7th November 2012
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.