The Complaint
The complaint was that the Health Service Executive (HSE) failed to pay the appropriate rate of basic income to a woman and her two children and thus failed to implement the decision of a Social Welfare Appeals Officer.
In March 2010 Ms Thandi Kileni complained to the Ombudsman that the HSE had failed to pay her the correct amount of Supplementary Welfare Allowance (SWA) following her successful appeal of the HSE’s initial refusal of her application.
Ms Kileni applied for SWA to the Community Welfare Service of the HSE on 13 November 2008. Supplementary Welfare Allowance is a weekly payment designed to ensure a basic minimum weekly income. It may also be paid to deal with exceptional needs or in cases of urgent need. At the time of the application, the HSE administered SWA on behalf of the Department of Social Protection (See Note 1).
Following the refusal of her initial application, Ms Kileni appealed this decision to the HSE Appeals Office. Her appeal was unsuccessful. She then appealed further to have her case considered by a Social Welfare Appeals Officer (Appeals Officer hereafter). Decisions of Appeals Officers are, for the most part, final and conclusive. On 15 December 2009 an Appeals Officer upheld Ms Kileni's appeal. Following the Appeals Officer’s decision, the Community Welfare Service commenced paying Ms Kileni what it called a ‘reduced rate’ of SWA of €19.10 per week for herself and €9.60 per week for her daughter.
Ms Kileni believed that the decision of the Appeals Officer was to grant her full weekly SWA of €197.80 for herself and €24.00 for her daughter. Following unsuccessful attempts to resolve the matter with the Community Welfare Service, Ms Kileni complained to the Ombudsman on 19 March 2010.
What is Supplementary Welfare Allowance?
Supplementary Welfare Allowance consists of a basic payment and/or a supplement to cover certain expenses a person may not be able to meet.
According to the Department of Social Protection’s website, the main purpose of the allowance is:
- to guarantee a standard basic minimum income;
- to provide a residual and support role within the overall income maintenance structure;
- to provide immediate and flexible assistance for those in need who are awaiting decision on payment of other State schemes;
- to provide people with low incomes with a weekly supplement to meet certain special needs (e.g. rent and mortgage interest payments) or a payment to help with the cost of any exceptional needs they may have;
- to help those whose needs are inadequately met under the major schemes;
- to help those confronted with an emergency situation.
Background to the Complaint
Ms Kileni arrived in Ireland from South Africa in April 2007 with her two daughters then aged 14 and 15 years. Ms Kileni sought asylum in Ireland because, she says, she fears for the safety of her family following the murder of her husband in South Africa. The family was sent to asylum accommodation in County Mayo.
Ms Kileni and her two daughters were placed in what is known as ‘Direct Provision’ accommodation. Direct Provision is a means of meeting the basic needs of asylum seekers for food and shelter while their claims for refugee status, or leave to remain/subsidiary protection, are being processed. In addition to food and shelter, people in Direct Provision receive weekly personal allowances of €19.10 per adult and €9.60 per child. These cash allowances are paid by the Community Welfare Service. These arrangements were introduced in April 2000 and are operated by the Reception and Integration Agency which is part of the Department of Justice and Equality. The rates of the weekly payments have not changed since 2000.
In August 2008 the family left Direct Provision in Mayo to stay with a friend in Dublin. Ms. Kileni says she moved because of serious concerns about the mental health of one of her daughters and because conditions in her Direct Provision hostel were unsatisfactory – particularly in view of her daughter’s mental health issues.
In October 2008 Ms Kileni’s 15-year-old daughter was hospitalised following a suicide attempt (See Note 2). Following her daughter’s discharge from hospital, the HSE’s child protection service became involved and Ms. Kileni’s daughter was placed in foster care on a voluntary basis. In order to be able to avail of medical and other care for her daughter, Ms Kileni applied for a medical card. She says she was informed that she might qualify for a medical card if she was getting a social welfare payment such as Supplementary Welfare Allowance. Thus, she applied for Supplementary Welfare Allowance.
By this stage, Ms Kileni’s asylum application had been refused and she and her two daughters were awaiting a decision from the Department of Justice and Equality on their applications for humanitarian leave to remain and subsidiary protection.
On 24 November 2008 Ms Kileni’s application for SWA was refused by the Community Welfare Service on the basis that she had “voluntarily left direct provision accommodation”.
In December 2008 Ms Kileni appealed this refusal to the HSE Appeals Office. On 19 March 2009 her appeal was refused on the ground that she was not habitually resident in the State. In notifying Ms Kileni of her decision, the HSE Appeals Officer made no reference to Ms. Kileni having left Direct Provision accommodation. In her letter, the HSE Appeals Officer stated that she had been informed by the Superintendent Community Welfare Officer (SCWO) that the application had been refused as Ms Kileni was not habitually resident in the State.
What is Habitual Residence?
In the case of some social welfare payments, including SWA, one of the requirements is that the applicant must be habitually resident in the State at the time of the application. The term "habitually resident" is not defined in Irish law, but it conveys a degree of permanence – meaning that a person has been here for some time and is intending to stay for a period into the foreseeable future. Generally, proving habitual residence relies heavily on the facts of the case. But since December 2009 people awaiting decisions on asylum applications, or on applications for humanitarian leave to remain, are regarded in law as not being habitually resident.
The relevant legislation is at section 246 of the Social Welfare Consolidation Act 2005 [as amended by Section 30 of the Social Welfare and Pensions Act 2007 and Section 15 of the Social Welfare and Pensions (No. 2) Act 2009].
It is fair to say that the habitual residence rule has proved controversial as well as being difficult to operate in practice.
Appeal to the Social Welfare Appeals Office
On 2 April 2009 Ms Kileni appealed the HSE’s decision to the Social Welfare Appeals Office. On 2 June 2009 the Appeals Officer to whom the appeal was assigned held an oral appeal hearing. On 12 December 2009 the Appeals Officer issued her decision which was to allow Ms. Kileni’s appeal. The Appeals Officer sent a copy of her appeal decision also to the HSE’s Community Welfare Service.
Following this favourable appeal decision Ms Kileni was initially (for about four weeks) paid the full basic rate of SWA (€221.80 per week) for herself and the daughter then living with her. Arrears of SWA, back to the original date of claim in November 2008, were not paid. However, the relevant SCWO then queried the appeal decision of the Appeals Officer and, as a result, 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. On 14 January 2010, the SCWO wrote to Ms Kileni stating that she would be paid this ‘reduced rate’ of SWA which would be backdated to her application on 13 November 2008. In his letter also he said he intended to review her habitual residency status in order to determine her continued entitlement to Supplementary Welfare Allowance.
On 3 February 2010 Ms Kileni wrote to the Appeals Officer complaining that her decision had not been implemented correctly. On 1 March 2010 the Appeals Officer replied that implementation of the appeal decision was a matter for the HSE and that Ms Kileni should contact her “local Superintendent/ Community Welfare Officer” if she considered that “the appeal is not being correctly implemented”. The Appeals Officer also told Ms Kileni that the appeal decision was that she was entitled to the
“Supplementary Welfare Allowance rate appropriate to your need less any means you may have”.
On 19 March 2010 Ms Kileni complained to the Ombudsman about the way in which the SCWO had implemented the decision of the Social Welfare Appeals Officer.
Preliminary Examination
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. In law (Section 320 Social Welfare (Consolidation) Act 2005), the decisions of a Social Welfare Appeals Officer are “final and conclusive”. While there are some grounds on which a review of an Appeals Officer decision may be sought – discussed later in this report – the Appeals Officer decision must be implemented immediately where it is favourable to the appellant. It was against this background that the Ombudsman’s Office conducted a preliminary examination of Ms Kileni’s complaint.
The factual situation, at the point of receiving Ms Kileni’s complaint, was that 13 months after her SWA application, and three months after an apparently favourable appeal decision, Ms Kileni had not received her proper SWA entitlements. Furthermore, there were no obvious grounds on which the SCWO could decide not to implement the Appeals Officer decision in full.
Having carried out a preliminary examination of the complaint, the Ombudsman’s Office asked the HSE to review its position with a view to implementing the decision of the Appeals Officer in full.
The HSE then reviewed its decision and decided to pay Ms Kileni arrears of full rate SWA back to the date of her application in November 2008. However, these arrears (amounting to €11,882) were not paid to Ms Kileni until January 2011 which was
- 26 months after her SWA application,
- 13 months after the success of her appeal, and
- nine months after she had complained to the Ombudsman.
In fact, the arrears were paid only up to February 2010 as, at that point, the SCWO had made a further decision that Ms Kileni was not habitually resident in the State and, for that reason, was not entitled to any SWA payment. Ms Kileni appealed this decision on the habitual residence issue and, in August 2011, an Appeals Officer (not the Officer who dealt with the earlier appeal) upheld her appeal and determined that she was habitually resident in Ireland. The issue of habitual residence is not an issue dealt with in this present report.
The Ombudsman’s Office requested the Department of Social Protection (See Note 3) and the HSE to issue guidelines to staff highlighting the importance of implementing the decisions of Appeals Officers promptly and in full. The Ombudsman also suggested to the HSE that it issue an apology to Ms Kileni for the delay of over a year in implementing the Appeals Officer decision.
On 10 June 2011 the HSE replied to the Ombudsman’s Office saying, amongst other things:
“... there is no evidence that, in general,[appeal] decisions are not implemented immediately. This case was exceptional and complex.
[...]
I wish to clarify that Ms Kileni applied to the CWO for the continued payment of Direct Provision Allowance and not the full rate of SWA as stated in your letter. This has beenverified through her application form, of which you have a copy. [...]
... On considering the [Appeals Officer’s] decision forwarded to him, there were a number of matters on which the SCWO required clarification to establish if the case should be re-submitted to the Chief Appeals Officer for review i.e. the amount to be paid and the legislative basis for the decision, having regard to Ms Kileni’s status as an asylum seeker awaiting the decision of the Minister for Justice, Equality and Law Reform. The SCWO did not act outside the law in this case.
At no time was Ms Kileni without the amount of income for which she applied. ... The full rate of SWA was paid as a result of representation (sic) received from your Office despite the fact that the SCWO has still not been notified of the legislative basis for this payment to confirm that the decision was not ultra vires...
[...]
In conclusion, I am not of the view that an undue delay was caused as a result of maladministration but do acknowledge that a delay did occur while the SCWO verified the rate of entitlement with the Chief Appeals Office (sic). I apologise for any distress caused to Ms Kileni because of this.”
In fact, Ms Kileni’s SWA application form contained no reference to ‘Direct Provision Allowance’ or any reduced rate of Supplementary Welfare Allowance. However, it is true that Ms Kileni’s letter of appeal to the HSE and her letter to the Appeals Officer refer to a reduced rate of SWA of €19.10 per week.
It appears the HSE did not send any written apology directly to Ms. Kileni.
Decision to Investigate
The matter of payment of arrears to Ms Kileni had been resolved. However, Ms Kileni had been without a payment to which she was entitled for a period of 13 months. The HSE maintained that it had implemented the Appeals Officer’s decision correctly. Given the HSE’s position and the delay in implementing the Appeals Officer decision, the Ombudsman decided to investigate the complaint under section 4 of the Ombudsman Act 1980.
On 28 July 2011 the Ombudsman notified the Chief Executive Officer of the HSE of her decision to investigate the complaint. The decision to investigate took account of Ms Kileni’s contention that the very long delay in paying her SWA entitlements caused herself and her family significant financial hardship and extreme distress. There was a question as to whether the delay in paying SWA might have exacerbated the mental health difficulties of Ms Kileni’s daughter and whether the delay created an obstacle to that daughter being reunited with her family.
The Ombudsman decided that it was appropriate to join the Department of Social Protection for the purposes of the investigation. This is because the Department has overall responsibility for the SWA scheme and the fact that, at the time, the relevant HSE staff (Community Welfare Service) were on secondment to the Department and would be transferring to the Department later that year.
A copy of the Statement of Complaint accompanying the notifications is attached at Appendix 1.
Both the HSE and the Department were invited to make submissions in reply to the investigation notification. The HSE’s submission reiterated, for the most part, the points in its earlier letter of 10 June 2011. The Department opted not to make a submission but it did respond subsequently to specific requests for information from the Ombudsman’s Office.
During the course of the investigation the Ombudsman’s investigators examined the HSE and the Appeals Officer files relating to Ms Kileni’s SWA application, documents supplied by Ms Kileni and her representatives, and the relevant legislation. The investigators also contacted the Appeals Officer who had upheld Ms Kileni’s appeal and conducted interviews with the relevant SCWO and with the relevant HSE Appeals Officer.
In finalising this present report, the Ombudsman has had regard to submissions made both by the HSE and by the Department following their consideration of a draft of this report. Copies of the submissions of the HSE and of the Department are included as an appendix to this report.
Note 1 :
On 1 October 2011, the Community Welfare Service transferred to the Department of Social Protection. The service and the staff are now part of that Department.
Note 2 :
At her social welfare appeal hearing in June 2009, Ms. Kileni told the Appeals Officer that there had been a previous such attempt while living in Direct Provision in Mayo.
Note 3 :
At this stage the staff of the Community Welfare Service had been seconded to the Department of Social Protection pending transfer to that Department. However, the staff remained employees of the HSE.