Social welfare appeals process not fit for purpose

SAOIRSE BRADY

Thu, Feb 07, 2013

Opinion: With a national unemployment rate of 14.6 per cent – the fourth highest in the EU – it is no surprise that more people are turning to the social welfare system for basic assistance.

It is also unsurprising that, with little or no other means of income, when they are refused a payment people will appeal the decision. In recent years, the number of social welfare appeals has more than doubled, to a high of 51,515 live appeals in 2011.

Given the importance of the system and the growing number of people affected, shouldn’t we be concerned if the appeals process is not meeting adequate standards of fairness?

Free Legal Advice Centres (Flac) recently published an analysis of the labyrinthine appeals structure and process. The report, Not Fair Enough, finds the appeals process does not meet international and domestic legal requirements concerning independence and transparency and does not offer an effective remedy, given delays and a lack of even-handedness in the system.

The report argues that independence is vital for any appeals body and being seen to be independent is just as important. But the social welfare appeals office is not an independent body.

It is an office of the Department of Social Protection, the body whose decisions are being appealed. And the appeals officers are civil servants of the department, appointed to the appeals office by the Minister, and who may be transferred back to another section of the department.

While the appeals office cites the high rate of success on appeal as proof of its autonomy from the department, an alternative view is that this really indicates problems at the heart of the welfare system. Poor decision-making and bad administrative practice, coupled with increased pressure on the department, have helped push up the appeals rate.

It is no coincidence that almost a third of complaints to the Office of the Ombudsman in 2011 were about the Department of Social Protection. The consistently high success rate on appeal also suggests that social welfare applicants, who often do not understand the system, should be helped to make better applications from the start. This would avoid wrong decisions at first instance – a substantial waste of time and resources – and ultimately reduce the need for so many appeals.

A further problem is the lack of legal assistance available to people for appeals, despite the complex areas of domestic, EU and human rights law involved in many cases.

Civil legal aid is ruled out for appeals. Appellants are on an unequal footing right from the start, as they do not have the same access to information on their case unless they specifically request their file; often, people do not know that they have a higher chance of success if they request an oral hearing.

Previous decisions of appeals officers, which might help applicants to understand how the rules are applied, are not generally published. It means that there is no level playing field in the appeals system.

All these clear inequities in the system are compounded by the long delays people experience while awaiting a decision on their appeal. Even with a substantial reduction in waiting times for an oral hearing in 2012 – down from an average of 52.5 weeks to approximately 39 weeks – delays are still much too long. Granted, these delays are not solely down to the appeals office itself; there are often long delays in getting files from the offices that make the decisions in the first place.

Flac has seen the cruel consequences of delays and inequalities for appellants. We supported one woman, forced to flee her abusive husband, who had to wait more than a year and a half for a hearing in her appeal for a lone parent payment. She then faced a further eight-month delay before getting a positive decision, all the while living with her children in a women’s shelter on what was meant to be a temporary basis.

In another case, a person was forced into destitution following a series of refusals over a two-year period, until her case was finally resolved and she was granted her full entitlements, including significant arrears. In yet another case, a mother who had her payment cut off was not granted an oral hearing until 16 months after lodging an appeal. Her case took three years to complete; during this time, one of her children was placed in foster care. Although the social work team was satisfied that the child could return to live with her family, without the payment the woman could not secure appropriate accommodation and so the family could not be reunited.

Although these cases were ultimately successful, the crucial point is that payment of arrears cannot make up for the hardship people have endured due to the department’s maladministration and inefficient processes.

In November the Seanad debated a motion proposed by Independent Senators calling for the implementation of some of Flac’s recommendations. These included an audit of the appeals office’s procedures to ensure compliance with fair procedures, automatic access for appellants to their files, and an explicit option to request an oral hearing.

However, while Government and Opposition Senators alike expressed sympathy with the proposal, ultimately the whip system ensured its defeat in favour of a Government-sponsored counter-motion which ignored many of the current problems with the process.

We must have an appeals system, so shouldn’t it be the fairest, most efficient and most accessible system possible? Anything else is a poor use of public money. Unfortunately, as it stands, we cannot but conclude that our social welfare appeals system is not fair enough.

Free Legal Advice Centres (FLAC) is an Atlantic grantee. Saoirse Brady is policy and advocacy officer with Flac. She is the main author of Not Fair Enough, a report published by Flac in October 2012 calling for reform of the social welfare appeals system. The report is available to download at flac.ie.