Judgment has been reserved in a High Court case taken by FLAC that calls for access to social welfare appeals decisions. The case is on behalf of a Somali woman, Ms I, who has been recognised as a refugee. She has applied to the Social Welfare Appeals Office to have her child benefit payments backdated to cover the period when she was waiting for a decision on her asylum application.
The UN High Commissioner for Refugees has stated that a person is a refugee from when s/he satisfies the conditions for refugee status, not from when s/he is recognised or declared to be a refugee. The UK courts have held that persons recognised as refugees should have their entitlements backdated to when they arrived in the country.
Ms I asked for copies of previous appeal decisions on the issue of when a refugee qualifies for benefits to help her prepare her case. The Social Welfare Appeals Office said they did not keep copies of their own decisions; when an appeal concluded, they parcelled up all the papers and sent them back to the relevant section of the Department of Social Protection, the respondent in these cases. The Department also said they did not have any database or index of these decisions.
Ms I took judicial review proceedings to try to get access to previous decisions. During the case, the Appeals Office said they had started a database of appeal decisions last year but would not make them available to appellants or the Department. They said it would not be possible to search the database for particular issues or to anonymise it to protect the privacy of the appellants.
FLAC, representing Ms I, argued that access to previous decisions is important so that claimants can know how the various welfare regulations are interpreted and so that decisions are consistent. The Supreme Court had ruled in 2007 that the Refugee Appeals Tribunal must make its previous decisions available to appellants and almost every other quasi-judicial tribunal publishes its decisions.
The Department and the Appeals Office also argued that there were too many welfare appeals and it would cost too much to publish them. FLAC responded that there was no need to publish purely routine decisions but only those that involved policy issues and interpretations of the statutes and regulations.
The case is significant because social welfare decisions are vitally important to people who are dependent on benefits. They need to know what they are entitled to and that the rules will be interpreted consistently and fairly for everybody.