiting times significantly over recent times. It is our intention to continue to reduce waiting times further.

On the decision making process as referred to by Deputy Boyd Barrett, the process is not one of ticking boxes. All of the information provided is considered and examined, including information provided by the medical assessor. A diagnosis is not questioned, rather a decision is based on the application as a whole. A medical diagnosis forms only part of an application. The decision must be based on whether a person is permanently incapable of work for the purpose of invalidity pension. While a person may be diagnosed as having a sore back and so on that diagnosis would not mean that a person is permanently incapable of taking up employment. Decision-making in that regard comes within the remit of the medical assessor. The diagnosis is not over-ruled, rather it forms part of the overall decision. As I said, the process is not a tick-box exercise.

Following the recent recruitment campaign we hope to have new medical assessors in the Department shortly. Offers of positions will be sent out soon. It is hoped that these offers will be taken up. It was mentioned to me that often not everybody who is offered a job takes it up. We have a problem in this area. It is hoped that additional staff will assist us in addressing that problem. This is a rational and logical step.

Deputy Aengus Ó Snodaigh

I accept the Minister of State's point that this is not being done for the same reason that occurred in Britain. However, I still have a problem with agency staff. I do not see the logic in a person taking up a job via an agency when he or she could do so directly if a position is available. Perhaps positions are not being properly advertised and people are not aware of them. Many of our doctors continue to travel abroad for work.

Deputy Kevin Humphreys

I can only speculate but I imagine a person wishing to progress into a more specialised area would choose to work part time through an agency until such time as he or she has decided on the speciality area in which he or she wishes to work. I would say there are a wide range of reasons medical doctors work for agencies. They are certainly in high demand in Ireland and across the water.

Deputy Aengus Ó Snodaigh

I understand that. Usually, doctors working for agencies are paid higher wages than they would be paid for working in the public sector. They are also more open to working additional hours. This would not be, I hope, an option for a person working on contract for the State. I understand the need for short term contracts to get us over the hump of the current backlog in the system but I do not understand the State long term investing time and effort in training people who when their contracts have expired move on to other employment. I know there is no guarantee that a person who receives this training and takes up a job will not at some point move on to more lucrative employment but one at least has some inkling that they have an interest in staying on for the longer term. Given the complexities of the social welfare system and the need for a huge level of knowledge of how appeals and so on work, I find the current system odd. It is not the way we should be going. My inkling would be to re-advertise.

How many positions are currently vacant? Given we have an aging population and given the increase in applications for social protection benefits such as disability allowance, carer's allowance, invalidity pension and so on, the likelihood is that we will need more medical assessors. Even if the full complement of medical assessors were retained we may in the future be faced with a need for more assessors. How many medical assessors are currently in the system, how many positions are vacant and has an analysis been done of how many more medical assessors will be needed to bring us up to the required level this year and, perhaps, in two or three years' time?

Deputy Richard Boyd Barrett

While the Minister of State may have a point about people wanting short-term contracts, the optimum situation is undoubtedly for people to be taken on full-time. If the Government takes seriously or accepts that the optimum scenario is to have people recruited on a full-time basis if or when we need them then the amendment should specify that this is the first call. The Minister of State should consider that if he takes the point. It should be specified that any recruitment via an agency would only be after the possibility of full-time recruitment for the necessary position has been exhausted and someone could not be found. In that context there might be a possible case for taking people on via an agency.

I do not accept the response or the point made by the Minister of State. The fact is general practitioners and in some cases consultants are testifying to the fact that people are not capable of work, permanently incapable of work or require full-time care. Despite this medical testimony from qualified medical professionals the Department is refusing people. That is a fact. I do not see how that can be justified in almost any case.

Deputy Joan Collins

Having thought about the situation I do not agree with the comments of the Minister of State. We have been discussing an amendment to the effect that all avenues are investigated first to provide full-time work and permanent jobs in those positions.

The Minister of State made a point to the effect that many of the appeals are accepted on the basis that further information has come forward which is more precise. Obviously, what is happening is that people go through the process at the beginning without knowing what they are supposed to provide for what is a serious investigation into their case or claim. Surely it would be better to have one or two at the front line to explain to people when they come in to make a claim what exactly is needed for that claim. I am not suggesting the Department should tell people to go to a GP and tell the GP what they need to hear. I do not believe GPs put down what people ask them. They make an assessment with professionalism and state that a given person is unable to work for six months, ten months or a year and that it can be reviewed after a year.

If the resources were put in at that stage the Department probably would not have as many people going back again and again making appeals and so on in the system. Moreover, the Department would not need extra people as medical assessors at the end of the day. Perhaps that could be looked at. The Minister of State is bringing in this legislation now but perhaps that could be looked at in future. Certainly, I will not support the amendment on that basis.

Deputy Willie O'Dea

Usually the grounds for ruling an amendment out of order is that it represents a charge on the Exchequer. Why has Deputy Collins's amendment been ruled out of order? What is the rationale?

Chairman

We have not got to that yet. That is not a matter for the Minister of State. I will come to that next.

Deputy Willie O'Dea

I have some sympathy for Deputy Butler's point of view to the effect that in certain cases pressure can be applied or pressure can arise in respect of people looking for a certificate from a doctor. I will set out my experience. The Minister of State remarked that the medical assessors in the Department do not question a diagnosis. I have dealt with several cases. In fact I am dealing with several cases at the moment where the doctor has said unequivocally that the person needs full-time care and attention and that the person will never work again. That is stated in writing by a registered medical practitioner. Yet, the Department has disagreed and has refused invalidity pension or carer's allowance on the basis that they do not agree with the medical professional.

I will come to the point on the next amendment but we almost have a system now whereby when people are applying for carer's allowance or invalidity pension they have to go through the hoops. People are almost guaranteed to fall at the first hurdle or be refused first time. Then, people have to go back for a review and may have to go as far as an appeal. In more than 50% of the cases these people will succeed. It is a terrible process. I often ask myself what the medical assessors in the Department are doing, save making it harder for people who are ultimately adjudged to be entitled to a certain social welfare payment. They seem to be making it hard for them to get it and delaying them.

Deputy Kevin Humphreys

The assessors are not over-riding or questioning the diagnosis. The diagnosis is done by the doctor. It is the overall picture. The diagnosis is not questioned. If someone is seriously ill, the doctor will diagnose that.

We will certainly look at the point raised by Deputy Collins. However, customers are advised to provide all the necessary information at the application stage. If there are particular problems in that regard we will go back and have a look at that. As far as I am aware, customers are advised to provide all necessary information in the first instance. Like Deputy Collins, we handle many queries that come to our clinic on the appeals side and we are surprised at the information people have not provided in the first instance. Let us look at how it is explained and the amount of information that is needed.

There are approximately 25 medical assessors and 19 are available in any working week. A recruitment process or competition is under way at the moment. The need for medical assessors, like the need for all staff, is constantly under review.

I take the point that we have a changing matrix and population. We have people ageing and so on and that will be a challenge for this Government and for any future government given the changing make-up of the population and the demands that this will bring, especially in the area of the Department of Social Protection as well as pensions, health and many other areas. All of that will have to be assessed and taken into consideration in future years. At the moment we are in a baby boom era but like many other European countries we will be facing an ageing population and the associated challenges in future.

SECTION 3

Amendment agreed to.

Chairman

Amendments Nos. 4 and 5 are ruled out of order because of a potential charge on the Exchequer and because they are in conflict with the principle of the Bill.

I will set out the full explanation. Amendment No. 4 provides for the deletion of the requirement in place for a person who is likely to require full-time care and attention for at least 12 consecutive months in order to be entitled to carer's benefit, carer's allowance or the respite care grant schemes. Removing this requirement would allow for greater access to the scheme and this could involve an additional charge on the Exchequer. Therefore, the amendment must be ruled out of order in accordance with Standing Order 156(3).

Amendment No. 5 provides that certification by a medical practitioner, including a person's own general practitioner, will determine the person's eligibility for carers benefit, carer's allowance and respite care grant schemes. One of the aims of the Bill is to clarify that eligibility for these schemes is to be determined by a deciding officer based on the relevant medical advice. The amendment must, therefore, be ruled out of order in accordance with standing order 131(1) as it is in conflict with the principle of the Bill as read a Second Time.

The amendment could allow greater access to these schemes, which could involve an additional charge on the Exchequer. Therefore, it has also been ruled out of order in accordance with Standing Order 156(3).

Deputy Joan Collins

The section is opposed.

Chairman

We will come to that issue afterwards.

Deputy Richard Boyd Barrett

Deputy Joan Collins tabled these two amendments on my behalf. I am gobsmacked that they have been ruled out of order, particularly the one that refers to the general practitioner. One could possibly argue that because amendment No. 4 removes the requirement regarding care for in excess of 12 months, it could mean greater access and, therefore, represent a potential charge on the State. We will deal with this issue when discussing the section because we will still be able to argue these points then. My point is setting aside the moral arguments we could make when dealing with the section. Applying to amendment No. 5 the same logic applied to amendment No. 4 is preposterous. How could it possibly represent an additional charge on the State if the legislation states one must comply and given that we do not second-guess diagnoses, as the Minister just said? One either fits the medical criteria or one does not. It is on that basis that people are deemed to be eligible. Therefore, how on earth could the making of the decision on eligibility by a general practitioner, rather than a deciding officer, involve an extra charge on the State? Either one fits the criteria or one does not. The amendment is simply about stating who is best suited to decide whether a person fits the criteria, be it a medical professional or somebody with no medical training at all. How could this be a charge on the State? I am gobsmacked that the amendment has been ruled out of order. It is out of order to rule it out of order.

Chairman

I repeat that amendment No. 5 is in conflict with the principles of the Bill as read a Second Time and represents a potential charge on the Exchequer because it could allow greater access to the schemes. We are not getting into the business of debating the amendment.

Deputy Richard Boyd Barrett

How could it allow greater access?

Chairman

That is the ruling.

Deputy Richard Boyd Barrett

Who makes the ruling?

Chairman

I make it as Chairman.

Deputy Willie O'Dea

Would it not be possible to make a counter argument that the State could actually save money because it would not need the medical assessments in the first place?

Chairman

Just to be clear, the Ceann Comhairle ultimately decides.

Deputy Willie O'Dea

Would it not be possible to make the counter argument that the State could actually make a saving because it could then dispense with the medical assessors, who are on €80,000 a year?

Deputy Richard Boyd Barrett

How would making the general practitioner the officer to determine eligibility involve greater access?

Chairman

I presume the reason is that it is not the money of general practitioners to spend. Deputy Ray Butler said a general practitioner might be more inclined to go the distance in helping someone because he or she did not have to worry about the cost, but it is not his or her problem-----

Deputy Richard Boyd Barrett

With due respect-----

Chairman

They have to do the job and be independent in the way they-----

Deputy Ray Butler

I would use the word “vulnerable” because they would be under greater pressure to make a decision, rightly or wrongly. We have seen this happen during the years. We regularly hear in our constituency offices that serious pressure has been put on the people concerned who are under enough pressure as it is.

Chairman

I am assuming this is the logic, but it is actually the Ceann Comhairle who ruled on this matter.

Deputy Richard Boyd Barrett

The Chairman has articulated a possible explanation. All of the points she has made have nothing whatsoever to do with the Bill because they are arguments around it. They are assumptions people are making that have nothing to do with the Bill which is about meeting certain criteria. Does it state anywhere that, when deciding whether somebody is eligible or meets the criteria, budgetary considerations should come into play? It does not. Therefore, the argument is totally irrelevant. It is implied in the statement of the Chairman and, sadly, that of Deputy Ray Butler that general practitioners are writing letters based not on their best medical opinion but on the basis of pressure being exerted on them. First, we have no right to assume and certainly no right to adjudicate on whether a point is in order or out of order. If the implication is true, it is an absolute scandal.

Deputy Kevin Humphreys

I will try to be helpful on this issue, although I might cause more confusion. The certification determines a person’s eligibility, but there are in the Bill aspects to determining eligibility other than those associated with medical practitioners.

Deputy Richard Boyd Barrett

What?

Deputy Kevin Humphreys

Within qualifications for different elements, there are means tests, etc.

Deputy Richard Boyd Barrett

That is a different matter.

Deputy Joan Collins

People know that.

Deputy Kevin Humphreys

The wording of the amendments is such that the general practitioner will certify or determine a person’s eligibility. I am just trying to be helpful. The Deputy may resubmit the amendment on Report Stage.

Deputy Richard Boyd Barrett

I most certainly will. I really believe the decision to rule amendment No. 5 out of order is baseless.

Chairman

What Deputy Joan Collins could not do is press the amendment.

Deputy Joan Collins

I cannot press it because it has been ruled out of order.

Chairman

Yes, it has been ruled out of order. If the Deputy wants to indicate that she wishes to try a different amendment on Report Stage, her doing so will be on the record. The amendments have been out of order. There is nothing further we can do in discussing them further. Since Deputies Aengus Ó Snodaigh, Willie O’Dea and Joan Collins have opposed the section, they may comment on it.

Amendments Nos. 4 and 5 not moved.

Question proposed: "That section 3 stand part of the Bill."

Deputy Aengus Ó Snodaigh

I have a number of problems with the section. I have considerable sympathy for Deputies who take the time and make an effort to put amendments together that are then ruled out of order. I have challenged such rulings and asked at the Constitutional Convention that the section in the Constitution used to prevent us from making progressive proposals be removed. If this were done, we could make positive proposals in the future.

There are problems with the section. Deputy Joan Collins’s amendment sought to remove lines 15 to 17, inclusive. There is a reference to full-time care for 12 months, but there are times when somebody does not need it for 12 months. Let me give an example. A friend of mine is awaiting a hip operation. Since he has been waiting so long, he is now confined to a wheelchair. He was told his operation would be carried out in six months. One could get on with this, but six months can become one year and possibly be two years by the time one is seen. As the second hip is now affected, the man in question is confined to a wheelchair. His bathroom and bedroom are upstairs and he lives alone. He has no access to a carer and this legislation will prevent him from having one for a short period. We need to think about this. I am not suggesting the measure be ruled out, but there are times when care might be needed for less than 12 months.

It will probably cost the State more if that person's mental and physical health deteriorates because he or she does not have care. The person in need of care may have relatives, neighbours or friends but they may not be available 24 hours a day. This has caused problems in that instance and in other instances. That is why I would be concerned if it is confined to 12 consecutive months. We need to reflect the fact that other occasions arise.

I have a second point about this section. I refer to the proposal from FLAC that the section of the Bill in its entirety should be deleted. In the view of FLAC, the section is changing the original intention of the Bill by providing that the presumption is that the applicant is ineligible rather than the presumption that the applicant is eligible, as was the case previously. It has gone from a positive to a negative. The Department's reading of this section is that it is a negative and I do not think this was the intention. It was presented to the committee as if it was a clarification to ensure that the decisions on carers in particular had a full standing in law.

The Minister may have read the submission from FLAC and the Northside Community Law and Mediation Service which co-sponsored the FLAC proposal.

Deputy Willie O'Dea

I take the point about the time period. There are situations where a shorter period than 12 months should be provided for, exceptional though these may be. I wonder about the rationale behind this section. Every member will agree that it is difficult in practice now to get carer's allowance for whatever reason. I was in touch with the Department only yesterday regarding a case of a carer's allowance application which went through the initial process and the review. Both were unsuccessful and ultimately succeeded on appeal. I was attempting to ascertain from the Department to whom we should send a cheque because the unfortunate person being cared for has died in the meantime.

This section provides that for the first time in law - in so far as I am aware - it introduces a presumption. It presumes that somebody who applies for a carer's allowance is not eligible for it, unless he or she proves otherwise. I refer to the wording of the section 3(2) on page 5 which states, "For the purpose of the definition of "relevant person", a person shall not be regarded as requiring full-time care and attention unless". It introduces for the first time a presumption and it puts that presumption firmly on the shoulders of the unfortunate applicant who has enough to do in many cases looking after the sick relative or whoever it is. I agree with Deputy Ó Snodaigh. While I would like to think this was not intentional, I would like to think that nothing in the legislation would make it any more difficult to claim carer's allowance. In so far as I can make out from the remainder of the section, the basic conditions are not altered but for some reason which is a mystery to me, this presumption is introduced. We can argue about legalities and presumptions on one side or the other, but the only possible effect of this provision will be to make what is already a very difficult process, even more difficult.

Deputy Richard Boyd Barrett

I submitted these two amendments and I will revert to them on Report Stage because there is no doubt in my mind that this section involves a deliberate subtle or not so subtle attempt to tighten eligibility and entitlement for carers. That is unacceptable. What it is doing essentially is to retrospectively legislate for what has been happening in practice, which is a tightening up of decisions to grant - or to refuse, should I say - where there has been a sort of default position of refusing people who are then forced to go through even more hoops and appeals in order to get what they are seeking. I can only assume this is in the hope that a significant portion of applicants would just give up and go away. Up to now, the legislation was ambiguous and that ambiguity allowed deciding officers to refuse people who really should not have been refused. However, this provision is shifting the balance towards the deciding officer to make it easier for the deciding officer to refuse people. That is what is happening; it is to restrict the eligibility in terms of the 12 months.

What happens if a person gets cancer and he or she is undergoing a very intense treatment of chemotherapy and is not already in the best shape? That person will need care for a temporary period that may not continue indefinitely if the treatment works. This is not an unusual situation. It may not be the case that this person will require care indefinitely beyond 12 months. This may or may not be the case but most definitely full-time care will be required for six or eight months during treatment. This provision will rule out such people. Similarly, if people suffer a particular injury when they are old and infirm, generally, this would mean they would require full-time care for a particular period but maybe not for an indefinite period. These people will be excluded. That is wrong.

It is also wrong that we are shifting the balance away from medical professionals onto non-medical people with regard to the issue of making decisions about medical eligibility. I refer to the statement in the explanatory memorandum to the Bill that the provision is to clarify that eligibility for these schemes is determined by a deciding officer on the basis of all information provided to support the applicant's claim, including all relevant medical evidence. The deciding officer is making the decision. Why would a deciding officer, a non-medical person, have any say at all on medical matters? If the deciding officer is to have a say on other eligibility criteria, for example, such as means testing, that is fair enough because deciding officers may be qualified to do that. However, that distinction has to be made. There should be absolutely no question of non-medical people second guessing medical diagnosis. Anything that does not clarify this is unacceptable and is allowing an ambiguity which ultimately translates into hardship and unfairness for people who have medical need.

Chairman

The contributions are revisiting much of the same territory. Other substantive parts of the Bill need to be considered. I ask members to be brief in their contributions on this section.

Deputy Joan Collins

I am a member of the committee and I have been put to the end of the list - no offence to Deputy Boyd Barrett. I intended to expand on a few points. It is very clear what is the basis for being awarded a carer's allowance or a respite care grant.

People do not apply for it unless they believe they are giving that full-time care to a person, that the person needs that care and has an illness that requires full-time care in terms of putting on their clothes, feeding them, ensuring they take their pills and being there all the time to look after them, including their toiletry needs. People know that, yet they cannot get it. A negative provision has been inserted in section 3 on page 5 and it runs on to page 6. It states, "a person shall not be regarded as requiring full-time care", etc. Why is that provision included in the Bill? Why did the Minister of State and the Department see the need to change the wording and insert that and not keep the legislation in its current form as it has been since 2005?

Deputy Brendan Ryan

I wish to make two points. First, I ask the Minister of State to consider the points made by some of he Deputies here on the 12 months issue because I can envisage situations arising where somebody would require full-time care for fewer than 12 months. If there is a possibility to consider a measure, or to bring forward an amendment on Report Stage, which would allow for some flexibility in this regard, I ask the Minister of State to consider that.

Second, section 3, at the top of page 6, states that "unless the person has such a disability that he or she requires ... (a) requires from another person ... (i) continual supervision and frequent assistance". When I first read that I thought I saw the word "continuous" but on re-reading it I saw the word "continual". A dictionary definition of "continual" states that it means regular or frequent as opposed to continuous, which is uninterrupted in time or whatever. I ask the Minister of State or his officials to indicate their intention in this regard because I can see a situation arising where deciding officers might read this and think "continuous" even though the legislation states "continual". I would be interested to hear the Minister of State's observations on that.

Deputy Kevin Humphreys

Deputy Collins referred to the Social Welfare Consolidation Act 2005. The legislation was always the same. It refers to the Social Welfare Consolidation Act 2005 but the provision mentioned was there previously. I believe that is the reference she asked about but I will check that further for the Deputy.

Deputy O'Dea said the situation is getting more difficult and referred to the number of people involved and so on. The number in receipt of the carer's allowance payment in 2014 was 57,000. In February 2015, the figure was approximately 60,000, which represents an increase of approximately 5.3%. With respect to the long-term comparisons, the number of claims received in 2010 was 18,000, of which 8,700 were awarded, and the number of claims received in 2014 was 17,700, of which 12,500 were awarded. The facts and the figures refute what the Deputy has said. If anything, the figures show that in 2014 fewer people applied for benefit and more people were on it, compared to 2010 when more people applied for benefit and fewer people were awarded it.

Deputy Willie O'Dea

Ultimately awarded it.

Deputy Kevin Humphreys

Those are the figures. We have seen an increase of 21% from 2014 to 2016 in the number of people awarded the carer's benefit payment. On the figures the Deputy requested, a substantial number of additional people were awarded benefit in 2014 over the number awarded benefit in 2010. I do not what the percentage increase was but nearly 4,000 more applicants were awarded benefit in 2014 compared to 2010. The Deputy may have individual examples but what he said does not stand up with regard to the figures.

In addition, there appears to be a misconception that this provision in some ways shifted the burden of proof from the Department to the claimant. I think it was Deputy Boyd Barrett who made that point. It has always been the case that the onus has been on the claimant, whether it be for the carer's allowance or any other social welfare payment, to provide the necessary information in support of his or her application in order to prove eligibility. There has been no change in that regard. That point has been raised in the House on numerous occasions, but there is a misconception in that respect. There has been no change.

Deputy Ó Snodaigh also raised the issue in regard to his friend, and Deputy Ryan raised this use as well, with respect to the short-term carer's allowance. The carer's allowance was never intended to provide temporary short-term care, it was always an allowance provided for long-term care. That was the reason it was introduced. Carer's allowance is intended to provide income support to full-time carer's on low incomes to maintain people in the community and to recognise the support and value of the role of carers. The recipient of the care must be likely to require full-time care and attention for a period of 12 months. That was always the case. However, Deputies Ó Snodaigh and Ryan have raised a good point, but that has been the design with regard to the carer's allowance. I take on board what they have said and their experience in this respect. I would have to reflect on that but it would not be part of this Bill because the carer's allowance has always been provided for long-term care, not for short-term care. As to whether the latter would be dealt with under the HSE or within other areas of social protection, there may be some items covering that, and I will consider it further. I would be interested in it, although I have not come across examples of that, but with regard to the examples the Deputies have given, I will consider this further.

With regard to the words "continuous" and "continual", the current wording is unchanged with respect to the Social Welfare Consolidation Act. The wording has not changed.

Deputy Brendan Ryan

There is no departure from the current legislation.

Deputy Kevin Humphreys

No, but we will remind people of the dictionary definition of the word included.

Chairman

I note Deputy Collins wants to speak on this but I want to move on from this.

Deputy Joan Collins

The Minister of State did not answer the question I put to him. The information that I have from FLAC states:

In the case of carer's allowance, section 179(4) of the Social Welfare Consolidation Act 2005, as amended, provides: "(4) For the purposes of subsection (1), a relevant person shall be regarded as requiring full-time care and attention where-----,

It goes on to set out the points with regard to continual supervision. By contrast, this legislation states, "For the purposes of the definition of 'relevant person' in this Chapter, a person shall not be regarded", etc. Why does the Minister of State believe that wording needs to be inserted? Is there some reason he has to change the legislation?

Deputy Kevin Humphreys

In regard to that detail, in terms of the debate that took place about a change in the onus, my understanding is that there is not a change in the onus.

Deputy Joan Collins

Why was the wording changed if it was okay and people got their carer's benefit and carer's allowance when they were entitled to it?

Deputy Kevin Humphreys

I am getting the detail on that. The current wording did not reflect the operation of the process, so the current wording was changed to reflect the way the Department has always operated in this regard.

Deputy Richard Boyd Barrett

That is exactly my point.

Deputy Kevin Humphreys

I will give Deputy Collins the detail on that.

Deputy Willie O'Dea

I do not want to labour the point but I am glad to hear that the percentage of people getting carer's allowance went up last year. These things tend to ebb and flow but that does not answer my point. I would be prepared to bet that many of those successful applicants had to go through the whole gamut from the initial application to the review and, ultimately, to the appeals officer and in many cases had to ask for an oral hearing because they are more likely to succeed with one. As the Minister of State said, and Deputy Collins made this point very well, there was always an onus on an applicant to establish entitlement but this is the first time a presumption has been introduced that they are not entitled. This is the first time there is a presumption in law.

Deputy Kevin Humphreys

No.

Deputy Willie O'Dea

As was read out, the presumption was the other way under the Social Welfare Consolidation Act. One was presumed to be entitled unless and so on, but now one is not presumed to be entitled and that can only operate against the applicant.

Deputy Kevin Humphreys

There is no presumption; it comes down to proof of eligibility of entitlement. The Deputy can interpret my words as I said them.

Deputy Willie O'Dea

The onus has changed.

Deputy Kevin Humphreys

No. It has always been the case, as in all things, that an applicant had to prove eligibility. That provision dates from Deputy O'Dea's time as well as being designed in legislation.

Deputy Willie O'Dea

There was not a presumption of non-eligibility.

Deputy Kevin Humphreys

No, there is not.

Deputy Willie O'Dea

It looks like there is.

Deputy Kevin Humphreys

There is not. The figures that I gave him are correct and are going up. If he wants, I can argue the matter back and forth. There is a huge difference in the numbers received and awarded compared with what happened in 2014 so that issue does not uphold his point. I have dealt with many claims for carer's allowance and often times people had not submitted a correct application. There were many different reasons for them doing so. The Deputy would know that as well as I do as he operates in an area of Limerick that probably receives a lot of carer's allowances and probably a higher number than most other areas in the country. He is also very much aware that there has been a huge increase in the number of people awarded a carer's allowance.

I have found the note on the issue raised by Deputy Joan Collins. If she likes, I can read it now.

Deputy Joan Collins

Yes.

Deputy Kevin Humphreys

The purpose of section 3 is to clarify that eligibility for the carer's benefit, carer’s allowance and respite care grant schemes is determined by a deciding officer on the basis of all of the information available to him or her in regard to that claim. This information includes all of the relevant medical evidence that has been submitted by the claimant in support of the claim, for example, medical evidence relating to the nature and extent of a person’s disability or incapacity provided by a GP or consultant. It also includes, where appropriate, any opinion provided by a medical assessor of the Department. The current legislative provisions provide, inter alia, that a person will be regarded as requiring full-time care and attention where the nature and extent of his or her disability or incapacity has been certified by a registered medical practitioner. In order to avoid any doubt, this legislative provision is being removed to clarify that a deciding officer can have regard to an opinion provided by a medical assessor of the Department of Social Protection, in addition to the medical evidence submitted by a registered medical practitioner. Both of these clarifications bring the current legislative provisions applying to the carer’s benefit, carer’s allowance and the respite care grant schemes into line with how these schemes have been operated since their inception. I shall give a written note to the Deputy.

Deputy Joan Collins

Will the Minister of State send it to all the Deputies of the committee?

Deputy Kevin Humphreys

Yes. I have no problem doing so.

Deputy Joan Collins

To me, the words "shall" and "shall not" are two different things.

Deputy Kevin Humphreys

I shall send my speaking note to all Members of the committee.

Deputy Richard Boyd Barrett

The Minister of State has confirmed what I said. He has read out the same passages that I read to him a moment ago and that is the reason I tabled these amendments. He has confirmed that we are shifting the emphasis to the deciding officer. He has clarified that it is the deciding officer who only has "to take into account". What does that mean? They have to take into account the medical testimony but then they can make a decision to refuse despite the fact that the medical testimony from the GP says somebody needs care. They can take that it into account, have regard to it and then ignore same. That is what is happening. That is precisely the reason I tabled an amendment saying that medical decision-making should be done on the basis of medical opinion supplied by professionally qualified medical personnel, that is the GP or a consultant, and not by a deciding officer.

Chairman

We have reached the end of discussing the section. Does anyone wish to say more? No.

Question put and declared carried.

SECTION 4

Question proposed: "That section 4 stand part of the Bill."

Deputy Denis Naughten

On section 4, I wish to mention an issue that relates to the entitlement to jobseeker's allowance and that of the one-parent family payment. Unusually, the Department has built-in flexibility which ensures a person can work five days yet still receive a part payment or payment of jobseeker's allowance. However, anomalies exist, particularly in regard to the one-parent family payment. Let me explain by giving an example. A constituent of mine receives the one-parent family payment. When she got a job as a special needs assistant she received a payment of €1,300 but €600 was deducted from her one-payment family payment and the Revenue Commissioners took another €600. The net benefit she received for working as a special needs assistant was €100 into her hand. She eventually got her €600 back from Revenue. The difficulty is that most people cannot survive such a situation. I refer to trying to survive on fresh air until their money is refunded.

Anomalies have been built into the system that have not been resolved and I shall give another example. A standard deduction is made per day but if someone is offered work where their remuneration is less than the standard deduction they cannot avail of the offer. In particular, people in receipt of the one-parent family payment only have the flexibility to go out to work during the middle of the day when their child is at school. If a person gets the opportunity of an hour's work, which will hopefully extend into something else, he or she cannot take the hour because he or she will be worse off financially.

Specific barriers have been built into the system for casual work. It is not just in regard to the one-parent family payment because the same problem arises with jobseeker's allowance. I gave the example in the House during the Second Stage debate of an employer who wanted to employ someone for five days a week. He or she could not do so on a part-time basis even though she was eminently qualified and hoped it would progress into a full-time job. I hope it will do so in the next couple of months. As the job was over five days the person would not take it but the employer has since been able to alter the hours but flexible employment is not always available. It is an issue that needs to be looked at.

We will debate transition payments later but there are challenges in terms of transition payment. I will wait until we reach the relevant section to raise this issue. Can the Minister of State look at these anomalies? Can he ensure we do not create false barriers when it comes to access to employment?

Chairman

Perhaps the Minister of State might clarify the following. Am I correct that this section deals with the jobseeker's allowance and not the jobseeker's transition payment?

Deputy Kevin Humphreys

Yes.

Chairman

Does that refer to people who have phased out of the age earlier or something like that?

Deputy Kevin Humphreys

"Trans seekers" refers to allowance transition arrangements.

Chairman

Is this provision for the jobseeker's transitional arrangement?

Deputy Kevin Humphreys

Yes.

Chairman

That is different from what the Deputy said.

Deputy Denis Naughten

No, it is specifically what I am talking about.

Deputy Kevin Humphreys

It is specific.

Deputy Denis Naughten

Yes.

Chairman

In terms of this section, it is not the jobseeker's transitional but the jobseeker's allowance?

Deputy Kevin Humphreys

Yes.

Chairman

Who does that relate to? Section 4(b) states, "where the youngest child, referred to in paragraph (a)(ii), has not attained the age of 14 years."

Deputy Kevin Humphreys

It is an exemption which states they do not have to actively seek work up to the age of 14.

Chairman

Is that not the jobseeker's transitional payment?

Deputy Denis Naughten

It is not the jobseeker's transitional.

Deputy Kevin Humphreys

It is the jobseeker's allowance transitional arrangement.

Chairman

Is that what this section is about?

Deputy Kevin Humphreys

Yes.

Chairman

Is this section about the jobseeker's transitional arrangement?

Deputy Kevin Humphreys

Yes.

Chairman

I want to know what happens if people who would have been eligible for the jobseeker's transitional payment work part-time. Either they get a bit of the jobseeker's transitional payment following a means test or they would be over the threshold.

Do other supports kick in? If someone was a lone parent, the other supports would kick in if they were working part time. Do the supports associated with jobseeker's allowance transition kick in irrespective of whether the person would get any money out of it?

Deputy Kevin Humphreys

If it does go over the jobseeker's allowance transition, FIS may be available.

Chairman

It would be for people who would not be eligible for FIS. If somebody was working part time and were not on 19 hours, they are borderline as to whether they qualify for any jobseeker's transitional payment in addition to their wage. It is not just that they get the jobseeker's transitional payment, they also get other supports such as access to education or training. In theory, someone who is not on FIS because they are working less than 19 hours could qualify for the jobseeker's transitional payment but they may be slightly over the threshold. Are they still classified as being eligible for the other supports that people on jobseeker's transitional payment would get? There are other supports. The idea behind the jobseeker's transitional payment is not just that a person gets the payment but that they are also eligible for other supports that include education, training and advice. I want to make sure that people do not fall through the cracks.

Deputy Kevin Humphreys

This is a fairly a complicated area. There is interaction within the Intreo offices. Officers there go through every single case to make sure people benefit. We have written to a number of clients inviting them in to make sure they get every single benefit they qualify for. Could the Chairman put it down in detail because I do not quite grasp what she is looking for? This is why case officers are operating within Intreo offices to make sure people get the benefits to which they are entitled.

Chairman

I am dealing with constituents at the moment and it can be difficult to get the full information at this stage from the local offices.

Deputy Kevin Humphreys

We can make sure everybody would have a contact name to ensure that. I accept the problem set out by Deputy Naughten relating to the tie-up in the Revenue Commissioners, and waiting for the refund of €600 from the Revenue Commissioners. There must be some option, possibly a tie-up, because waiting for that refund would be quite difficult if one was on €1,300. The Deputy is right in that it does need to be looked at.

Deputy Denis Naughten

A solution might be something like the SWA where a person receives the SWA and then any moneys that are due to them are recouped via that. In circumstances like that, could it be the case that the Department of Social Protection would not take the deduction but wait for the refund to come through from the Revenue Commissioners? We need to bend over backwards to facilitate people regardless of whether they are in receipt of one parent family payment or jobseeker's allowance. There are stupid rules in the system that create barriers and that need to be taken out.

I will give another example. A constituent in Boyle in County Roscommon was put on a training course in the local jobs club through the social welfare office. There are 15 people on the course. He did not go in on Thursday to sign for his jobseeker's allowance. His payment was delayed for two days because he did not leave the course, go across the road, wait for whatever length of time he needed to wait and sign on. Consider the disruption that would have been caused in the class if every one of the 15 people on that course went across the road. There is no focus here on the education support if 15 people are going to cross the road to sign on the live register when it should be automatic. If someone is attending the course, they should not have to sign on. That type of link-up is not happening, which is discouraging people from actively participating in that course. Any teacher will ask how they are to teach a class if there are 15 disruptions in it per week. If some of those 15 people do not want to be there in the first place, it makes it even more difficult. We have silly rules, we are not using technology and linking up with the various agencies and we are creating false barriers against people accessing and maximising training or accessing part-time work that would hopefully develop into full-time and long-term work.

Deputy Kevin Humphreys

The Deputy gave an excellent example. Those are the type of barriers we are breaking down in the total reform of the Department of Social Protection and the one-stop-shop relating to the Intreo offices where each section of the Department knows what the others are doing. Hopefully, that will start breaking down those barriers. I have visited a number of Intreo offices and have seen the barriers referred to by the Deputy. There are many other barriers because it was a disjointed service based on the county. The fact that services are based in the one office means that the left hand knows what the right hand is thinking. We are working on those barriers and taking them out of the system. The example given by the Deputy is a good one but that is the example we hope the Intreo offices will take out of the system. We will have that one-stop-shop and will know that 15 people are attending a jobs club and all we will need at a later stage is a certification that they attended such a club. It is a great example of how we see the proper operation of the Intreo offices taking those barriers out of the system.

The Deputy has a point about having to wait for the refund of €600 from Revenue. We must break down that silo thinking between the Revenue Commissioners and the Department, as well as every conceivable barrier that prevents people from going back to work. The Deputy and I have the same intention.

Question put and agreed to.

NEW SECTION

Deputy Kevin Humphreys

I move amendment No. 6:

In page 7, between lines 9 and 10, to insert the following:

"Entitlement to one-parent family payment

5. (1) Section 172(1) of the Principal Act is amended—

(a) in the definition of "qualified parent" (amended by section 20 of the Act of 2010)—

(i) in paragraph (e), by the substitution of "6 months," for "6 months, or", and

(ii) in paragraph (h), by the substitution of "civil partnership," for "civil partnership.",

and

(b) in the definition of "relevant age" (amended by section 14 of the Act of 2012), by

the substitution of the following paragraph for paragraph (a):

"(a) 16 years where—

(2) Section 178C (amended by section 14 of the Act of 2012) of the Principal Act is amended by the substitution of the following subsection for subsection (3):

"(3) For the purposes of this section nothing in subsection (2) shall affect the entitlement of a person to whom this section applies to continue to be entitled to one-parent family payment until the youngest child attains 16 years where—

(a) the person is qualified for a carer's allowance under Chapter 8 of Part 3, including a payment under section 186A, or

(b) the youngest child is a child in respect of whom a payment under Chapter 8A of Part 3 is being made.".

(3) In this section "Act of 2012" means the Social Welfare Act 2012.".

The purpose of this amendment is to extend the current support for recipients of one parent family payments who are caring for a disabled child to a lone parent who is caring for someone on a full-time basis. This amendment will extend the support to the two categories of lone parent. It will allow existing recipients of one parent family payments who are in receipt of half-rate carer's allowance to retain the one parent family payment until the youngest child is 16 or until they lose the entitlement to the carer's allowance or one parent family payment for other reasons. This will mean that lone parents providing full-time care to an adult will be treated in the same manner as lone parents caring for a child in respect of those for whom domiciliary care allowance is being paid. It will also allow people who become lone parents for the first time and whose youngest child is between seven and 15 years of age to qualify for one parent family payment where they are also eligible for carer's allowance. The final phase of the age-related reform of the one parent family payment scheme will take shape on 2 July 2015 when the maximum age limit for the youngest child for one parent family payment qualification purposes will be reduced to seven years for all recipients.

Chairman

Does anyone wish to comment on or ask questions about the amendment? No.

Amendment agreed to.

Amendment No. 7 not moved.

SECTION 5

Deputy Kevin Humphreys

I move amendment No. 8:

In page 7, lines 11 and 12, to delete “Social Welfare and Pensions Act 2010” and substitute “Act of 2010”.

Amendment agreed to.

Question proposed: "That section 5, as amended, stand part of the Bill".

Deputy Brendan Ryan

I wish to make a brief comment on the section. I welcome the response by the Minister on amendment No. 5, which is in direct response to the groups that were before the committee making the case for the change that is being introduced. I am happy to see that change come through.

Deputy Joan Collins

I am also happy the change has come through and that the Minister changed her position, but I still think we should consider the fact that lone parents who are in work will lose money by virtue of the family dividend payment. I wish to reiterate the point made by Single Parents Acting for the Rights of Kids, SPARK, and One Family at the committee meeting, that on the basis of the figures it provided on 20 hours, 28 hours and 35 hours, lone parents would lose out over the next three years. People in work will lose money due to the change. I put the question to the Tánaiste and Minister for Social Protection, Deputy Burton, and she agreed that they would lose money. What a nice response to get. The Government is introducing legislation although it knows that lone parents who most need it are losing money and that no proper, affordable child care facilities are in place. That is a scandal.

Chairman

Does the Minister of State wish to comment?

Deputy Kevin Humphreys

Deputy Collins has made comments rather than asked questions.

Chairman

Does anyone else wish to contribute or does the Minister of State wish to comment on the section?

Deputy Kevin Humphreys

No. I think it is a good move. The Minister has listened to what was said and taken on board the considerations raised.

Question put and agreed to.

SECTION 6

Deputy Willie O'Dea

I move amendment No. 9:

In page 7, line 26, after “where,” to insert “4 weeks”.

Do I take it that this amendment is the one that is not out of order?

Chairman

Yes.

Deputy Willie O'Dea

I introduced it to bring a bit of flexibility into the situation. We are talking about people who were in receipt of social welfare immediately before going onto a scheme. Sometimes it can take a bit of an arrangement to get onto a scheme. It might take a week or two after the social welfare payment ceases. I am sure the section, as drafted, probably encapsulates the situation but I tabled the amendment in order to provide clarification. Could the Minister of State please provide clarification?

Deputy Kevin Humphreys

I have spoken to the Deputy briefly on the matter already. I am unclear as to the precise purpose of the amendment. If its purpose is to enable a person to qualify for the back-to-work dividend where the person ceases to be entitled to jobseeker's benefit, jobseeker's allowance or one-parent family payment within four weeks, and the person or his or her spouse or civil partner takes up employment or self-employment then that is already provided for under the current provision contained in section 6. We are both doing the same thing. We would be happy to seek further clarification for the Deputy before the Bill goes back to the House but we think the situation is already addressed in the Bill.

Deputy Willie O'Dea

My concern is about the use of the word "immediately". I am trying to provide for a time gap in case a person's social welfare ran out and it took him or her a while to get organised and to get on a scheme.

Deputy Kevin Humphreys

One of the officials will contact Deputy O'Dea tomorrow on the matter in order to clarify the matter. We sought clarification through the Bills Office but we were not able to contact the Deputy. However, I believe we are both working in the same direction.

Deputy Willie O'Dea

Okay.

Amendment, by leave, withdrawn.

Chairman

Amendment No. 10 in the name of Deputy Ó Snodaigh was ruled out of order as a potential charge on the Exchequer. It is similar to the previous amendment in that it seeks to broaden the criteria for entitlement to the back-to-work family dividend to include those that cease to claim or be entitled to carer's allowance. That is currently not provided for in the Bill and it has the potential to impose a charge on the Exchequer. Therefore, the amendment must be ruled out of order in accordance with Standing Order 1563.

Amendment No. 11 in the name of Deputy O'Dea has been ruled out of order as a potential charge on the Exchequer. Again, it is on the basis that it seeks to broaden the eligibility criteria for entitlement to the back-to-work family dividend to allow persons taking up work on a partial basis or those working in low-paid employment currently in receipt of jobseeker's benefit or jobseeker's allowance to benefit from the back-to-work family dividend incentive without losing access to their allowances. The amendment has the potential to impose a charge on the Exchequer and therefore it must be ruled out of order in accordance with Standing Order 1563.

Amendment No. 12 in the name of Deputy O'Dea similarly has been ruled out of order on the basis that it is a potential charge on the Exchequer. Again, it provides for the removal of the requirement that in any continuous period of unemployment a person must have been in receipt of jobseeker's benefit, jobseeker's allowance or a qualifying payment for not less than 312 days of unemployment. Removing this requirement broadens the criteria for entitlement to the back-to-work family dividend and has the potential to impose a charge on the Exchequer and therefore the amendment must also be ruled out of order in accordance with Standing Order 1563.

Amendment No. 13 in the name of Deputy O'Dea has also been ruled out of order as a potential charge on the Exchequer. That is because it provides that a person would be entitled to the back-to-work family dividend even where that person's spouse, civil partner or cohabitant is in receipt of a range of social welfare benefits. Removal of those conditions has the potential to impose a charge on the Exchequer and therefore the amendment must be ruled out of order in accordance with Standing Order 1563.

Amendment No. 14 has also been ruled out of order as a potential charge on the Exchequer because it provides for the extension of the maximum duration of two years for claiming the back-to-work family dividend for up to three years. The amendment has the potential to impose a charge on the Exchequer and therefore the amendment must be ruled out of order in accordance with Standing Order 1563.

Amendments Nos. 15 and 16 have both been ruled out of order as a potential charge on the Exchequer. The Bill currently provides that the rate of back-to-work family dividend payment would reduce by half after the first year of receipt. The amendments seek to maintain the original rate of the dividend for a second year. The amendments have the potential to impose a charge on the Exchequer and therefore the amendments must be ruled out of order in accordance with Standing Order 1563.

Amendment No. 17 has been ruled out of order as a potential charge on the Exchequer because it seeks to provide that children in receipt of social welfare payment in their own right would still be eligible for inclusion in the calculation of the dividend payment to their parents. The amendment has the potential to impose a charge on the Exchequer and therefore the amendment must be ruled out of order in accordance with Standing Order 1563.

Amendments Nos. 10 to 17, inclusive, not moved.

Question proposed: "That section 6 stand part of the Bill".

Deputy Denis Naughten

I have one contribution to make on the section. It relates to a point I made earlier but I will not repeat it, which you also raised, Chairman, namely, what safety nets are being put in place to ensure that people do not fall through the cracks while in the transition from one set of payments to the other. The family income supplement is of concern to me. The Minister of State is aware that it can take anything up to three months to process a family income supplement, FIS, application. By the time an individual is called for a meeting in an Intreo office, the options are outlined and he or she applies for the FIS, standard run-of-the-mill cases will go beyond the specified date in July. However, bearing in mind that here will be an influx of cases to the FIS system on foot of the change, are the resources being put in place to ensure applications are addressed in a prompt manner? What safety net will be put in place? I refer to people moving from the one-parent family payment to the jobseeker's allowance in transition, as you mentioned previously, Chairman, or someone moving to the FIS. Could the Minister of State give me an assurance that no one will be allowed to fall through the cracks in that regard?

This will cause hardship. The difficulty is that once people are working they will not be eligible for supplementary welfare allowance. This emergency safety net will not be there for them. All of a sudden, they will have increased child care costs during the summer and a drop in their income. For many people dependent on social welfare a delay of two or three days can cause huge hardship, never mind losing out on a payment for a number of weeks when they do not have the safety net of the supplementary welfare allowance. Will the Minister of State at least ensure that at the very minimum anyone transitioning from the one-parent family payment will have an automatic entitlement to supplementary welfare allowance pending the resolution of the situation so people do not fall through the cracks? If the Department does its job right the numbers involved should be very small and there should not be a huge cost to the Exchequer, but if it gets it wrong it will cause huge financial hardship for many families and many children who may be in very vulnerable households from a financial perspective. Will the Minister of State give an assurance by stating that in these exceptional circumstances supplementary welfare allowance will be made available to rectify the situation even if a person is over the threshold?

Deputy Kevin Humphreys

A significant amount of work and engagement has been done on this. The preparatory work will ensure anyone who engages will not fall through the cracks. Letters have been sent to people and they have been asked to attend group engagements. A lot of preparation work has been carried out.

Deputy Richard Boyd Barrett

The phased reduction over a period of three years of the back-to-work family dividend will mean a progressive reduction in the overall income of lone parents who work more than 19 hours, and in the third year the payment will disappear altogether. It defies my understanding as to how this is an incentive for people to get back to work if they will lose out and their income will fall.

Deputy Kevin Humphreys

The back-to-work family dividend is to encourage and help people to get back into the workforce and it is a time-specific payment. Options open for people when they go back to work. I was unemployed for more than 18 months and when I got back into employment options such as promotion, overtime and additional hours all became available. The back-to-work family dividend, which is time specific for two years, is very progressive and is to help people transfer back to the workforce. Deputy Boyd Barrett stated it is not progressive or will not help and that it should not be introduced because it will be phased out after two years. It will significantly help many people move back into full-time work. It is an excellent initiative which is quite progressive and will assist many families to get back into the workforce. I do not accept Deputy Boyd Barrett's comments.

Chairman

If someone in receipt of the one-parent family payment is working the payment is taken into account as part of his or her taxable income. Is it the same for the back-to-work dividend?

Deputy Kevin Humphreys

The €29 for each child is excluded from tax.

Chairman

It is not taxable.

Deputy Kevin Humphreys

No.

Chairman

If someone is transitioning from a one-parent family payment-----

Deputy Kevin Humphreys

It is in section 13, which inserts a new section 194B in the Taxes Consolidation Act 1997.

Chairman

The point has been made that some people will end up worse off. They could also end up better off if they transition from the jobseeker's allowance to the family income supplement. If someone working part-time gets extra hours he or she could do substantially better. Taking everything into account, the after-tax situation is an issue. The tax situation of someone who transitions from one-parent family payment to the back-to-work dividend might improve because it is not a taxable payment whereas the one-parent family payment is taxable. Much work has been done by various non-governmental organisations and associations but they do not take into account the tax situation and this is important to know.

Deputy Richard Boyd Barrett

I am working off the tables that SPARK put together, which set out that the transition will mean people who are working will lose out in general. The losses are spelt out whereby someone working 20 hours could lose up to €80.52 per week in the third year, someone working 28 hours could lose up to €66 per week and someone is working 35 hours could lose up to €54 per week. The loss of income percentages are fairly dramatic, at 18%, 14% and 11% for these three categories. This situation worsens progressively because of the phasing down to zero of the back-to-work family dividend. The Minister of State said the situation may improve because a person is in work, and it might, but it might not. This is the point. In many cases it might not. For those people who will be worse off even though they are working this will be a disincentive. There is no reason to presume they will be in a better position in a year or two, as it may be the case or it may not be the case. For many it will be a disincentive.

Deputy Brendan Ryan

The back-to-work family dividend is such a positive measure and the initiative of the departmental officials in delivering it is absolutely to be welcomed, but I am amazed at the capacity of somebody to find something negative in something which is so positive.

Deputy Joan Collins

The back-to-work family dividend is a good idea and there is no doubt about it. Nobody is saying it is not. The point we are making is the breakdown we received from SPARK is factually correct, and this has been confirmed by the Tánaiste and Minister for Social Protection. She stated the figures were right when I sent them to her in a parliamentary question. She qualified it by stating that in future people may earn more depending on their hours, but as Deputy Boyd Barrett stated this may or may not be the case. The Government is introducing legislation now that will impact on lone parents in work, who they do not have proper affordable child care facilities, and the Government must stand over this.

Deputy Kevin Humphreys

There is always a great urge for people to find something negative. The back-to-work family dividend applies to a much wider range of people than the one-parent family payment, including people who have been quite distanced from the workforce. I have met such people in my community and they will benefit hugely from this. The back-to-work family dividend is an excellent scheme and is a cash incentive to assist people getting back to work and moving from benefit to work. It has many positive aspects.

I thank Deputy Joan Collins for acknowledging that it is a good initiative. Unfortunately, Deputy Boyd Barrett can find no good news in respect of anything.

Deputy Richard Boyd Barrett

I am merely concerned with regard to lone parents. These people are losing out.

Deputy Kevin Humphreys

I commend the section to the committee.

Chairman

The people who transitioned from the one-parent family payment last year did not receive what is being provided for here because it did not exist at that stage. Is there a proposal to revisit the position in respect of them?

Deputy Kevin Humphreys

It will be treated as having come into effect from 1 January last, so people will receive back payments.

Chairman

What about people who transitioned from the one-parent family payment last July?

Deputy Kevin Humphreys

A start date had to be put in place in respect of the scheme. The Department is working to ensure that payments will be made as soon as possible after the legislation is passed.

Chairman

What will be the position-----

Deputy Kevin Humphreys

It was the intention that anybody who commenced employment from 1 January would be entitled to the payment.

Chairman

A constituent who returned to work raised that matter with me. The individual in question presumed that they would not be eligible. Is it possible they might be eligible?

Deputy Kevin Humphreys

They need to commence employment and then apply.

Chairman

What if they did not know that they would be eligible?

Deputy Kevin Humphreys

We will explain that to people. However, they need to apply. It is a new entitlement and it must be applied for.

Chairman

That is fine.

Question put and agreed to.

SECTION 7

Question proposed: "That section 7 stand part of the Bill."

Deputy Aengus Ó Snodaigh

This is the section under which people are required to present their social welfare cards in specified circumstances. Such circumstances have been legislated for but the Bill outlines further when people will be obliged to present their cards and indicates the service providers that can demand sight of them. I do not have a major difficulty with that, I am merely seeking to discover what will be involved in practice. In certain instances, An Post is the main service provider responsible for distributing payments. Recently, I have come across individuals who have social welfare cards but who do not have any other means of identification. Tús participants are required to open bank accounts but social welfare cards are not accepted by banks as a form of identification suitable to facilitate them in this regard. People are being asked to do something which should not really be required of them, particularly when one realises that An Post is, in some instances, the preferred service provider for the delivery of payments. An Post accepts social welfare cards as a means of identification from people seeking to open accounts with it but the banks do not. Work remains to be done to make these cards acceptable to all institutions.

I would welcome it if the position could be changed in order that it would no longer be a requirement for Tús participants to open bank accounts and that Pobal would be able to make payments through An Post. The necessity to open bank accounts has caused hardship in the case of one or two people who do not have either passports or driving licences. Such individuals were obliged to scurry about in an attempt to obtain some form of identification from An Garda Síochána or whomever which might prove acceptable to the banks. The banks are becoming more difficult to deal with, even when the form of identification presented is provided by An Garda Síochána.

Deputy Kevin Humphreys

The banks should accept the public service card as a means of identification. For many reasons, mostly relating to money laundering and other criminal activities, the banks have been quite rigid in terms of what they will accept as suitable identification. I have no difficulty pursuing this issue with them on the part of the Deputy.

Question put and agreed to.

NEW SECTION

Deputy Kevin Humphreys

I move amendment No. 18:

In page 13, between lines 36 and 37, to insert the following:

“Opinion of medical assessor

8. The Principal Act is amended by the insertion of the following section after section 300:

“Opinion of medical assessor

300A.(1) In determining a person’s entitlement (whether in respect of a decision under section 300 or a revised decision under section 301) to a benefit, assistance or a respite care grant, as the case may be, the opinion of a medical assessor may be sought in respect of, but not limited to, any of the following questions:

(a) whether the person is—

(i) for the purposes of section 40 or section 74, as the case may be, incapable of work, or

(ii) for the purposes of section 118, permanently incapable of work;

(b) the level of restriction, for the purposes of section 46A, on the person’s capacity for work in relation to the capacity for work of a person of the same age who has no restriction on his or her capacity for work;

(c) whether, for the purposes of Chapter 9 or Chapter 10 of Part 2, the woman concerned is expected to be or has been confined within the meaning of section 51;

(d) whether, for the purposes of section 72—

(i) the accident, in respect of which the opinion is sought, could have arisen out of and in the course of the insured person’s employment, and

(ii) the insured person’s injury is consistent with that accident;

(e) the extent, for the purposes of section 75, of the disablement resulting from the loss of physical or mental faculty suffered by an insured person as a result of personal injury caused on or after 1 May 1967 by accident arising out of and in the course of his or her employment;

(f) whether, for the purposes of section 77, a person entitled to disablement pension is, as a result of the relevant loss of faculty, incapable of work and likely to remain permanently so incapable;

(g) whether, for the purposes of section 78, a person entitled to disablement pension in respect of an assessment of 50 per cent or more requires constant attendance as a result of the relevant loss of faculty;

(h) whether, for the purposes of section 80, the death of an insured person is as a result of personal injury caused on or after 1 May 1967 by accident arising out of and in the course of his or her employment;

(i) whether, for the purposes of section 85, the person, as a result of the injury or disease arising out of and in the course of his or her employment—

(i) is or could be treated as being incapable of work and likely to remain permanently so incapable, or

(ii) requires constant attendance;

(j) whether, for the purposes of section 87, an insured person has a disease or injury prescribed under that section which—

(i) could have arisen out of and in the course of the insured person’s employment, and

(ii) developed on or after 1 May 1967;

(k) whether the relevant accident, within the meaning of section 69, was an occupational accident for the purposes of section 90;

(l) whether the person, in respect of whose care a claim has been made or is in payment, is a relevant person for the purposes of Chapter 14 of Part 2, Chapter 8 of Part 3 or Part 5, as the case may be;

(m) whether, for the purposes of section 161A, the person is so blind that he or she—

(i) cannot perform any work for which eyesight is essential, or

(ii) cannot continue his or her ordinary occupation;

(n) whether a child is a qualified child for the purposes of Chapter 8A of Part 3;

(o) whether, for the purposes of section 210, the person, by reason of a specified disability, is substantially restricted in undertaking employment of a kind which, if the person was not suffering from that disability, would be suited to that person’s age, experience and qualifications.

(2) Where the opinion of a medical assessor is sought in accordance with subsection (1), the medical assessor shall assess all of the relevant information available to him or her and shall provide an opinion on the question put to him or her.

(3) Where a medical assessor provides an opinion in accordance with subsection (2), a deciding officer shall have regard to that opinion in deciding the question in respect of which the opinion was sought.

(4) In this section ‘relevant loss of faculty’ has the meaning assigned to it by section 69.”.”.

Amendment put and agreed to.

SECTION 8

Chairman

Amendment No. 19 in the name of Deputy O'Dea has been ruled out of order as it would involve a potential charge on the Exchequer. The amendment would involve the repeal of section 342A of the Social Welfare Consolidation Act, which provides for the recovery of sums due to overpayments by summary proceedings or by deduction from other payments. Reducing the amounts of overpayments to be recovered has the potential to impose a charge on the Exchequer. Amendment No. 20 in the name of Deputy Joan Collins has also been ruled out of order because it provides that in recovering overpayments, the Department would ensure that a claimant's income would not fall below the relevant supplementary welfare allowance rate for the claimant or his or her family. These amendments could have the effect of reducing the sum available for recovery by the Department and they have the potential to impose a charge on the Exchequer. As a result, both must be ruled out of order in accordance with Standing Order 156(3).

Amendments Nos. 19 and 20 not moved.

Question proposed: "That section 8 stand part of the Bill."

Deputy Willie O'Dea

Under the relevant section of the principal Act as originally drafted, if the Department of Social Protection owed someone money and if it transpired that the individual in question also owed money to it, then one could be offset against the other. Apparently the law was changed to state that when the overpayment by the Department was the result of fraud, then the money involved could not be used for offsetting purposes. It appears the legislation has been somewhat refined and that an offset can be refused when an overpayment is the result of fraud, as determined by a deciding officer or an appeals officer. I do not carry a brief for those who commit fraud and I am of the view that those who defraud the social welfare system should be pursued to the ends of the earth. Under the Bill before the House, a deciding officer is going to be able to decide whether somebody has committed fraud. The latter is, of course, a serious criminal offence and I would imagine that determining whether fraud has been committed should be a matter for judge and jury. In this instance, there will be a finding of fraud against someone if a deciding officer or an appeals officer consider that the overpayment relating to him or her was the result of fraud.

In many cases, where people have been deemed in the opinion of the Department to have committed fraud, they are not made aware of this. They will receive letters stating that they have been overpaid and the various sections, etc. of Bills under which this has been determined will be listed. However, such letters do not mention the fact that they are deemed to have committed fraud. I am of the view that, from a constitutional point of view, this is very dangerous. In the context of a person's ability to repay money he or she owes to the Department or his or her ability to clear a debt, that this should depend on the opinion of a single official, without any recourse for those involved and in circumstances where, in many instances, these people will not know what has actually been determined, is wrong. As a result, I am of the view that the entire section should be revisited.

Deputy Joan Collins

I support Deputy O'Dea in opposing the section and for the reasons he outlined Those reasons were also highlighted by the Free Legal Advice Centres, which has been quite meticulous in terms of explaining why the section in the principal Act should be repealed.

It was wrong to introduce a provision in 2012 whereby a deduction of 15% may be taken from a person's social welfare payment without consent in order to make recovery of an overpayment. For anyone in receipt of €188 per week, that equates to a loss of €28. There is a question of fundamental rights here and a danger of sending people into poverty and destitution. That is why I tabled my amendment on this issue. The Government should row back on this 15% reduction provision and return to the previous position whereby no one would be left with less than €186 per week. That is the minimum people need in their pocket if they are to be able to live any kind of a life.

Deputy Denis Naughten

I have two issues to raise in respect of this section. First, Deputy O'Dea, whether he realises it or not, has opened up a can of worms. There is a case currently before the appeals office on the specific issue he raised. When the Department official in that case was asked to explain at oral hearing why the office had found against the client, this person was unable to give an answer. Deputy O'Dea spoke about reasons not being given in writing but, in this case, the official could not even give an answer orally. The Deputy is 100% correct that this is not only illegal but probably unconstitutional. I hope the Minister will confirm that sections 8 and 9 have no bearing on the case to which I referred that is currently before the appeals office. I am very concerned that we should not be amending legislation before there is a determination in respect of that case. These provisions should deal only with lump sum compensation payments.

Second, section 8 relates to circumstances where false or misleading statements have been given or there has been a wilful concealment of facts, in which case there is a liability on the individual concerned. I am in possession of a letter issued by the State pension non-contributory section of the social welfare office in Sligo which contains false and misleading information. Will the Minister ensure this letter, which was sent to old age pensioners, is withdrawn forthwith? The false information it contains is the advice that it would be to the greater convenience of pensioners to switch their payment from the post office to a bank. Such a move will, the letter states, provide them with easier access to their money, greater personal security and a time saving.

I do not know what planet people in the Department are living on, but the reality is that the banks in this country do not want personal customers to deal in cash. While post offices are open and dealing in cash six days per week, one particular bank will only issue cash to customers on the Monday after the second Sunday of every second month. There are no longer any tellers in many bank branches. It is misleading for departmental officials to say there is greater convenience for an old age pensioner in having his or her money paid into a bank versus a post office. The banks do not want these types of customers and are, in fact, actively discouraging them. Even when a branch is open, there are certain days on which it will not issue cash to customers. Departmental correspondence should clearly state that banks will only handle cash on certain days rather than telling people it would be more convenient for them to switch their payment from the post office to the bank. Will the Minister give me an assurance today that this misleading letter will be withdrawn and everyone who has received it will now receive another letter clearly explaining that if they wish to continue to deal in cash, they should not have their State pension payment, contributory or non-contributory, made through a bank?

Deputy Aengus Ó Snodaigh

This is the third change over a series of Bills relating to arrangements for the repayment of moneys supposedly owed in respect of cases of fraud arising from the provision of misleading information or the concealment of facts. FLAC has, once again, outlined the dangers associated with these provisions in its submission on the Bill. What we must bear in mind is that an allegation is not fact. If someone is involved in fraud, he or she should be charged with fraud. I am dealing with a case where a woman is waiting for the Department to charge her with fraud. In fact, she has asked to be charged in order that she can disprove the allegation that she misled the Department for the past 12 years. This person has documentation from the Department which clearly shows it was, in fact, the other way around. She is eager to be charged in order that she can clear her name. In the meantime, her social welfare payment has been discontinued and she has been told she must repay the amount of the supposed fraud. She does not, however, have the wherewithal or means to do so.

This is a woman who is adamant she has been upfront all along in her dealings with the Department and is determined to see the matter dealt with in court. She took the time and effort to obtain her files under the freedom of information regime. Strange things are evident in those files but not from her end. They seem to have arisen for a very particular reason within the Department and go back ten years. By contrast, where a person wishes to recover overpaid taxes, it is not possible to go back more than four years. Even though the State has often wrongly withheld taxes from people, whether through an administrative error or otherwise, taxpayers are obliged to seek repayment within a four-year period or it is hard luck. In the case of the Department of Social Protection, on the other hand, it is going back up to 30 years in some cases for repayments of often small amounts. In one case I have seen, a woman was told in writing that she owed €19.20 since February 2005 and was asked to pay it back at €2 per week. She said there was no problem about it and she would bring in the coins. That did not happen in the end. There must be fair procedure and some common sense in these matters. The question arises as to whether a statute of limitations is applicable in such cases. If one makes an allegation of fraud against someone, I presume there is a period within which that allegation must be put directly to the person concerned. Will the Minister comment on that?

Since the recent change in the maximum applicable deduction for overpayment from €2 per week to 15% of the payment, issues have arisen in respect of how that percentage is calculated. In the case, for instance, of a separated woman who has an order for the payment of €65 per week in maintenance from her former partner and who is making a 15% repayment, there is a significant difference in how much money she will end up with in her pocket every week depending on how the 15% deduction is calculated. If it is calculated after the €65 payment is subtracted from €188, then she will come out with €105, 15% of €123 - what she receives once the maintenance payment is taken out - being €18. If, on the other hand, the 15% deduction is calculated on the full €188 instead of €123 and then the €65 payment is taken out, she will end up with €95. In other words, she will be €10 worse off. No woman who is making a full declaration of maintenance should suffer a consequence based on the way the Department calculates these matters. Such deductions should never be calculated in a penal way. It should always be about leaving the person, who is in distressed circumstances, with as much money as possible.

The Department will still get its 15%-----

Chairman

The Deputy is providing too much detail that is not relevant to the section.

Deputy Aengus Ó Snodaigh

Believe it or not, it is relevant to the section because this section was introduced to recover at a level over the €2 to 15%. At every stage that we have tried to deal with this issue we have been cut short, so I am not-----

Chairman

The Deputy has spoken for almost six minutes at this stage.

Deputy Aengus Ó Snodaigh

I could speak for as long again.

Chairman

Yes, but if we want to get out at-----

Deputy Aengus Ó Snodaigh

This is Committee Stage. The reason we are ending up with problems such as this is because we have not had the ability to tease out where there are complications such as this. I am not argumentative, I am merely asking in a positive way, because the Department gets its money, that the Minister of State approach the issue. FLAC and others have said that in the past the supplementary welfare allowance was supposed to be at the poverty rate, which is the reason it was €186 and the full rate of dole was €188. That was changed. I would argue that we should go back to the other system but that is not what I am arguing here. I am arguing that if one is applying the 15% rate, one should not leave a person in a worse off position than they could be. The 15% rate needs to be applied at a different stage, not on the full amount, but after the other deductions have been made.

Chairman

The point has been made.

Deputy Aengus Ó Snodaigh

The key part of all this is the Statute of Limitations. We cannot have a situation where a person is continually going back. If a person is guilty of fraud and if the Department goes back 30 years, it will charge the person with fraud, but if not, a line needs to be drawn in the sand.

Deputy Kevin Humphreys

I refer to the specific issue of letters raised by Deputy Naughten. I can give him a commitment that no further letters will be issued.

Deputy Denis Naughten

Will the Minister of State ensure those who have been written to will be given the facts? People in Dublin may not realise that many of the banks in rural Ireland will only issue cash on certain days of the week. Many will not take in coin any day of the week. That the Department should write to a pensioner stating he or she can get a better service in the local bank is not true. They cannot get a better service in the local bank. I welcome the fact the Minister of State is withdrawing the letters. That is a positive development.

Deputy Aengus Ó Snodaigh

The transaction also costs the banks whether one lives in rural Ireland or not.

Deputy Kevin Humphreys

I wish to make that clear at this stage because the Deputy raised it so well.

Deputy Denis Naughten

What has been reported is misleading. With all due respect, there may be some vulnerable pensioners who attached their bank statement and sent it back - they get their money every week in the post office - not realising there are only certain days of the week in many of the smaller banks' branches throughout the country where one can get cash. Otherwise one has to use the machine. For many pensioners it is alien to them to have to put a card into the machine to get cash out. What I am seeking is that for those who have been written to, particularly those who have responded that before the case has been processed, the position is made clear to them that the local bank only provides cash on two days of the week and that they are aware of this before proceeding down this route. One can get cash six days a week in the local post office.

Deputy Kevin Humphreys

To put it into context, it was a trial on a voluntary basis to communicate better with the customer. It was a small trial to see whether we are in the best position to communicate with customers. As I said to Deputy Naughten, no further letters will issue and we will review how to deal with the issue from here on.

Deputy Ó Snodaigh made several points. The average value of the social welfare overpayment is approximately €1,500. A repayment level of €2 per week would result in the debt being repaid in about 14 years. When dealing with a fraudulent debt which is about €7,500, one is talking about 72 years for the repayment to be made. The maximum deduction without consent is 15%. The Deputy raised particular specific issues in different cases. I would not have the knowledge in respect of those specific cases to which the Deputy referred. If he wishes to forward to me details of specific cases, I will be happy to deal with them.

Deputy Aengus Ó Snodaigh

I presume it is the practice rather than the specific cases. I can forward details of the specific cases but the practice is when-----

Deputy Kevin Humphreys

Not necessarily. The fact is that more than 90% of social welfare overpayments are caused by failure to inform the Department of changes in circumstances. The majority of cases are dealt with in a speedy, efficient and fair manner. In specific individual cases there may be glitches within the system. If the Deputy wishes to point out those specific glitches with individuals, I would be very happy to sit down with him and listen to those.

Section 342A was introduced in 2011 to deal with revised decisions which were made on the basis that the claimant made false or misleading statements or representations or wilfully concealed the facts. It provides that where a revised decision is made and that decision results in an overpayment arising from the fraudulent claim of a social welfare payment, the person cannot be given the benefit of any alternative social welfare payment to which they may have been entitled during the period of the fraudulent overpayment. Each claimant has the right to a review or appeal when the decisions are made by the Department. In making a revised decision, the deciding officer must demonstrate how he or she arrived at that decision and what evidence was taken into account in coming to that decision. Guidelines on the conditions that must be satisfied in the various schemes are published and are widely available to the public. The purpose of section 8 is to clarify the operation of section 342A.

Section 8 provides that for the purposes of section 342A, an overpayment can relate to periods during which a social welfare payment has been made following a fraudulent claim or whether that period occurred before 29 June 2011, the date of enactment of section 342A, or after that date. It is important that where a claimant has been overpaid, they know they have a responsibility to repay and the Department will take appropriate steps to obtain recovery. A person who has been overpaid has a liability to refund the overpayment as that person has received money to which he or she is not entitled.

Like Deputy Willie O'Dea, no one in this room encourages or supports fraudulent social welfare claims. However, we need robust systems in place. I take on board a number of points made by Deputies but if there are specific issues, the Department is happy to deal with them.

Chairman

I call Deputy Catherine Byrne and ask her to be brief if we are to finish around 4 p.m.

Deputy Catherine Byrne

I will be brief. This concerns a case I am dealing with to which the Minister of State may be able to respond. In concerns a couple where one partner died owing money to the Department of Social Protection and the remaining partner, who is dying, is repaying it through the old age pension. I was told by the Department that when that person dies the payment will still continue through the children who will have to clear the debt. I was surprised at that because-----

Deputy Kevin Humphreys

I would advise the Deputy to write to the Department-----

Deputy Catherine Byrne

I did so and that was the response I got.

Deputy Kevin Humphreys

The detail of the case does not click with me.

Deputy Catherine Byrne

That was the reply I got back.

Deputy Kevin Humphreys

I will have a look at it.

Chairman

It is not something the Minister of State can answer now.

Deputy Willie O'Dea

I have an aversion to the idea of someone being deemed to be a fraudster, to have defrauded the Department of Social Protection wilfully, which is one of the worst things one could do on the opinion of one official.

I will refer to this on Report Stage.

I would make one suggestion to the Minister of State, Deputy Humphreys. When it was introduced, the 15% rule was a maximum. The 15% of the principal personal amount is a maximum. In my experience, on too many occasions social welfare officers are taking this as standard and stating they are entitled to deduct 15%. Could somebody issue a directive to tell them that it is a maximum and they have flexibility to charge less in appropriate circumstances?

Question put and agreed to.

SECTION 9

Question proposed: "That section 9 stand part of the Bill."

Deputy Aengus Ó Snodaigh

I have a query on section 9, to which I am not opposed. I raised this question on Labour Court findings on a number of occasions and I did not submit an amendment on this occasion. Where findings are made against employers, the applicant is often on some type of social welfare payment while waiting on such an award being made but the Department of Social Protection cannot recover the money from the employer. It is something similar. I suggest that some mechanisms be looked at again to ensure that such payments where somebody has been laid off in the wrong can be recovered from the employer as part of an award in the Labour Court.

Deputy Denis Naughten

I have a comment and a question. Does subsection (1)(b) state that one cannot appeal the liability to the payment until one has paid the compensation back? In his contribution to section 8, the Minister of State stated in some instances it could take 70 years to pay the liability back. As he will be aware, one has 21 days in which to appeal a decision of the Department. How does the Minister of State square that circle in relation to recovering it? The process is that if one's appeal of the decision fails then one is liable to pay the money back. Is this only related to lump sums? I have another question on the law as it stands where moneys are paid over, but the Minister of State may wish to contribute.

Deputy Kevin Humphreys

I will take it one piece at a time because this is slightly different. This is a recovery of funds where there is an insurance case.

Deputy Denis Naughten

All right, fair enough.

Second, where there was a case of institutional abuse and compensation was paid, under the Social Welfare Acts that is exempt from all calculations. There have been a handful of cases where there has been gross negligence on behalf of the HSE in relation to vulnerable children. Previously, I have brought this issue up, both publicly and privately, with the Tánaiste and Minister for Social Protection, Deputy Joan Burton, and to date it is falling on deaf ears.

There are sensitivities in this regard. If a child or someone who has just come of age falls into a substantial amount of money and there has been public discussions regarding a particular community in a particular part of the country, it is easy in a rural area to put two and two together and get four. I refer to a small number of cases. In these cases, if the abuse had happened in a State institution, there would not be any issue in relation to it but, because it happens with State neglect in the community, it has to be disclosed to the Department, it is known by the local social welfare inspectors and known in the local community, and it makes it much more difficult for that particular individual to move on and cope with the trauma. Not only had they the abuse and the associated media controversy to deal with and cope with, but on top of that they must make this declaration to the Department and other agents of the State are now aware of it purely because the State neglected to act in an appropriate manner to protect that particular child in the first instance. As I say, there are only a handful of persons involved here. Surely there can be an amendment put into the Social Welfare Acts that where the HSE makes compensation payments in relation to its gross negligence regarding the protection of children who ended up in abusive situations, that, too, would be exempt the calculation.

Chairman

I will stop Deputy Naughten there, as he has raised the issue. If he wishes, he can state he will submit an amendment on Report Stage. It is not really relevant to the section. I do not want to open up a discussion on it.

Deputy Denis Naughten

I accept that. The problem is that I have tabled such an amendment to previous social welfare Bills, I have raised it on Committee Stage and it has been ruled out of order on Report Stage because there is a potential cost on the Exchequer. Committee Stage of a social welfare Bill is the only mechanism that is open to me to raise this.

Chairman

There are other forums as well, but it is not relevant to that amendment. If I open up a discussion,-----

Deputy Denis Naughten

It is-----

Chairman

I do not think it is.

Deputy Denis Naughten

-----because it is a lump sum payment.

Chairman

It is what?

Deputy Denis Naughten

It is a lump sum payment. We are talking about the recovery of those payments where there is social welfare. It is relevant.

Chairman

Deputy Naughten has made his point. I ask the Minister of State to be brief on this. In fairness to everybody here, we cannot go off for too long on this issue.

Deputy Kevin Humphreys

I will not go too long.

It is a difficult matter. I see Deputy Naughten's point. In a small number of cases, this is relevant. I have just asked my officials about it. It seems to be quite a difficult thorn to grasp and I suggest I have a look at it to see can it be grasped.

It is really a small number of minor cases and I am not sure it is best done through legislation. Deputy Naughten has only just brought it up. The honest answer is, "I do not know."

Question put and agreed to.

NEW SECTIONS

Chairman

Amendment No. 21 has ruled out of order as a potential charge on the Exchequer because it could have the effect of reducing the sum available for recovery by the Department and, therefore, has potential to be a charge on the Exchequer. Amendment No. 22 has been ruled out of order as a potential charge on the Exchequer for the same reason as I read out in the case of amendment No. 20.

Amendments Nos. 21 and 22 not moved.

Sections 10 to 14, inclusive, agreed to.

Schedule agreed to.

Title agreed to.

Bill reported with amendment.