Wednesday, 8 May 2019

Questions (1496)

Niamh Smyth

Question:

1496. Deputy Niamh Smyth asked the Minister for Employment Affairs and Social Protection if a matter (details supplied) will be reviewed; her views on the issues raised; if policy changes are planned regarding same; and if she will make a statement on the matter. [19780/19]

View answer

Written answers (Question to Employment)

Firstly, I would like to thank the Deputy for bringing this matter to my attention.

I will outline the policy on the decision making process used within the Department.

When a person makes a claim for any payment from the Department of Employment Affairs and Social Protection, the decision on whether to allow or disallow the payment rests with a person called a Deciding Officer (DO). DOs are appointed under the Social Welfare legislation to decide almost every question in relation to social insurance and social assistance provisions in the Social Welfare Acts.

Every claimant is entitled to have their claim considered in accordance with the principles of natural and constitutional justice and in the context of determinations of entitlement under the social welfare legislation that includes:

1. The right to know the information, upon which a decision is being made,

2. The opportunity to comment upon any reports or documents being used in reaching the decision and to present his or her case,

3. The right to know the reasons for any adverse decision,

4. The right to have all relevant evidence considered and irrelevant evidence not taken into account,

5. To have the decision made by an impartial person whose discretion has not been fettered and

6. Where it is necessary for a fair determination of the issues, an oral hearing.

Over the years, the Courts have laid down rules for administrative bodies to ensure that persons seeking benefits etc. are dealt with in a scrupulously fair manner. These rules, which are known as the Rules of Natural Justice (NJ), apply to all administrative bodies and tribunals. Where a person may be adversely affected by a decision, the claimant must be given the opportunity to refute or comment on any evidence or allegations used in making such a determination.

A DO is required to make an independent judgement on the application of the law, and is not subject to directions when making a decision. A DO must determine the question before him/her and there should not be even an appearance of the case having been decided on the basis of another person's say-so.

In the case of a decision to suspend, disallow, disqualify or reduce payment, all reasonable efforts should be made to contact the claimant before payment is suspended and the customer given an opportunity to state his or her case. Suspension should not be imposed unless there is reasonable belief that the basic conditions are not being fulfilled.

The decision must be conveyed to the person concerned.

In general when a person makes a claim for benefit or assistance the burden of proof is upon that person to prove the conditions governing the claim are satisfied.

Where the claimant has been awarded benefit and a question arises of withdrawing it or of reducing the amount of payment, the burden is on the Department to show that his/her entitlement has changed, or that there was fraudulent concealment of relevant facts. In the case of allegations of such change or concealment, a higher degree of probability is required i.e. there must be clear evidence available to establish the truth of the allegation.

As can be seen from the foregoing, the Department has robust policies and procedures in place to ensure that decisions are made according to the legislation, and in accordance with the Rules of Natural Justice. A claimant is free to lodge an appeal where they are dissatisfied with a decision given under the Social Welfare Acts by a Deciding Officer or a Designated Person about their entitlement to social welfare payments.

A number of specific points are also raised in the letter provided by the Deputy.

With regards to the policy concerning the relationship status, it has pivotal bearing on whether a person claiming One Parent Family Payment will be allowed or disallowed the payment. To qualify specifically for a One-Parent Family Payment (OFP) a person must not be living with a spouse, civil partner or cohabiting (in addition to the other qualifying conditions regarding age, parental status, earnings and habitual residency, etc.).

With regards to Community Employment participants and their conditions, they already receive a CE allowance paid at a rate greater than their previous social welfare payment.

Entitlement to statutory maternity benefit is solely decided on their relevant contribution history, as is the case with all other maternity benefit claimants.

The granting of medical cards is a matter for the HSE, and many CE participants would already qualify for them before participating on the CE scheme.

I trust this clarifies the Department's policies on the matters arising from this case.