The FLAC Casebook – Keeping them in Suspense: How confused social welfare decision-making can interfere with claimant’s right to appeal
The FLAC Casebook provides updates about FLAC’s ongoing case work to highlight notable outcomes and to provide an insight into how FLAC uses litigation in the public interest as a mechanism for achieving its broader aims.
By Christopher Bowes BL
A social welfare casefile opened by FLAC in September 2020 illustrates the important right of claimants to seek a written decision from a Deciding Officer where they have been deemed to be temporarily disqualified from receipt of a social welfare payment. The case also highlights the issues which may arise for claimants when decisions regarding their entitlement to social welfare are made in a manner contrary to statute and without regard to their right to fair procedures. Particularly, decisions made in this manner can deprive claimants of their statutory right to appeal.
Background
In summer 2020, FLAC’s client informed the Department of Social Protection of her intention to visit family abroad. She notified the Department of this upcoming absence from the State in accordance with the Department’s “Holiday Rule” procedure, which she had been notified of when her claim was granted. Her local Intreo Office responded by stating that the Department’s Holiday Rules no longer allowed for the payment of her claim during an absence from the State to a “non-green list” country. She was further advised that her claim would not be payable during the fortnight following her return on the basis that she would not satisfy the “availability for work” criteria during that period.
Action taken by FLAC
In August 2020 (having not received her payment while she was abroad or during the fortnight following her return), she contacted FLAC’s telephone information line and sought advice as to how to challenge the Department’s actions. She was referred to FLAC’s legal team who had previously raised concerns in relation to the new “Holiday Rules” introduced by the Department on foot of the Covid-19 pandemic, which applied to claims for Jobseekers payments, Supplementary Welfare Allowance payments and the Covid PUP. She instructed FLAC to lodge an appeal to the Social Welfare Appeals Office on her behalf.
However, at this point, FLAC’s client had never received a formal decision in relation to the cessation of her claim. FLAC wrote to our client’s local Intreo office and sought a copy of any decisions made in relation to her claim. That office responded by stating that our client’s claim had been “suspended” during the period concerned and that this was “not a formal decision and therefore not subject to appeal”. Documents released under FOI showed that the client’s claim was not subject to an investigation by the Department, and that the supposed suspension of her claim on an administrative basis was being treated as a final decision. FLAC wrote to the Social Welfare Appeals Office who stated that they could not accept an appeal in relation to an action which is “administrative in nature”. They also stated that a formal letter of decision from a Deciding Officer is necessary to lodge an appeal.
The Law
The Department’s approach to the matter conflated the power of Deciding Officers to make a formal decision to disqualify a claim, and the power of Executive Officers to suspend a claim pending the completion of an investigation (where a formal decision of a Deciding Officer follows the investigation).
Section 300 of the Social Welfare Consolidation Act 2005 gives Deciding Officers jurisdiction in relation to all decision concerning entitlement to payments. A disqualification can only be put in place by way of a formal, appealable decision under that section.
There is limited scope under section 334 of the 2005 Act for the Minister to direct for the payment of a claim to be suspended where “a question has arisen” as to whether the conditions for receipt of a payment “are or were fulfilled” for such a period until that “question has been decided”. This function is usually carried out by Executive Officers (who are empowered by section 289 of the 2005 Act to carry out certain administrative functions in relation to claims as the Minister may prescribe). Such suspensions are not subject to appeal but are, by their nature, temporary.
Where a claimant is subject to any process that may lead to the cessation of an ongoing claim, the Courts have recognised that the claimants right to fair procedures must be upheld by the Department. For example, in State (Hoolahan) v Minister for Social Welfare (Unreported, High Court, 23 July 1986), Barron J quashed a revised decision which disqualified a claimant from receipt of a payment where facts on which the decision had been based had not been brought to the claimant’s attention. He held that “[the claimant] should know fully the extent of the case being made against her and that no decision should be made until she has been given proper opportunity to deal fully with a case”.
In the case of FLAC’s client, it was clear that the Department had formed a view that she was not entitled to her payment during the period concerned. However, instead of taking a formal decision to disqualify her claim during that period (and issuing a letter of decision which is required for an appeal to be lodged), the Department had mistakenly treated the cessation of her payment as a suspension.
Outcome
FLAC wrote to the Department and set out that our client’s claim had been “suspended” on an administrative basis in circumstances where the 2005 Act only allowed for any final decision in relation to her entitlement to be made by a Deciding Officer. As well as being contrary to the legislative regime, the process followed by the Department had infringed upon her right to be subject to fair procedures and her right to pursue an appeal. The matter was subsequently referred to a Deciding Officer who issued a revised decision in relation to our client’s entitlement during the period when her claim had been abroad and in the two weeks following her return. FLAC subsequently lodged an appeal of that decision to the Social Welfare Appeals Office which is currently pending.
As noted above, the case illustrates the important right of claimants to seek a written decision from a Deciding Officer where they have been deemed to be disqualified from receipt of a social welfare payment. Claimants in receipt of any social welfare payment under the 2005 Act are entitled to such decisions in respect of any period of disqualification, even in circumstances where the cessation of their claim is temporary. It is then available to them to lodge an appeal in respect of the decision to disqualify them and/or to seek an internal review of the decision