Standing Joint Committee on Consolidation Bills debate -
Thursday, 15 Jul 1993

SECTION 251.

Deputy Woods

I move amendment No. 3:

In page 161, lines 47 and 48, to delete "from his officers such and so many persons" and substitute "such and so many of his officers".

Section 251 provides for the appointment of appeals officers. Amendment No. 3 is designed to achieve uniformity of expression with equivalent provisions elsewhere in the Bill relating to the appointment of deciding officers and social welfare officers. Essentially, this amendment provides the same language for appeals officers, deciding officers and inspectors.

Deputy S. Ryan

I see merit in the amendment. Regarding appeals officers, we are basically referring to social welfare appeals officers. Under the social welfare code can a guarantee be given that a representative of the employer or the relevant trade union will be present when people appear before the appeals officer? Once a decision is made it may be difficult for a public representative acting on behalf of a constituent who is unhappy about a decision to contact the chief appeals officer who made the decision. Can the general public have greater access to the appeals officers who make the decisions?

Deputy Woods

Deputy Ryan raised a point that is always one of contention. Regarding disability benefit the system provides for two separate medical referees and the case is then appealed to an administrative officer. An independent social welfare appeals office has been provided where cases are heard and that provides a very good system in relation to disability benefit appeals. If an applicant is not satisfied with the decision of the first medical referee he or she can get the opinion of a second medical referee, because doctors differ — and I will not finish that saying. Statistics reveal that in a reasonable percentage of cases the second medical referee disagrees with the first one and may agree to an appeal. This may be due to the fact that greater information is provided or the applicant may be better prepared when meeting the second medical referee. When cases are taken to the next level of an administrative appeal in the social welfare appeals office, the administrative officer takes a broader view. For instance the administrative officer will consider a person's suitability for work and may decide that while a person may technically be suitable it is obvious that the person is not suitable for work available to him or her at present. The person will not be asked to attend for work until he or she has recovered.

The Deputy raised the question of the chief appeals officer and how the system operates.

Section 255 (a) states:

The Chief Appeals Officer may appoint any person whom he considers suitable to sit as an assessor with an appeals officer when any question which appears to the Chief Appeals Officer to require the assistance of assessors is heard.

Section 255 (b) states:

The Chief Appeals Officer may constitute, on the basis of districts or otherwise as he considers appropriate, panels of persons to sit as assessors with the appeals officers and members may be selected in such a manner as he may determine from such panels to so sit when any question which, in the opinion of the Chief Appeals Officer, is appropriate for the assistance of assessors is heard.

A provision is provided under the Bill to cover the matter and it can be taken up with the chief appeals officer who is also the director of the separate social welfare appeals office. I could arrange for the Deputies and Senators who are interested in the appeals system to meet the chief appeals officer to discuss it because the chief appeals officer is given the power to make arrangements regarding appeals. That power was given to the chief appeals officer when the separate social welfare appeals office was established some years ago. It could be useful to arrange a meeting with the chief appeals officer and Deputies and Senators who are interested to discuss how appeals can best be dealt with.

Relating to appeals and the different kinds of appeals, I have established an advisory decisions office as part of the ongoing development and improvement of our customer services in the Department of Social Welfare. The new office will be responsible for monitoring, providing advice and guidance to deciding officers who are at the first stage of decision making in the Department of Social Welfare. Based on experience we want to bring about uniformity and ensure correct decisions are made in this regard. This is a new development.

Natural justice will be at the centre stage in improving the provision of information to the public. The pilot study on the impact of improved methods of communicating deciding officers' decisions on means-tested applications for unemployment assistance is almost completed. The new forms set out in plain language the decision and the basis for decisions or means assessments. General information leaflets will also be issued. An innovative step has been taken to afford the customer an opportunity to have the case reviewed at local level and this will not in any way interfere with the existing right of appeal to the independent social welfare appeals office. A leaflet designed to assist the customer in making an appeal will also be issued. The first phase of the new programme will deal with applications for unemployment assistance which comprise 44 per cent of the total number of appeals received.

A random survey of appeals awaiting determination reveal that over 50 per cent of the cases indicated some confusion or were pleas for more information. It is in everyone's interest, customers and staff alike, that basic information is freely given in the first instance. Great strides have been made in the use of information technology. It is appropriate that it should be utilised in a positive way by the Department of Social Welfare for its customers. The new approach would be of considerable help to community and interest groups and to Deputies and Senators who can be assured that any assistance or information sought by them will be willingly given.

An amendment in the 1993 Act provides for changes in the assessment and recovery of overpayments in line with a code of practice being drafted at present. The new office will also be responsible for overseeing the operation of this code of practice. The Deputy in raising questions put his finger on an important matter which I am dealing with at present. The Department of Social Welfare has always sought to ensure that the Social Welfare system is good and operates well. We are developing the system a step further at this stage through a customer related measure. To answer the Deputy's question, the system is being improved and will be very helpful. A meeting or lunch can be arranged with Deputies and Senators and the chief appeals officer so that matters relating to the appeal system can be discussed having regard to their views in relation to their experience regarding such matters.

Deputy S. Ryan

I might take the Minister up on that.

Chairman

I am conscious that before publication of the last consolidation Bill a critical report was prepared by the Coolock Community Law Centre which dealt, inter alia, with the perceived inequities of the appeals system in social welfare. It has always been accepted that the Department of Social Welfare has a structured appeals system in place which is more than can be said for the majority of public sevice agencies. The Coolock Community Law Centre report examined the social welfare appeals system in a critical way, but that system was better than any that existed elsewhere.

The area of appeals is one in which I am interested. As the Minister is aware, my interest in this area goes back many years. In every academic study of appeals systems and public confidence in regard to them, there are a number of specific criteria. They have to be cheap and easily accessible, which is the case in social welfare appeals as no cost is involved. There must be no psychological barrier to access although there may be some slight difficulty in this regard. Expertise, statutory power and authority must back an appeals system and the social welfare appeals system has such backing. In studies of appeal systems the criteria of independence and the perception of independence is always referenced to. The Minister has met these criteria by creating the separate appeals system in the Department. The Minister is very progressive, but does he accept that in the public consciousness an appeals system in social welfare, which has any nominal attachment to the Department, will be perceived as independent? The core of Deputy Ryan's question if read between the lines, is that if an appeal goes through the appeals system and is upheld everyone believes the appeals system is marvellous, but if it is refused people believe the Department has looked after its own interests. Section 251 states that every person who is so appointed shall hold office as an appeals officer during the pleasure of the Minister. There is a dissidence here. On the one hand this Minister has put a great deal of emphasis on creating an independent appeals mechanism, although the appeals officers are expected to operate independently — there is case law on this — they are expected to operate in a quasi-judicial manner but are appointed by the Minister and hold office at the Minister's pleasure. Is there a case to be made for the social welfare appeals system to actually be moved over as a sub-unit of the Ombudsman's office? Would that be a revolutionary step? The social welfare appeals system operates independently and there is no evidence to suggest that this Minister or any other Minister has interfered with it in a negative manner.

Deputy Woods

Appeals officers have a delegated statutory authority. That is one of the difficulties with which we are faced. If we feel strongly about a particular case we ask them to review it and ask the client to come forward with new evidence and that works well. This is an example of good public administration which by and large, is working well given the hundreds of thousands of cases involved. We must remember that we could impose a huge cost on the taxpayer. To some extent, the system is working well we should not try to amend it. At present we are trying to make more information available to people, because 50 per cent of the problems are caused by a lack of information or misunderstanding. That is one of the reasons we want to improve the quality of the information being supplied to individuals before the appeal stage. We want the problems resolved at the deciding officer stage, which is the first contact the person has with the system.

As a second step we are setting up an advisory decisions office. The person who will be appointed to that office is experienced in dealing with appeals. There is nobody in the Ombudsman's office or elsewhere who could match his understanding of appeal cases. Mr. Jim Agnew will be director of that office. That is the way forward at present. There has been no pressure on me to do that, although Deputies have raised questions in that regard. We have been examining the system bearing in mind the suggestions that have been made. I am a practising TD and hold clinics daily, but I do not have a problem with appeals officers. The problems arise at the initial decision making stage with deciding officers. Therefore, there is an onus on us to ensure that the correct decision is made in the first instance.

Chairman

I agree with the Minister. I do not have a problem with the appeals system. No human system will be accepted absolutely except when every appeal is granted. The attachment in law of the appeals system to the Department, as opposed to it being separate, supports the psychological feeling of some members of the public that the appeals system is not truly independent. It cannot be like the Han dynasty in which extraordinary censors would sit beside public administrators to ensure every decision was fair. Nobody could go that far and I am sure nobody would suggest that we should introduce a new appeals bureaucracy. If the appeals system did not have the Department of Social Welfare logo people might view it as being separate from the Department. That might be the case in the future because the Minister has proven to be extremely innovative.

Deputy Woods

It has a separate logo. It is a separate appeals office and has an open door logo. It is true that there has not been a problem in regard to it being independent, but there have been problems in ensuring that people are properly heard in the first instance and receive the support and understanding they deserve. I am tackling that issue at present and the matter will be pursued.

The other issue raised must be considered on a much broader canvas. I am aware of the chairman's public administration background. An enormous number of people go through the appeals system — for example, there are approximately 55,000 people per week receiving disability benefit, many of whom query their entitlements. There will always be argument over rates and assessments but at the end of the day in most cases the staff are actually implementing with great integrity the provisions of the Act. The problem relates mainly to cash. If at budget time the rates were raised considerably many of the problems might disappear.

The question of back problems needs to be addressed. I had an operation on my back and have had many problems with it since then. It is difficult to decide when a person is fit for work following a back complaint. Back problems and psychological problems are the most common and constitute the greatest volume of queries. Experts or consultants are frequently unable to determine when a person with such problems is fit for work. We can take a number of actions which may be helpful.

Deputy S. Ryan

Great improvements have taken place in the appeals process, particularly in relation to disability benefit. Not too long ago people were received in a very cold atmosphere in doctors' clinics. Regardless of the number of people doctors have to see on a daily basis, if they could spend an extra minute or two with each patient and be more sensitive to the needs of patients rather than the conveyor belt approach which exists at present, many of the difficulties might be resolved.

Deputy Woods

Medical referees are independent medical practitioners with considerable experience. I will convey to them the views of the committee in that regard and I am sure they will be willing to assist.

Chairman

The Minister's most recent innovation covers this. The Ó Dálaigh Committee, which met at the time of the Devlin report in the sixties, discussed the social welfare appeals systems and there was a great deal of discussion at that time also about the necessity to have consistency in the system. Is part of the role of the chief appeals officer to ensure consistency in the system?

Deputy Woods

Yes, and in regard to decisions. We are setting up a new office to ensure consistency at the deciding officer stage.

Deputy S. Ryan

Appeals will be dealt with at that stage.

Deputy Woods

This will be a customer related approach.

Chairman

The Minister mentioned information technology. Now that we have enough information technology to handle an individual letter in each case, will individual letters issue in each case rather than the present form with the letter "X" in a box? That should not prove difficult with modern technology systems.

Deputy Woods

The people are named individually; the "X" in the box refers to the section. We will certainly consider that matter. The problem does not relate to the "X", but to what is written after the box. The Ombudsman was referred to a few minutes ago, but what is stated there relates to this Act. That can be overcome by information being given to the person before they reach that stage.

Chairman

Recently I have looked at some decisions handed down by the DHSS which seem to have deviated from the box system. It is clear that modern word processors are used in responding. Officials probably have touch screens where they simply input the name and address of the individual, touch the screens to indicate the basis of a refusal and it then comes out in a typed letter format. People feel that at least somebody has taken the trouble to sit down and explain the position to them, but it may actually contain no more information than the previous format.

Deputy Woods

It is similar to the letter one receives from a Minister in such circumstances.

Chairman

Modern technology means there is no great administrative effort or time involved.

Deputy Woods

We shall discuss the matter with the new office.

Amendment agreed to.

Section 251, as amended, agreed to.

Sections 252 to 299, inclusive, agreed to.

NEW SECTION.

Deputy Woods

I move amendment No. 4:

In page 182, before section 300, but in Part X, to insert the following new section:

300.—The enactments specified in column (2) of the Fifth Schedule (referred to in this Part as ‘the repealed enactments') are hereby repealed to the extent specified in column (3) of that Schedule:

Provided that without prejudice to the Interpretation Act, 1937, the provisions of the repealed enactments shall continue to apply to benefit, assistance, child benefit or family income supplement prior to the commencement of this Act to the same extent as if this Act has not been passed.".

Section 300 provides that the Bill when passed will be brought into force by way of commencement order. This section also provides for the repeal of provisions which are reproduced in the Bill. I will get the commencement order passed as quickly as possible. We cannot have another Bill interfering with it being passed, so it will be commenced as quickly as possible. Deputies and Senators can be assured of that.

The purpose of amendments No. 4 and 5, which have been made on the advice of the parliamentary draftsman, is to subdivide section 300 into two sections. The amended section 300 is confined to the repeal of the provisions reproduced in the Bill and the new section 304 contains the commencement provisions. This amendment will separate the two and improve the presentation of the Bill.

Amendment agreed to.

Chairman

Is it agreed that consequent on the insertion of this new section, section 300 be deleted? Agreed.

Sections 301 to 303 included, agreed to.

NEW SECTION

Deputy Woods

I move amendment No. 5:

In page 183, after line 54, to insert the following new section:

304.—(1) Subject to this Part, this Act shall come into operation on such day as the Minister may appoint by order.

(2) The provisions of the Sixth Schedule shall come into operation—

(a) in respect of paragraph 1, on such day or days as the Minister may appoint by order or orders and different days may be so appointed for different provisions of that paragraph,

(b) in respect of paragraph 2, on such day as the Minister may appoint by order,

(c) in respect of paragraph 3, on such day as the Minister may appoint by order, and

(d) in respect of paragraph 4, on such day as the Minister may appoint by order.".

Amendment agreed to.

First Schedule and Second Schedule agreed to.

THIRD SCHEDULE.

Deputy Woods

I move amendment No. 6:

In page 192, Part II, Rule 1 (4), line 8, to delete "prescribed," and substitute "prescribed),".

The purpose of this amendment is to correct a very minor typographical error in Rule 1 (4) of the Third Schedule by inserting a closed bracket after the words "as may be prescribed". The second part of the bracket was omitted initially.

On the Third Schedule, the assessment of means for unemployment assistance, pre-retirement allowance, old age and blind pensions, lone parents allowance, widows and orphans pensions, deserted wives allowance and prisoners' wives allowance, supplementary welfare allowance, and carers allowance are dealt with in the same section. This Schedule is an example of the improvements which have been made ever since the last Consolidation Act. That will be of great assistance to Deputies, Senators and anyone else involved. Members will be able to refer to this schedule for any matter dealing with means testing.

Amendment agreed to.

Third Schedule, as amended, agreed to.

Fourth Schedule and Fifth Schedule agreed to.

SIXTH SCHEDULE.

Chairman

Amendments Nos. 7 and 8 are related and may be discussed together.

Deputy Woods

I move amendment No. 7:

In page 200, lines 19 to 23 and in page 201, lines 1 to 6, to delete paragraph 1 (b) and substitute the following;

"(b) the insertion after subsection (6) of the following subsections:

‘(7) Subject to subsection (8), regulations may provide for entitling to invalidity pension persons who would be entitled thereto but for the fact that the condition set out in subsection (1) (c) is not satisfied.

(8) Regulations for the purposes of subsection (7) shall provide that pension payable by virtue thereof shall be payble at a rate less than that specified in the Second Schedule, and the rate specified by the regulations may vary with the extent to which the condition set out in subsection (1) (c) is satisfied.'.".

The Sixth Schedule to the Bill contains certain provisions of the Social Welfare Bills which have not yet been brought into force. The purpose of amendment No. 7 is to correct a number of references contained in paragraph 1 (b). Amendment No. 8 is a technical amendment made on the advice of the parliamentary draftsman.

Amendment agreed to.

Deputy Woods

I move amendment No. 8:

In page 201, paragraph 2 (1), line 7, to delete "Chapter 11 of".

Amendment agreed to.

Sixth Schedule, as amended, agreed to.

Title agreed to.

Report of Committee.

Chairman

I propose the following draft report:

(1) The committee has considered the Bill and made amendments thereto which may be clasified as follows;—

(a) amendments necessary to the improvement of the form of the Bill; (b) amendments for the removal of ambiguities; (c) an amendment necessary to adapt to existing law; and (d) an amendment for the achievement of uniformity of expression.

(2) The Committee is of the opinion that the Bill, as amended, represents the existing law.

Is that agreed? Agreed.

The report will be laid before both Houses and the Bill set down for Report Stage in the Dáil.

Deputy Woods

I would like to thank the Chairman, Senators and Deputies for their co-operation. I hope the explanations I gave at the outset clarify what is involved. Obviously, a vast amount of work has been done beforehand. The Bill will provide a valuable reference document for anyone interested in all the provisions of the social welfare system. It is quite an achievement for the Oireachtas to update legislation in this way. Apart from being tidy it will be tremendously helpful to everyone involved. It will be helpful also in looking to the future and deciding where Members of the Oireachtas may wish to see changes in the legislation because it is all set down clearly here. In life the more clearly matters are stated the more easily one can see where amendments and improvements can be made. An example of this would be combining all the provisions relating to means tests into one section where they can be compared and, therefore, consider amendments that might be desirable in the future. That is one of the benefits of this Bill.

I thank the committee for the expeditious way it dealt with the Bill and for the support it has given me in getting this Bill processed. I will be anxious to have it processed by the House as quickly as possible so that we can proceed to the next Stage, have it passed and then produce our layman's guide to the service which will be helpful. Perhaps we will take up the chairman's suggestion to make it more widely available for a small fee. In any event, a great deal of work has gone into this guide.

The work of the parliamentary draftsman's office and the staff in the Department of Social Welfare is much appreciated. This is an historic occasion and, hopefully, other sections of legislation will be consolidated in the future. Other ideas in this regard are in the pipeline. We want to consolidate some of our regulations and directives also. We will also examine other legislation. For example, the Pensions Acts could be looked at. Since the first Pension Act was enacted there have been a number of changes already in that legislation. It certainly would be helpful if they were consolidated into one item of legislation.

I thank the committee for passing Committee Stage today. A full copy of this Bill will be available to Members subsequently and it will be a useful reference for Deputies and Senators in future.

Deputy S. Ryan

I would like to thank the Minister for bringing this Bill before us. Social welfare legislation has been a minefield in many ways in the past for the general public and for public representatives also. This Bill will be a good reference guide for politicians and people dealing with the system on the ground. It is the next stage towards having a social welfare system that would be acceptable to the general public. The proposal to publish a guide to social welfare for the general public will be helpful.

In this regard, while the Bill before us today was not complicated and dealt only with amendments, the whole process of new committees provides us with an opportunity in future to deal with a complicated area such as social welfare. The various elements of this Bill have been condensed in a meaningful way to improve the provisions of social welfare for the general public. I thank the Minister and the chairman for the way the Bill has been processed this afternoon.

Senator Cashin

I agree with that.

Chairman

I would like to thank the Minister and his officials for the way they processed this Bill. I wish it was always so simple and easy to process a Bill. It is a credit to everyone concerned. The Minister said that the Committee Stage brief will be of use and I am sure it will be a much thumbed document. I am sure the Minister will have much more incisive representations made to him in the future but that is the nature of democracy. I thank the clerk of the committee for facilitating the easy passage of this Bill. Hopefully, the committee will have other work to consider in the near future.

The Standing Joint Committee adjourned at 3.55 p.m.