The Department of Social Protection describes Supplementary Welfare Allowance (SWA) as “a weekly allowance paid to people who do not have enough income to meet their needs and those of their families”. This weekly minimum income payment forms part of the SWA Scheme which, the Department states, “offers a safety net within the overall social welfare system by providing assistance to people in the State whose means are insufficient to meet their needs and those of their dependents. The main purpose of the scheme is to provide immediate and flexible assistance to those in need”.
However, a case file opened by Crosscare Migrant Project (in which FLAC provided second-tier legal advice and assistance), illustrates how access to this “safety net” payment may be jeopardised by the manner in which Departmental reviews of social welfare entitlement are conducted.
In this case, a young woman who had recently left emergency homeless accommodation saw her payment suspended on foot of a “control review” of her entitlement to SWA. During the review process, she was asked to provide documentation in relation to her residence permit which was unavailable to her (and which had no legal or factual relevance to her entitlement to the payment). Her payment was only restored after Crosscare sought the assistance of FLAC on their client’s behalf and correspondence issued which pointed out the absence of a legal basis for the suspension of her payment. The client’s SWA payment was restored and she received a back-payment in respect of six weeks during which it had been wrongfully suspended.
Crosscare’s client held a Stamp 3 residence permission. She applied for SWA in January 2020. However, her application was refused on the basis of a finding that she did not have a right to reside in the State and therefore could not be considered habitually resident in the State (as required by the Social Welfare Consolidation Act 2005 which sets out the eligibility criteria for SWA). The Community Welfare Officer (CWO) dealing with the application insisted that satisfaction of these conditions could only be established if the applicant provided a letter from the Department of Justice setting out the conditions attached to her Stamp 3 residence permit. However, no such letter had been issued to the client when she received her residence permit.
The client lodged an appeal to the Social Welfare Appeals Office in respect of this refusal. The Appeals Officer decided in her favour and noted that she had established that she had a right to reside in the State (as the holder of a Stamp 3 residence permit).
On the basis of this decision, the Appeals Officer remitted the application for SWA back to the CWO to decide on whether the applicant was habitually resident in the State. The CWO decided that the client was not habitually resident in the State and this decision was subject to another appeal. In finding that the appellant was habitually resident in Ireland (and awarding her claim for SWA) in January 2021, the Appeals Officer stated: “There is no legislative basis within our primary legislation to monitor or police [Department of Justice] matters… including requiring an applicant to provide [a] letter that may or may not have issued with a residency permit card”.
Review of SWA Claim
In April 2021, the client and her family moved from emergency homeless accommodation to permanent accommodation. Her claim for SWA (awarded on foot of her two successful appeals) had previously been administered by the Department of Social Protection’s Homeless Persons Unit but, at this juncture, was transferred to a local Intreo Centre. Less than a week later, the Intreo Centre informed her that they were “reviewing [her] claim” and requested that she provide numerous documents including a “letter from Dept. of Justice and Equality setting out the conditionality attached to [her] IRP stamp 3 permission”. While Crosscare assisted their client in providing the other documents requested, they explained to the Intreo Centre that a letter from the Department of Justice could not (and – based on the recent decision of Appeals Officers in relation to the matter – need not) be provided. However, the Intreo Office insisted that the review could not be completed until such a letter was provided.
In May 2021, the client informed the Department that she would be leaving the country for seven weeks to attend to her mother who was undergoing surgery abroad. The Intreo Centre responded by informing her that her payment would be suspended for the entirety of her absence from the State. On her return to Ireland in July 2021, Crosscare informed the Intreo Centre that their client was in the State and sought the restoration of her payment. They also noted that, following inquiries, the Department of Justice had confirmed that they do not issue letters to persons who have been given a Stamp 3 permission in person at a registration centre and that that Department had noted that such person’s right to reside in the State is “as per the stamp in passport and the registration card”.
In August 2021, the Intreo Centre wrote directly to the client (rather than her appointed representative in Crosscare) and stated:
“I am advising you, that you are entitled to request, and be given this letter [from the Department of Justice]. It is similar to an employer refusing to give an employee a payslip, or a bank refusing to give a customer a bank statement. If we ask a client for a payslip or a bank statement, it is not a defence to say the organisation concerned will not give it. Failure to submit the requested items means a decision cannot be made or a review cannot be completed.”
They further informed her that her claim would remain suspended and that a failure to provide a letter from the Department of Justice within one week would “result in closure of [her] claim without further notice”.
Restoration of SWA Payment
In August 2021, Crosscare sought the assistance of FLAC on behalf of their client. FLAC drafted correspondence to the Intreo Centre seeking the immediate restoration of the client’s SWA payment. That correspondence noted that the Intreo Centre had never asserted the legal basis for their authority to review, suspend or “close” the SWA claim and that their actions had been wholly contrary to the principles of fair procedures (as well as the provisions of the Social Welfare Consolidation Act 2005).
The correspondence highlighted that Appeals Officers had decided that the client was habitually resident in the State for the purposes of her claim. It further noted that section 320 of the 2005 Act provides that “the decision of an appeals officer on any question shall… be final and conclusive”. In light of this, it was submitted that it was unreasonable and irrational for the Intreo Centre to repeatedly request a letter from the Department of Justice which was not available to the client and which had no legal or factual relevance to her continued entitlement to SWA.
Within days, the Intreo Centre responded to confirm that the client’s SWA payment would be restored and that she would receive a back payment in respect of the six weeks during which her payment had been wrongfully suspended.
Analysis: Suspensions, Disqualification & Fair Procedures
The Social Welfare Consolidation Act 2005 contains specific provisions in relation to powers of the Department of Social Protection to suspend claims and revise decisions in relation to entitlement. Those powers must be exercised in accordance with the procedures and safeguards provided for in that legislation, as well as the principles of fair procedures and natural justice. Where a claimant is subject to any process that may lead to the cessation of an ongoing claim, the Courts have recognised that the claimants right to fair procedures must be upheld by the Department. For example, in State (Hoolahan) v Minister for Social Welfare (Unreported, High Court, 23 July 1986), Barron J quashed a revised decision which disqualified a claimant from receipt of a payment where facts on which the decision had been based had not been brought to the claimant’s attention. He held that “[the claimant] should know fully the extent of the case being made against her and that no decision should be made until she has been given proper opportunity to deal fully with a case”.
There is limited scope under section 334 of the 2005 Act for the Minister to direct for the payment of a claim to be suspended where “a question has arisen” as to whether the conditions for receipt of a payment “are or were fulfilled” until that “question has been decided”. Such suspensions are not subject to appeal but should, by their nature, be temporary. In light of the absence of a formal appeal mechanism, and the gravity of a decision to withdraw a social welfare payment such as SWA, it is vitally important that fair procedures are followed before a suspension is put in place. Claimants should be informed of the evidence and reasons which have given rise to a suspension being considered and given an opportunity to respond.
The client in the present case was subject to a suspension of her claim in circumstances where the Department had never suggested that a question had arisen in relation to her entitlement to her payment. Rather, the suspension appears to have been triggered by her absence from the State (despite the fact that payment ought to have been made in respect of the first two weeks of that absence) and then continued indefinitely in light of the client’s failure to comply with an unreasonable and irrational request for documents. It is worth noting that her claim had been awarded originally on the basis of a finding that she had no other means or source of income to meet her needs and there was no evidence (or suggestion from the Department) that this was no longer the case.
Section 300 of the 2005 Act gives Deciding Officers jurisdiction in relation to all decisions concerning entitlement to payments. Section 301 of that Act empowers Deciding Officers to “revise any decision [including a decision awarding a payment]… in the light of new evidence or new facts”. Accordingly, a decision to disqualify a claim can only be brought about by way of a formal decision by a Deciding Officer which is amendable to appeal and review. In the present case, the client was subject to a suspension of her claim of indefinite duration and a threat to “close” the claim “without further notice”. Again, this raises serious concerns.
This blog has previously raised concerns around the procedures followed in some instances where social welfare payments are “suspended”. Similarly, it has also previously highlighted instances where “suspensions” have been put in place by reason of absences from the State in a manner contrary to the principles of fair procedures and the provisions of the social welfare code (which provide that most payments may be paid for up to two weeks during such absences).
Analysis: “Control Reviews”
The present case also highlights the absence of clarity around how, when and why the Department of Social Protection may “review” a person’s entitlement to a social welfare payment. In this instance, a review was initiated which sought to fully reassess the claimants entitlement to SWA only three months after an Appeals Officer had made a decision awarding the payment. The review appears to have been triggered by the fact that claim was transferred to the client’s local Intreo Centre after she left emergency homeless accommodation and sought to re-examine matters which had recently been decided by an Appeals Officer.
As noted above, decisions in respect of entitlement to social welfare payments may be revised in light of new facts or evidence. The Department of Social Protection conducts over 500,000 “control reviews” (such as the review undertaken in the case described above) annually. These reviews may bring to light evidence or facts which give rise to a revised decision. It follows that such reviews must be conducted in accordance with the principles of fair procedures and natural justice. However, by contrast to social welfare “investigations” (which are triggered where a question around entitlement has arisen and is referred to a Social Welfare Inspector), the 2005 Act is silent as to the circumstances in which a claim may be subject to other forms of “control review” and as to who may conduct such reviews. Similarly, the legislation is largely silent as to the procedures which should be followed in reviewing a claim. While the Department has published several “operational guidelines” in relation to the manner in which social welfare investigations should be conducted, there are no operational guidelines which specifically deal with other forms of control review activity.
Given the number of control reviews which are conducted annually (and the potential consequences for claimants where a revised decision or “suspension” is put in place on foot of such review), the absence of legislative safeguards or guidance as to the manner in which they may be conducted is a cause for concern.
In a recent submission to the consultation on the development of a government Youth Homelessness Strategy, FLAC highlighted that the imposition of a strict Habitual Residence Condition for receipt of SWA may act as a barrier to access to this basic income support. Similar concerns arise around administrative and control procedures which may impede (or remove) access to what is meant to act as a social “safety net” and minimum income payment.
In 2021, FLAC was awarded grant funding by the Irish Human Rights and Equality Commission to prepare a report which examines social welfare decision-making from a fair procedures, human rights and equality perspective. As well as examining the social welfare appeals process, that report will analyse decision-making in the first-instance, “control review” procedures, decisions made on foot of internal reviews and social welfare investigations. That report is expected to be published in autumn 2022.