This was an Investigation by the Ombudsman of a complaint about the failure of the Health Service Executive (HSE) to pay the appropriate rate of basic income to an asylum seeker and its failure to implement the decision of a Social Welfare Appeals Officer. The investigation looked at the actions of the HSE following the Appeals Officer’s decision which was in favour of the applicant. The investigation also looked at the circumstances of the particular case and the effect on the applicant and her family of the failure to pay her the appropriate rate of supplementary welfare allowance (SWA). The HSE had not implemented the favourable Appeals Officer’s decision on the grounds that, it believed, the applicant was not entitled to the full rate of the allowance. Following a detailed investigation, the Ombudsman upheld the complaint. She found that the HSE had no proper basis for its actions in the matter and that the failure caused significant adverse consequences over an extended period for the family. The Ombudsman found that the decisions made by the HSE were taken without proper authority, were improperly discriminatory and were contrary to fair or sound administration.
The HSE administered the SWA scheme on behalf of the Department of Social Protection until October 2011 at which point it transferred to the Department. The Ombudsman consequently made her recommendations arising from this investigation to the Department of Social Protection.
The Case
The Investigation
The Ombudsman's Findings
Recommendations
The Case
In March 2010, Ms Kileni (not her real name) complained to the Ombudsman about the rate of SWA paid to her by the HSE. She believed that the decision (made in December 2009) by the Appeals Officer was to grant her the full weekly rate of SWA of €197.80 for herself and €24.00 per week for her daughter. Following the Appeals Officer’s decision, however, the HSE paid her €19.10 for herself and €9.60 for her daughter. The complainant, Ms Kileni, attempted to resolve the matter with the HSE prior to making her complaint to the Ombudsman but was unsuccessful.
SWA consists of a basic payment and/or a supplement to cover certain expenses a person may not be able to meet. The main purpose of the allowance is to guarantee a standard basic minimum income.
Ms Kileni 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 Reception and Integration Agency which is part of 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.
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 subsequently hospitalised following a suicide attempt and, after discharge from hospital, was placed in foster care on a voluntary basis. Ms Kileni applied for SWA in November 2008. The application was refused. She appealed the decision to the HSE, was again refused and then appealed to the Social Welfare Appeals Office.
There was an oral hearing of the case in June 2009 and in December 2009 the Appeals Officer allowed Ms.Kileni’s appeal. The Appeals Officer issued a detailed statement on her decision which had regard to the exceptional medical and social circumstances of the case. However, the relevant Superintendent Community Welfare Officer (who administered the SWA scheme) queried the outcome. Despite the responses from the Appeals Officer confirming her decision, and despite the fact that Ms Kileni was not living in Direct Provision accommodation, 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 payment was at the rate payable to asylum seekers in Direct Provision.
The HSE corrected its 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. Shortly following the implementation of the appeal decision, 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. Some months later, following a separate appeal, Ms. Kileni had her SWA entitlement restored.
The Investigation
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”. 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. While the case may have been unusual, the failure to implement an Appeals Officer’s decision over a long period of time warranted formal investigation. It was also important to consider the consequences of the HSE’s actions on the complainant and her family. The Ombudsman’s investigation explores the legal and other issues raised in this particular case.
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. This was an outcome which the HSE social workers involved in the girl’s care had anticipated as a result of the Appeals Officer’s decision to award the full-rate SWA to Ms Kileni. The failure to implement the Appeals Officer’s decision, and the emotional and financial instability for the family which resulted from that failure, upset these plans.
The HSE defended its actions in its response to the Ombudsman’s notification of the investigation. The Ombudsman did not find that the arguments made by the HSE were valid and her analysis of these arguments is outlined in the report of the investigation.
The Ombudsman's Findings
Having carried out an investigation, the Ombudsman found:
- that the Community Welfare Service of the HSE (acting for the Department of Social Protection) failed to implement correctly a decision of a Social Welfare Appeals Officer; that there was no proper basis for this failure; and that the failure caused significant adverse consequences, over an extended period, for the Kileni family;
- that, in particular, the failure to implement the Appeals Officer’s decision impacted negatively on the efforts to re-unite the family being made by the HSE Child Protection Service;
- that this failure reflects actions which were taken without proper authority, were improperly discriminatory as well as being otherwise contrary to fair or sound administration.
In responding to a draft of this report, the Department of Social Protection said that, in the light of the Ombudsman’s report, it had asked the HSE to write to Ms Kileni to convey its apologies for what had happened. The Department explained that it had asked the HSE to convey this apology because it was the “responsible body” at the time the claim was made. Subsequently, the HSE sent a letter of apology to Ms. Kileni.
Recommendations
In view of the significant adverse consequences suffered by Ms Kileni and her family the Ombudsman recommended to the Department of Social Protection that it make a “time and trouble” payment – or “consolatory” payment as it is known in some other jurisdictions – to Ms Kileni of €3,000.
This recommendation was made to the Department of Social Protection, rather than to the HSE, on the basis that the SWA scheme at the time in question was being administered on behalf of the Department and under its general control and direction and because, in any event, the SWA scheme has always been funded through the Department’s Vote. The Department accepted "that there was an unnecessary and unwarranted delay in the payment of arrears by the HSE" in the case and implemented the recommendation to pay the recommended sum to Ms Kileni.