Saoirse Brady is the Free Legal Advice Centers (FLAC) Policy and Advocacy Officer. Saoirse is responsible for FLAC’s policy work on social welfare law reform and is the author of One Size Doesn’t Fit All (2009), a legal analysis of the State’s direct provision and dispersal system for asylum seekers. Saoirse is also the author of the report Not Fair Enough, which makes the case for reform of the Social Welfare Appeals System.
FLAC’s report Not Fair Enough examines the operation of the Social Welfare Appeals Office and analyses it through a human rights lens to determine whether it complies with both domestic and international human rights standards. This report is published at a time when an ever increasing number of people are availing of social welfare payments and the workload of the Appeals Office is at a record high with more than 51,500 live appeals in 2011. In 2011, 42 per cent of decided appeals were successful.
The Appeals Office, established more than 20 years ago, is a vast improvement on the previous arrangement whereby unsuccessful social welfare applicants had to appeal directly to the Minister for Social Welfare. However, it still lacks the necessary independence to ensure full public confidence in the system as the Appeals Office is not an independent statutory body; it is in fact an office of the Department of Social Protection. Furthermore, Appeals Officers are civil servants usually from the same government department appointed by the Minister for Social Protection without any public appointment process. The fundamental right to social security is enshrined in a number of European and international instruments including the European Social Charter, the UN International Covenant on Economic, Social and Cultural Rights as well as instruments designed to protect certain groups including women and children. A State does not discharge its duty under international human rights law simply by having a social welfare system. It must ensure that those who need assistance can access it in a fair and timely way. As Magdalena Sepúlveda, the UN Special Rapporteur on Extreme Poverty and Human Rights has noted the State must ensure “minimum essential levels of non-contributory social protection – not as a policy option, but rather as a legal obligation under international human rights law”.
The right to fair procedures contained in Article 6 of the European Convention on Human Rights encompasses the concepts of independence, transparency, equality of arms and consistency in decision-making. However, while the Appeals Office displays some of these qualities within its limited parameters, it will never achieve full independence until it is removed from the aegis of the Department of Social Protection. In the case of Dauti v Albania in 2009, the European Court of Human Rights noted that fair procedures can be undermined where a tribunal body does not have specific rules on the term of office of members including terms for their removal. In that case the court found a breach of Article 6 as there were “no legally qualified or judicial members” and where the body is “open to external pressures”, similar to the situation of the Irish Appeals Office.
No civil legal aid is available for representation at the tribunal which raises the issue of equality of arms for social welfare appellants. Furthermore, appellants do not automatically have access to all of the information presented to the Appeals Officer in their own case unless they specifically request it under Freedom of Information legislation. The Appeals Office does not make available previous decisions which may be relevant to the appellant’s case. This not only has an impact on the equal standing of both parties where the Department of Social Protection has access to its own files and will often be aware of similar cases, it also has a bearing in the consistency of decision-making by Appeals Officers who may make different determinations on very similar facts as demonstrated in Not Fair Enough.
Overall, the social welfare appeals system is meant to afford an effective remedy and the existence of a body charged with looking at social welfare appeals does go some way towards fulfilling the State’s duty in this regard. However, the delays which many appellants experience, in many cases waiting more than a year for an oral hearing, have been described by the Chief Appeals Officer herself as “unacceptable”. Coupled with a greater reliance on summary decisions rather than decisions based on oral hearings it is not clear that in such circumstances the appeals system constitutes an effective remedy.
FLAC is calling for the Appeals Office to be made an independent statutory body which would ensure more even-handedness in proceedings. Better first instance decision-making would greatly reduce the number of appeals and an accessible database of important decisions would increase transparency as well as fairness.
Not Fair Enough can be downloaded here.