Government losing golden opportunity to reform sub-standard appeals system

8 November 2012

Legal rights group FLAC (Free Legal Advice Centres) says the government has "wasted a golden opportunity" to implement some simple changes to vastly improve a key welfare structure by voting down a motion from Independent senators in the Seanad last night.

 On 24 October, FLAC released its report on reforming social welfare appeals system, entitled 'Not Fair Enough'. Received with much interest by legislators, it led to the independent Senators group in the Seanad putting forward a motion based on the report's findings. Senator Katherine Zappone proposed and Senator Fiach MacConghail seconded the motion, which was voted on last night (Wednesday 7 Nov).

 There was a two-hour debate around the motion, which put forward some very reasonable and practical proposals to address some of the flaws in the appeals system. This included amending the appeals form to include the option to request an oral hearing, better resourcing at initial decision stage to maximise cost-effectiveness and reduce unnecessary appeals, and making significant previous decisions available to appellants similar to other similar quasi-judicial bodies.

 "FLAC's recommendations are not meant to be antagonistic - they are intended to help bring the appeals system to a minimum standard on issues like fairness, independence and transparency. We undertook our analysis of the appeals system based on our experience with helping people to bring appeals, where we learned just how unnecessarily complex, opaque and unbalanced the process is," said Saoirse Brady, FLAC Policy and Advocacy Officer, who authored the report and helped draft the Independents' motion.

 However, while the government Senators who spoke all expressed sympathy with the Independents' motion, and voiced their own concerns about the appeals system, they voted against it. Minister for Social Protection, Joan Burton TD, who was there to answer the motion, was hard-pressed to explain why she did not support making any changes to a system that is clearly not working properly.

 "It would seem a shame that the sensible and practical measures suggested by the Independent Senators - who have no political axe to grind and should be commended for their initiative - are being ignored for the sake of politics," commented Ms Brady.

 "We recognise that resources are tight, but let's remember that the job of the Appeals Office as a quasi-judicial structure is to decide whether a payment has been rightfully or wrongly withheld, in a fair and balanced way. It must not be swayed by policy direction or how much it will cost the Exchequer - its job is to uphold the entitlements and fundamental rights of those who seek redress where they have been wrongly refused."

 FLAC and Northside Community Law Centre had given a joint briefing on the issues around the social welfare appeals structure earlier yesterday in the Leinster House AV Room.

  #notfairenough

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Editors’ notes:

1. FLAC (Free Legal Advice Centres) is a human rights organisation which exists to promote equal justice for all. FLAC is an NGO that relies on a combination of statutory funding, contributions from the legal professions and donations from individuals and grant-making foundations to support its work. FLAC offers basic legal information through its telephone information line, its publications and website and free legal advice through its network of 80 volunteer evening advice centres. It also campaigns to reform the law on a range of issues including unfairness in social welfare law, personal debt, public interest law and civil legal aid.
2. The Not Fair Enough report and an Executive Summary are available to download as PDFs from the FLAC website, as well as a briefing note, a checklist of human rights principles for the social welfare appeals system and presentations on the appeals system from the Ombudsman, the Law Centre Northern Ireland and the Chief Appeals Officer.
3. The text of the motion is available online at http://bit.ly/TvGtT8. The transcript of the Seanad session is available at http://bit.ly/RZzUGL.
4. FLAC also has three guides to aspects of the social welfare system which are free to download from its website:

• Checklist for applying for a Social Welfare payment: http://bit.ly/apply4SW
• Guide to making a Social Welfare Appeal: http://bit.ly/SWappl_guide
• Guide to Habitual Residence Condition: http://bit.ly/HRC2012guide

1. Key issues raised in 'Not Fair Enough' include:

• Lack of actual and perceived independence of the Appeals Office as it remains a section of the Department of Social Protection.
• Appeals Officers are civil servants appointed by the Minister for Social Protection without any public appointment process based on merit.
• The increased workload of the Appeals Office and the impact this is having on processing times; also leading to greater reliance on summary decision-making to reduce waiting times despite a higher success rate when an oral hearing is held.
• First-instance application processes and decision-making need to be improved to prevent unnecessary appeals and ensure that people access their rights in a fair and timely way.
• Inequality of arms or an imbalance of fairness where the appellant has no assistance or representation.
• Lack of transparency around the social welfare appeals process including lack of access to relevant information such as the Deciding Officer’s submission made prior to the Appeal’s Officers decision.
• Appeals Office does not publish its decisions which can leave the appellant at a disadvantage where an established point of law or policy has already been decided on clarified in a previous appeal.