*complainant’s name altered to protect her identity
9th April 2013
Ms. Patricia Doyle
Investigator
Office of the Ombudsman,
18 Lower Leeson Street,
Dublin2
Dear Ms. Doyle,
I wish to acknowledge receipt of the draft report “Appeal Denied”, an investigation by the Ombudsman into the failure of the Health Service Executive (acting for the Department of Social Protection) to implement a decision of the Social Welfare Appeals Office on an appeal by an asylum seeker.
As you are aware, the community welfare service is now under the control and direction of the Department of Social Protection. Therefore, the HSE does not wish to make any comment on the report but notes that following representation from the Department of Social Protection that the Ombudsman has decided not to include Chapter 3 of the draft report.
On behalf of the HSE, I wish to apologise to Ms. Thandi Kileni for the delay she experienced in receiving her entitlement following the Social Welfare Appeals Officer’s determination. This delay is much regretted, and it is my understanding that all payments due to Ms. Kileni have now been made.
Yours sincerely,
_____________________
Greg Price
Director or Advocacy
Department of Social Protection response to draft report
*complainant’s name altered to protect her identity
Mr Fintan Butler
Senior Investigator
Office of the Ombudsman
18 Lr Leeson Street
Dublin 2
15 April 2013
Dear Mr Butler,
I refer to your letter of 13th March 2013 regarding a complaint by Ms Thandi Kileni, in relation to her application for Supplementary Welfare Allowance (SWA).
When Ms Kileni applied for SWA in November 2008 the scheme was administered by the Community Welfare Service (CWS) division of the Health Service Executive (HSE) on behalf of the Minister for Social Protection in accordance with guidelines issued by this Department. This Department had no role in deciding entitlement in individual cases. The CWS staff were transferred to the Department of Social Protection (DSP) with effect from 1 January 2011 on a secondment basis for a period of nine months until the end of September 2011. From 1 October 2011 the staff of CWS transferred to the Department as civil servants.
You raised some specific questions in your letter and report which have been clarified with the relevant areas as follows:
Delayed Arrears Payment
DSP accepts that there was an unwarranted and significant delay in the payment of arrears in this case as the officer dealing with the appeal did not ensure the Social Welfare Appeals Office (SWAO) decision was followed up in full. Both the officer concerned and the HSE Appeals Officer have since retired.
It appears that the delayed issuing of arrears in this case was a once-off event and there is no evidence that arrears are delayed in SWA claims where the SWAO has allowed a claim.
Decision on entitlement:
Ms Kileni, as a South African national, who applied for SWA in 2008 was required to satisfy the Habitual Residence condition (HRC). The Social Welfare Consolidation Act provides that a person shall not be entitled to SWA unless he or she is habitually resident in the State at the date of making the claim. The Community Welfare Service Best Practice Manual 2007 section 4.1.4, notes that persons leaving Direct Provision (DP) must be assessed for HRC.
The initial decision by the Community Welfare officer (CWO) to refuse SWA as the claimant “voluntarily left direct provision” did not address the HRC elements of the case.
This decision was appealed to the SWAO and the Appeals Officer (AO) allowed the appeal. As Ms Kileni’s appeal was allowed and she was awarded payment she had been determined as HRC compliant, by default. The Superintendent Community Welfare Officer (SCWO) mistakenly sought to review the claim to decide on the HRC at a time other than at the date of application.
The SCWO should have implemented the SWAO decision in full.
It is considered that this particular case was exceptional and that there is no evidence to suggest that, in general, SWAO decisions are not implemented immediately.
Appeals Guidelines and Training:
It is understood that the HSE, in June 2011, considered the request of the OO to issue guidelines to staff highlighting the importance of implementing the decisions of AO’s promptly and in full.
The CWS Best Practice Manual provides detailed information on the appeals process and advises that:
“Where an Appeals Officer overturns an unfavourable decision of a CWO or SCWO, the decision will be sent to the SCWO and to the client. This decision is final and should be acted upon promptly by the CWO.”
Following the transfer of the CWS into this Department, new training on decision making and the handling of appeals was commenced for all former CWS staff through the Department’s Staff Development Unit.
The objective of this training is to ensure staff:
- Make reasonable, balanced and well-founded decisions
- Understand and apply Principles of Natural Justice, Citizens Rights and the Principles of Good Administrative Practice
- Write unbiased, logical, objective reports on the circumstances of claimants
- Communicate the decision clearly and in writing and quote legislative reasons
- Understand the claim review and appeals procedures
Letter of Apology:
At the request of DSP, Mr Greg Price (now Director of Advocacy in HSE but formerly the relevant HSE liaison officer with the OO), has now issued a letter of apology to Ms Kileni, on behalf of the HSE, as they were the responsible body at the time the claim was made.
OO decision to include the DSP in this complaint:
It is noted that the OO decided that it was appropriate to join the DSP for the purposes of the investigation. Your report states both the HSE and the DSP were invited to make submissions in reply to the investigation back in 2011.
Your letter states the HSE’s submission reiterated the points in its earlier letter of 10 June 2011 and that the DSP opted not to make a submission but it did respond subsequently to specific requests for information from the Ombudsman’s Office. We had understood that the information provided your office with sufficient clarification and that a further submission was not required.
Conclusion:
In an effort to progress Ms Kileni’s residency status, DSP have raised her case with the Department of Justice& Equality with a view to ensuring the case is regularised as quickly as possible.
This Department endeavours through on-going training and detailed guidelines, to ensure that all appeals cases are followed up appropriately and efficiently and that customers are made aware of their entitlements in this regard.
Finally, I wish to emphasise that the DSP is fully aware of its responsibilities in relation to the OO and seeks to respond in a timely and comprehensive manner to all requests from your Office.
I hope this letter addresses satisfactorily the issues outlined in the letter and report of 13th March.
Yours sincerely
Niamh O’Donoghue
Secretary General