I propose to take Questions Nos. 444, 445 and 447 together.
The role of the Social Welfare Appeals Office is to determine appeals against decisions of Deciding Officers and/or Designated Persons of the Department of Social Protection. The legislation currently governing the appeals process is contained in Chapters 2, 3 and 4 of Part 10 of the Social Welfare Consolidation Act 2005 and the Social Welfare (Appeals) Regulations, 1998 (S.I. No. 108 of 1998).
Section 300(2) of the 2005 Act gives statutory power to Deciding Officers of the Department to determine questions relating to the insurability of employment for social insurance purposes. All such determinations/ decisions can be appealed under the provisions of Section 311 of the 2005 Act to an Appeals Officer. The equivalent provisions in relation to a decision made by an Appeals Officer in 1995 were Sections 247(2) and 257 of the Social Welfare (Consolidation) Act 1993 respectively.
I am advised that in October 2000, the then Secretary General of the Department of Social, Community and Family Affairs in correspondence to the Chairman of the Public Accounts Committee made reference to a number of representative ‘test cases’ in the courier sector that were selected in 1993/1994 for investigation and formal decision as some couriers considered themselves self-employed while others regarded themselves as employees. I am further advised that these cases were not selected to determine the employment status of all workers in that sector but rather to identify criteria that could be used by Deciding Officers and Appeals Officers for the purpose of assessing each case on an individual basis and to improve the quality and consistency of decision making in relation to the determination of whether an individual was employed or self-employed. Depending on the circumstances of the particular case, as assessed by reference to these criteria, an individual decision would be made in the case.
In one particular case which I understand has become known as the ‘1995 decision’ the Scope section of the Department determined that the courier was employed under a contract of service – i.e. an employee – and insurable at class A PRSI. This decision was appealed by both the worker and the company to the Social Welfare Appeals Office. Following an oral hearing, the Appeals Officer’s decision in July 1995 was that, on balance, the worker was operating under a contract for services and, therefore, was deemed to be self-employed. The Appeals Officer considered the following were critical factors in reaching the decision; lack of (company) control, no requirement to provide personal service, being able to enlist help of others (substitution) and refuse jobs, ability to do work for other companies and flexibility in the hours of attendance. The evidence adduced at the oral hearing included that the worker provided his own vehicle and equipment, was responsible for expenses, including tax, insurance and maintenance and payment was made on the basis of rate per job.
The Secretary General in his correspondence of October 2000 outlined that the Appeals Officer’s decision established the criteria that were generally accepted as relevant for consideration when determining the employment status of workers in that sector.
It is my understanding that this approach was a precursor to the subsequent development on a tripartite basis of the Code of Practice for Determining Employment or Self-Employment Status of Individuals under the Programme for Prosperity and Fairness in 2001. The Code was subsequently updated in 2007 under the Towards 2016 Social Partnership Agreement with a further update in this past year.
Therefore, since 2001, the criteria used for deciding insurability status are set out in the Code of Practice on Determining Employment Status. The Code was updated further this year by an interdepartmental working group comprising my Department, the Revenue Commissioners and the Workplace Relations Commission. I published the revised Code on 21 July 2021.
Accordingly, neither the ‘1995 decision’ nor any other decision is used by the Scope Section of the Department or the Social Welfare Appeals Office as a precedent and they do not form any part of the deliberations in such cases. Cases are determined on a case by case basis having regard to the Code of Practice and the case law from the Courts.