I welcome the Minister for Social and Family Affairs, Deputy Coughlan, and her officials to this meeting. I propose that we consider this Bill until 8 p.m. unless we conclude earlier. As the members will be aware, the Bill is tabled for Report Stage and Final Stage in the Dáil on Thursday next following the Order of Business. This committee must conclude its consideration of the Bill today if that is to be achieved. Is that agreed? Agreed.
We resume today with consideration of section 16.
Amendment No. 11a in the name of the Minister. Amendments Nos. 21a and 21b and amendment No. 1 to amendment No. 21b are consequential on amendment No. 11a. We will take amendments Nos. 11a, 21a, 21b and amendment No. 1 to amendment No. 21b together by agreement. Is that agreed? Agreed.
I move amendment No. 11a:
In page 10, before section 17, but in Part 2, to insert the following new section:
"17.-The Principal Act is amended to the extent specified in Schedule 1 to this Act.”.
I intend to bring forward an amendment to the Bill on Report Stage which will place the definition of a spouse in the non-statutory social welfare arrangements, for example, in the free schemes, on the same legal footing as that currently used in the statutory arrangements, for example, in all weekly payments. We had a short conversation about this. I will bring forward a small number of amendments of a technical nature which are consequential on the acceptance of the introduction of the habitual residence test amendments, if they are agreed by the committee. As I indicated, I will facilitate the members with a briefing note and my officials will be available tomorrow, at whatever time we can arrange, for a short briefing on the issue, if that is in agreement with the Chair. I will circulate the text of the amendments for the purposes of information.
Returning to these amendments under consideration on Committee Stage, the free movement of persons is one of the fundamental freedoms guaranteed by Community law and includes the right to live and work in another member state. The right of free movement does not only concern workers, but other categories of people such as students, pensioners and EU citizens in general. While the EU treaties provide for full freedom for citizens of the accession states to move freely through the enlarged EU, they do not provide for automatic access to labour markets. Under the accession treaties, the EU has put in place a transitional measure by which existing member states will be able to exercise discretion as to the extent of access of persons from the new member states to the respective labour markets.
Unlike other member states, Ireland is not imposing any restrictions on the number of people from the new member states who wish to come here and work. I emphasise that this Government gave a commitment that EU citizens who want to come and work here from 1 May are very welcome to do so and we will honour that commitment.
The Government has decided to put in place a number of measures which will restrict access to qualification for certain social welfare payments by introducing an habitual residency test which will act as an additional condition to be satisfied by a person claiming a social assistance payment or child benefit. The new condition is designed to safeguard our social welfare system from abuse by restricting access to social assistance and child benefit payments for people from other countries who have little or no connection with Ireland.
The new condition will require a claimant for social assistance to be habitually resident in the State or the rest of the Common Travel Area, which is Great Britain, Northern Ireland, the Channel Islands and the Isle of Man, for a substantial continuous period. If he or she has been present in the State for less than a two-year period, it shall be presumed he or she is not habitually resident and the onus will be on the person to prove otherwise.
In addition, if a claimant satisfied the two-year provision, he or she will still be required to satisfy the general requirements relating to habitual residence. A person must establish a degree of permanency to be considered habitually resident in the State.
The term habitual resident is well known in other jurisdictions and in EU legislation and has been clarified in an EU court judgment. It is intended to convey a degree of permanence in the person's residency here. Clearly the duration and continuity of their residence would be important factors, as would be their intentions.
The following factors, as set down by EU case law, will be considered in determining whether a person satisfied the habitual residency test: length and continuity of residence; employment prospects; reasons for coming to Ireland; future intentions; and centre of interests, for example, family, home or connections. In addition, people who have resided in the Common Travel Area will be regarded as habitually resident for the purposes of the new test.
Each case will be examined on the facts and the person's degree of permanence in the State, and no single factor will be conclusive. People who claim welfare payments but do not satisfy the habitual residency test will be assisted to return home and the necessary arrangements will be made in co-operation with the Department of Justice, Equality and Law Reform.
I emphasise that these measures are being introduced to ensure our social welfare system does not become overburdened. It is a prudent and sensible measure. Up to now non-nationals residing here could claim social assistance payments without satisfying a residency test. All other countries in the European Union impose residency restrictions on entitlements to social welfare benefits.
The new residence condition will apply to the following social assistance schemes: unemployment assistance, old age non-contributory and blind pensions, widows' and widowers' and orphans' non-contributory pensions, one-parent family payment, carer's allowance, disability allowance and supplementary welfare other than one-off exceptional and urgent need payments. It will also apply to persons claiming child benefit. However, it will not apply to social insurance based payments such as unemployment benefit, disability benefit and retirement pension where entitlement is gained by the payment of social insurance contributions.
It is anticipated that the vast majority of Irish emigrants returning from abroad, where the need arises, will qualify under the habitual residency test. In other cases it is quite possible that such immigrants will qualify for social insurance based schemes, for example, contributory pensions, if they had been working in another EU member state or in a country with which Ireland has a bilateral social security agreement.
Under EU Regulation 1408/71, it is possible for an unemployed person, under certain conditions, to export his or her unemployment benefit for up to three months while seeking work in another member state. The regulation allows people to exercise their right to free movement within the EU and to have their social insurance based entitlements such as a contributory pension exported to another member state.
The new habitual residency condition is based on the case law of the European Court of Justice with regard to the application of Regulation 1408/71, which co-ordinates the social security rights of people who move within the EU. The key factors which will be used to determine if a person satisfies the test comply with EU law. The factors were set down by the European Court of Justice in the Swaddling case. The Attorney General's office has confirmed that the proposed amendment to the legislation follows that case law adopted by the court.
The proposed measures will apply to all applicants for the social assistance schemes concerned and child benefit, and not just citizens of the accession countries. The onus will be on the claimant to satisfy the Department of Social and Family Affairs that, as well as satisfying any other eligibility conditions for the particular scheme applied for, the claimant is habitually resident in the State. Each case will be examined on its own merits and the facts relating to a claimants level of residence in the State ascertained. The new condition of residence will in the main apply to those people from member states who are seeking work and who have not imported with them the benefit of social insurance contributions paid in another member state or those who are economically inactive.
Since the Minister made the announcement last week, and we now have it again today on Committee Stage, a good deal of concern has been expressed about the free movement of people in and out of Europe. There are now two different laws in respect of the citizens of the ten accession states who come here. We followed Britain last week but we went a step further. Britain confined its new legislation to the ten accession states but our legislation will cover all of Europe.
In principle I support the Minister in that we do not want our social welfare system to be abused by anybody, be they non-EU members or EU members, including Irish people. Anybody who abuses the social welfare system is taking money out of taxpayers' pockets. People work hard here to pay their taxes. It is our responsibility to ensure we protect our taxpayers but at the same time we are part of the EU.
I have listened to Fianna Fáil, the Progressive Democrats and many people who are pro-EU in terms of the referendum tell us about the free movement of people and that we will have a common, stronger and freer Europe. We want to take the best out of Europe but when we come across a small threat to ourselves in terms of people who want to come here to work we take a different approach. There is no evidence that thousands of people will come here and abuse the social welfare system. It must be remembered that some of the countries joining the EU are very poor and there is no comparison between what their citizens get in their own countries and what is available here. It is not easy for somebody coming here to live on €134 and find accommodation. Many groups have appeared before this committee and explained how Irish citizens are finding it very difficult to live on social welfare. It will be more difficult for people coming here if they think they can live solely on social welfare but that is not the aim of many of them. They want to come here to work, pay their taxes and have a better life. That is something we should all welcome. We should welcome these people where there is a need for them, and there is undoubtedly a need for them.
Last year, we are told, 60,000 work permits were issued. The Government constantly throws out that figure but it is not actually correct in respect of last year. It is true that 60,000 permits were issued but some of those were renewals of work permits and some are new.
There is a need for people to come here but we have to protect the social welfare system. The people I am concerned about are our own citizens, including those who left this country. Many of them have done very well for themselves but some of have done badly. Some have lived on the social welfare system of other states, and we were glad they were looked after and not thrown out of those countries. I am concerned about the category of people living on social welfare in England or elsewhere who may want to come home. If they have not lived here for two years, will their child benefit be affected? Will they have to wait two years before they can sign on for social welfare? These people may not have stamps in their own right. I am worried about these people and that is the reason I put down this amendment, which I hope the Minister will accept because it would protect their rights. We should enshrine in law, by way of this amendment, that if these people are Irish citizens they will be protected.
In recent days the Government said it is not for changing on this issue. I do not want the people of Europe or anywhere else to think the Irish people are a soft touch in terms of social welfare but that is not what will happen. What will happen is that the people who want to work here will be restricted in terms of movement in and out of Europe. That brings into question the whole EU ethos of people being able to move in and out of Europe. Is this measure legal within Europe? Will the European Parliament at some stage bring the Irish Government before the European courts? Will we find at a later stage that what we are now enshrining in legislation is unconstitutional? That is something on which the Minister and the Department have to reassure me and members of this committee. We must ensure that what we are doing now is legal for the current members and the accession states. The Minister will say we have discretion within the European Union in terms of bringing in our own social welfare code, and rightly so, but at the same time we have obligations and commitments to Europe and we have to ensure we are not breaking European law.
I am quite concerned about our own people. I want the Minister to reassure me that this legislation will not affect Irish citizens who left this State but who want to come back here. I want the Minister to protect them in legislation. I am talking about Irish citizens who were born and reared in this State and I want an assurance that their child benefit will be protected. I ask the Minister to accept my amendment because in doing that she will reassure and protect those people who want to return to the country.
The Minister has failed to describe the real risk in regard to this problem. In the past fortnight the European Commission brought out a report indicating that 1% of the population of the accession countries are likely to move from those countries to the enlarged European Union to seek work, and that the vast majority of them will go to countries immediately bordering their own countries. The Minister has failed to outline the potential risk to the country but that is only the tip of iceberg in terms of the difficulty the Government and the Minister have got themselves into.
I recognise that the Minister and her officials have tried to overcome problems that the British Government have got themselves into. European Union law makes it clear that we cannot discriminate between citizens of European Union countries, and the British Government's position in treating the ten accession countries differently from the other 15 Union members will be shown to be wrong in EU law.
The Minister is proposing that what will apply to the ten accession countries will apply to the other EU countries. That will create a problem in that Irish citizens are being treated differently from those in the rest of the EU, which I believe will be seen to be flawed in EU law, and the Minister will not get away with that. The idea of Irish people having a habitual residency, despite having lived outside the country for two years, is bound to come unstuck, with some exception. Both my parents were emigrants. I was born in the United States. My parents lived outside this country for 15 years and I came here as an eight year old. Under the rules as I read them and as the Minister is suggesting, my mother would not have received child benefit, or its equivalent, because they were living outside the country for more than two years. Irish citizens who are citizens because of their Irish parentage and who come here without ever having lived in Ireland previously will fall foul of these regulations. That, in itself, will shock a number of people. The essential problem of dealing with Irish citizens in any way differently from other European Union members is the rock on which the Minister will perish because the European Commission will not accept that as an acceptable application of current EU laws.
There are two problems here. The Minister is reacting to a problem that does not and may not exist. If it does come about we do not know the extent to which it will exist. If it exists at all it will probably be a very small problem. The Minister is introducing a whole series of contradictory and over-complicated measures to deal with a problem that should not be dealt with in this way.
The most recent amendment the Minister is suggesting refers to secondary benefits and might have been a way of overcoming the difference in entitlement to initial benefits of people coming here. Secondary benefits, unlike the basic payments people receive, can be linked to long-term residency and citizenship. I would like the Minister to describe a situation where a person comes into the country and is assessed for assistance, but does not receive an immediate payment. Only insurable allowances can be transferred between countries. I have been unemployed at times during my life as I worked on casual contracts and I waited three months for payment. Many people do not have residence in the country during the period they are being assessed for payment. The restrictions already introduced in terms of the rent allowance mean that people will not be able to receive such a benefit unless they have lived in accommodation for six years and can show that they paid for it themselves. Under what circumstances can people come into the country, be assessed, not receive an immediate payment or a secondary benefit, such as accommodation, and yet be seen to bleed the country dry? This is a panic reaction to a problem which does not exist.
How could anyone on the maximum payment of €134 a week live in a country with the highest cost of living in the European Union? Would anyone travel thousands of miles to get here for that dubious pleasure? I do not understand why we are debating these amendments. There are more important areas of the social welfare code we should examine, such as the cuts the Minister introduced last November and December which affect widows and those who are sick. We should try to correct such contradictions in our social welfare system, rather than creating a smoke screen about a problem which does not and may not exist and which compromises our right to consider ourselves as good Europeans, particularly given the benefits which Irish people can enjoy in the 15, which will soon become 25, member states of the European Union.
It is disastrous to introduce these amendments when Committee Stage has commenced. The Bill will have to be recommitted on Report Stage to allow detailed consideration of these issues. The European Commission has already raised serious concerns about the restrictions imposed by Ireland and other long serving member states. I have yet to hear the Minister say she can allay the concerns expressed by the European Commission. There must be a possibility that the restriction now being imposed will be successfully challenged under both EU and Irish law.
The Minister has gone overboard in this regard. The restrictions she is proposing are excessive and alarmist. There is no basis for suggesting that the entry of ten new member states will lead to an influx of social welfare claimants into this country. The indications are that other people will come into the country. Given this country's history and the fact that many Irish people went to England and America for assistance, the Minister is adopting a pro-active approach before Britain takes a decision in this regard. If the Minister could statistically prove there was abuse of the system, there would be nothing to prevent her from going before the Oireachtas and explaining the change of circumstances and the fact that the new rules and regulations must be initiated. However, the Minister has not done that. She has jumped the gun. A more appropriate course would have been for the Government to adhere to the original decision that restrictions would not be imposed, but that the situation would be kept under review after 1 May.
As regards child benefit, the restrictions will penalise more people than the handful who may take advantage of our social welfare system. It is difficult to understand why child benefit payments have been excluded from such restrictions. Deputy Ring referred to that. I hope the Minister will justify that decision. Child benefit is paid in respect of the children of those at work. That means a person coming to work here with two or three children will be at a significant financial disadvantage compared to those currently living here.
Deputy Boyle referred to the fact that the new restrictions will apply to the other countries, with the exception of Great Britain and Ireland. I do not know how that will stand up to critical scrutiny. If the Minister had decided to take everything into consideration and assess the merits or otherwise of it, it would have been more beneficial and the Minister's actions would have been more highly regarded. This is a retrograde step.
I was uncomfortable with this legislation and the way the media portrayed this issue. We were told we would be swamped and that there would be an influx of people. We were told people would come from abroad and would take advantage of our great system. No one has come up with information to back up those arguments. People are getting increasingly uncomfortable. I am encouraged by many of the speakers here today because up to now people seemed to agree that there would be an influx of people. There is no evidence to suggest that will happen. It is unlikely that a large number of people will travel here, particularly to claim benefits through our social welfare system. Anyone who travels to Ireland wants to work.
We are sending out the wrong message and adding to the increased incidents of racism in our society. I am not accusing the Minister in that regard. I welcome the fact that each case will be taken on its merits. However, this is a reactive measure and there is a fine line between reactive and reactionary measures. Unfortunately, the Minister is reacting to information she has on this issue, but we, as politicians, do not have that information. There will not be an influx of people into this country. I can already see the headlines, such as "Influx of Spongers". For most of my political career I have heard it said of people on social welfare that they are spongers - it was never a safety net, it was always about sponging. Now, however, we can see the real spongers at the tribunals that are chasing up the offshore accounts. The people who accused those on low incomes from disadvantaged areas were the real spongers who were robbing the State. It is crazy that while the EU is encouraging the movement of capital, we are not encouraging people to come here to work and become part of our society. Why is the position being adopted that there is something suspect about people coming from abroad? I would appreciate it if the Minister could come back to that point. If there is information and evidence about this it has not been produced by anyone and no organisation has backed it up. There certainly seems to be a view in the media that a tidal wave of people is coming from eastern Europe but I do not see the evidence for it. We can all cite examples of how the system will fail people. A young man in my constituency was living here illegally for eight years. He has a PPS number now and is applying for citizenship but he will not get it. Recently he hurt his back on a building site and cannot work so his options are limited. He is living on the support of his friends. I do not know how many other people who have come here from abroad will find themselves in this situation. What will they do if they are involved in an accident? That is what I am worried about. Those families are coming here for a new life to "Ireland of the welcomes", but this legislation is not sending out a welcoming signal.
I indicated to the Minister that I was worried the proposed measures would be disproportionate and unreasonable, and I feel they are because they are both pre-emptive and anticipatory, rather than anything else. There is no empirical evidence to sustain the argument the Minister has made and that is why the Labour Party will oppose the measures, which are overly severe, unreasonable and certainly disproportionate. While the European Commission warned the Minister that she could not breach EU law by discriminating against potential social welfare abusers from the ten accession states, nevertheless, it is clear the focus of these measures is on the ten new member states joining the EU on 1 May 2004. The thrust of the amendment is excessive and alarmist. It appears to be a reaction to Mr. Blunkett caving in to the tabloids' mass hysteria that permeated Britain for a considerable period. The British Government reacted to that hysteria, which left the Minister out on a limb. We all anticipated that once the Minister was out on that limb, she would act. Up to that point we stood firm as the only country which supported the EU's principle on the free movement of goods and persons.
It is interesting to examine the situation. Currently, approximately five million EU citizens of a total of 350 million reside in another member state. So, less than 2% of the working population of the EU consists of people from one state working in another. The provisions for the free movement of workers were drawn up to open the EU labour market to all EU workers. That includes a right to equal treatment with respect to working conditions, as well as a right to social and economic integration for migrant workers and their families. The quid pro quo was the opening up of goods and services markets of the member states, leading to the creation of the single market which, back then, we all lauded.
The treaty of accession for the ten new member states was signed on 16 April 2003 at the Athens summit, and included ten annexes setting out the transition measures for each applicant country. The transitional measures in respect of the free movement of workers are identical. The rule is that by way of derogation from Community law for a period of two years from the date of accession, the existing member states will apply national measures or those resulting from bilateral agreements regulating access to their labour markets by nationals of the new states. The present member states may continue to apply such measures until the end of a five-year period following the date of accession. A member state maintaining such national measures or measures resulting from bilateral agreements at the end of the five-year period, may in a case of serious disturbance of its labour market, or a threat thereof, and after notifying the Commission, continue to apply measures until the end of a seven-year period following the date of accession. These provisions shall be without prejudice to more favourable measures, whether national or resulting from bilateral agreements.
The Minister will argue that the measures she has introduced fall into the more favourable two-year category but we have still not abandoned our right to introduce restrictions at any stage within the seven-year period if conditions so require and if there are serious disturbances in the Irish labour market. Therefore, if there was a significant strain on social welfare following a huge influx of what some people refer to as welfare tourists, we would still have the right, at any stage subsequent to 1 May 2004, to introduce measures under the accession treaty's derogations. This is, therefore, nothing more than being pre-emptive. One must ask why some of the existing 15 member states have social welfare rates that are only 40%, 50% or 60% the level of ours? Since only five million EU citizens of a total of 350 million are residing in another member state, where is the evidence for an anticipated glut of migratory workers? It does not exist; it is nothing more than a fear or an apprehension. The Minister could have dealt with that matter subsequent to 1 May 2004 and that is what worries me about this measure.
The free movement of workers and the right to establish and provide services - that refers to the self-employed - amount to a right to be treated in the same way as Irish nationals: to enter the State, reside here and exercise economic activities under the same conditions as Irish nationals. The basic principle is one of non-discrimination. The free movement of persons is a broader ambition, which has not yet been fully incorporated into EU law. Much lip-service is paid to it but it has not been fully incorporated. This would entail the rights of every EU citizen to move and reside freely within the territory of all the member states. Potentially, this is far broader than the specific rights conferred on workers and self-employed persons. The only measures that have been adopted to give effect to this, however, are limited to students and dependent family members. As yet, there is not a general right for an economically inactive citizen of one member state to simply decamp and move to another state. Currently, freedom of movement is guaranteed to persons pursuing or wishing to pursue an economic activity and it only covers the pursuit of an effective and genuine activity, while excluding activities on such a small scale as to be regarded as purely marginal and ancillary. It is a matter for the host State to decide whether those criteria have been fulfilled.
If a Polish worker, for example, comes here to work, as a general rule under Irish law, he or she would have to pay 52 social welfare contributions before he or she is entitled to claim entitlements. For the first three months in Ireland when they are looking around and trying to establish themselves, they would claim unemployment benefit from Poland while seeking to get a job here. If, however, after three months that person - let us say it is a male - cannot prove that he is able to support himself, he will not be entitled to residency. Why is this clamp-down necessary when we already have significant measures to curtail the ability of such people to remain here?
Is it not correct that current level of claims from citizens of the ten accession countries is virtually negligible? How many people from the ten accession countries are currently claiming welfare in Ireland? The indication is that of the thousands of people who have moved to Ireland already, the current permit regime has offered nothing more than a right to work. This measure is excessive. It is reactive. It is a pre-emptive strike and it is unnecessary in that context.
Under current EU law, there is no question of a right to shop around for the country with the most favourable social assistance. There is no right under European law to set oneself up as a welfare tourist. Irish citizens do not have a right to State-subsidised economic inactivity either - at least not if they are capable of work. They have to be ready and available for work. That is the position.
Social security, as opposed to social assistance, is an entitlement acquired as a result of work in any of the member states. It is aggregated and paid in the state where the individual finds himself or herself, but there is no right of freedom of movement to Ireland by Poles, Hungarians or others in order to avail of Irish social assistance. This is an unnecessary measure at this time. It is anticipatory.
I am a little confused about the inclusion of child benefit. Most of the other payments are based on contributions but child benefit would not fall into that category. Why is it included?
When we anticipated what the Minister would bring forward, I asked on Second Stage how expatriates would be handled. The Minister is trying to deal with discrimination and I know what she must do, but how will she handle people returning to this country after spending years aboard? What measures will be put in place for them?
There are principles extracted from European case law. Have those principles ever been applied in any other EU country in the broad brush manner in which the Minister is now seeking to apply them here?
It is important to take a few minutes to go through exactly what we are proposing to do here and perhaps get some of the background information on where we are coming from. As the committee will be aware, under the accession treaties member states and the accession countries were entitled to introduce, in the annexes, a number of derogations and changes. Once the treaties were signed there were a certain number of people who did not change what would be perceived as an open policy on labour markets. However, over a short period these member states have changed their minds. For example, some introduced quotas, some would restrict access to welfare and benefits and the United Kingdom has looked at a number of issues. When I was in Brussels last week I took the opportunity to meet Mr. Chris Bond MP, the Parliamentary Under-Secretary of State, to discuss the implementation of the British regulations and he advised me that he will forward the regulations to me in due course. He equally expressed an interest in what we were doing.
In looking at the British system, we must realise that the British have had an habitual residency requirement for the past ten years, and that addresses Deputy Ring's concern about habitual residency. They have looked at additional requirements, which are not just welfare requirements but labour requirements, and they are of a temporary nature. They are only attributable to what are commonly known as the A8.
We are not doing that under the accession treaties. We are introducing an habitual residency requirement to be instituted in primary legislation and it covers all of the EC laws, as advised by the Attorney General and as reflected in an EC judgment known as the Swaddling case. There are concerns, rightly expressed by Members of the House about people who return home to Ireland who would not have attained a contribution record - I refer to people who have been working outside of the system in another state. It is on that basis when we look at habitual residency that I am not suggesting conclusive requirements and I am taking the issue on a case by case basis.
Deputy Ring's amendment reflects the habitual residency guidelines I am instituting. I am giving additional flexibilities with regard to concerns that have rightly been expressed about people commonly known as expatriates. The guidelines being set take account of the reasons somebody is returning home. For example, if a couple come home from America to live and put their kids into school that is a reflection of permanency as far as the habitual residency requirement is concerned. Equally if they are coming here to work, what are their prospects of getting work? Why are they coming home? What are their future intentions when they come home? Have they got a common interest or tie? Were they born here? For example, did they live here for 20 years? Did they go to school here?
Deputy Boyle spoke about his mother and father. They were born not in the United States, but in Donegal and in Cork. On that basis, they would have had a reason for coming home which was probably to rear Dan and put him into school. Certainly they would have established a permanency and a reason under the habitual residency requirement to facilitate that.
I will prepare guidelines on the habitual residency requirement for our social welfare inspectors and decision makers. We are giving a guideline of two years but we are open to persuasion on the basis of these guidelines that people who are here less than two years are habitually resident here. It is quite a difficult concept. On the basis of the Attorney General's advice to me within the context of its legality, on the basis of a reflection of the habitual residency requirements under European Court of Justice decisions and on the basis of guidelines to be introduced, it is my view that expatriates returning home would be facilitated. Equally the committee will know that people within the European Community who come back home, in the main, would take with them their contribution records and their entitlements. We all know of pensioners, for example, taking their contribution records with them.
I am satisfied that what we are bringing in is fair and reasonable. Naturally we can agree to differ on this. Is it reactionary? Is it reactive? On the basis of decisions made by other member states, I was left with no option but to introduce some protection for the welfare system.
It is equally important - this matter was discussed at the meeting of the Council of Ministers last week - that people should be informed before they travel. How many times has this State tried to encourage young people who want to emigrate to be informed before they make that decision? I am spending quite an amount of money in providing facilities and information for people who wish to leave, regarding their entitlements. It is equally incumbent on us to ensure that other European countries will be aware of entitlements here. It is on that basis that the new Commissioner, Margo Wallstrom, has indicated that a technical group is being set up within the European Commission and that the eligibility criteria, entitlements, etc. applying in all European Union member states will be published on the website.
Why should people come to Ireland and live on social assistance? What is the attraction in doing this? I accept that such an attraction may exist for some. For other people, the cost of living, the availability of accommodation and other issues must be taken into consideration. How do we quantify the number of people who will come here? The truth is that we cannot do so. On the previous occasion when an enlargement took place, there was a great deal of scaremongering and it was stated that approximately 1.5 million would arrive here and our little island would tip over. However, no such thing happened because, in the main, people want to stay at home.
The Minister is making our case.
I am not. However, the Deputy can appreciate the quandary.
What will the Deputy do about the highways and byways of Europe?
Statistics to date indicate that those who wish to move are young, single and educated. The accession countries are concerned about a brain drain and about the purchase of properties and investment from interests outside their territories. The Hungarians have expressed concern about access to the welfare state in their country by citizens of neighbouring countries. It is not all one-way traffic.
We were left with no choice other than ensuring that we protect the social welfare system. We received copies of the European newspapers in recent weeks with front page headlines to the effect "Come to Ireland, it is a free system".
It was not a Bord Fáilte advertisement.
No, which is unfortunate. It is difficult to achieve a balance.
To wait until after 1 May, would be to not do our job properly. If no one comes here, what about it? There will be no harm done because there will not be any pressure on the system. If 3 million people come, we will have to deal with it. We are open to people coming here to work or to seek work. Under regulation 1408/71, if, for example, people are working in Latvia, they can carry their contributions with them for the three months and express entitlements then. That is a totally different system. Those people will be cared for and looked after. We are saying that people are welcome to work and reside here so long as they are not a burden on the State. We must add to all the other eligibility criteria for our schemes an habitual residency requirement which indicates a reason for permanently remaining in this country and, as a consequence, being catered for here.
What we have done is not pre-emptive or overly severe. I do not agree that it is disproportionate. If we did nothing, it would be a poor reflection on me and the Government on the basis that we would create a difficulty for people who would travel. It would be unwise to wait until 1 May to see what will happen. I am not of the opinion that such an approach would provide the best way forward.
On the basis of the flexibility in the habitual residency test, provision is made for the free movement of workers. It is a legal measure under EU law. Everyone will be treated equally and anyone who comes here will be treated in the same way as any Irish worker. We have been prudent and sensible in introducing these amendments. I have incorporated within the guidelines more flexibility than is included in Deputy Ring's determination of the habitual residency requirement.
So the Minister will accept my amendment.
We are adding to it because it is not sufficient. We need to introduce further provisions to look after the people about whom the Deputy is concerned. When the Deputy researched this matter he obviously checked the EU Court of Justice's determination on what would be the requirements for an habitual residency test.
I hope the Minister is correct about this matter. I do not want a situation to arise in six months or after 1 May where Irish people who were born and reared here returning from abroad with their children are having difficulties with the social welfare system. I hope the regulations the Minister issues to social welfare officers will be taken on board and that Irish people will not be discriminated against.
Despite what other people say, I accept that our social welfare system cannot be abused by thousands or hundreds of thousands of people who might come here. That was never going to happen. On Tuesday, 9 September 2003, officials of the Department of Enterprise, Trade and Employment and Justice, Equality and Law Reform came before the committee. At that stage, there was no great concern about this matter. The officials could not foresee any difficulties and were excited about the free movement of people in and out of Europe. We questioned them in respect of social welfare and some of them stated they were not competent enough to comment because it was not their brief. However, they also stated that they did not see any difficulties.
I live in Mayo and there are people from my county and from Roscommon, Donegal and elsewhere living across the globe. I will go to the American Embassy tomorrow to fight for Irish immigrants in America who do not claim social welfare payments there. Those people want to work in the US but they do not have freedom of movement. Some of them cannot gain entry, while others cannot leave. There are those who cannot come home to see their loved ones. Some of them are married with children and they know, because they do not have green cards, that if they return to Ireland they will not be able to return to the US. I would not like to see such a situation develop in Ireland in respect of people who want to come here to work.
Many people emigrated from Ireland, were successful and did their homeland proud. I read an article recently which stated that judges in Roscommon, Mayo and Donegal used to inform people that if they took the boat for England or the US they would not be sent to jail. We did not always send our best people abroad. Many thousands of people left this country and were damned glad to land on the shores of other countries. Some of them were treated with no respect, while others were treated with great respect. Some of them did very well, while others did not.
I hope what the Minister is doing will prove correct and that it will not affect people who want to come here to work. I hope there will be freedom of movement because many of these people are needed here. We wish well those who want to come here to begin new lives. We hope employers will treat them with respect and pay them adequate wages. We hope they will not be treated like some Irish people who went to Britain and America and were employed in menial jobs and were not paid adequately. Many of the people to whom I refer worked on the lump and we are now trying to bring them back here to house them and cater for their needs. They did not see fit to pay their dues to the states in which they lived and they are now paying the penalty. I hope the Minister's proposal works. If not, this committee will bring her back and question her at a later stage.
The Government is to be complimented on the decision not to restrict the movement of people from the applicant countries who wish to take up employment in Ireland. That decision will be welcomed throughout Europe and shows the open door policy of the Government regarding people who wish to come here. This is the most important decision made regarding the movement of people. It is appropriate that this decision be made. As Deputy Ring and others have said, there was for centuries a mass movement of people from this country to other countries. They did not find life easy when they emigrated and they certainly did not find it easy if they were not prepared to work. To say that everyone could come here and avail of work or, if that did not suit them, avail of the full social welfare system would be foolhardy. No Minister with responsibility for this country could stand over such a situation. Such a decision by a Minister would be an unacceptable imposition on the taxpayers. It would not protect the national interest, would send out the wrong message and would be in conflict with practice in all other parts of the world, particularly in the rest of the European Union and the United States of America.
At present there are restrictions regarding work permits. However, the social welfare system also applies in the event of holders of work permits getting into difficulty, such as falling ill or the company they work for going into liquidation. The same will have to apply to people who genuinely come to Ireland for a job. I expect that if such a person fell into a bad situation the State would protect him or her. I would be disappointed if that were not to be the case.
It is important that there be a safety valve for people who had to leave this country because of lack of employment at home and who now wish to come back. I ask that the guidelines be sufficiently flexible to accommodate such people. It is important that a flexible approach be taken to Irish people who were obliged to emigrate, for one reason or another, and that the habitual residence test allow for the fact that they have family connections. These are important and necessary safeguards.
I do not know of anyone who demands that the Minister should announce to Europe and to the world that Ireland is completely open to people to come and avail of our social welfare system. That would be totally inappropriate and foolhardy. I compliment the Minister on her decision. I am glad to see she is prepared to keep this matter under review, because situations change. This may not be an important issue in the future. Other issues may arise. Nevertheless, it is important that we have safeguards to protect the finances of the State at this time. Our employment guidelines are more favourable than those of any other European country. I know of no other state in Europe which is leaving its borders completely open to people who wish to come in and take up employment. We are being complimented throughout Europe on this decision and that is a good thing. However, it would be inappropriate to leave the country liable for a massive bill for providing social welfare benefits to an unknown number of people who might come here and immediately avail of a social welfare system which has been developed by successive governments and enhanced by recent governments.
The Minister still says everyone will be treated equally under these amendments.
All workers will be treated equally.
The point at issue is whether, under EU law, it will be accepted that everyone is being treated equally in terms of social welfare. The Minister is making distinctions between people. She is saying that Irish citizens will be treated differently from the citizens of 13 other European Union countries. She is saying that British citizens will be treated differently from Latvian citizens and that French citizens will not have equal rights with Irish citizens, which they would have had before these amendments were made. None of these arguments are well founded. I am convinced the EU Commission will see each one of those three areas as a ground not to allow these exemptions. They might be more tenuous than the grounds on which the British Government has singled out the ten accession countries but unless it can be shown that there is equality between EU citizens I cannot see these exemptions being accepted at a European level.
My own father, like many Donegal people, was born in Scotland.
Scotland is in the common travel area. The Deputy is all right. He is sorted.
I am also thinking of the example of the founder of the Minister's party. He was born in the United States of a Spanish father——
He had a fair reason to be here.
——and a mother who had no separate employment record. Éamon de Valera entering this country under these restrictions would have found himself on a very sticky wicket.
He would have had absolutely no need of the welfare state. He was always able to make a bob.
That is the type of exception to the rule the Minister should try to think about.
Mr. de Valera wrote the Constitution under which we are working.
He and Archbishop McQuaid.
It is only recently that the Deputy began to speak like that.
The habitual residency requirement is for all EU and EEA citizens. On the basis of the concerns expressed by Members, it will be easier for an Irish person, for example, to prove habitual residence.
French, Italian and German citizens had equality and will no longer have it under these amendments.
They will have equality on the basis that it will be up to them to prove——
That was not the case before these amendments were made.
No one is running over from Ireland to France even though the French welfare system is better than ours. France has residency requirements. One cannot open a bank account in Belgium, for example, unless one has a residency permit. We are the only country in the world which does not have a residency requirement. This legislation introduces an habitual residence requirement. This is not a temporary measure, it is a permanent measure.
People have been pointing out to me the example of an Irish person who has been working illegally in the United States, who comes home and needs some money to keep ticking over and to look after his or her children while looking for a job. It will be easier for such a person to meet the habitual residence requirement in less than two years. Equally, a French person whose mother is living in Ireland and who moves, lock stock and barrel, to where his or her mother is living and looks for a job will be able to prove habitual residence inside the two years. It will be up to the person to prove to the social welfare official that he or she is entitled to benefit.
We are talking about inactive people such as pensioners, students and people who are not in the workforce. On that basis, to be entitled to assistance schemes they must prove fulfilment of an habitual residency requirement. To allay the fears of some of the Deputy's colleagues, we have all been concerned about the possibility that we might be introducing an habitual residency requirement which would be hugely detrimental to our own people. While it will not prove to be detrimental, they will have to prove according to a number of guidelines that they fulfil the habitual residency requirement.
We must introduce flexibility. I give the example of a man working here who has not had time to make 52 weeks of contributions and who falls off a ladder and breaks his leg. In the event that this necessitates a number of weeks off work, he will have indicated that he will return to work. The reason he came to live here in the first place was that he wanted to work. We will not say to a person in these circumstances that he should take his plane ticket and leave. For that reason, we have to be vague in some of our guidelines to allow us to operate on a case by case basis. We are saying to workers from the European Union and the EEA that they are welcome to come here to work or to look for work. They can live in Ireland as long as they do not constitute a burden on the State and they must fulfil an habitual residency requirement to establish entitlement to social assistance schemes.
Where is the definition of "inactive people"? Deputy Penrose has stated that current regulations mean people have to show they are ready and available for work on a spot-check basis. Most people in receipt of unemployment assistance are required to——
That is only for unemployed people. There are also pensioners and lone parents.
They are asked for information on the number of interviews they have applied for, the advertisements to which they have responded and the letters they have received.
That will not change.
If those requirements apply, how can one talk about "inactive people". The system keeps asking people in receipt of the small levels of assistance available about their status.
That relates to unemployment assistance. There are other issues such as non-contributory pensions, one-parent family allowance and carer's allowance.
Is there a residency requirement exemption for people in the common travel area?
Yes.
Is that constitutional or legal?
We are entitled to have bilateral arrangements.
Does it not create another form of discrimination in the context of other EU member states?
There is reciprocity in the bilateral arrangement between our countries. Any country can make whatever provisions it wishes in its social welfare system on the basis that it is equally applied. There are bilateral arrangements between different countries on the basis of other schemes. We have a bilateral arrangement with the United Kingdom, the Channel Islands and the Isle of Man, which are in what is known as the common travel area. There is reciprocity between the British Government and us. That has been an established arrangement since time immemorial and we have been treated similarly under UK habitual residency requirements. No one has objected to it. It has never been taken up. We should not look for it either as people are happy with the way things are between the British and Irish Governments on that issue.
I move amendment No. 12:
In page 10, before section 17, but in Part 2, to insert the following new section:
"17.---The Minister shall cause an examination to be made of the rights and entitlements of widows in the context of Social Welfare enactments.".
The Minister has gone part of the way toward addressing the matter I wish to raise in that people aged 60 and over who lose a partner can take advantage of the free schemes. Widows and widowers are the forgotten people and I ask the Minister to ascertain what can be done to make free schemes available to them. It would assist them in their hour of need. When somebody loses a partner and is reduced to a single income consisting of widow's or widower's pension, it creates a major problem.
One of the Minister's cutbacks has involved the entitlement of new claimants to up to half payment of disability and unemployment benefits. This involves widows in receipt of widow's pension and one parent family payments. The Minister heard the furore from these very angry people in recent days. The saving to the Department is about €5.8 million, which is not very large, but it affects about 2,000 of the most vulnerable people in society. The Minister should re-examine this cut with compassion, which is one of the dirty 16, and eliminate it immediately. It is beginning to affect people. I am sure the Minister and her colleagues as Deputies in a Government party are being approached in their constituency clinics by people who are beginning to feel the pinch. There is a great deal of aggravation and annoyance among people who did not realise what the Minister had signed into law. They realise it now and they are angry.
Widows and widowers are the people who have suffered most and they have been the least looked after by the Government since the foundation of the State. I ask the Minister to make a special effort to address their problems in the forthcoming budget once and for all.
I support Deputy Ring's amendment. A similar amendment was moved earlier which involved widows and widowers also. They form a group of social welfare recipients which has been very poorly dealt with over the years. It has been expressed to us very clearly, particularly by widows under 65. When we raised this matter on numerous occasions here, the Minister said she has had to prioritise certain areas in her Department, but that she would get around to this. It has to be dealt with and I recommend that happens in the context of next year's budget. While the Minister will obviously not accept this amendment, widows under 65 should get the priority they deserve next year as a reward for the service they have given the State over the years.
I understand and sympathise with what Deputy Ring has said. Anyone in the business of representation hears about what is happening in the system. This is an area in which further examination may be needed. While the Minister will not be able to deal with it today, the circumstances of survivors, in particular widows, should be considered at another time. There is a case to be made and I hope the Minister will look favourably on it after she has reviewed the matter in internal departmental discussions. The principle of what has been said is something of which we are all aware as public representatives. I hope the Minister will be in a position at some point in the future to conduct further investigations to assess whether there can be further movement.
The committee debated this issue on a previous occasion as it relates to widows and widowers who face difficult times when they lose a spouse. We specifically asked the Minister to examine the possibility of extending the free schemes to persons who lose their partners, particularly those who have young children, even if it is only for a specified period.
The Minister will be aware of the furore in recent days arising from the position in which widows or widowers in receipt of survivor's pension find themselves when they take up employment. Those of them who become ill discover that contributions they have made while employed have become virtually useless due to the exclusionary double rule, by which they lose all entitlements deriving from contributions they may have made. Widows and widowers feel deeply aggrieved as a result of this rule and the issue will become a hot potato in the not too distant future. The Minister is probably aware that a strong campaign will soon be launched.
A few months ago, a couple of people were involved in raising the issue at my clinic and the heat generated by this matter is about to ignite again. Widows and widowers in this position have a valid case. When one makes a contribution, one hopes to receive some pay-back if one becomes sick or is out of work for a period.
The exclusionary rule, whereby one cannot receive two benefits from the Department of Social and Family Affairs, also impacts on the carer's area which we examined in great depth. Having concluded that the rule is wrong in this area, the committee must also conclude that it is wrong as it is applied to widows and widowers. Why should they pay into a scheme when they do not receive any worthwhile benefit from the contributions they have made while employed? This matter will have to be examined in detail and I expect the Minister to establish a review group to examine it in the near future.
I am acutely aware of the matters the Deputies have raised. The issue of widows and widowers was raised in the previous Social Welfare Bill and was discussed extensively at the time. As the select committee will be aware, there were discrepancies between the way in which widows aged over 66 years and those aged under 66 years were treated. The Government decided to address this anomaly and did so this year. There is flexibility in the area of eligibility criteria. As members will be aware, for example, we introduced the widowed parent grant in 2000 to provide assistance to this group.
The issue of benefits is a topical one. The Department's position on double payments is a matter of principle and reflects its view of the welfare system. The views expressed by Deputies on the matter have been echoed publicly. In my short tenure as Minister, I review the impact of all decisions ad infinitum. I intend to evaluate the impact of a number of the measures to which Deputies referred, which are only now kicking in.
I had hoped to meet the National Association of Widows in Ireland today. Unfortunately, I overlooked the fact that the legislation would be dealt with today. I have now agreed to meet the association during the week after next to discuss its concerns.
One of the difficulties faced by me and all my predecessors in the Department has been that our desire to do something more for widows, who have suffered enormous personal loss, has been impeded by the requirement for equality of treatment for all one parent families. This is particularly difficult for the Department.
For the information of Deputies, 103,831 widows and widowers were in receipt of contributory pension in 2003, with a further 15,783 widows and widowers receiving a non-contributory pension and an estimated 1,100 widows and widowers in receipt of the one parent family payment.
The Department has always taken the view that it must support people and try to influence them to take up their entitlements, while ensuring that they choose the entitlement of greatest benefit to them, whether that is one parent family payment, widow's pension or another benefit, and we advise accordingly.
While I cannot accept the amendment, I am actively reviewing all measures in both Social Welfare (Miscellaneous Provisions) Bills and will review all new measures and challenges which lie ahead.
I move amendment No. 13:
In page 11, before section 18, to insert the following new section:
"18.--The Minister shall, as soon as may be, after the passing of this Act prepare and lay before both Houses of the Oireachtas a report setting out revised targets for the full implementation of the National Anti-Poverty Strategy.".
We have already discussed the amendment with a previous amendment.
Does the Minister wish to comment on the amendment?
I assume I will discuss it on Thursday. The national anti-poverty strategy is an issue of concern. As Deputies will be aware, it has been the subject of peer review and is a priority of the Council of Ministers. For the first time, a key messages paper will be submitted to the spring Council. It will indicate the necessity of ensuring that social inclusion, of which the national anti-poverty strategy is a central element, is to the fore under the Lisbon strategy. While I appreciate the Deputy's purpose in tabling the amendment, we will, as we have already done in the past, evaluate the targets set out under the strategy.
Amendment No. 14 in the name of Deputy Ring is out of order as it involves a potential charge on the revenue.
Amendment No. 15 was discussed with amendment No. 3.
Amendments Nos. 16 and 18 are related and may be discussed together by agreement.
I move amendment No. 16:
In page 13, lines 18 to 23, to delete all words from and including
", but" in line 18 down to and including "persons" in line 23.
This amendment relates to the principle of equal treatment in pensions policy. We try to maintain an approach consistent with that adopted in the equality Bill where possible. This is particularly important as the Equality Tribunal is to be the forum for redress on pension and employment matters. Where possible and appropriate, the same or similar definitions are used in the two Bills. This is the case with regard to the definition of "employee", which in both Bills excludes persons employed in the provision of personal services in the home.
The Minister for Justice, Equality and Law Reform indicated on Second Stage of the Equality Bill in the Seanad that this matter was to be given further consideration. Following that examination, exclusion of employment in a private household has been narrowed so that it only applies in respect of access to such employment and not in respect of any other matters pertaining to the treatment of people in employment. As an exclusion in respect of access to employment has no relevance in pension terms, the definition of "employee" in this Bill has been amended to omit any reference to employment in a private household. Therefore, the definition of "personal service" is no longer required and this amendment to the Bill results.
I move amendment No. 17:
In page 15, line 13, to delete "1970 to 1987" and substitute "1947 to 2001".
I believe this is a technical error.
I agree.
We get worried when an amendment is agreed to.
I move amendment No. 18:
In page 15, to delete lines 16 to 20.
I move amendment No. 19:
In page 16, line 46, after "employment" to insert "in subsection (1)".
This is a technical amendment on the advice of the Parliamentary Counsel. It seeks clarification in reference to section 65 (2)(c). The reference to a contract of employment is to a contract as defined in subsection (1).
I move amendment No. 20:
In page 33, line 15, after "ground," to insert "or otherwise in relation to a breach of a principle of European law".
The effects of this amendment would be to allow people to sue for breaches of any principle of EU pensions equality law in the courts, and not just in sex discrimination cases. Having analysed this situation we see that the amendment is necessary to comply with the EU decision in the Marshall (No. 2) case. There is the need for an opportunity to bring these matters to the courts.
I understand the rationale behind this amendment is that section 81E (3) should not be confined to the gender ground but should equally apply to the grounds which flow from EU directives on age, disability, sexual orientation, religion and race. Section 81E reflects the provisions for redress in the case of discrimination in the area of employment, which is provided for under section 77 of the Employment Equality Act 1998. Section 77(3) of the 1998 Act allows referral to the Circuit Court for a contravention on the gender ground in order to permit access to an unlimited award of compensation in such cases.
I understand the view of the Minister for Justice, Equality and Law Reform is that there is no requirement in either the framework employment directive or the race directive for access to unlimited awards on the non-gender grounds. Further, had the EU Council of Ministers intended to make equal levels of redress between the gender and non-gender grounds available, it was open to the Council to make such provision in the directive. This view is adhered to in the 2004 equality Bill, currently before the Oireachtas, which amends the Employment Equality Act 1998 to give effect to the race framework on employment and the gender equal treatment in employment directives.
In implementing the principle of equal treatment in pensions policy, under which the Office of the Director of Equality Investigation's Equality Tribunal is proposed as the forum for redress, it is proposed to maintain a consistent approach with that adopted in the equality Bill. In taking this approach I am satisfied that sufficient account is taken of the need to provide appropriate redress where there is a breach of the principle of equal pension treatment. While provision is made for cases based on the gender ground to be brought directly to the Circuit Court, in practice, due to the nature of the redress applicable in the pension context there is little impact.
Redress available in pension cases is in the form of a requirement that a rule is null and void in gender cases back to 1990 and in all other cases back to 2003, with more favourable treatment being applied back to those dates. More favourable redress might arise, for example, where a complainant alleges penalisation in circumstances amounting to victimisation. However, such cases would be extremely rare in the pensions context. Accordingly, I am not in position to accept the amendment.
Is the Minister saying there are two Bills, this and another Bill going through the House at the moment that provides for what we have asked for in this amendment?
There is the equality Bill.
Can that Bill be amended to take on board our recommendations in this amendment? Could the Minister have a chat with her colleague, the Minister for Justice, Equality and Law Reform, in that regard?
During the discussions on the equality Bill this amendment was not accepted as it was not seen as necessary to the legislation.
On the basis of our information we felt there is a need for it. This is required to comply with the EU decision in the Marshall (No. 2) case. What are the implications, if any, in regard to the Marshall (No. 2) case?
From what I can ascertain, the Department of Justice, Equality and Law Reform has indicated that access to redress is appropriate within the Circuit Court for gender. It is not necessary for the others.
The Minister is trying to argue that this is superfluous in the context, but I do not know. I argued all along that all of us should aim for certainty. The counter argument being made is that if a legal principle is breached in the context of European law one has a remedy. However, the Minister would lose nothing by accepting this amendment.
My head.
Not at all. This is just somebody in another Minister's Department advising otherwise. It strengthens the position, and I ask the Minister to examine this and bring a full report back on Report Stage. It would only be the second amendment to which the Minister has acceded, so it is not earth shattering by any stretch of the imagination.
We are really not talking about the issue of gender but about unlimited redress. That is the issue.
I appreciate that but it is not unlimited——
Under the pensions provision in particular this is superfluous.
It would be prescribed by the regulations, so it would not be unlimited. One would have to come within the regulations. If a breach was found of a principle of European law, this amendment provides that pension providers cannot discriminate on the basis of the grounds laid out or in the context of any other principle of European law. There is nothing wrong with that. It is only right, and a compelling argument was made by Deputy Sean Ryan that this should be included for pension providers to ensure that whatever is brought forward is within European law.
It may be best to leave this and discuss it on Report Stage.
Yes, but we are signalling to you, Minister, that we are taking a hard line on this.
We will go no further than that.
Is Deputy Ryan withdrawing the amendment?
Yes, on the basis that there will be an opportunity to debate it on Report Stage.
I move amendment No. 21:
In page 33, lines 50 and 51, to delete "not exceeding 12 months".
I have a difficulty with the condition "not exceeding 12 months". Pension equality cases are extremely complicated and it is very unfair to limit the time to 12 months. Two years or a six month extension to the 12 months would be more appropriate because it is necessary to try to accommodate people preparing and submitting cases especially when these are complicated. I hope the Minister will consider extending the 12 month limit to 18 months.
The time limit for initiating a claim under Part 7 of the Pensions Act, as amended by this Bill, is set out in section 81E (5) which provides that a claim can be made at any time up to six months after the person has left the employment to which the scheme relates. Section 81E (6) allows that time limit of six months to be extended to 12 months where reasonable cause for the delay is shown. The effect of the amendment proposed would be that where reasonable cause for a delay is shown no time limit would operate except to the extent specified by the director, the Labour Court or the Circuit Court. The time limit imposed under the provisions of this Bill are already more generous than those which operate for other employment matters.
A claim for an occupational pension scheme can be brought at any time during the course of employment whereas for other employment matters the time limit is six months from the date that the cause of action accrued. The more generous time limits are appropriate given the nature of the pensions connected with benefits to be paid in the future. There must be some time limit, however, in the interest of legal certainty. The extension of the time limit to 12 months where reasonable cause is shown is consistent with other employment rights legislation which includes pensions, such as the Protection of Employees (Part-Time Work) Act 2001 and the Protection of Employees (Fixed-Term Work) Act 2003. I accept that where a claim is delayed due to misrepresentation by the employer or any other respondent the complainant should not be disadvantaged and accordingly I have provided that where a delay is due to such misinterpretation the time limit runs only from the date on which the fact of that misinterpretation came to the claimant's notice. I regard these time limits as fair and reasonable and am not in a position to accept the amendment. Our amendment indicates greater flexibility where there is a reasonable cause for delay and we allow for difficulties that may arise where misrepresentation is an issue.
In contract law there are several hindrances including misrepresentation, mistake or duress. Deputy Ryan seeks to incorporate reference to these issues which are recognised in contract law. This can be a contractual situation so perhaps the Minister needs to examine these points in the context of either further grounds for delay or allowing extra time to launch the appeal. I take the Minister's point that this is longer than normal employment and that is no harm because the rules in that area are far too strict. A constituent has written to me about how employment provisions can be interpreted. Many people who do not have recourse to legal representation or advice misinterpret the period for effective notice, for example whether the six months is subsequent to the first day of dismissal, beginning on 28 February or 1 March. There has been an excessively legalistic approach to interpreting those time limits. I hoped the Minister might show some leniency or magnanimity in this area, even compromise on the six months extra that we seek by adding three months.
That would be a fair compromise.
The problem is that there is other consequential legislation. Would we have to change all that legislation too? The Chairman need not tell me that is easily done——
It would not do any harm. I do not approve of time restrictions in legislation regarding people's exercise of their rights. However I understand the Minister's point. I am not completely naive. Nevertheless I strongly advocate the exertion of people's rights and giving them opportunity to exercise them. The Minister might examine the major issues to be reconsidered on Report Stage.
Amendment No. 21a was discussed with amendment No. 11 a where the Minister amended section 17 of the principal Act to the extent specified in schedule 1. This amendment deals with schedule 1.
I move amendment No. 21a:
In page 41, line 29, to delete "the Schedule” and substitute “Schedule 2”
I move amendment No. 21b:
In page 41, before the Schedule, to insert the following new Schedule:
SCHEDULE 1
Item Provision of Principal Act Amended Nature of Amendment
1 Section 120 (as amended by section 6 of the Social Welfare (Miscellaneous Provisions) Act 2002). Insert the following subsection after subsection (7): '(8) A person shall not be entitled to an allowance under this section unless he is habitually resident in the State at the date of the making of the application therefor.'.
2 Section 134. (a) In paragraph (a), delete 'and'. (b) In paragraph (b), substitute 'with section 136; and' for 'with section 136.'. (c) Insert the following paragraph after paragraph (b): '(c) the person must be habitually resident in the State at the date of the making of the application therefor.'.
3 Section 143 (as amended by section 19 of the Social Welfare Act 1996). Insert the following subsection after subsection (2): '(3) A person shall not be entitled to a pension under this section unless he is habitually resident in the State at the date of the making of the application therefor.'.
4 Section 148 (as amended by section 9 of the Social Welfare (Miscellaneous Provisions) Act 2003). Insert the following subsection after subsection (4): '(5) A person shall not be entitled to a pension under this section unless he is habitually resident in the State at the date of the making of the application therefor.'.
5 Section 158 (as amended by section 21 of the Act of 2001). Insert the following subsection after subsection (5): '(6) A one-parent family payment shall not be payable to a qualified parent under this Chapter unless the qualified parent is habitually resident in the State at the date of the making of the application therefor.'.
6. Section 164. Substitute the following section for section 164:
'Entitlement to Allowance.
164.--(1) Subject to this Act, an allowance (in this Act referred to as carer's allowance) shall, in such circumstances and subject to such conditions as may be prescribed, be payable to a carer. (2) A carer shall not be entitled to an allowance under this section unless he is habitually resident in the State at the date of the making of the application therefor.'.
7. Chapter 11 of Part III.
Insert the following section after section 173:
'Exclusion of persons not habitually resident in the State.
173A.--A person shall not be entitled to an allowance (other than an allowance under sections 181 and 182) under this Chapter unless he is habitually resident in the State at the date of the making of the application therefor.'.
8. Section 191B (as amended by section 21 of the Social Welfare Act 2000). Insert the following subsection after subsection (4): '(5) A person shall not be entitled to disability allowance under this section unless he is habitually resident in the State at the date of the making of the application therefor.'.
9. Section 193. (a) In subsection (1), substitute 'Subject to subsection (3), a person' for 'A person'. (b) Insert the following subsection after subsection (2): '(3) A qualified person, other than a person to whom paragraph (a), (b) or (c) of section 192(2) applies, shall not be qualified for child benefit under this section unless he is habitually resident in the State at the date of the making of the application therefor.'.
10. Part VI. Insert, in Chapter 2, the following section: 'Provision with respect to habitual residence. 208A.--(1) For the purpose of each of the provisions of this Act specified in subsection (3), it shall be presumed, until the contrary is shown, that a person is not habitually resident in the State at the date of the making of the application concerned unless he has been present in the State or any other part of the Common Travel Area for a continuous period of 2 years ending on that date. (2) In subsection (1) "other part of the Common Travel Area" means the United Kingdom of Great Britain and Northern Ireland, the Channel Islands and the Isle of Man. (3) The provisions of this Act mentioned in subsection (1) are: sections 120(8), 134(c), 143(3), 148(5), 158(6), 164, 173A, 191B(5) and 193(3).'.
I move amendment No. 1 to amendment No. 21b:
In the proposed new Schedule 1, item 10, after subsection (1), to insert the following:
"(2) In determining whether a person is habitually resident, particular consideration shall be given to a person's centre of interest in the State and also the following matters——
(a) length and continuity of residence,
(b) employment prospects,
(c) reasons for coming to Ireland, and
(d) future intentions.”.
I move amendment No. 22:
In page 44, in the third column, line 26, after "he" to insert "or she".
The purpose of the amendment is to support the Minister and ensure that she takes appropriate action regarding gender proofing. I trust she will accept it.
I can almost predict her reply.
The Interpretation Acts 1937 and 1997 provide that, unless the contrary intention appears, words importing the masculine gender shall be construed as also importing the feminine gender. The Pensions Act 1990 was drafted using the masculine gender, perhaps because it was introduced by a male Minister. Subsequent amending enactments have continued to use the masculine gender. That is so in the case of Part XI of the Pensions Act, which was inserted by section 5 of the Pensions (Amendment) Act 2002 and which deals with the Pensions Ombudsman. The amendment suggested by the Deputy would not be in keeping with the rest of Part XI, nor with the rest of the Pensions Act 1990. I am, therefore, unable to accept it. There is an assumption in law.
I tried to do my best for the Minister to show that she has taken the initiative as a female when saying that thinking in the past has been negative and backward-looking. However, if she is not prepared to accept the amendment I am powerless.
I am not refusing any man's attention, Deputy.
