Seanad Éireann díospóireacht -
Wednesday, 7 Nov 2012

Vol. 218 No. 5

Social Welfare Appeals System: Motion

Senator Katherine Zappone

I move:

That Seanad Éireann

notes:

- the importance of transparency and independence (actual and perceived) in a social welfare appeals system;

further notes that:

- social welfare appeals have more than doubled in the last 5 years with 51,500 live appeals in 2011;

- despite a reduction of 2.6 weeks since 2011 the average waiting time for appeals dealt with by summary decision making is now 22.4 weeks;

- despite a reduction of 11.6 weeks since 2011 the average waiting time for appeals requiring an oral hearing is now 40.9 weeks;

- the current pressure on the appeals system has resulted in a number of appellants being unable to access their fundamental rights due to delays;

- current procedures weigh against the appellant when making an appeal including a lack of legal assistance for complex cases; and

- the problems in the system have caused unnecessary hardship for appellants, in some cases resulting in destitution.

agrees that:

- there have been improvements to the system including an increase in the number of Appeals Officers to 41; and

- the Social Welfare Appeals Office is implementing system reforms which have resulted in decreased waiting times and increased productivity.

calls on the Minister for Social Protection to:

ensure the independence of the social welfare appeals system by undertaking an audit of how the system meets standards of fair hearing and human rights such as those contained in the Irish Constitution and the European Convention on Human Rights and to publish such an audit;

improve decision making at first instance by:

· putting more resources into the system at the initial decision stage thereby maximising cost-effectiveness and reducing the number of appeals against wrong refusals;

· simplifying and making more accessible social welfare application forms;

· providing for regular training of Appeals Officers in relevant areas of law including human rights law;

improve fair procedures by:

· automatically providing appellants with their social welfare file including the Deciding Officer’s submission without having to make an FOI request;

· anonymising the Department of Social Protection’s database of significant decisions and make available to the public as recommended by the UN Special Rapporteur on Extreme Poverty in 2011;

· amending social welfare appeal forms to include an option to request an oral hearing;

· directing that Social Welfare Office staff ensure that claimants are able to make an application or are assisted to do so where necessary; and

improve accessibility by:

· making civil legal aid available for appellants in complex cases.

I welcome the Minister for Social Protection. I have expressed support and admiration for her reform agenda on numerous occasions. My colleagues and I view this motion on the social welfare appeals system as an integral aspect of the reform process. We bring it forward in awareness of the current economic context but with the belief that even in times of economic austerity, we must have due regard to fairness and justice, especially for those who are most vulnerable. We will identify areas in which there could be a more cost-effective use of the resources already available in the system.

We bring forward the motion because we are aware that many public representatives, including Senators and Deputies, receive requests and complaints from citizens and residents who are experiencing enormous delays within the appeals system. We understand many people are waiting for decisions to be overturned because the initial decision did not take into account all the circumstances of an individual or interpret accurately Irish or EU social welfare law as it applies to the individual's circumstances. These wrongful decisions were made at the first instance of decision-making and contribute to the extremely high number of appeals before the social welfare appeals office. A clear indicator that the process is flawed is the fact that 42% of decisions are overturned on appeal.

As the Minister is aware and the motion indicates, persons who make an appeal face a number of problems. The number of social welfare appeals has more than doubled in the past five years; there were 51,500 live appeals in 2011. The average waiting time for an appeal to be dealt with by summary decision is 22.4 weeks. The pressures on the system have resulted in a number of appellants being unable to access their fundamental rights owing to delays, causing destitution in some cases. We acknowledge that the number of appeals officers has been increased to 41 and that other system reforms have resulted in decreased waiting times and increased productivity. However, given the pressures exerted in the current economic climate, it is vital to highlight that the time is almost upon us when the capacity of the system will be reached owing to the ever growing number of appeals and the limited number of staff available to deal with them. Consequently, we will still have considerable delays in spite of the current reform process.

Thus, a key part of our motion calls for changes in the way decisions are made at the very beginning of the application process.

We call for a social welfare application and appeals system that is transparent and independent. Our call is rooted in the recently published research on the system by FLAC, entitled, Not Fair Enough. I welcome several members of FLAC who are in the Visitors Gallery. FLAC's motivation in carrying out this research was based on its enormous experience of representing social welfare applicants as well as working with other advocate organisations and independent law centres which have met the hardship of applicants at the coal face. Complementing this - here is where FLAC's research provides us with significant added value - it provides an analysis of the system from the perspective of human rights law. This gives us a framework within which to determine what is lacking within the current system. This objective analysis, from the perspective of the rule of law, highlights that people have a right to social security, that they have a right to fair procedures and that they have a right to due process and effective remedies.

We request the Minister to ensure the independence and transparency of the social welfare applications and appeals system. We are aware that, according to the rule of law, especially the law of the European Convention on Human Rights, Article 6 of the convention, in noting a person's right to fair procedures, states:

In the determination of one's civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

My colleague, Senator Fiach MacConghail, will address the issues of our motion that recommend changes to the decisions made at first instance. I will focus the rest of my remarks on a call to undertake and publish an audit of the independence of the social welfare appeals system and how to further improve fair procedures in the system and an appellant's access to justice. An audit provides us with an objective benchmark. That benchmark is a checklist of human rights principles and standards of fair hearing against which an objective judgment can be made with regard to the independence and transparency of the current system.

I have selected four such principles as a basis for our recommendations for improving fair procedures and accessibility. The first of these is a fair balance between the parties. Current appeal procedures weigh against people when they attempt to make an appeal, because appellants do not have access to the same information as those making the decision about their case. Appellants are not automatically given a copy of their social welfare file which may contain useful information. This file as well as a copy of the deciding officer's submission, which contains information on why the application was rejected, should be provided to the appellant as a matter of course. It should not be necessary to make a freedom of information application.

Second, appellants should be informed of their right to seek an oral hearing, a right which they hold under Article 6 of the European Convention on Human Rights and which should not be at the discretion of an appeals officer. Statistics show there is a higher rate of success on appeal in cases where an oral hearing is held, compared to a decision that is made on written evidence only. I would like to give an example of the importance of oral hearings. A separated woman with a large family, not only had her one-parent family payment stopped, but also received a demand for €21,000, an alleged over-payment. Her payment was stopped in November 2009 and, following consultation with FLAC, she made an appeal to the social welfare appeals office. The Department claimed that she was co­habiting with her ex-partner.

As a result of a freedom of information request the woman received her social welfare file. This file contained a social welfare inspector's report which stated that she was not cohabiting. The report showed that the evidence on which the Department based its opinion was flawed. The woman had presented written evidence in her initial application which corroborated the inspector's report, but her file showed that this was not taken into consideration. Following an oral hearing which was held more than a year after she appealed the decision, at which FLAC represented her, the social welfare appeals officer allowed her appeal and rejected the overpayment claim. The woman's payment was restored, but arrears were not granted for a further three months.

Third, people have a right to legal assistance in complex cases. It must be noted that civil legal aid is not available for representation at a social welfare appeal. Appellants may seek assistance from an NGO or lay advocate or they may represent themselves. Some appeals can deal with complex issues of law. Therefore, appellants may be at a disadvantage when presenting their case without legal advice or assistance. Civil legal aid should be made available in these instances. Failing that, advocacy organisations should be funded to assist people in complex cases.

Fourth, there should be consistency in decision-making within the social welfare appeals system. The appeals office does not maintain a database of decisions which is accessible to appellants about cases which may be similar to their own. There is a database to assist appeals officers in their work, but all that would be needed is a minor investment in anonymising software in order to make a number of significant decisions available to the appellants and their advocates. This would assist appellants' preparations for appeals significantly.

I hope the Minister will consider all of our recommendations. I have read the counter motion, but I hope the Minister will still consider our recommendations, in particular the recommendation to conduct and publish an audit of the system. Our recommendations for reform are modest, but absolutely necessary for fairness and access to justice. I hope the Minister considers them in that way.

Senator Fiach Mac Conghail

I also welcome the Minister to the Seanad. She is a person and politician I greatly admire and I thank her for her commitment and time in attending this important debate.

I second our motion and support my colleague's proposal. As I said on the Order of Business today, I am somewhat dismayed by the length and verbosity of the Government amendment, particularly as it does not address some of the issues and concerns raised in our motion. I likened the amendment to Finnegan's Wake in that it is almost as long and not easily understood.

Senator David Norris

Not as beautiful.

Senator Fiach Mac Conghail

I would like to concentrate on the element of our motion that deals with improving the decision making process. We are trying to be as practical as we can and are not interested in creating layers of bureaucracy or in over-regulation of an already fraught and stressful process. All of tonight's debate and our recommendation could be encapsulated in just one word "time". What should be considered a reasonable amount of time for a process involving appeals for social welfare payments? Where should we spend the limited resources we have? We are not suggesting the resources should be increased, but consideration should be given to where they should be spent. Should they be spent at the front end or back end of the social welfare appeals process?

In my humble and uneducated view, the way the current system operates is in a way designed to spend the least amount of money or to delay spending or paying out any moneys at an early stage in the process. Our motion strongly argues that by placing most of the existing resources earlier in the process, we will achieve fairness and less hardship. The hardship cases are well documented and some of them are quite distressing. The Government amendment notes in a dispassionate and charmless way that "by its very nature the appeals process cannot be a particularly quick one." It then lists a series of reasons for this.

We recognise the procedures in place, but not the order or priority suggested by the Government. The amendment recognises the process is "long and ongoing". Our proposal is that we should quantify, clarify and measure the process. We should make the process for making social welfare applications simpler and more accessible. This will save money and hardship. We should inform all appellants and citizens that they have the right to an oral hearing. This is not about spending additional money. We must provide consistency in decision making by providing access to previous cases that might be relevant.

This issue is about fairness and transparency. FLAC, representatives of which are here today, told us in a briefing that there is no system for fast-tracking or prioritising one case over another. This is regrettable. There should be a system in place to allow the prioritisation of urgent cases, for example, appeals from people who cannot access another payment while awaiting a decision from the appeals office on a primary payment.

We had an example earlier, possibly in regard to the application of the habitual residence condition, where Mr. Michael Farrell had mentioned a woman applicant from Northern Ireland who was about to come down with no money to try to wait for the appeal to come through. There is no safety net for these appellants, as there should be in the interest of fairness and to alleviate hardship. In this case, I would advocate jumping the queue. It is about certainty within the available resources, it is about citizen services and transparency and, I repeat, it is about fairness.

The Government amendment states that 42% of the appeals were allowed, which suggests the system is flawed at an early stage. In other words, there should be enough evidence of why that 42% of appeals were allowed so as not to repeat that figure and to provide information on an earlier basis for appellants in order the rate of appeal could be lower. Surely the social welfare appeals office has enough statistics and evidence to reduce the percentage by resourcing the process much earlier.

Our motion states that the average waiting time for appeals dealt with by summary decision making is now 22.4 weeks and that for appeals requiring an oral hearing, it is 40.9 weeks. It is not clear whether the Government amendment agrees with these statistics. The Government amendment is blinding me with statistics in such a way that I can imagine an appellant being confused by the appeals process. In a spirit of fairness and knowing the process involved, I ask that the Minister suggest what might be a reasonable target for a waiting time. It is not a trick question as it is an issue for us to consider. Given whatever the Minister might suggest as a good target, we could tie that into a performance related goal or indicator for that system and that Department. In itself, this will offer certainty, transparency and clarity to the appellants.

I am proud to second the motion.

Senator Fidelma Healy Eames

I move amendment No. 1:

To delete all words after ‘‘Seanad Éireann’’ and substitute the following:

"- notes the importance of transparency and independence (actual and perceived) in the social welfare appeals system;

- notes that the appeal process has a statutory basis in both primary and secondary legislation and that appeals officers are quasi judicial officers and are required to be, and are, free and unrestricted in discharging their functions;

- notes that the appeals system was reformed in 1990 to establish the Social Welfare Appeals Office (SWAO) as a separate executive office headed up by a Chief Appeals Officer;

- recognises that in the 20 years since that reform the SWAO has operated independently and impartially and that there has been no sustained or concerted criticism relating to the independence of the office or the impartiality of appeals officers;

- recognises that the impartiality and independence of the office is evidenced by the high level of appeals allowed (42%) and that the ability to invoke the courts on a matter of law or by means of judicial review is a very valuable underpinning of the system;

- notes that by its very nature the appeals process cannot be a particularly quick one, and includes times spent:

• seeking the Department’s submission on the grounds of appeal,

• further medical assessments by the Department where the issue is medical,

• affording the appellant the opportunity to respond or submit any additional medical evidence where there is an unfavourable outcome following further medical assessments by the Department,

• further investigations by social welfare inspectors where required, and

• the logistics involved in arranging oral hearings where deemed appropriate;

- recognises that while the process is long it is an ongoing one where appellant’s entitlements are reviewed at various stages of the process and often more than once in cases where additional evidence is submitted;

- notes that the rapid and sustained increase in the number of appeals from 2009 to date placed extraordinary pressure on the SWAO and that actions taken to address these increases include:

• 15 additional appeals officers assigned,

• retired appeals officers retained for 18 months from mid-2010 to end 2011,

• business process have improved and

• significant reform of the operating model, which has re-balanced the processing times for appeals whether they are decided summarily or require an oral hearing;

- notes that as a result of these measures there has been significant increase in the number of appeals finalised from an average of 13,500 to 34,027 in 2011 and that the processing times reduced by an overall 10.2 weeks in the nine months to September 2012 as the oral hearing time is down by 12.5 weeks and the summary decision time is up by 2.3 weeks;

- notes that it is planned to continue to reduce these processing times through:

• finalising an additional 6,000 appeals in 2013 as the capacity of recently appointed appeals officers improves,

• the major programme of process redesign and modernisation, which will reduce backlogs schemes and will also reduce the time taken for the Department to respond to request from the SWAO for submissions on appeals for these schemes,

• recruiting an additional medical assessors in 2013 which will also reduce the time taken by the Department to deal with requests for reviews or to respond to appeals;

- notes that the measures taken to increase output and reduce processing times do not in any way compromise the respect with which the SWAO treat each appeal and the concern they have to ensure that the law is correctly applied in each and every case; the continued emphasis on quality is evidenced in the regular training that is provided for appeals officers in relevant areas of law including human rights law and, as recently as January this year, a training session relating to fair procedures was held and facilitated by an expert in social welfare and human rights law;

— recognise that in the interests of fair procedures, clear and concise information is issued to each appellant:

• outlining the process and the oral hearing procedures,

• informing them that they have the right to request any documents or information that the deciding officer relied on in making his or her decision from the Department,

• informing them that the appeals officer may decide to hold an oral hearing of their appeal and that the purpose of the hearing would be to allow the appeals officer to obtain more details about their case - appellants are also informed that the appeals officer may decide that there is sufficient information available to decide their case without recourse to an oral hearing;

- notes that in the interest of fair procedures the range of primary application forms produced by the Department have been standardised to ensure consistency and clarity for customers including the use of plain English and instructions on how to complete the form;

- notes that in 2011, the Department undertook a skills and training needs analysis of staff in the areas of jobseekers claim acceptance and decisions; as a result of the needs identified, a formal two-week deciding officers training course was designed and launched in November 2011; in addition, initial work has begun on developing further training for deciding officers in other scheme areas in relation to decision-making, reviewing decisions and appeals submissions;

- notes that in order to ensure that unnecessary hardship is not caused for the most vulnerable appellants, appeals in relation to SWA are prioritised;

- notes that the National Advocacy Service provides independent, confidential and free advocacy for people with disabilities while the INOU provide advocacy services to the unemployed either directly or through a network of affiliates;

- notes that the methods of operation by which the appeals office conducts its business is kept under constant review to ensure that the system meets the standards of fair hearing and human rights, and the outcome is reported on in the annual report of the Chief Appeals Officer to the Minister;

- welcomes the Government commitment to developing the initial work which has already begun on providing further training for deciding officers in other scheme areas in relation to decision-making, reviewing decisions and appeals submissions;

- welcomes the Government commitment to reduce processing times for appeals as outlined above and through taking any further measures which may be adopted to ensure that appeals are dealt with as swiftly and fairly as possible.".

I welcome the Minister who is a frequent visitor to the House. This is an interesting motion because it is a real issue - it is about a daily occurrence. I acknowledge that the appeals system has come under unprecedented strain in recent years. We have to acknowledge the Minister's Department is now making payments to almost 450,000 people.

Deputy Joan Burton

It is 2.2 million people.

Senator Fidelma Healy Eames

I am referring to the people who are unemployed, of whom 300,000 would have been-----

Deputy Joan Burton

There are 2.2 million people.

Senator Fidelma Healy Eames

It is a very busy Department. I acknowledge the system has been improving and waiting times have been reduced. For example, 15 additional appeals officers have been appointed, the number of appeals closed out in a year is now 34,000 and processing times have been reduced by ten weeks. This is not to say further improvements cannot be made. I see that as the benefit of this motion and compliment the proposer and seconder on that basis. Our purpose should be to look at ways to improve things, although that is not to suggest improvement has not happened. There is merit to the Opposition motion and I have a real concern, as they do, for appellants who are suffering due to the current appeals process. I have experience of a number of very trying situations, including a very bad case during the term of the last Government where I had to refer a woman to the Society of St. Vincent de Paul to take up some of the slack because the situation was so bad for the woman and her children. With respect, appeal times were incredibly long during the last Government's term.

I see merit in moving to a point where we work out a maximum time for an application to be decided upon and a maximum time for an appeal, rather than an average time. I acknowledge, however, that by its nature any appeal will take extra time. First, the Department seeks the grounds for the appeal, then further medical assessments may be needed, additional medical evidence may be given, there may be further investigation by social welfare inspectors and there are logistics involved in arranging oral hearings, all of which takes time.

An interesting point made by Senator Mac Conghail is that he sees a benefit to jumping the queue. So do I, where there are extremely urgent cases, including cases of destitution or severe hardship. In fairness, this is the role of the public representative as it stands, in that, at times, we do have people jump the queue out of absolute necessity. I was involved in a recent situation where the husband of a family has cystic fibrosis, his wife is the carer and, if they had accepted the times suggested, there would have been a gap of 20 weeks without any support. On making a representation, this was solved within a week. Therefore, there is jumping of the queue in practice, although whether everyone knows that is another thing.

In 2004, 70% of all appeals went to oral hearings whereas in 2011, just 35% went to oral hearings. Surely it is progress that we have less need to go to appeal. I wonder if the Senators are reading this as I am reading it. The system is no doubt straining under the workload being placed on it and, as a result of the waiting times, people are losing out on payments which they deserve. In the area of domiciliary care allowance in particular - for example, in the case of the care at home of a child with severe disabilities - I have noticed that most of the appeals are being turned down. I see a potential problem where the initial application may not have been well made, but the case is then very well explained at the appeal stage. Despite the evidence, I wonder if the social welfare officer has already decided to dismiss the case at that point.

I say this because I have been involved hands-on in particular education cases. Does the fact the success rate for appeals which include an oral hearing has been consistently higher than the success rate for appeals decided summarily show a flaw in the system? The Minister might comment. Can we deploy extra staff from other areas of the public service? I note that another area which is completely stretched is that of community welfare officers.

In dealing with the motion, I agree with quite a lot of what the proposers are saying. I acknowledge huge progress since the last Government was in place but it does not mean we cannot do better.

Acting Chairman (Senator Terry Leyden)

The Senator should conclude.

Senator Fidelma Healy Eames

Can I follow up with a few more questions?

Acting Chairman (Senator Terry Leyden)

As the Senator's time is up, I am afraid she will have to-----

Senator Fidelma Healy Eames

I had always thought all lead speakers got the same amount of time.

Acting Chairman (Senator Terry Leyden)

I am afraid, in this case, the proposers are the lead speakers.

Senator Fidelma Healy Eames

I meant the lead party speakers.

Acting Chairman (Senator Terry Leyden)

Six minutes is the-----

Senator Fidelma Healy Eames

I will conclude. Can we simplify the application procedure to cut down on the need for appeals due to incomplete applications? Website application options should also be available whereby, if the right information is not submitted, it will be refused and the applicant will know. That could aid the situation. I ask why social welfare offices do not always answer the main telephone - if one has a key person, there is no problem, but it is important with regard to the main line. The Galway and Bray social welfare offices come to mind. I will leave it at that.

Acting Chairman (Senator Terry Leyden)

I appreciate that. The Senator is cutting into other Members' time. I am sure she can submit those points to the Minister.

Senator Paschal Mooney

Cuirim fáilte roimh an Aire. I did a quick count of this extraordinarily long Government amendment to the motion.

In all my time in this House, I do not believe I have seen a longer amendment. It comes to almost 900 words. With all due respect to the Minister, who is very busy, she might as well have sent it on its own. I will be interested to hear what she has to add to what is contained in this comprehensive amendment. I do not say it is correct but in its response to the motion tabled by our colleagues it is comprehensive. I will be genuinely interested to hear what further information the Minister will add to this piece of propaganda. I refer to the last line, which might give an indication of where I stand. It welcomes the Government commitment to reducing processing times for appeals, as outlined, and to taking any further measures that may be adopted to ensure that appeals are dealt with as swiftly and fairly as possible. That line is the let-out for the Minister. We look forward to hearing what the extra measures are.

I know the Minister is groaning under the weight of what is probably the most difficult Department, dealing as it does with economic issues. We are all aware of that and I do not wish in any way to diminish the attempts she is making to try to streamline what has always been an exceptionally complex Department. I will always remember a comment made by some colleagues in RTE many years ago, when Michael Woods was the so-called Minister for life in the Department of Social Welfare. He had become so knowledgeable that, according to one of the reporters, whenever he appeared on television - on "Questions and Answers", "Prime Time", or whatever programme - to talk about social welfare issues people's eyes would glaze over, simply because of the complexities involved in trying to explain the various nuances around decisions taken. Essentially, that is the nub of this issue.

As the Minister is aware, my colleague in the other House, Deputy Willie O'Dea, has been giving her a relatively hard time about these delays, not that she is not capable of responding to this. The Minister confirmed to the Deputy in the reply to a parliamentary question that there are now delays of up to 12 months in the processing of appeals for key social welfare supports. The longest delays are in appeals for the disability allowance. In addition, there are more than 1,600 people waiting to have their appeals for carer's allowance processed. These are the most vulnerable people under the remit of the Minister's Department. If one wished to make a hierarchy of vulnerability they would come very high on the list. The record number of rejected applications for certain social welfare supports and the seemingly endless delays in processing appeals have also been raised repeatedly with the Minister. There seems to be a suggestion that these delays may be linked to a drive to try to cut costs and cover a budget deficit, although I am sure the Minister will reject that out of hand.

We live in conspiratorial times, but I am not sure the cock-up theory works in this case. There must be some reason for the lack of any improvement, in spite of the figures contained here. For example, in 2011, almost one in five decisions were overturned when the original deciding officer simply revised his or her decision. This information comes from FLAC, which has published a report in this regard, about which the Minister is well aware. FLAC argues that this very high success rate for appeals shows that many decisions to refuse a payment were wrong in the first place, or at least that is the implication. In addition, the higher volume of cases, as referred to in this debate, and the need to reduce costs have led the appeals office to rely more heavily on summary decision-making, based solely on written submissions. Again, this point was raised by the proposers of the motion. For example, 65% of the cases the office dealt with last year had been summarily dismissed, compared to 41% in 2009. However, appellants have a higher success rate when an oral hearing is held because that allows them to make a fuller presentation of all their circumstances, with representation where possible. That is something the Minister might address. I ask her to give her views on the fact that the appeals office is making summary decisions rather than making provision for oral hearings.

It is interesting that Senator Healy Eames mentioned the difference in percentages some years ago versus those of this year. She described the result as progress. Considering there is still such a long delay for appeals, it seems-----

Senator Fidelma Healy Eames

It is true.

Senator Paschal Mooney

On the basis of these figures from FLAC it seems it is not quite true, but we all spin figures to suit ourselves and the case put before us.

The system lacks transparency - there is no question about it - and that is a core part of the proposed motion. The appeals office does not publish its previous decisions even in an anonymised format, which can leave the appellant at a disadvantage, not knowing whether an established point of law or policy has already been decided upon or clarified in a previous appeal. FLAC asks that, in the first place, the Government set time limits on decisions. Fianna Fáil supports this, as do the proposers. It should be done. It is a time and management issue within the Minister's Department. She already indicated in the amendment that many new staff had been appointed. What are they doing? Why not have a time limit? Why not have some creative thinking in this regard? The appeals office could also publish decisions, even anonymised ones. Other quasi-judicial bodies such as the Equality Tribunal do so. Departmental staff could be trained to make better decisions in the first place. I accept that the Minister makes references to the training regime currently under way under her watch.

The FLAC report which specifically covers 2011 also states that the appeals office should be placed on a statutorily independent footing to ensure independence from the Department of Social Protection, a proposal my party supports, as the Minister is aware. She argues that there has been no criticism since the office was set up in 1990, to answer any suggestion that the office is anything other than independent. However, one cannot be judge, jury and executioner in one's own case. The appeals office cannot operate within the actual Department, regardless of the integrity of the people involved. The perception alone should be a cause for concern, and certainly a cause for review.

My party does not fully understand why the appeal process is shrouded in such secrecy. The Minister might be in a position to clarify why this is so. Families should be afforded, as a matter of courtesy, the right to have their appeals heard at an oral hearing as a basic right. The Minister should at least consider this and talk to the people on whom the office is sitting in judgment.

Senator John Kelly

The Minister is again welcome to the House. This debate was due to take place at 5 p.m. and because it was delayed for half an hour I am sure it has thrown the Minister's arrangements out of kilter, as it has mine. As I have a delegation to meet at 6 p.m., I will try to be as fast as possible.

I will and must support the Government amendment to the motion, although I agree with much of what Senator Zappone said. I was at the Mansion House the week before last when FLAC made its presentation. I was impressed by the presentation of Ms Emily O'Reilly. Much common sense was spoken. The main gist of what was sought was that we should establish an independent appeals system. I am not entirely sure this is the major problem. The first problem we have is the initial delay in dealing with claims. For example, I know a lady who went to a social welfare officer and asked whether she should apply for the carer's allowance, because she looked after her very sick child, or for the family income supplement, as her husband was working. The advice she got was to apply for the carer's allowance. Over 11 months she telephoned the office on 19 occasions to discover the status of her application and was told it was being dealt with. This was not the case. In the 11th month her application form was looked at for the first time and it was discovered that she was not getting a qualifying payment. The office wrote to her, telling her this and stating that she would not get the carer's allowance. If officers had looked at the file and told her that on the first day she could then have applied for the family income supplement. She lost out on social welfare payments for 11 months simply because the application was not dealt with. The first problem is the delay in dealing with applications.

The second problem, as highlighted by Ms Emily O'Reilly, is the decision-making on the part of deciding officers. Some 42% of these decisions end up with the appeals office. In House debates such as this I have always maintained that if 50% of appeals made to the appeals officer are overturned, the system is operating badly in the first instance. That is where the problem lies. If we could take away the 42% of all appeals that are unnecessarily brought to the appeals officer, there would not be as long a delay in getting those officers to deal with decision making. That is the nub of the problem.

I welcome the movement in the area of carers in that the backlog in the family income supplement section has been moved, as of last Monday, to Letterkenny to be dealt with by people who are less busy than they were, as they had been dealing with another scheme.

This week ten or 12 of the staff in Longford were moved from FIS to carer's allowance in order to deal with the backlog. I hope we will soon see signs of improvement as a result of this development.

The issue which arises in the context of the appeals system is that it is not possible to discover when an appeal is going to be dealt with. In recent days a man forwarded me a letter he was sent in respect of his appeal which states that due to the large increase in appeals received, some time will elapse before the appeals officer will be in a position to examine his case and that the Department will be in contact with him as soon as his case has been examined. The three greatest overall problems in respect of this matter are the delay in dealing with claims, the making of bad decisions by deciding officers and the fact that people do not have a clue when their appeals will be dealt with.

Senator Mac Conghail referred to the prioritisation of cases, and I completely agree with him in that regard. If there is a good reason for prioritising a case then it should be given priority. I recently rang the Department in respect of a woman who is terminally ill and inquired whether it would not be possible for her case to be dealt with as a matter of urgency. In fairness, the official to whom I spoke ensured that the case was dealt with immediately. I am of the view that there is further room for improvement in this regard and that priority cases should be dealt with as a matter of urgency. Senator Healy Eames stated that cases of destitution should be dealt with. Supplementary welfare allowance is designed to assist those who are destitute and, therefore, such situations should not arise.

If a person makes an appeal, he or she should be sent a full copy of his or her file by the Department. This would allow the person to see what has happened to his or her application during the entire process. Allowing people to have copies of their files might improve the standard of the decisions made by deciding officers in the first instance, particularly because it would be possible for applicants to discover, at some point in the future, the reasons for particular decisions and to read the comments of such officers.

I hope Senator Zappone will listen to the Minister and withdraw her motion. Perhaps there are matters in respect of which common ground might be established, particularly as we are all singing from the same hymn sheet. I apologise in advance to the Minister for the fact that I will be obliged to leave the House soon.

Senator David Norris

I also welcome the Minister. I am surprised by the Government amendment. At this morning's briefing session, I stated that in my 25 years in the House I have never seen an amendment that was two and a half pages long. I understand other Senators have had the same reaction to it. The proposal put before the House by my distinguished colleagues on the other side of the House should be taken on board by the Minister. I have no doubt that the Government amendment - especially in the context of its length - is something of a fog which is being squirted out by officials in the Department. We are being blinded by science and subjected to an information overload in this instance. I am reminded of the words of the great novelist Tom Sharpe, who stated that nothing can so derail an argument as prolonged attention to the inessentials. What we have been presented with in the amendment is a massive amount of detail which is simply confusing.

The first point to make in respect of this matter is that the social welfare appeals office should be independent and it should be perceived in that way. It is interesting to consider the language used in the Government amendment. For example, the phrase "recognises that in the 20 years since that reform the SWAO has operated independently and impartially and that there has been no sustained or concerted criticism" is used. That is extremely interesting. Why use words such as "sustained" and "concerted" unless one is aware that criticism has been levelled at the office? Of course such criticism has been forthcoming. It came in the form of a critique - this was not intended to be damaging, negative, oppositional or destructive - contained in a report published by the Free Legal Aid Centres, FLAC, in 2005. Taken on its own, that critique could not be considered to be sustained or concerted. It could perhaps be brushed aside if, unlike the Minister, one had not consistently supported FLAC, the Northside Community Law Centre, etc.

However, in 2007 the chief appeals officer made a recommendation to the effect that the social welfare appeals office should be independent and should be perceived as such. How can that be the case when the office is part of the Department and when the people who have responsibility for assessing the merit of appeals are paid employees of the Department? There is a clear case here for a statutory declaration of independence. If the Minister states that the office is independent in any event, allowing such a declaration to be made would only confirm the position in law and nothing would change. We are all on the Minister's side in respect of this matter and we urge her to introduce a statutory measure to ensure that the social welfare appeals office will be completely independent. The making of a statutory declaration of independence is necessary.

It would be useful if an audit of practice were carried out in order that we might discover what has been happening. I am not sure we are entirely certain of the position in this regard. The Government amendment states that everything is wonderful and that everyone is given information at all stages of the process. The latter is not the case, which is extremely damaging. Neither are people provided with assistance. In difficult cases, people should have an immediate right to such information and assistance. By and large, those who go before appeals officers come from marginalised areas. They often have difficulty with literacy and fluency and would have problems coming to terms with even a comparatively simple form. Those to whom I refer are expected to negotiate a system that is incredibly complicated, although I do not blame the Minister for this. People are not informed about the position at every stage of the process. I refer, for example, to instances in which appeals officers make written assessments in respect of particular cases. The information contained in such assessments can sometimes be vital because, for example, a legal point could be raised. The appellant would not be aware that this point had been raised and, therefore, would not be in a position to answer it. That is a nonsense. Such nonsense is endemic throughout the bureaucracy of the Civil Service. I previously raised in the House the case of a person whose application for naturalisation was refused. He was informed that he could appeal the decision but that he would be obliged to give the grounds for the refusal. He applied for the relevant information but was refused access to that also. This is the same absurd, Kafkaesque situation to which I have referred.

This is a time of great economic distress. I have lived through such periods before. During the previous recession, the Labour Party was in opposition when the then Government began dismantling the community advice centres. That was a particularly mean-minded move. It did not specifically or visibly take away people's rights; rather, it prevented them from having access to those rights. If one does not know one's rights, one cannot exercise them. I am concerned that within the machinery of the social welfare appeals office - I do not know whether this is deliberate or is the result of the obfuscations of the system - information relating to people's rights is being concealed.

There has been a decline in the number of certain kinds of appeal. In 2004 some 70% of appeals were oral in nature. By 2011, this had fallen to 35%. This could be seen as progress, but it is not. The reason it is not is that last year some 48% of oral hearings were successful, whereas only 24% of summary appeals were successful. In other words, the number of oral hearings has halved at a time when appeals of this nature are twice as likely to be successful. The social welfare office should publish as many critical decisions as possible. Appellants should have access to information at all stages of the process, particularly written material relating to their cases, in order that they might answer any points which arise. People cannot be assumed to be able to read the minds of appeals officers in order to understand why particular decisions were handed down.

I wish to place on the record of the House information relating to two cases, one of which is ongoing. I pay tribute to my colleagues and friends in the Visitors Gallery in this regard. The first case to which I refer was heard four months ago but a decision has not yet been forthcoming in respect of it. The case in question relates to a woman with a child who has no access to supplementary social welfare payments. She will soon be out on the side of the road. The second case relates to a builder. I know builders are not popular at present but this man had a small operation which employed a number of people locally. As a result of the economic crisis, his business collapsed and he was left with no money. He was assessed but his application was ruled out following a means test. The reason it was disallowed was that one of the officials used Google Earth to assess a property he had in England. However, the official in question got the valuation wrong.

It was only when he got legal advice that he was able to spot that and to counteract it. That situation has now been rectified and he has been given his money and back pay. This proves the point that access to legal advice and support is vital in order that people can assert their rights.

Acting Chairman (Senator Diarmuid Wilson)

I welcome the Minister to the House.

Minister for Social Protection (Deputy Joan Burton)

I thank the Members who tabled the motion on this important issue and those Senators who have contributed to the debate. The background to this motion is the report published recently by FLAC entitled, Not Fair Enough - Making the Case for Reform of the Social Welfare Appeals System. I welcome this report as a valuable analysis of the social welfare appeals system through a human rights lens. It is important, particularly in straitened times like this, to stand back, reflect and ensure that the drive for efficiency does not compromise the quality or fairness of the services that are delivered.

Significant resources are being assigned to improve initial decision-making and thereby reduce the number of appeals. Since I became Minister, a formal two-week deciding officer training course was designed and launched in November 2011 for staff working in the areas of jobseeker's claims acceptance and decisions. The reform of the process must start with the very beginning of the process with the people who are the initial decision-makers. The course content includes scheme conditions, legislation, best practice procedures and also areas such as natural justice, good decision-making and proper customer service standards. Initial work has also begun on developing further training for deciding officers in other scheme areas on aspects such as decision-making, reviewing decisions and appeals submissions. In reply to Senator Healy Eames, social welfare forms are constantly monitored for relevance and accessibility, with online versions being provided in most cases. Social welfare local office staff provide information and guidance for customers on the completion of application forms. My Department runs a very extensive range of information services which are costly to administer. In reply to Senator Norris, the Citizens Information Board, through its network of offices around the State, provides information, advice and advocacy services for members of the public on a wide range of public and social services, including the social welfare appeals process. The Citizens Information Service and the Money Advice and Budgeting Service are funded by my Department at a cost of €47 million annually. Both these agencies interact extensively with the social welfare system. Departmental staff also advise customers of the availability of relevant non-governmental organisations, where required. In addition, interpreter facilities may be accessed by telephone in local offices, as required.

The National Advocacy Service, which I launched shortly after becoming Minister, is funded through the Citizens Information Board. It provides independent, confidential and free advocacy for people with disabilities. In 2011 the National Advocacy Service received €2.6 million in funding. The first cases have been reported. My Department also provides an annual grant to the Irish National Organisation for the Unemployed, INOU, and to the Northside Community Law Centre, under the scheme of grants for the promotion and development of information and welfare rights. This year, the INOU and the Northside Community Law Centre will receive funding of €235,000 and €350,000 respectively. The INOU provides advocacy services for the unemployed, either directly or through a network of affiliates and the Northside Community Law Centre provides information, advice and representation on legal matters. Both have a very good reputation in this area and in many cases they work closely with local FLAC services. The Irish Congress of Trade Unions also receives funding via the community employment and jobs initiative schemes to assist in the running of ICTU information and resource centres. This approximates to €5.75 million per year for community employment funding and €1.8 million for jobs initiative schemes. Other community employment schemes funded by the Department place considerable emphasis on advising people how to access social welfare. The Department is very strong compared with other governmental organisations in providing extensive platforms of information on the rights of citizens. This is at the heart of the services provided by the Department.

The appeals system was reformed in 1990. The social welfare appeals office was established as a separate executive office with its own premises and staff and it operates independently. The chief appeals officer is legally obliged to submit an annual report to the Minister and a copy of the report is laid before both Houses of the Oireachtas. She is responsible for the distribution of appeals to appeals officers and for the general management of the service. Appeals officers are quasi-judicial officers. The Supreme Court judgment in the McLoughlin v. the Minister for Social Welfare case in 1958 ruled that appeals officers are required to be free and unrestricted in discharging their functions. If evidence of independence were needed, there is ample provided by the high level of appeals allowed, at 42% of appeals.

There is no doubt that in recent years the unprecedented increase in the volume of appeals has led to unacceptable delays and backlogs. Senator Mac Conghail referred to the recommendations made by FLAC, one of which is that there should be a system for prioritising urgent cases, such as those who are refused supplementary welfare allowance. This allowance is the safety net payment in the system. I am pleased to confirm that appeals against refusal of supplementary welfare allowance are prioritised by the social welfare appeals office, as is evidenced by the shorter processing times of 16 weeks for a summary decision and 21 weeks for an oral hearing. Significant resources and effort have been put into reducing backlogs and improving processing times for appellants, including the assignment of 15 additional appeals officers; retaining retired experienced officers for 18 months ending December 2011; improving business processes; and implementing a new operating model.

It is worth repeating the scale of the increases in social welfare appeals in the last three years, this at a time when money has become very tight. Senator Mooney knows what the incoming Government had to deal with, such as the outfall from the bank guarantee. Up to 2009, the average number of appeals received was 15,000 per year. The number rose to 32,000 in 2011. In the same period, the number of decisions finalised increased from an average of 13,500 to 34,027. The volume of appeals has increased exponentially.

The Department is examining what further improvements can be made to reduce processing times. When an appeal is received, it is acknowledged and the Department is asked to make a submission on the grounds of appeal put forward by the appellant. While this adds some considerable time to the process, it also underpins the flexibility of the Irish system. There are advantages and disadvantages to this flexibility. For example, in the case of schemes which include medical criteria, the time taken by the Department will invariably include a review by a different medical assessor from the one who initially examined the case. In many cases there may be a third review by a medical assessor where additional medical evidence is submitted. While this process carries an inherent delay in terms of finalising an appeal, it also emphasises the flexibility and accessibility of the system. In cases where a person's means are the issue, this may warrant a further visit by a social welfare inspector. This adds time to the process.

We allow multiple reviews and submissions of fresh evidence in the interests of being fair to applicants. Senators who handle appeals will be familiar with this. One may have a GP acting as an advocate on behalf of a person who is making an application. The GP's evidence may simply state, "I support this application." That is of little value in terms of medical evidence, but the GP is being helpful to the patient. People need to think about this. In many systems that is where the appeal stops and one is not allowed to appeal again for a considerable period, but in our system we allow the person to resubmit evidence. A person may go to the citizens information centre or make representations to his or her public representatives and obtain advice on how to present a stronger case. We allow people to make multiple presentations and submit fresh evidence at all stages of the system. Very often they make three submissions and, in other cases, many more. They are anxious to do this because they believe they are strengthening their case and the social welfare system allows them to do so. Inevitably, however, it means delay. We need to consider, therefore, whether we should allow people to make their case and then one more submission on appeal in order that a person would have two strikes. In our system we allow multiple appeals. In many ways, that is a very humane way to deal with appeals, as one is not obliged to hire a lawyer and can introduce fresh evidence, for example, one can obtain evidence from a wider group of medical referees or specialists.

The chief appeals officer expects to finalise 6,000 more claims this year. We are improving the computerisation of the system. We will generate additional capacity as the newer appeals officers become experienced. As things stand, because of the turnover of staff and with additional new recruits, 25 appeals officers have less than 18 months experience. There is a major programme of process redesign and modernisation under way in many scheme areas which will reduce scheme backlogs and also the time taken for the Department to respond to requests from the social welfare appeals office. It is also planned to improve the capacity of the medical review and assessment service through the recruitment of an additional eight medical assessors in 2013. All of these measures, taken together, will reduce the waiting times for appellants.

Let me point out to Senator Paschal Mooney, in particular, that in 2009 domiciliary care allowance claims were transferred by the then Fianna Fáil-led coalition Government to the then Department of Social Welfare, while illness benefit was limited to two years, whereas previously it had been paid indefinitely. The consequence of these changes was inevitably extra appeals. Many of the files from the HSE carried in-built review dates. That is reasonable because a medical assessor decided that the file must be reviewed because there was a possibility the person would recover from his or her illness. These are inherent changes that have arisen from the old system when people were paid illness benefit on an indefinite basis when we moved to a more time limited system in the Department of Social Protection.

Another aspect of the delays being experienced by appellants is the disparity in waiting times between those whose case is decided summarily and those whose appeal goes to an oral hearing. We have front-loaded the system in 2012. We have taken on eight experienced retired appeals officers on a part-time basis to work on summary decisions. In the nine months to September, the proportion of summary decisions dropped from 69% to 56%, while the number of positive decisions has risen from 20% to 30%. A number of Members referred to the significant improvements as a consequence of the improvements in information technology and the way decisions have been dealt with.

If the information is very clear, it is possible for the deciding officer to make a clear decision. An oral hearing is provided for in cases in which there is a need to clarify points of evidence. The supporting information the person can produce is very important, as consistency of decision-making is crucial. The Department publishes extensive guidelines and information on social welfare entitlements which explain how decisions are made and the factors taken into account. The decisions advisory office of the Department has responsibility for ensuring consistency in decision-making and the social welfare appeals office liaises with it to give and receive feedback on issues arising and any issue arising is discussed with appeals officers. This learning is, in turn, reflected in the published guidelines. In the social welfare appeals office it is the statutory responsibility of the chief appeals officer to convene meetings of appeals officers for the purpose of ensuring consistency. It maintains a database of decisions for use by appeals officers for this very purpose. Cases of interest are circulated among appeals officers and where diverse views emerge, these form the basis for discussions at case conferences convened for that purpose.

The issue of making a searchable database available was the subject of the recent High Court case Ikraam Jama v. the Minister for Social Protection on 11 October 2011 that the social welfare appeals office publish decisions, suitably anonymised, for the purpose of assisting appellants and their representatives in making an appeal. The judge in that case found that there was no duty on the social welfare appeals office to maintain a database for public access. Comparisons were drawn with the social security commissioners in Northern Ireland, the Refugee Appeals Tribunal and the Equality Tribunal which do publish their decisions. In 2010 the social security commissioners in Northern Ireland finalised 141 decisions; the Refugee Appeals Tribunal finalised 2,783 decisions, while the Equality Tribunal finalised 322 decisions, whereas the social welfare appeals office finalised 28,000 decisions in the same period. A comparison is being drawn between a body in the North of Ireland which made approximately 150 decisions and the social welfare appeals office which made 28,000 decisions. We do not have the resources to do what they do in the North for 150 cases.

Senator Paschal Mooney

The problem arises from the decisions of the deciding officers. We should reduce it.

Acting Chairman (Senator Diarmuid Wilson)

The Minister to continue, without interruption.

Deputy Joan Burton

The problem also arises from the quality of the information supplied. If a doctor writes a letter stating, "I support this case," is that of much use in reaching a decision?

We have organised information sessions for Members and their staff to assist them in advising applicants.

We will probably run some more in the new year. The quality of the information that goes into this in the beginning is critical to a person getting a fair decision where they make the best case possible and produce all relevant evidence.

To set up a database for the 28,000 cases is an enormous undertaking. We do not have the financial or staff resources to do that at present. We would have to remove all the names and addresses because people have asked for anonymity. All the personal information would have to be removed such that not even a family member could recognise the case. Equally, examining anonymous cases could also be misleading given the wide range of variables between the circumstances of different individuals and where the slightest variation between circumstances might mean a different conclusion would be arrived at. There is a need to strike a balance between achieving effectiveness and efficiency in administrating the system and the need to ensure fair and equitable access for customers. The chief appeals officer publishes a number of case studies in her annual report which serve to clarify the process by which the appeals are determined. They are widely reported in the media and the advocacy service has begun to report the kinds of cases it has been supporting in terms of advocating for people's access.

Senators raised the issue of amending the appeal form to allow people to request an oral hearing. The chief appeals officer is examining that. Having regard to the volume of cases, we need to be clear about creating expectations that an oral hearing would be granted even in cases which, by their nature, should be decided on a summary basis such as in the case of a person who does not qualify for the basic provision or he or she does not satisfy a means test if the payment is mean-test based. People are notified at the outset of the appeal that the appeals officer may decide to hold an oral hearing and that the purpose of the hearing would be to allow the appeals officer to obtain more details about their case. People are also informed that the appeals officer may decide there is sufficient information available to decide their case without recourse to an oral hearing. At that point, and bearing in mind what I said at the outset, it is possible for people in the Irish system to then bring in fresh evidence if, for instance the medical evidence has been very weak or only general.

I appreciate that several Members mentioned the fast-tracking of cases. Perhaps we should distinguish between cases where there is severe impairment, severe mobility issues or in disability cases where there are severe issues in terms of the disability the person is experiencing. That would not be popular with everybody and I want to be clear about that. The experience of people who have various kinds of disability is subjective to the individual. One person's experience of a particular kind of disability may be very important to that individual whereas other people may feel that on the scale of things it does not rank as highly as somebody with a very serious impairment. Senators might give some thought to that because I would be very interested in their views on how to decide which cases are deserving of a fast-tracking process. We all have some thoughts as to how that would be done but it would be helpful to have some ideas from Senators as to how it might be done.

Progress is being made but the degree of dependence on social welfare in the country at this time because of the lack of employment is very severe. Some 300,000, or 16%, of the population of working age are on some kind of disability, illness or invalidity payment. That is very high percentage compared to most European countries. It will give Members an idea of the volume and scale of people who look to the Department of Social Protection for income support. It is not only jobseekers who seek support, people seek support in regard to illness and other misfortunes that have befallen them. The social welfare system is there as a safety net. Under it we spend €20.5 billion. We are seeking to make that system as friendly and as efficient as possible for people. We have an appeals system because not everybody qualifies for what they wish to apply. We have sought to make the appeals system as fair as possible but we do not have extra resources. The reforms taking place in the system involve, to be honest, doing more with less.

Senator David Cullinane

I commend the group of Senators, the Taoiseach's nominees, for tabling this motion. I regret the fact that the Government has tabled the amendment it has to it. Before I talk about the substance of the motion, I would like to make a general point about social welfare offices and how the public can interact with staff in those offices. The public interface is not what it should be. Many people now find they have to go to a social welfare office for the first time in their lives. I am aware that because of resource issues the priority for those in a social welfare office is to make sure that people get their primary benefits. People have to queue to get to a counter to explain their circumstances and they have no privacy when doing so on most occasions. The full plethora of secondary benefits that might also be available to them is not explained to them. That is the reason they then have to come to politicians and we then end up supporting the clientelist system of governance that we have. We need to make sure people have access to public servants who understand the system and can explain to them their exact entitlements not only to primary benefits but to the whole range of benefits. That does not always happen because of the pressures in social welfare offices. I accept some progress has been made in this area and the motion tabled by the Senators acknowledges that.

The Government's amendment effectively has ruled out any commitment to even the most modest action. I regret that it does not give any consideration to what I believe is the key recommendation in the motion, that of "putting more resources into the system at the initial decision stage thereby maximising cost-effectiveness and reducing the number of appeals against wrong refusal". That makes perfect sense because prevention is better than a cure. If we can prevent mistakes happening in the first place, it makes sense that we would not have as many appeals. Perhaps the reason there are so many appeals is due to under-resourcing. I fully support the motion tabled.

The suggestions made in the motion come on foot of FLAC's recent report, Not Fair Enough, which makes the case for reform of the social welfare appeals system. As the report highlights, many applicants for social welfare find the whole system, and in particular the appeals system, very complex and not transparent. This is evidenced by the rather complex looking spider diagram at the beginning of that report, which illustrates the many different routes an appeal can end up taking. Given that we are talking about payments to many of the most vulnerable and marginalised sections of society, it is essential that the turnaround is as quick as possible and that justice is done. This is particularly the case in recent years when the number of applications have skyrocketed and there have been delays in dealing with them and likewise the appeals office is dealing with twice as many appeals now as it did in 2007. Delay in giving these people their entitlements will mean severe hardship for many. While it is unfortunately inevitable that errors will be made, and we all accept that, there is a need for an appeals office. We must ensure appeals are as limited as possible and that they are dealt with promptly.

As the FLAC report notes, the failures of the system are not just mechanical failures. They have consequences for people's lives, as I know the Minister would accept. Given the vital part social welfare payments play in the lives of many people, those consequences are severe. Poorly made initial decisions which require social welfare applicants to appeal just to get what they are entitled to can lead to stress and uncertainty for many appellants. In some cases it can result in a lack of income or even destitution on occasion.

The issue of the independence of the social welfare appeals office is noted in the motion and it is worth considering. The officials in the social welfare appeals office are nominated by the Minister for Social Protection or her Department. In circumstances such as those, Sinn Féin does not support positions being filled by simple ministerial decision. That is a process which must be opened up. These should be publicly advertised positions. In FLAC's view there is a need for people from a wider variety of backgrounds to have the ability to nominate or be consulted upon such nominations. There are already a number of examples of that with similar bodies. An example of that is the Employment Appeals Tribunal where trade unions have the option to nominate officials to adjudicate. That could be applied to the social welfare appeals office with the community and voluntary pillar, for example, the Society of St. Vincent de Paul and the Carers Association, having nominations.

One obvious issue with the independence of the appeals office and, in particular, in terms of practical application is that there is scope for ensuring the Department and Government officials apply their findings. We have examples of the Department failing to implement appeals officers' decisions in full. That applies in the case of overpayments in particular and the Department having ignored recommendations to write off debts on the part of an individual where the basis of that recommendation is that there was no fault on the part of the recipient and that the recipient would not be in a position to repay in full.

There is much more I wish to say on this issue but unfortunately I am out of time. I regret that the Government tabled an amendment. I would have hoped the Minister would have taken on board what I thought were practical and considered views put forward by the Independent group of Senators. Given that progress has been made in this area and we are all here to accept that and to support the Minister in ensuring more progress is made, it is regrettable that the Government tabled such an amendment. I commend those Senators who tabled the motion because it is important that we give as much support as possible to people who depend on the social welfare system.

Senator Tony Mulcahy

The Minister is welcome. I will be voting in favour of the amendment, unfortunately. It being the Government position one has to do that.

I want to clear up some issues raised by the Minister. Perhaps we should deal with the problem in the first place rather than with the appeal. I state clearly that we should not use a sledgehammer to crack a nut. The Minister rightly pointed out that 16% of young adults may be on illness benefit, invalidity benefit and disability benefit. I will include intellectual disability in that because I am a parent of a daughter who would not be able for any kind of formal work, along with many of her colleagues with whom she goes to work. We must have these issues clearly stated. I would like that 16% figure broken down into those three sections to allow us see what we are dealing with. I know a lot of my daughter's friends and they would not be able for any form of real work. I train a few young men every now and then and give them a hand but that is about the size of it.

The Minister rightly pointed out an issue. I have seen application forms being completed in general practitioner's offices and the people tick the row of boxes. I saw it happen some weeks ago when a young lad with severe autism and severe challenging behaviour just ran the biro straight down the row of boxes as if it was a normal case. I had been with his parents. I visited the house and we reapplied because it had been turned down. When I was helping the mother complete the form and I had seen the child do it, she told me the doctor ticked the boxes straight down and that I was doing it differently. I was doing it differently because the child did not meet any of the normal requirements. There are difficulties in that regard.

Last week in the House I asked a question on the number of medical assessors for domiciliary care allowance and I found out there were 27. I will ask a question tomorrow on the clinical qualifications of those 27 people. I do not want them named but I want to know their qualifications because I have seen applications being submitted on behalf of children with severe autism and severe challenging behaviour. I get many of those applications on my desk, as I am sure the Minister does, but as a parent I probably get more than the average number. Having had a full clinical assessment by clinical psychologists, child psychologists and occupational therapists within the Health Service Executive, HSE, structure from the early intervention services, those children are denied a domiciliary care allowance. There is either a problem with the clinicians who make that assessment through the HSE sector or there is a problem with the qualifications of the adjudicators on the domiciliary care side but there is a problem somewhere.

I do not send in those applications unless there is a stack of reports with them, and I have read those reports from top to bottom. I have visited the homes of those children - three in the past three months - and the three of them were declined. There is a problem. Is the problem with the HSE staff? Are they not capable and qualified people? I am not a clinician and therefore I am not qualified to assess that but I know the minute I look at the child that there is a problem. I am not a fool. I have seen the same thing all my life. There is a difficulty where these are just being fired out, so to speak. I have seen full medical assessments sent in with these applications, and one was included with the form the GP had completed. Obviously, they read the GP form but not the rest of the application.

We cannot come in here and say everything is fine and dandy because this is a global problem. The motion is long in regard to appeals. It is across the entire spectrum. Everything is not right, and there are areas we can correct but rather than get to the appeal stage we should examine the way domiciliary care allowance applications are being dealt with in the first place, who is ticking the boxes and who is turning down the applications because they cannot be right. I have seen these children. It is just not possible.

I have sent some strongly worded letters to the officers recently in which I said that unlike them, I visited the house for two hours, had a cup of tea and watched what the parents were putting up with. There may be a case for assessors doing likewise. Does the domiciliary care allowance assessor pick up the telephone and speak to the clinician who made the original assessment to determine the seriousness of the case?

We must be very clear that there is a cost to disability. I have 20 years experience of it. We should accept that and address it. That is all I ask of the Minister. She is not a miracle worker. I appreciate what she had to do when she came into office. I appreciate the scale of the problem but we do not want to throw the baby out with the bath water. There are those who are on disability benefit and illness benefit who should not be on it. I am not going to say that every application is 100% bona fide; that is not the case. I ask that we look at it and see where we are going wrong. I understand that reassessments of those on domiciliary care allowance are being done and parents have been written to but let us be clear. A child with a moderate or severe intellectual disability - in the past the term used was moderately mentally handicapped or severely mentally handicapped - does not get better. That box must be ticked. Do not deny that family for 18 years. They have enough to put up with.

The same applies to the medical card section. We need to tick that box and not write to 16 year old children telling them to reapply for the medical card when they would not even know their name on the envelope, let alone be able to read the letter inside it. Those are the areas about which we must be more compassionate, and we can do that in our systems. We can tick a box. It is not that difficult, but let us examine what we are doing and where we are going wrong. Let us get back to the beginning in terms of how we make the decisions.

Having read through the Minister's reports I am aware that half of the appeals are being won and therefore it is obvious they are being assessed wrongly.

Deputy Joan Burton

No. Much of it is based on extra information that comes in.

Senator Tony Mulcahy

I do not dispute that but I have seen three and one was wrong. The GP's form was wrong but all the clinical documentation and assessments by the early intervention services were correct because I went through them and visited the homes. They read the first page but they did not read the rest of it. There is a problem in the Department.

Senator Labhrás Ó Murchú

I welcome the Minister. She is right in setting out her stall and pointing out the resources being made available. In fairness, the Minister has a particularly good track record in making a valiant effort on behalf of the less favoured members of society.

I compliment the Independent Senators who tabled the motion. It is an exceptionally comprehensive motion. It is not over-packaged. It deals only with the facts. It is not trying to score points. It is driven by goodwill and compassion. That is the reason I am disappointed with the Government amendment, not for its length - that is not relevant - but an opportunity has been lost to engage with the motion before us.

This may not be the norm but we are not living in normal times and that is why a motion of this kind was relevant. It is accepted that if something is not working satisfactorily one has two options, either restructure it or scrap it and replace it with something else. From what I could see this evening, there was not one speaker on the other side of the House who felt comfortable in speaking against the motion. The reason is that they are practitioners on the ground and know that what is in the motion is correct and relevant and requires urgent attention. The figures speak for themselves. Leaving aside the bigger figures for disability allowance where there are more than 4,000 appeal applications outstanding, there are hundreds of full-time carers, disability allowance people and people with long-term illnesses, who are waiting more than a year for a response. The only word that could apply to many of those people is "destitution", because they may not have the wherewithal or the money to survive. They are using a begging bowl with the family or somebody else in order to have the bare necessities for existence. That is where the debate has to start. I accept we are holding on to some of the deciding officers, who would have been retiring, for 18 months. I do not genuinely believe that is the answer to where we are. I do not mean this in a derogatory sense but it strikes me as a sticking plaster response to a major problem.

In the first instance we should have an independent appeals body. It is not because we are casting aspersions on anybody in the Department but the mere fact that it is independent means it has always built in an integral advocacy that may not be intended but it does exist with independent entities. That is important. It is vital that an appellant has the right to an oral hearing. The Minister makes a point for the right reason that it is due to the lack of information provided. Many of the people we are talking about do not understand the system, and did not have access to primary advice when that was required and certainly could not pay for that advice, legal or otherwise. They may have difficulty due to their physical ailment in putting down on paper the information required. When they go to a general practitioner it is a last resort because they see him or her in a friendly or professional sense. The letter from the general practitioner may not be wonderful in the context of providing evidence to set aside or uphold an appeal. The people we are dealing with are the most vulnerable in society. The motion draws heavily on research and the FLAC report. I did not hear anybody dispute the information put forward. Unless radical decisions are made to alter the system we may sideline some of the statistics or put them under another heading but from a human point of view that will not help the people concerned. I sat on the other side of the House and made exactly the same points then. We are living at a time when we have to do business in a different way. When Members who have no political axe to grind table a motion in the way it has been proposed, there should have been another methodology of dealing with it rather than putting the roadblock of an amendment, which asks people to sing from the same hymn sheet but not this evening.

Senator Jillian van Turnhout

I welcome the Minister. I support the statements made by my Independent colleagues, Senators Mac Conghail and Zappone. Their interventions were spoken with great sincerity and were a call to ensure the independence of the social welfare appeals system. I welcome the report by FLAC which provides the evidence and underpins the motion. I thank my colleagues, in particular, Senator Zappone, who undertook considerable consultation and consideration of all the issues before tabling the motion. It is easy for me to endorse the motion as I know it is evidence based.

I will limit my contribution to stressing the importance of ensuring that the appeals system be underpinned by, and comply with, the due process and human rights principles enshrined in the Constitution and Ireland's regional and international human rights treaty obligations. The requirements of independence are well established, namely, the tribunal should be independent of the Executive. This principle was laid down by the Supreme Court more than 60 years ago in McLoughlin v. the Minister for Social Welfare when it found that the appeals officers and deciding officers under the Social Welfare Act are required to be free and unrestricted by ministerial control in discharging their functions under the Act. Currently all the appeals officers, including the chief appeals officer, are nominated by the Minister for Social Protection, despite the system having its own premises and staff. It therefore cannot achieve perceived and actual independence or transparency, both of which are essential for public confidence in the system. There is no public appointment process for appeals officers and no publicly available terms of reference. Appeals officers are serving civil servants transferred from another part of the Department of Social Protection to the appeals office, which raises concern over the possibilities of external pressures, including removal at any time back to another part of the Department of Social Protection.

The selection criteria for appointments in the appeals office should be made public. In addition, appeals officers should be employed from a variety of backgrounds to allow for diversity and range of expertise. Regular training should be provided to all appointed appeals officers and should include welfare law, immigration law, EU law and human rights law, as well as cultural awareness and sensitivity in respect of ethnic minorities, sexual orientation and transgender issues and people with disabilities.

My colleague, Senator Zappone, outlined the importance of fair procedures. I support what she said but will not repeat it. A control audit of the decisions of the Department of Social Protection should be carried out to identify any trends or patterns of poor quality decisions.

The right to an effective remedy is well documented in the jurisprudence of the European Court of Human Rights in cases such as Kudla v. Poland and Conka v. Belgium, both decided in 2002 and in General Comment No. 19 of the UN Committee on Economic, Social and Cultural Rights in 2008.

In the context of social welfare appeals an effective remedy must be provided in the national framework. The current appeals process complies with Article 13 of the European Convention on Human Rights on the right to an effective remedy. However, the delays in the process itself as well as in the court system may counteract the value of the appeals as an effective remedy. The remedy may not be effective if the case is not heard or decided within a reasonable period. In such cases appellants may have to rely on charity, handouts, emergency payments or the help of friends and family to sustain them over a lengthy period to avoid hardship.

The Department of Social Protection accounts for 40% of overall Government expenditure and almost half of the country's population benefit from social welfare payments. Clearly, the social welfare system affects a substantial section of the population, inevitably including the poorest and the most vulnerable.

We know about the increases in social welfare applications but the decisions at the heart of the appeals concerning people's entitlements represent life-changing decisions for tens of thousands. The decisions often determine what, if anything, is put on the table for dinner, what goes into a child’s lunchbox or whether coats are worn to bed for warmth.

Senator Mulcahy argued we should get it right first time, with which I agree. However, we need to ensure we have an independent and transparent system of social welfare appeals. We do not believe the system in place is independent or transparent. Appellants are entitled to a fair, transparent, accountable and independent appeals system. It is the duty of the State to ensure its delivery, economic difficulties notwithstanding.

Senator Sean D. Barrett

The Minister for Social Protection, Deputy Burton, referred to social welfare appeals service through a human rights lens. There is another lens, the economic one. Over 80% of public expenditure comes from health, education and welfare. We have an impossible borrowing situation which bankers and others account for too, I accept. However, we cannot solve this problem by the nomenclature of entitlements because for every entitlement, someone else must pay. We have given away so many entitlements that we have exhausted the taxable and borrowing capacity of the country. Now we are in bankruptcy ourselves.

The Minister referred to the social welfare appeals procedure costing €47 million. Last year, the National Advocacy Service received €2.6 million in funding while the Irish National Organisation for the Unemployed and the Northside Community Law Centre both received nearly €1 million between them. The Irish Congress of Trade Unions receives €5.75 million per year. There are 34,000 appeals cases against 320 in Northern Ireland. We have made a nightmare industry out of this which needs to be tackled. Society must be divided into those who pay in, those who neither pay in nor receive and those who are to be recipients. What the Minister is trying to do is ration but we cannot give everyone everything they want. That is what has the country bankrupt. It is not a unique problem in Ireland as there are many other countries whose debt-to-gross domestic product is heading towards 120%.

I recently read Vito Tanzi’s book, Government versus Markets: The Changing Economic Role of the State who argues that is what has got us all into trouble. He argues we have made this culture of entitlement but it cannot apply to everyone, stating:

With the passing of the years, this additional public spending was increasingly connected with programmes that, once passed, made that spending difficult to reverse. This created strong political constituencies and expectations that transformed the benefits from the spending into “entitlements” or legal claims against society. [The legal claims are greater than the ability of this society to afford them.] As a consequence of this spending, public budgets become larger, less flexible and less discretionary, tying the hands of future governments. In today’s world, the truly discretionary part of yearly budgets of most countries is often very small … When new programs are introduced, the pressures on governments to spend more will always be present, especially when attitudes towards larger government role become more favourable. In these circumstances there is no longer a specific identifiable limit to the spending role of the state. The requests for higher spending can continue ad infinitum as long as there is a political response to them.

That is what we face in this country. Tax and social welfare should be integrated, while tax shelters should be eliminated. Earlier today, we discussed how bankers were allowed to take €64 billion out of the Exchequer on one particular night in September 2008 and how a German bank located in Ireland cost the German taxpayer €100 billion to rescue. There are far too many claimants and one has to allocate the resources towards those with low incomes as best we can.

Our payments are not low by European standards. The Minister for Social Protection has told me before that Scandinavian states impose stricter conditions on social welfare payments than we do but everyone asks for us to go for the Scandinavian model. We cannot sustain existing social welfare payments. The Minister is making an honest attempt to ration resources towards those who most need them. I disagree with her on child benefit. Paying it to everyone preserved the mythology that we all have an entitlement. The Exchequer cannot continue like this. An important part of the pre-budget debate is that we identify the priorities in social welfare payments and how can we allocate them without the significant transaction costs we heard this evening. That Northern Ireland seems to be able to do it without less appeals and less money may be worth examining.

Senator Aideen Hayden

I disagree with my esteemed colleague, Senator Barrett. In times of recession when one has less to spend, the importance of openness and transparency in how people get those limited resources is even more critical. I thank my Independent colleagues for introducing this important motion. While it addresses the Department of Social Protection appeals process, its thrust applies to other areas of society and decision-making. It is about how we do business as a Government in deciding who gets what in society and does not just apply to the social welfare process.

There are three aspects to the work of the Department of Social Protection – advice and advocacy, an initial decision-making process and the appeals process. The motion before us deals with the decision-making and appeals processes. The advocacy element is very important and very critical to the rights people have in the system, however. I take the Minister’s point that the Department has spent an increasing volume of money assisting people in accessing advice and advocacy. However, much of this advice comes from the Department. In other words, the Department has three faces. Its first face provides the citizen with advice and information. Its next face is to make a decision on a person’s entitlement. The third face it presents is it then sits in judgment on its previous decision. That is where this entire system falls down.

There is quite a problem with the process. For example, there were 51,500 appeals in 2011 while Northern Ireland had 320. Clearly, far too many cases are going to appeal. The deciding officer process is not sufficiently good enough. It might be better if there were an intermediate phase between the deciding officer and the ultimate appeals process. An appeals process should not be examining that volume of cases. I am concerned by the kind of powers appeals officers have. An appeals officer may decide to hold an oral hearing of the appellant’s case.

The appeals officer may decide on a case if there is sufficient information available without recourse to an oral hearing. There can only be an appeal on the decision of an appeals officer to the High Court on a point of law or for judicial review. Therefore, a significant degree of power is held by an appeals officer. I do not believe it is fair to compare the Department of Social Protection with a body such as the Irish Refugee Council. The Department of Social Protection has a different role. The Irish Refugee Council does not provide accommodation for the refugee who applies to it. On the other hand the Department of Social Protection is providing the resources that a person making the appeal is depending on. Therefore, the Department of Social Protection is a party in its own hearing. The question we must ask ourselves is whether this process is independent and whether it is perceived to be independent. I do not believe any process in which the Department is a party to its own hearing can be of its nature properly independent. I do not cast any aspersions on those persons who carry out the appeals process but I simply do not believe the process can be of itself sufficiently independent without being placed on a statutory basis.

The position of the Department is comparable to that of Dublin City Council in the case in which section 62 of the Housing Act was found to be repugnant to Article 6 of the European Convention on Human Rights. The judgment in that case found that one cannot be the judge and jury in one's own case and that one cannot decide oneself on the outcome of a process in which one is a party. Several points have been made in this regard. It is important to hear evidence from both sides. I got the impression from the Minister's statement that it is not necessarily the case that someone knows the basis on which a deciding officer has made a decision and that one must make an application for the documentation to be made available. The basis of the initial decision should be absolutely clear from the decision of a deciding officer. I realise I am running out of time.

Acting Chairman (Senator Michael Mullins)

The Senator is out of time.

Senator Aideen Hayden

I wish to finish with one important point. I became concerned when I heard that the volume of oral hearings had diminished. One important statistic has been highlighted relating to the number of decisions overturned at oral hearings versus the number of decisions overturned at summary hearings. This is no surprise. When a person comes to an oral hearing he or she is able to give the full case and present information personally. The idea that so many cases are being judged on a summary basis should give us pause for thought, especially given that they are so critical to people's future and resources.

Senator Mary Moran

I will be brief because I am aware of the time. I commend the Independent Senators for bringing this motion before the House and highlighting the real concerns and problems within the appeals system and the social welfare system. Despite being on the Government side - unfortunately I will have to vote with the Government - I commend them for raising these issues and agree with a great deal of what has been said.

I wish to raise the issue of the domiciliary care allowance and the associated appeals process. Like Senator Mulcahy, I am a parent of a special needs child and have been utterly horrified at the number of cases that have come before me this year. Parents have come to me with their children and I have gone out to see others. These people are perfectly deserving of a domiciliary care allowance and I cannot understand it when the forms come back and although the parents have submitted all the medical evidence, they are refused the allowance and they must go through the whole appeals process. Fortunately today I was able to ring a constituent and inform her that her appeal had been upheld. I gave her the good news that she now qualifies for the domiciliary care allowance. She was waiting for it for more than one year but she should have got it one year ago. When I rang this lady she was driving back from the south side of Dublin to County Louth having taken her child for autistic care. She broke down on the M50 and said that she was unable to speak because she was so grateful to have it. I said it was hard enough to have a child with a disability and to go through that but to be made go through the hoops for something that she should have got an age ago was all the worse. It is the same with medical cards. Many people who have children with an intellectual disability are perfectly deserving of a medical card but it has been refused in many cases. This is another area that we need to examine.

Senator Katherine Zappone

I welcome the Minister of State, Deputy Perry. I also welcome the noting of the importance of independence, actual and perceived, in the amendment. However, the amendment states that there is no sustained or concerted criticism of the independence of the office. My colleague, Senator Norris, has referred to evidence to the contrary, highlighting a statement of the former chief appeals officer in 2007, who called for statutory independence for the office. The Commission on Social Welfare recommended an independent chairperson in 1986 and the Northside Community Law Centre has also called for the independence of the office.

We must examine what independence means. Stating that the social welfare appeals office is independent without reference to objective standards of independence is simply not sufficient. There is a host of human rights principles against which we should evaluate independence. These are embedded in our Constitution and the European Convention on Human Rights, to which my colleague, Senator van Turnhout, referred. I referred to four of them as well. They are embedded in the European Convention on Human Rights, although I note that the State is in breach of the convention and has been for more than five years on account of the Lydia Foy case.

We have human rights principles, objective standards developed over time through courts of law and by agreement of millions of people at European level. These are standards of independence and fair procedure, some of which I have identified. Our recommendations are based on these standards of independence. Our call for an audit requests that the Government recognises these standards. We call on the Labour Party and Fine Gael to demonstrate their recognition of these standards by conducting an audit and publishing it for the public. It is simply not good enough for the people to be led by a Government which declares that it has respect for the rule of law, including the human rights law, but which lists the accomplishments of reform on the basis of what the Department tells us and on the basis of what we are told by staff appointed by the Government.

We regret that the Government has used the statistic of 42% of appeals allowed as evidence of the independent nature of the appeals office. We believe this demonstrates the flawed process at the beginning of the system. The amendment also refers to the ability to appeal to the courts on a matter of law or by means of judicial review. Other Senators have spoken about this and the Minister referred to it as well. Realistically many people who access social welfare and who make appeals are among the most vulnerable and marginalised. How would they have the resources to make these continued applications? This is why we are calling for legal assistance in complex cases. I believe the Minister knows the difference between the theoretical opportunity for fairness and justice and genuine access to fairness and justice. Many appellants require legal representation to access fairness and justice.

The amendment refers to the provision of oral hearings where it is deemed appropriate. Oral hearings are deemed appropriate by social welfare appeals officers. These hearings may take more time but they have a higher success rate. Why is this? It is because oral hearings allow for a teasing out of the issues and the questioning of evidence and decisions. One principle of natural law and fair procedure is that a person should have the opportunity to make her case in the easiest form possible. We have called for an amendment to the social welfare appeals form to include an option to request an oral hearing. The Minister is unwilling to grant this. Rather, she has stated that it is under consideration by the chief appeals officer. Is it not the Minister who creates policy? This right is integral to fair procedure.

Does our motion call for an audit? No. Does it call for putting more resources into the system at the first instance of decision, where, many of us have acknowledged, many of the problems stem from? No. Does our motion call for automatically providing appellants with their social welfare file? No.

The Government is saying "No" to our calls to provide appellants with their social welfare files automatically.

The Minister talked a lot about the difficulties of anonymising the Department of Social Protection database, but we are not talking about anonymising 28,000 cases; rather, we are talking about significant points of law. The Government is saying "No" to amending the social welfare appeals system to allow appellants to request an oral hearing and "No" to making civil legal aid available for appellants in complex cases. The message to the people from the Government amendment is that further reforms as identified by us are not necessary, that the current reforms are largely sufficient and that the Government has not taken on board any of our calls for changes to a system that is still not fair enough. Therefore, I will push the issue to a vote.

Amendment put:

The Seanad divided: Tá, 25; Níl, 11.

Tá

• Bacik, Ivana.
• Barrett, Sean D.
• Brennan, Terry.
• Burke, Colm.
• Coghlan, Paul.
• Comiskey, Michael.
• Conway, Martin.
• Cummins, Maurice.
• D'Arcy, Michael.
• Gilroy, John.
• Harte, Jimmy.
• Hayden, Aideen.
• Healy Eames, Fidelma.
• Heffernan, James.
• Higgins, Lorraine.
• Keane, Cáit.
• Kelly, John.
• Moloney, Marie.
• Moran, Mary.
• Mulcahy, Tony.
• Mullins, Michael.
• Noone, Catherine.
• O'Keeffe, Susan.
• O'Neill, Pat.
• Whelan, John.

Níl

• Leyden, Terry.
• Mac Conghail, Fiach.
• Mooney, Paschal.
• Norris, David.
• Ó Clochartaigh, Trevor.
• Ó Domhnaill, Brian.
• Ó Murchú, Labhrás.
• O'Brien, Mary Ann.
• van Turnhout, Jillian.
• Wilson, Diarmuid.
• Zappone, Katherine.

Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Jillian van Turnhout and Katherine Zappone..

Amendment declared carried.

Motion, as amended, put and declared carried.

An Leas-Chathaoirleach

When is it proposed to sit again?

Senator Maurice Cummins

Ar 10.30 maidin amárach.

Sitting suspended at 7.40 p.m. and resumed at 7.45 p.m.