Social welfare appeals process not fit for purpose

Opinion:With a national unemployment rate of 14.6 per cent - the fourth highest in the EU - it is no surprise that more people are turning to the social welfare system for basic assistance.

It is also unsurprising that, with little or no other means of income, when they are refused a payment people will appeal the decision. In recent years, the number of social welfare appeals has more than doubled, to a high of 51,515 live appeals in 2011.

Given the importance of the system and the growing number of people affected, shouldn't we be concerned if the appeals process is not meeting adequate standards of fairness?

Free Legal Advice Centres (Flac) recently published an analysis of the labyrinthine appeals structure and process. The report, Not Fair Enough, finds the appeals process does not meet international and domestic legal requirements concerning independence and transparency and does not offer an effective remedy, given delays and a lack of even-handedness in the system.

The report argues that independence is vital for any appeals body and being seen to be independent is just as important. But the social welfare appeals office is not an independent body.

It is an office of the Department of Social Protection, the body whose decisions are being appealed. And the appeals officers are civil servants of the department, appointed to the appeals office by the Minister, and who may be transferred back to another section of the department.

While the appeals office cites the high rate of success on appeal as proof of its autonomy from the department, an alternative view is that this really indicates problems at the heart of the welfare system. Poor decision-making and bad administrative practice, coupled with increased pressure on the department, have helped push up the appeals rate.

It is no coincidence that almost a third of complaints to the Office of the Ombudsman in 2011 were about the Department of Social Protection. The consistently high success rate on appeal also suggests that social welfare applicants, who often do not understand the system, should be helped to make better applications from the start. This would avoid wrong decisions at first instance - a substantial waste of time and resources - and ultimately reduce the need for so many appeals.

A further problem is the lack of legal assistance available to people for appeals, despite the complex areas of domestic, EU and human rights law involved in many cases.

Civil legal aid is ruled out for appeals. Appellants are on an unequal footing right from the start, as they do not have the same access to information on their case unless they specifically request their file; often, people do not know that they have a higher chance of success if they request an oral hearing.

Previous decisions of appeals officers, which might help applicants to understand how the rules are applied, are not generally published. It means that there is no level playing field in the appeals system.