Ombudsman Emily O’Reilly has found that decisions by the HSE involving an asylum seeking mother and her two daughters “were taken without proper authority, were improperly discriminatory and were contrary to fair or sound administration.”
She found the decisions “caused significant adverse consequences over an extended period” for the woman and her two daughters and that the HSE “had no proper basis for its actions”.
The HSE has accepted Ms O’Reilly’s findings and agreed to pay the woman arrears of €11,882, and a “time and trouble” payment of €3,000.
The Ombudsman’s report, Appeal Overruled: A failure to Provide Basic Income for a Family Seeking Asylum, followed her investigation into the failure of the HSE to implement a decision of the Social Welfare Appeals Office to award Supplementary Welfare Allowance (SWA) to the woman who sought asylum here.
The Ombudsman's report says Ms Kileni (not her real name) came to Ireland in 2007 with her two daughters as an asylum-seeker.
They were placed in what is known as "direct provision" accommodation operated by the Department of Justice and Equality.
“Direct provision provides food and shelter to asylum seekers while their claims for refugee/other status are being processed.
“They are also paid weekly allowances of €19.10 per adult and €9.60 per child,”the report explains.
It said in August 2008 the family had left direct provision in the west of Ireland to stay with a friend in Dublin.
Ms Kileni moved because of the deteriorating mental health of one of her daughters and because conditions in her direct provision hostel were unsatisfactory in view of her daughter’s circumstances. The 15-year-old girl was later hospitalized following a suicide attempt.
After discharge from hospital she was placed in foster care on a voluntary basis. Her mother, Ms Kileni, applied for supplementary welfare assistance in November 2008. It was refused.
She appealed the decision to the HSE and was again refused. Then she appealed to the Social Welfare Appeals Office. She was allowed the appeal.
However, the relevant Superintendent Community Welfare Officer queried this. He decided to pay Ms Kileni at the rate of €19.10 per week for herself and €9.60 per week for the daughter then living with her. This was the rate payable to asylum seekers in direct provision.
The HSE corrected this position only following the intervention of the Ombudsman’s Office. The appeals officer’s decision was finally implemented in January 2011 when an arrears payment of €11,882 was paid to Ms Kileni, 13 months after the success of her appeal.
Following this the HSE reviewed Ms Kileni’s entitlement and found her to be ineligible for SWA, pending the outcome of an appeal. It paid her at the reduced rates applicable to asylum seekers living in direct provision.
Months later, following a separate appeal, Ms Kileni had her SWA entitlement restored.
The Ombudsman observed: “It is quite rare, in the experience of the Ombudsman’s Office, that a decision of an Appeals Officer would not be implemented in full and without delay. In law, the decisions of an Appeals Officer are ‘final and conclusive’.”
She continued “there is a procedure for querying appeal decisions (which does not allow for the withholding of payments while a decision is being queried) but it was not followed in this case.”
She said “it was also important to consider the consequences of the HSE’s actions on the complainant and her family.”
Ms O’Reilly continued “an obvious consequence was extreme impoverishment for both Ms Kileni and her eldest daughter (a Leaving Certificate student at the time).
“Another, far-reaching consequence was that the failure to provide the family with an income meant it was not possible for Ms Kileni’s daughter, who was in foster care, to be re-united with her family.”
The HSE defended its actions but the Ombudsman did not find that its arguments were valid.