Social Welfare Appeals Office Review
Introduction
Comhairle welcomes the review of the Social Welfare Appeals Office. The need for statutory independent appeals and complaints systems for all state services is a consistent theme of Comhairle (and formerly NSSB) submissions to government.
We understand that this review is being undertaken with a view to enhancing future customer service, efficiency and effectiveness of the SWAO. This requires that the review also addresses the context in which the SWAO operates. While it is independent, it is nevertheless an integral part of the social welfare system. It complements the decision making system which involves Deciding Offices and the further appeals system provided by the Ombudsman and ultimately by the courts. The review's assessment of the SWAO should draw out the implications for the decision making system and must try to ensure that the need to make further appeal to the Ombudsman's office and the courts is reduced.
In this submission we identify a number of areas which we consider the review should address in order that the system may be more effective in ensuring citizens' rights and ensuring that the system is not only operating fairly and equitably but is seen to do so.
Independent appeals and complaints systems
Comhairle regards statutory independent complaints and appeals machinery as an essential requirement of a customer focused public service. Recent pre budget submissions as well as submissions on the Health Strategy and to reviews of services such as the Department of Social, Community and Family Affairs review of the free schemes and of the Supplementary Welfare Allowance scheme have all included reference to the need for such independent appeals systems. For example, the Comhairle Pre Budget submission, 2001 included the following:
Absence of formal appeals system
There are a number of areas of service provision where no formal appeals systems is available - for example, for the non-statutory DSCFA schemes and for medical cards. The introduction of such systems is long overdue.
Complaints Procedures
As well as formal appeals procedures, there is a need for complaints procedures to be available to citizens who feel they have been treated unfairly or discourteously. Initially, complaints procedures should be established in the DSCFA and in the health boards. There should be some external element to these procedures and their existence should be widely advertised.”
The Social Welfare Appeals Office
Comhairle's interaction with the SWAO
Comhairle registers and supports the national network of over 85 Citizens Information Centres around the country. The work of CICs includes helping people make their case to the appeals system. It is likely that this role will expand considerably in the coming years as the overall advocacy role of Comhairle is developed. In its national training programme, Comhairle runs specific modules on Social Welfare Appeals and the representation/advocacy role of voluntary organisations providing information and advice services to the public.
Strengths
The strengths of the SWAO are that it gives social welfare claimants a statutory right of appeal and it operates in a reasonably informal non legalistic manner which respects the individual's rights while not being unduly restrictive about issues such as time limits or rules for the service of documents.
We consider that the flexible procedures which have been adopted are to be commended. In particular, the reasonably flexible approach to time limits and to the provision of documentation and the possibility of the Deciding Officer reviewing the initial decision when an appeal is lodged are desirable customer friendly features and should be retained.
Issues to be addressed
The issues which we consider that the review should address are:
- the need for a separate complaints system including the desirability of an internal/external review system
- the exclusion of certain social welfare benefits and administrative schemes from the appeals system,
- the different arrangements for Supplementary Welfare Allowance than for other benefits and the exclusion of some SWA payments
- time delays in hearing appeals and the overall accessibility of the system
- the discretion which Appeals Officers have in relation to oral hearings
- the role of assessors
- representation and advocacy for appellants
- the transparency of the system including the publication of decisions
- the continued operation of the Social Welfare Tribunal
- the increasing number of appeals and the high success rate and the implications of these issues for the initial decision making system
- the high rate of subsequent appeal to the Ombudsman
- the powers not being used by the SWAO
A Complaints System
The SWAO is an appeals system and should remain that. It is not the forum for addressing complaints about matters such as delays in dealing with applications for payment, discourtesy, failure to provide appropriate information to claimants and related complaints. There should be a formal system for dealing with such complaints.
The review should examine how such a complaints system could be established. It could involve an internal/external review system along the lines operated by the Revenue Commissioners. It could mean that the present Deciding Officer review system which is operated automatically in some sections of the DSCFA would be formalised and apply throughout. We consider that having an external element to the complaints system is likely to lead to greater confidence in it and it is likely to be more successful. A well functioning complaints system could lead to a reduction in the number of appeals going to the SWAO as it might facilitate claimants in getting a better understanding of the reasons why they are dissatisfied and it could bring relevant information to the attention of the Deciding Officer.
Schemes excluded from the SWAO remit
There is a number of social welfare schemes excluded from the remit of the SWAO. This is mainly due to the fact that these schemes are not on a statutory basis. Comhairle has already argued that these schemes should be on a statutory basis but that is not the issue in this submission.
We consider that the appeals system should be extended to the following schemes even if they are not put on a statutory basis: household benefits and other free schemes, the award of credits and back to work/education schemes.
The general principle that a formal appeals system should be available for all services applies.
In certain circumstances, credits may be just as important as paid contributions from the point of view of qualifying for benefits. We are concerned that the award of credits is not sufficiently transparent. The absence of a formal appeals system could potentially lead to very considerable injustice and the loss of significant benefits.
SWA Appeals
Supplementary Welfare Appeals should be on exactly the same basis as other appeals. The internal health board appeals system is not on a statutory basis and has never enjoyed the level of confidence which the SWAO enjoys. Reports from CICs make frequent reference to the inadequacy of the health board appeals systems. SWA claimants should be able to appeal directly to the SWAO in the same way as all other social welfare beneficiaries.
At present, the SWAO may only deal with appeals in relation to the basic SWA weekly payment and rent and mortgage supplements. It is difficult to see the justification for the exclusion of other SWA payments.
Time delays and accessibility
Feedback from CICs provides evidence of long delays experienced by certain claimants waiting for appeals to be processed, in some cases up to twelve months. Particular difficulties are encountered by claimants in rural areas awaiting oral hearings. The review should also address access issues for people with disabilities.
Oral hearings
Discretion in relation to oral hearings
The law allows the Appeals Officer considerable discretion in deciding whether or not to have an oral hearing of an appeal. In practice, about 60% of appeals involve an oral hearing. We accept that an oral hearing is not necessary in all cases. However, the criterion set out in the appeals regulations is not sufficiently clear or precise not does it cover all the considerations that should arise. The decision about an oral hearing should not be confined exclusively to consideration of whether or not it is possible to make a decision without such a hearing. The need for justice to be seen to be done, the need for the citizen to have his/her say, the need to enhance the transparency of the system are all relevant factors.
We are not suggesting that all the rules about oral hearings should be set out in legislation but this review provides an opportunity for an assessment of the desk appeal and an examination of cases where an oral hearing was not held. A sample of such cases should be examined to see if the decision not to have an oral hearing was the fair and appropriate decision. The review could also examine whether or not there is any correlation between failure to have an oral hearing and subsequent appeals to the Ombudsman or requests for further reviews.
It may be that the SWAO should have a set of criteria by which to decide whether or not an oral appeal is appropriate. Further elaboration in legislation may or may not be desirable but the appeals office could set out more precise and transparent guidelines.
Role of Assessors
The review should examine the role of assessors in unemployment appeals. Assessors are not required in other appeals (and need not always be present in unemployment appeals). The assessors have no decision making function. The review could examine a sample of files to see whether their presence made any difference to the outcome. Assessors represent employers and employees - in theory to provide information on the employment situation in a region. It would seem that FÁS would be in a better position to do this. If the system is to be continued, perhaps it would be appropriate to have representatives of unemployed people included.
The general principle should be that all appeals are treated in the same way. If it is considered that the presence of assessors improved the quality of the appeal hearing or resulted in improved administration of justice for the appellant, then there is a strong argument for having assessors present at all appeals.
Representation/Advocacy
The relatively informal, non legalistic approach adopted by the SWAO is a strength of the system. It is important that individuals be able to present their own case - with the help of family, friends or advocacy bodies such as CICs if they wish - without the need for legal advice or professional advocacy.
Whilst we do not wish to see the appeals system become one in which people feel that they must be legally represented it is however important that appellants have access to adequate representation and expertise to present their case when required and there are certain cases where formal advocacy may be necessary or desirable. The Review should consider the adequacy of the system in facilitating people to articulate their case and the extent to which it is user friendly. The user perspective would be most valuable in this regard. This is particularly important because of the very diverse range of skills and abilities of people engaging in self-advocacy.
The Review should also examine how the independent information, advice and advocacy sector, including CICs, could enhance the appeals process so as to ensure equality of access and treatment.
Transparency of the Appeals System
We consider that there are a number of ways in which the transparency of the appeals system could be enhanced. (This issue is also addressed under the heading of oral hearings above.)
Reasons for Decisions
The appeals regulations require that Appeals Officers give reasons for their decisions when the decision does not favour the appellant. We consider that reasons should also be given where the decision is favourable. This would result in greater clarity for the appellant and in better guidelines for the Deciding Officers.
Publication of Decisions
The decisions of Appeals Officers should be publicly available. At present, a small number are published in the SWAO Annual Report and a number of others are referred to in the DSCFA Section 16 Manual. The published statistics give information about the issues which arise in appeals. Citizens are entitled to know what considerations are taken into account in deciding for example, whether a person in a specific area is considered to be available for work, whether a person's incapacity is such that a carer may qualify for a Carer's Allowance or how the Appeals Officer weights the conflicting claims of the Department's medical assessor and the individual's own doctor.
Meetings with social welfare officials
The SWAO Annual Report for 2000 points out that the appeals officers held meetings with social welfare officials and FÁS officials in order to get a better understanding of the policies being pursued by them - in relation, in particular, to availability for work. Such meetings are reasonable and probably helpful but they should be counterbalanced by meetings with representative groups of unemployed people. Similarly, meetings with carers' representatives and one parent family groups may be appropriate.
Social Welfare Tribunal
The Social Welfare Tribunal was established at a time of considerable industrial strife to deal with contentious issues about strikes and lock outs. It is questionable if it should be continued. In principle, it is difficult to justify a different appeals system for one issue. The failure to qualify for unemployment benefit or assistance should be treated in the same way regardless of the cause of the failure.
While the number of cases going before the tribunal in recent years has been very small, it might be worthwhile to examine them and see how the rulings differed from those of the Appeals Officers.
Numbers and Success rate of Appeals
Increase in numbers of appeals
There has been a substantial increase in the number of appeals in recent years (as outlined in the annual reports). Some but not all of the increase is due to new schemes. There is a number of possible explanations for the increase, including greater awareness amongst the public regarding the right to challenge decisions of public bodies, increased confidence in the appeals system, better and more detailed information being given about the initial decision or more harsh decision making at the Deciding Officer level. It may not be possible to establish the precise cause but the review should attempt to establish the general causes.
Reasons for Initial Decision
The process of giving information to claimants about why their claim failed or was not granted in full has improved dramatically over the past 10 years. Nevertheless, the review should examine if this process could be improved. It may be that giving fuller and more complete information in a more understandable format would expedite the whole process.
Internal review
Some sections of the DSCFA invite claimants to seek a review of the claim before going to the formal appeals process - this seems to be quite effective in removing cases from the appeals system. The review should examine whether such an arrangement should be used throughout the Department or whether such reviews should be automatically carried out when an appeal is made.
Decisions being made by the appropriate people
The review should also examine whether certain decisions are appropriate to either Deciding Officers or Appeals Officers. For example, in the case of Carer's Benefit/Allowance, they have to decide whether the person being cared for is in need of the specified level of care and attention. This is a decision that is made by doctors in the case of nursing home subventions. The review should examine whether there should be some involvement in such decisions from the Health Boards or the Department's own Medical Assessors.
The overall medical assessment process in relation to disability payment appeals requires attention, in particular the question of access to independent medical assessment.
Success rate
In the year 2000, 43% of SWAO cases had favourable outcomes for applicants (48% in 1999). The review should examine whether or not this is a very high success rate. There are virtually no comparable appeals system within Ireland with which to compare. The Revenue Appeals system and their Internal/External review systems are the closest but are not directly comparable. The review should examine social security appeals systems in other countries to see if the success rate is comparable.
The review should closely examine why these cases succeeded including the impact of having representation at oral hearings and see what implications this has for the initial decision making procedures.
Further Appeal to the Ombudsman and the Courts
People who have used the SWAO may pursue their case further at the Ombudsman's Office and ultimately to the courts. Complaints to the Ombudsman in relation to the DSCFA, although decreasing, still constitute a significant number of cases each year.
The review should examine some of the cases which came to the Ombudsman and, in particular, those cases in which there was a favourable outcome to see what lessons can be learned.
There are relatively few court cases on social welfare issues but these should be examined to see if the appeals system was used and, if so, how it fared in the cases.
Powers not being used
The Appeals Officers have powers which do not seem to be used - for example the power to refer a case to the High Court for decision. Deciding Officers have the power to refer a case to the Appeals Office for decision - again, this power does not seem to be used. The review should examine whether there were circumstances in which the use of these powers would have been appropriate and, if not, whether their continued existence should be questioned.
