Social Welfare
Appeals Process
& Case Studies
Moya de Paor
Solicitor
Northside Community Law
Centre
April 2010
Social Welfare Appeals Office
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Social Welfare Appeals Office (SWAO) established in 1990
Deals with appeals on all social welfare benefits and allowances
including appeals from the HSE on supplementary welfare
allowance (SWA) entitlements
Staffed by Appeals Officers and headed up by Chief Appeals
Officer
SWAO is independent of Department of Social Protection (DSP)
with separate premises and staff
However SWAO is not completely independent as it is under
remit of DSP and is staffed by civil servants who are appointed
by the Minister (Sc 304 2005 Act)
Steps in taking appeal to
SWAO
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Decisions of Deciding Officers can be appealed to SWAO
Standard appeal form or letter
Time limit of 21 days – can be extended
Can request Deciding Officer to revise decision ( 27% of all
cases dealt with in 2008 by way of revision )
Appeal sent to Department for comment or clarification can be
rectified at this stage if misunderstanding by claimant or new
evidence produced
If not resolved earlier appeal proceeds – can be dealt with by
way of oral hearing or summary decision
Steps in taking an appeal
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If dealt with by summary appeal no oral hearing case decided on
basis on papers submitted – 41% of all cases in in 2008 were
dealt with by way of summary decision –20% had a successful
outcome
Request oral hearing in all cases – evidence of client significant
factor in obtaining favourable decision – 59% of cases in 2008
dealt with by way of oral hearing – 45% had a successful
outcome
Before oral hearing request file under Freedom of Information
Acts including all medical reports
Consider evidence necessary to support case – illness benefit
medical evidence letters reports from GP / consultant
Steps in taking an appeal
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Appeal hearing – Appeals Officer hears case de novo can
take all matters into account – (AO has power to take
evidence on oath and power to require witnesses to attend)
Hearings held in private and are informal
Department can be represented by an inspector / assessor if
claim related to Jobseekers or if appeal from HSE a rep from
HSE – more often Department is unrepresented
Appeal hearing focuses on reason for refusal of benefit by
deciding officer/ examines background info from file opportunity for claimant to put forward their case -any
supporting documentation - evidence of relevant witnesses
2008 SWAO received 17,833 appeals increase of 27% on
2007 – huge volume of appeals – compare other quasijudicial bodies such as Employment Appeals Tribunal for
2008 5,457 cases referred – Equality Tribunal – 996
Steps in taking an appeal
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2008 – 48% of all cases taken were successful – highlights
quality of decision making by Deciding Officers and benefit of
appealing all negative decisions
Informed by SWAO of outcome generally within 2 months
Appeal can be allowed, disallowed with reasons provided why
appeal disallowed, or partially allowed
If appeal allowed - claim can be backdated when applicant first
applied for benefit
AO report should be requested sets out detail of hearing and
rationale for decision (can rely on SC 18 of FOI Act entitled to
seek any findings on any material issues )
Steps in taking an appeal
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If appeal disallowed decision can be reviewed further under
Sc 318 of the 2005 Act by referring case to Chief Appeals
Officer who can review decision in respect of whether an AO
erred in relation to the law or the facts
This is last avenue of appeal/review – appeal on the papers
only – nature of appeal/ review and procedure need
clarification
If negative decision from review under SC 318 can appeal to
the High Court by way of application for Judicial Review or
appeal on a point of law to the High Court - scope of appeal
is limited to procedural issues – High Court no jurisdiction to
examine facts of case
No provision for legal aid for cases to SWAO under Civil
Legal Aid Act
Case Study – Rent Supplement
– Appeal Process of HSE
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Supplementary welfare allowance entitlements such as basic
SWA, rent supplement and mortgage interest supplement are
administered by the HSE through Community Welfare
Officers (CWO’s)
Decisions of CWO’s can be appealed to the HSE to their
Appeals Office there is a specific form or can write appealing
decision – not aware of specific time limit
Appeal on paper only – no provision for oral hearing – furnish
all supporting documentation to Appeals Office
Decision of Appeals Officer must set out reasons for
disallowing appeal – decision can be appealed to SWAO but
must be referred by HSE on foot of notice of appeal being
sent to them – questions re impartiality and independence of
process when required to send appeal to HSE
Case Study – Rent Supplement
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Rent supplement payment paid to person in private rented
accommodation who satisfies means test and is assessed as
having a housing need/ is in private rented accommodation and
cannot afford to meet costs of such accommodation and satisfies
habitual residency test ( basic criteria)
Specific criteria governing rent supplement and mortgage interest
supplement set out in Social Welfare (Consolidated
Supplementary Welfare Allowance) Regulations 2007 SI 412 as
amended
The rent payable must be reasonable as determined by HSE
having regard to family size location of house etc must be within
maximum rent limits
Case Study – Rent Supplement
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Case study client of Law Centre had been refused rent
supplement on the basis that she had rejected 3 offers of
accommodation offered by the local authority
Client appealed decision to HSE through Appeals Office and
was refused based on Article 9 (2) (f) of the 2007 Regulations
(now amended by 2009 Regulations) which states that if
refuse 3 offers of accommodation within 18 month period can
be refused rent supplement for 12 months
Client came to Law Centre in June 2009 who appealed
decision to SWAO
Client argued that 3 offers made by local authority did not
constitute 3 valid offers – offers made in areas where client
requested to be removed from the housing list in respect of
those areas
Case Study – Rent Supplement
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There were grounds to dispute each offer that was made –
specific requests made by client due to family reasons to be
removed from original areas of preference – ignored by housing
authority – final offer made by authority in area which was never
listed by client
No representative from HSE present at appeal no new evidence
put forward by client
Case centred on legal arguments regarding examination of local
authorities scheme of letting priorities – interpretation of 2007
Regulations Sc 9 (2) (f) which refers to “an offer of
accommodation” which in light of principles of fair procedures
and natural justice must imply that offers must be valid and fair
Case Study – Rent Supplement
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Decision to refuse rent supplement in breach of Sc 9 (2) (f) which
stipulates that 3 offers must be made with 18 months - as in
client’s case spanned 21 months
Given gravity of decision prohibited from receiving rent
supplement for 12 months and taken off housing list for 2 years client and son would be forced into homeless accommodation
very serious consequences – engaged protection under the
European Convention and Constitution
Decision – Appeal Allowed – on basis that HSE not compliant
with Sc 9 (2) (f) as outside time limit – awarded rent supplement
and re-instated on housing list
Case Study – Mortgage
Interest Supplement
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Mortgage Interest Supplement (MIS) provides an interim
measure to help with interest only portion of mortgage – if have
consolidated loan will get payment for interest portion only that
relates to essential purchase repair or maintenance of your home
To obtain MIS you must satisfy - a means test – that you were in
a position to repay the loan at the time the loan was taken out –
interest that is payable does not exceed an amount that the HSE
considers reasonable to meet your residential needs reasonable to award MIS given amount of arrears - are habitual
resident in the State – conditions set out in 2007 regulations
Case Study – MIS
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Client refused MIS by HSE on June 08 on the basis that the
mortgage interest payable per week is €331.43 was deemed
excessive to meet residential needs stated that amount of €175
per week would be reasonable
Case appealed to SWAO – argued that the interest represented
total interest of 2 consolidated loans – residential loan from 2004
and top up loan 2006 and that was seeking supplement for
interest only payable on home loan which would be deemed to
be reasonable
HSE were represented and attempted to raise issues regarding
claimant’s ability to pay home loan in 2004
Case Study – MIS
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It was argued by the HSE that client was not in a position to
repay mortgage payments in 2004 according to financial
statements
AO allowed appeal on the basis that the 2 loans were distinct
and was entitled to MIS on home loan in the amount of €133 per
week and backdated to original date of application in May 2008
HSE refused to implement the decision and grant either MIS or
backdated payments and instead sought further documents to
prove ability to pay at time of loan in 2004
Argued by Law Centre that AO decision is final and conclusive
Sc 320 of 2005 Act
Case Study- MIS
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Also argued CWO acting ultra vires their powers in requesting
further information and threatened judicial review proceedings
CWO awarded MIS and backdated payments
Guidelines on the Administration of the Mortgage Interest
Supplement (MIS) Scheme June 2009
Discretionary provision under Article 38 of 2007 regulations
“Notwithstanding the foregoing articles, the Executive may award
a supplement in any case where it appears ….that the
circumstances of the case so warrant”
Issues for Discussion
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Independence of SWAO – interests of integrity of system,
transparency and to provide confidence to those using
system should be removed entirely from the remit of the
Department – engage European Convention- Article 6
Independence of Medical Assessors – employed by the
Department- cursory medical interview – no specialist
expertise –out of 17,833 cases - 8,000 involved illness
benefit type claims – recommended review - research 2005
No decisions published by SWAO – no precedents available
there are case studies included in annual reports and
published on the website not sufficient and in no way
remedies the fact that decisions are not published
Research of Law Centre “ The Social Welfare Appeals
System; Accessible & Fair ?” completed in 2005 called for
publication of decisions
Currently all claimants operating in vacuum not aware of
decisions on same issues – not aware of relevant factors
intrinsic to decisions - no indication of consistency or quality
of decision making by AO
Issues for Discussion
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Refugee Appeals Tribunal challenged for their failure to publish
decisions – Supreme Court decision Atanasov v Refugee
Appeals Tribunal & Ors 2006 Court held that the refusal of the
RAT to make available to the applicant relevant tribunal
decisions was in breach of the applicant’s rights to fair
procedures and natural and constitutional justice
Relates to the rights of those taking cases in advance of a
hearing not a general right to obtain all decisions
Relevant precedent for SWAO
Casebase operated by Law Centre
Issues for Discussion
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Representation no right to representation
Decision to allow claimant representation is at discretion of AO –
should be allowed as a right – in practice representation is
allowed
No provision for legal aid under Legal Aid Act
Blanket exclusion may engage European Convention –
Article 6 – Access to Court – Airey principles
Article 47 of the Charter of Fundamental Rights provides right to
legal aid to those who are exercising a community right – Legal
aid shall be made available to those who lack sufficient resources
in so far as such aid is necessary to ensure effective access to
justice