A decision issued by the Social Welfare Appeals Office on 29 March 2021, in a case taken by a client of FLAC, has confirmed that social welfare payments may remain payable for up to two weeks during temporary absences from the State for essential purposes. The decision of the Appeals Office also confirms that persons in receipt of Jobseekers payments may be considered “available for work” during periods of “self-isolation” following travel abroad.
This decision confirms that an administrative circular issued by the Department of Social Protection in June 2020 has been applied in manner which does not accord with the relevant social welfare regulations.
In June 2020, the Department of Social Protection issued a circular (Circular 35/20) which purported to “suspend” the legislation which allows for the payment of certain social welfare payments during absences from the State. The Circular further states that person who are self-isolating after travelling outside the State cannot satisfy the “availability for work” requirement which applies to certain payments.
The circular came to public attention on foot of the controversy in relation to the activities of the Department of Social Protection at ports and airports during the Covid-19 pandemic. At the time, FLAC noted that an administrative circular could not suspend the provisions of validly adopted regulations which still provides for the payment of social welfare claims during absences from the State under certain limited circumstances, and which sets out a subjective test for whether someone is “available for work”. The decision of the Social Welfare Appeals Office has confirmed that FLAC’s position in relation to the circular is correct. In early March 2021, the Department confirmed to FLAC that the Circular had not been withdrawn or amended.
Further, the decisions heightens concerns raised by FLAC in a previous blog (available here) in relation to this case, concerning decision-making practices of the Department which can deprive a claimant of their right to appeal. FLAC’s client in this case faced significant procedural barriers in lodging an appeal of the decision. She did not receive a formal decision from the Department in relation to the disqualification of her claim until FLAC made representations to the Department on her behalf. Her appeal was successful and the Department were found to have applied the law incorrectly.
FLAC’s client was in receipt of Jobseeker’s Benefit. In July 2020, FLAC’s client informed the Department of Social Protection of her intention to travel abroad to visit her family. She notified the Department of this upcoming absence from the State in accordance with the Department’s “Holiday Rule” procedure, which she had been notified of when her claim was granted. Her local Intreo Office responded by stating that the Department’s Holiday Rules no longer allowed for the payment of her claim during an absence from the State to a “non-green list” country. She was further advised that her claim would not be payable during the fortnight following her return on the basis that she would not satisfy the “availability for work” criteria during that period, as she was expected to be “self-isolating”.
In August 2020 (having not received her payment while she was abroad or during the fortnight following her return), she contacted FLAC’s telephone information line and sought advice as to how to challenge the Department’s actions. She was referred to FLAC’s legal team.
There were considerable procedural barriers to lodging an appeal on behalf of our client. FLAC’s client had never received a formal decision from the Department in relation to the temporary disqualification of her claim. On foot of representations from FLAC, the Department eventually issued a “revised decision” in November 2020.
The so-called “revised decision” of the Department found that FLAC’s client was not entitled to Jobseeker’s Benefit during the period concerned. The letter of decision stated that the regulations allowing for the payment of Jobseeker’s Benefit during absences from the State had been “suspended for all travel abroad” during the pandemic. It would seem that the basis for this statement is Circular 35/20. In fact, Regulation 217(d) of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (Statutory Instrument No. 142 of 2007) had been amended to allow for payment of Jobseeker’s Benefit for up to two weeks during absences from the State taken “in accordance with the Covid-19 General Travel Advisory in operation by the Department of Foreign Affairs”.
The Department of Foreign Affairs’ General Travel Advisory stated as follows during the relevant period:
“In accordance with Government policy, which is based on official public health advice, the Department of Foreign Affairs continues to advise against non-essential travel overseas.”
The advice did not provide any definition as to what constituted “essential travel” and so it fell to an individual seeking to rely on the advice to make their own determination as to whether the travel they are contemplating is essential.
Our client, therefore, planned what was, in her circumstances, an essential visit which was undertaken in accordance with the advice on the General Travel Advisory. In doing so, she followed all the relevant public health advice including by self-isolating for two weeks on her arrival abroad and again on her return to Ireland.
The “legal status” of the advice on the General Travel Advisory which was in place during the relevant period was considered by the High Court in Ryanair DAC v An Taoiseach & Ors  IEHC 461. At paragraph 165 of his judgment in that matter, Simons J concluded as follows:
“The advice to avoid non-essential travel and to restrict movements on entry to the State is just that: advice. The government merely requests that persons entering the State from a country not on the “green list” restrict their movements for 14 days. As of August 2020, there had been no legal requirement to do so.”
Therefore, in July 2020, the General Travel Advisory did not create a legal restriction on travel abroad and that those who travel abroad are not in breach of any legal obligation arising from that advice.
The “revised decision” also found that our client was not entitled to her payment during the two weeks after her return to Ireland on the basis that she was not available for work during this period. In our submission, FLAC noted that despite the fact that our client was following government guidelines and restricting her movements during that period, she remained available for full time employment. Indeed, our client expressly informed the Department by email that she was seeking work during this period.
The relevant regulation provides that, in assessing whether a person is available for suitable full-time employment, regard shall be had to their “skills, qualification and experience” in ascertaining what constitutes “suitable full-time employment” in their case. Our client is a professional within the financial services industry with many years’ experience in her field. During the two-week period in question, the vast majority of those working in that field were (pursuant to government guidance) working from home. It is therefore the case that our client was available to take up “suitable full-time employment” during the fortnight concerned.
Finally, FLAC submitted that the manner in which the “revised decision” was reached contrary to our client’s rights to natural and constitutional justice and her right to be subject to fair procedures. Our client was not put on notice of the factual or legal basis on which the Deciding Officer was reviewing our client’s claim nor was she afforded the opportunity to make submissions in relation to same.
The Appeals Officer decision 29 March 2021, found that our client was entitled to Jobseeker’s Benefit during her first two weeks abroad and the fortnight following her return.
In relation to our client’s entitlement during her time abroad, the Appeals Officer decided as follows:
“I note the appeal contention that Article 217 has been misinterpreted. The contention is that appellant should have received her payment during the first fortnight of her time [abroad]…
[FLAC] contend that the advice from the Department of Foreign Affairs was to avoid non-essential travel but no definition of what constituted "essential travel" was given so it fell to appellant to determine this: she considered it essential… She self-isolated for two weeks on her arrival [abroad] and on her return.
I find that the legislation does not provide for a blanket ban on all holidays outside the State for the period in question but rather in accordance with the Covid-19 General Travel Advisory in operation by the Department of Foreign Affairs. In this regard, I am persuaded by appellant's appeal submission. Therefore, I find that it is established that appellant meets the conditions for receipt of Jobseeker's Benefit [during the first two weeks she spent abroad].”
In relation to the fortnight following her return to Ireland, the Appeals Officer decided:
“The legislation provides that a person shall be regarded as being available for employment, if he or she can show that he or she is willing and able, at once, to take up an offer of suitable full-time employment. A person cannot impose unreasonable restrictions on the employment he or she is prepared to accept. In determining what constitutes suitable full-time employment regard shall be had to the skills, qualifications and experience of the person· concerned, the period for which the person has been unemployed, and the availability of employment vacancies within travelling distance of his or her residence…
I note the Department's contentions that, as appellant had to self-isolate for 14 days on her return to the country, she was unavailable to take up full time employment. I note appellant's submissions and that of flac that she was actively looking for work during the period: most job interviews were taking place via phone or Zoom/Webex. I find that in view of her qualifications and history of employment… she would have been in a position to take up an offer of suitable full-time employment even during the period she had to self-isolate… Therefore, I find that it is established that appellant meets the conditions for receipt of Jobseeker's Benefit in this regard.”
Section 320 of the Social Welfare Consolidation Act 2005 provides that “the decision of an appeals officer on any question shall… be final and conclusive”. The Social Welfare Appeals Office has sent a copy of their decision to our client’s local Intreo and our client can expect to receive a backpayment in respect of both two week periods when her claim was wrongly disqualified.
The result in this case, confirms Circular 35/20 is being applied in a manner which is at odds with the regualtions in relation to entitlement to social welfare while abroad and the “genuinely seeking work” and “availability for work” criteria.
The Department of Foreign Affair’s advice in relation to travel abroad advises has since been updated to advice against all “non-essential travel”. No definition of “essential travel” has been added to that advice. Therefore, the relevant social welfare regulations still provide that certain social welfare payments remain payable for up to two weeks during absences from the State for essential purposes.
Mel Cousins noted as follows in the Trinity College Covid-19 Legal Observatory report, “Law and Policy Responses to Covid-19 in Ireland”:
“On 30 June 2020, as FLAC (Free Legal Advice Centres) has shown, the Department issued a circular on the issue which purported to suspend travel abroad and to say that people who returned from such travel could not be considered to be genuinely seeking work during the period of two weeks self-isolation. There were several problems with this. First, the circular purported to ‘suspend’ the provisions of SI 142 of 2017. Of course, a circular cannot amend a Ministerial Regulation. In addition, the question of whether somebody is genuinely seeking work is a question of fact. Given the possibility of on-line job search, applications and interviews, it is perfectly possible for a person to be genuinely seeking work even if self-isolating so the circular appeared to attempt to unlawfully fetter the discretion of deciding officers.”
This case also echoes concerns raised in the Irish Human Rights and Equality Commission report, “Ireland’s Emergency Powers during the Covid-19 Pandemic”. That report criticised the “blurring of lines” between laws and regulation on one hand and public health advice on the other.