Committee hears how inconsistent social welfare decisions particularly affect those on low incomes

6 February 2008

(You can access the full submission in our publications section.)

The inconsistencies between the decisions of different officials exacerbates the hardship imposed on very low income families by the so called "Habitual Residence Condition" according to FLAC's director general Noeline Blackwell.

Addressing the Joint Oireachtas Committee on Social and Family Affairs at Leinster House today on the operation of the condition which denies welfare payments to people who cannot meet a number of residence conditions, FLAC said that different decision makers seemed to use different criteria, some of which were out of date. As a result, some people who were due payments were not getting their entitlements.

FLAC, a voluntary organization which campaigns for equal access to justice for all, said that guidelines needed to be improved and that not all officials were working with up to date information.

They pointed to cases where people entitled to two benefits were given one, but refused another because of the application of the habitual residence condition. "As recently as last Monday, we were dealing with a person who was going to have to give up her home, because while she had satisfied the habitual residence condition for one benefit, a different officer decided that she did not qualify for a second payment. Forcing this woman to make an appeal is a waste of state resources, but more than this, it results in a family losing its home" according to Blackwell.

FLAC also criticised the long delays in hearing appeals. It stated that there are often long delays in getting any decision. This then is compounded by the time lags in hearing appeals. Some people who were wrongly denied benefits have had to wait for up to a year for a hearing. Even though arrears are paid if there is a successful appeal, this is not much help to vulnerable applicants who struggle to make ends meet while they are waiting for the wrong decision to be rectified. "More resources are required for the Social Welfare Appeals Office".

As part of its ongoing campaign, FLAC again criticised the imposition of the habitual residence condition on Child Benefit. Ms. Blackwell said that the government was committed to a universal child benefit in its National Children Strategy 2000-2010 but it was not delivering this basic right for children. She called on the Committee to recommend the reinstatement of Child Benefit as a universal benefit.

Notes for editors:

FLAC (Free Legal Advice Centres) is an independent human rights organisation dedicated to the realisation of equal access to justice for all. It campaigns through advocacy, strategic litigation and authoritative analysis to contribute to the eradication of social and economic exclusion. Its focus on the habitual residence condition comes through its work for social welfare law reform For full details of this submission click here.
FLAC and officials from the Department of Social & Family Affairs have been invited to make presentations to the Joint Oireachtas Committee on Social & Family Affairs at 2.30 pm on Wednesday 6 February 2008. The Committee is chaired by Mr. Jackie Healy-Rea, TD.
The habitual residence condition was introduced on 01 May 2004, on the accession of ten new countries to the European Union to counter a perceived threat of "welfare tourism" where citizens of the newly acceded countries were expected to travel to those countries which were permitting entry and only apply for welfare payments. In reality, the threat never materialised.
Under the provision one must prove, regardless of nationality, that they are 'habitually resident in the state at the time of making an application' for a social assistance payment or Child Benefit. The condition can be applied to Unemployment Assistance, Old Age (Non-Contributory) and Blind Pensions, Widow(er)'s and Orphan's (Non-Contributory) Pensions, One-parent Family Payment, Carer's Allowance, Disability Allowance, Supplementary Welfare Allowance and Child Benefit.
Initially, applications were refused if an applicant could not prove habitual residence for the previous 2 years or more. It has now been modified. The Social Welfare & Pensions Act 2007 sets out 5 criteria that must be taken into account:
1. length of residence;
2. length of absence;
3. pattern of employment;
4. main centre of interest; and
5. the future intentions of the applicant.
Child Benefit was a universal benefit which was available for all children in the State prior to 1 May 2004. Now, approximately 3,000 of the poorest, most vulnerable children in Ireland are denied the payment because of the habitual residence condition. These include the children of asylum seekers and those seeking permission to reside in the State. Such applications can take years to decide.
Decisions about the habitual residence condition are made by social welfare officers called "deciding officers" of the Department of Social & Family Affairs in various units throughout the country. According to the information available to FLAC, the lack of consistent application of the guidelines leads to different decisions depending on the person who takes the decision. Decisions of deciding officers are first of all subject to an internal review within the same office, and then to appeal by the Social Welfare Appeals Office.
The Social Welfare Appeals Office is described in Department of Social & Family Affairs leaflet SW56. It states "The Social Welfare Appeals Office operates independently of the Department of Social and Family Affairs. It is headed by a Chief Appeals Officer and has its own Appeals Officers who make the decisions. The Appeals headquarters are at D'Olier House in Dublin and Appeals in the Dublin area are held there. Appeals Officers also visit other cities and large towns throughout the country to keep to a minimum the distance that you may have to travel for an appeal hearing"
The National Children Strategy 2000-2010 states: "Child benefit is an important means of reducing child poverty and supporting the welfare of children, given its universal coverage and its neutral relationship to both the employment incentive and decisions regarding family formation. Significant increases have been allocated directly to support and maintain children in Ireland. Child Benefit will continue to be increased over the lifetime of the Strategy". (Objective G, P.63 http://www.omc.gov.ie/documents/Aboutus/stratfullenglishversion.pdf
Ireland ratified the UN Convention on the Rights of the Child on 28 September 1992.
The habitual residence condition has nothing to do with the rights of EU workers in Ireland to receive child benefit for their children who will often remain in the worker's home state. The two matters are sometimes confused. In contrast to the HRC which denies Child Benefit to children living in Ireland, EU law has always required Ireland to pay Child Benefit to EU workers in Ireland who have children, even if those children are living in another EU State. This is the same for Irish workers in other EU states who are entitled to receive Child Benefit for their children living in Ireland and not with them. This is because Child Benefit is considered a family payment under EU law and as such this is a separate issue from the HRC