84. The findings of my investigations are set out below, firstly, in relation to the three individual cases and, secondly, in relation to the broader issues raised.
Findings - Individual Cases
85. Arising from my investigations, I find as follows in relation to Mr. John Smith: - that, on the balance of probabilities, he did call to the Department at Oisín House on two separate occasions, as he contends;
- that, again on the balance of probabilities, the officials he met at Oisín House failed adequately to advise him in relation to his pension entitlement;
- that he did himself, to some extent, contribute to this failure to get adequate advice;
- that his failure to claim a pension in 1986/87 may be attributed both to his general lack of knowledge in relation to social insurance and to the failure of the Department adequately to advise him;
- that his failure to claim a pension in April 1983, when he reached pension age, may be attributed to his lack of knowledge of the social insurance system;
- that the Department has discretion under existing arrangements to provide appropriate redress in Mr. Smith's case.
86. In relation to Mrs. Brown and Ms. Murphy, I find as follows:
- that, on the balance of probabilities, neither of them received a written advice from the Department, in advance of reaching their 66th birthday, in relation to possible contributory old age pension entitlement;
- that the Regulation is sufficiently flexible as to allow the Department to have accepted a claim, in payment, for widow's pension or invalidity pension - though made some years back - as having been made on account of contributory old age pension; and that in the circumstances of these cases the Department should have availed of that flexibility in the best interests of their clients;
- that the failure to claim contributory old age pension at age 66 years may, in both cases, be attributed to their lack of knowledge of the social insurance system.
Findings - General
87. Arising from my investigation of these three cases, I make the following general findings:
- that the decisions complained of, in the three cases, arose as a direct consequence of the provisions currently at Articles 102, 104 and 105 of SI No. 417 of 1994;
- that the regulatory provisions at Articles 102, 104 and 105 reflect decisions taken by the Minister for Social Welfare, and by his predecessors since 1952, but that the precise grounds for the specific penalty of loss of pension arrears (other than for the six month period prior to the actual date of claim), irrespective of the reasons for the delay in claiming, are not entirely clear;
- that, given the complexity of social insurance in general, and given that people of all backgrounds are liable to be ill-informed in relation to it, the Department has not adequately publicised the penalties in operation in the case of contributory pension claims made late;
- that the application in individual cases of the provisions at Articles 102, 104 and 105, irrespective of the circumstances of each individual case, does not comply with basic fairness or reasonableness, nor does it satisfy the requirements of the principle of proportionality, and is accordingly contrary to fair or sound administration;
- that the general approach of the Department to late claims, especially those where there is good cause for the delay, reflects a failure to mitigate the effects of rigid adherence to the strict terms of the Regulation, produces manifestly inequitable and unequal treatment and results in decisions which are contrary to fair or sound administration;
- that the ongoing failure of the Department to take action to ameliorate such unfair and inequitable decisions, whether by using the extra-statutory discretion granted to it or by moving to amend the Regulation (the basis of which is no longer entirely clear) is itself contrary to fair or sound administration.
88. I have considered the implications of Section 32 of the Social Welfare Bill, 1997 (as initiated) for these findings. If that Section becomes law, it will significantly ameliorate certain decisions which are at present clearly unfair and inequitable. Late applicants who apply within one year of the due date will now receive full retrospection automatically and without having to plead special circumstances. While I welcome this, I am concerned that Section 32 makes no provision for any Ministerial discretion to deal with individual cases, which are outside the limits, on their merits. Such cases will have to be dealt with exclusively by way of extra-statutory payments despite the Department's stated reservation about making them. In the interests of fair and sound administration, the Bill should give the Minister discretion (to be spelled out by regulation) to deal with individual cases on their merits within specified parameters. Hopefully, consideration will be given to this during the passage of the Bill.