The Comptroller and Auditor General has recommended significant reforms in the areas of social welfare decision-making and the “management of social welfare appeals”. In their Report on the Accounts of the Public Services 2020, the State’s spending watchdog recommended that the Department of Social Protection should:
- “Review its current procedures so as to ensure that all claimants are informed clearly of the reason(s) for refusal of claims”
- “Examine the application process and related guidance for those schemes which are medically or social and care needs assessed in order to ensure claimants are able to supply all necessary information to assess eligibility when they are making a claim”
The report also recommended that the Department “should carry out periodic reviews of successfully appealed cases where no new or additional material information was provided” on the basis that “these reviews could assist the Department in learning from the cases determined by appeals officers and in improving the quality of decisions made by its deciding officers in determining claims”.
The recommendations, all of which were agreed by the Department, echo those previously made by NGOs and international human rights bodies, which have highlighted issues with the existing system of social welfare adjudication from a human rights and equality perspective.
The Report of the Comptroller and Auditor General
The Comptroller and Auditor General’s annual Report on the Accounts of the Public Services “is concerned with the accountability of departments and offices in respect of their administration of public funds”. In Chapter 10 of the recently published report concerning 2020, the Comptroller and Auditor General:
- “evaluates whether the [Social Welfare] Appeals Office has a fair, transparent and efficient appeals system”, and;
- “assesses the extent to which the Department analyses the characteristics of successful appeals and uses that information to improve its operation”.
The report notes that decisions which are appealed are first reviewed internally by the Department. This gives the Department the opportunity to review the decision before the file is transferred to the Social Welfare Appeals Office. In analysing the timeliness of the appeals system, the report finds that in each of the past five years the Department has “significantly” exceeded its three week target for dealing with decisions which have been appealed (either by revising the decision or transferring the case file to the Appeals Office). In 2020, the Department took an average time of over four months to complete this process. The Department accepted the report’s recommendation to modernise the appeals system with a view to increasing efficiency and stated that “the implementation of a new appeals system is a priority for the Appeals Office and for the Department”.
The report comments on “notable” discrepancies in the extent of the information provided by Deciding Officers to applicants whose claim has been refused, and recommends that:
“The Department should review its current procedures so as to ensure that all claimants are informed clearly of the reason(s) for refusal of claims. This would allow claimants to make a better informed decision in relation to appeal.”
The Department agreed to this recommendation and noted that the relevant guidelines for Deciding Officers are currently being reviewed. Similarly, the Department agreed to the report’s recommendation to prepare written guidelines for Appeals Officers which “clearly establish the circumstances that usually result in an oral hearing being held” and to publish those guidelines on the Appeals Office website.
55% of decisions which were appealed in 2020 were subsequently amended (either on foot of a review by the Department or at the appeal stage). This figure is in keeping with recent trends. The Social Welfare Appeals Office decides on around 20,000 appeals each year. In each of the last five years, almost 60% of appeal have been decided in favour of the appellant.
The Comptroller and Auditor General reviewed a random sample of 75 previous appeals– 57 of which had succeeded. Of the successful appeals reviewed, “significant additional information” was provided in 70% of cases. The report therefore recommended that:
“The Department should examine the application process and related guidance for those schemes which are medically or social and care needs assessed in order to ensure claimants are able to supply all necessary information to assess eligibility when they are making a claim.”
It was also recommended that:
“The Department should carry out periodic reviews of successfully appealed cases where no new or additional material information was provided. These reviews could assist the Department in learning from the cases determined by appeals officers and in improving the quality of decisions made by its deciding officers in determining claims”.
It is also notable that, in assessing the “transparency of the appeals process”, the report comments on the fact that outcomes in past appeals are only published on a selective basis:
“The Appeals Office publishes a number of case studies each year in its annual report… These provide useful guidance to the Department’s deciding officers, and may be a useful source of information for potential appellants and/or their advisors. However, as the case studies are contained separately in each year’s annual report, rather than collectively in a central database, it may be difficult for potential users to access and search the complete catalogue of past case studies.”
Finally, the report recommend that the “Appeals Office should consider establishing a quality assurance system in order to aid consistency in decision making and to identify the training needs of appeals officers”.
A Rights-Based Approach to Social Welfare Decision-Making
The reports of the Comptroller and Auditor General on the Accounts of the Public Services are concerned primarily with “matters relating to value for money”. As already noted, chapter 10 of the 2020 report is concerned with the “efficiency” of the social welfare appeals process. However, the extent to which the recommendations contained in the report mirror those arising from equality and human rights assessments of social welfare decision-making in Ireland is striking.
In 2015, for example, the United Nations Committee on Economic, Social and Cultural Rights (UNESCR) expressed its concerns around the quality of first instance social welfare decision-making in Ireland and “the large number of social welfare appeals owing to the lack of clear understanding and consistent application of the eligibility criteria”. The Committee recommended that the State should take measure to ensure that “initial decisions on social welfare appeals be made in a consistent and transparent manner and that appropriate training be provided to the public officers who make such decisions”.
In 2012, FLAC published Not Fair Enough: Making the Case for Reform of the Social Welfare Appeals System, which analysed “the compliance of the existing appeals system with both domestic and international human rights law”. That report recommended that:
- “Social welfare application forms should be simplified and made more readily accessible and easier to use. The forms should be set out so as to make it as clear as possible to applicants what information is required to process their claims, and to obtain all necessary information at the outset.”
- “The appellant should be informed that he or she can request an oral hearing. A specific option should be prominently displayed on the social welfare appeal form to indicate this possibility and the significance of an oral hearing should be explained.”
- “Appellants and their representatives should be given access to any previous decisions which may be relevant to their case. An anonymised searchable database should be established and made available to the public by the Social Welfare Appeals Office as recommended by the UN Special Rapporteur on Extreme Poverty and Human Rights following her visit to Ireland in January 2011.”
- “All appeals, whether decided following an oral hearing or based on written evidence only, should be finalised within a reasonable period of time. Steps must be taken to reduce the current delays in the appeals process while at the same time ensuring that all appeals are properly considered and decided.”
Conclusion
In addition to Ireland’s obligations under international and regional human rights instruments, section 42 of the Irish Human Rights and Equality Commission Act 2014 (“the Public Sector Equality and Human Rights Duty”) requires public bodies to protect human rights and promote equality in the provision of public services. These obligations, do not necessarily conflict with the desire to achieve value for money and efficiency in the provision of public services. Indeed, it is hoped that the above analysis illustrates that, in some circumstances, the promotion of one aim may complement the other.
A 2020 report by JUSTICE and the Administrative Justice Council on “reforming benefits decision-making” in the UK noted that the economic arguments for “getting benefits decision-making right first time” are twofold. First, fewer resources are spent “dealing with challenges to decisions”. Second, investment in improved first instance decision-making “will likely result in significant public sector savings… including improved health outcomes for claimants and therefore savings to health and social care and fewer resources spent by councils on temporary accommodation and homelessness prevention”.
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, and decisions made on foot of internal reviews and social welfare investigations. That report is expected to be published during 2022. Further, the Law Reform Commission’s current Programme of Law Reform will examine the reform of non-Court adjudicative bodies such as the Social Welfare Appeals Office.