This is a guest article by FLAC Senior Solicitor Michael Farrell.
High Court quashes bid to limit social welfare reviews but Department moves to change the law
Mr Justice Gerard Hogan in the High Court in November overturned a refusal by a Social Welfare Appeals Officer to review an earlier decision by an Appeals Officer.
In a case called CP v Chief Appeals Officer, Social Welfare Appeals Office and the Minister for Social Protection (click here to read a summary of the decision in this Bulletin), Judge Hogan rejected a claim by the Social Welfare Appeals Office and the Department of Social Protection that the right to have a decision reviewed by a Deciding Officer or an Appeals Officer only applied where the applicant was already in receipt of a social welfare payment.
The Department had argued that this right did not apply where the applicant’s claim had been refused. Judge Hogan said the Department had “failed to operate the section in the manner which was plainly intended by the Oireachtas” and ordered the Social Welfare Appeals Office to re-consider the application for a review.
With remarkable speed the Department drafted amendments to the main Social Welfare Act to support their position, tacked them onto a Pensions Bill that was already going through the Oireachtas, and got them passed and signed into law by Christmas with minimal debate. The amendments were highly technical and there was no time for, or even attempt to have a public consultation or debate on the issue.
It is unclear exactly what the effect of the amendments will be except that they may cut off a simple and fairly quick way of getting a social welfare decision changed instead of having to use the notoriously slow appeals process. And the Department may be seeking to avoid having to pay substantial arrears to claimants in some cases. The Chief Appeals Officer told the court in the CP case that allowing reviews of negative decisions would mean that there would be “no limit to the backdating of the claim… as the claim would not be regarded as late”. She said this would have “serious administrative and financial implications for [the] Department”.
It is somewhat surprising in the circumstances that the head of the quasi-judicial Appeals Office, which is intended to be completely independent of the Department, should be expressing such concern about the effect of reviews of claims on the Department, which is the respondent to such claims.
It must be stated, however, that following the Government’s amendments, an unsuccessful social welfare claimant would still be entitled to appeal to a Social Welfare Appeals Officer, and, if necessary, to the High Court on a point of law. The real significance of the amendments may be that review decisions are not subject to any time limit whereas an appeal should be lodged within 21 days of the decision appealed. The 21-day time limit is not rigorously enforced at the moment but it would be unlikely to extend as far back as the review procedure could.
It must also be said that the ban on review applications following negative decisions would not apply where new facts or evidence are forthcoming but only where there are changes in circumstances such as the claimant’s legal status. And it is not clear how the Department intends to distinguish between new facts and changes in circumstances.
It is not clear why the Department of Social Protection rushed to get these amendments passed so quickly and with virtually no debate. The previous system had not caused any crisis. There does not appear to have been any reason why the Department could not have published their proposed amendments and their reasons for proposing them and allowed time for a proper discussion in the Oireachtas and among people working in the social welfare area, instead of rushing them through the Oireachtas in the run-up to Christmas.
Perhaps the most important point about this matter is that it is highly undesirable to introduce complex changes in social welfare provisions, whose consequences may be unforeseen, without explaining clearly what they are meant to achieve and having a public debate about them.