Recommendations - Individual Cases
89. In the light of the Department's decision, following its consideration of a draft of this report, to pay arrears of pension in the cases of Mrs. Brown and Ms. Murphy, it is not necessary for me to make a recommendation in relation to those two cases. Similarly, as the Department has also adopted a new approach in relation to the treating of the receipt of one payment as satisfying the requirement to have claimed for another related payment - see Paragraph 70 above - it is not necessary for me to make a general recommendation of this nature arising specifically from the complaints of Mrs. Brown and Ms. Murphy.
90. In relation to the case of Mr. John Smith, I recommend as follows:
- that the Department of Social Welfare pay Mr. Smith the equivalent of contributory old age pension arrears (including appropriate adult dependant allowances) for the period April 1986 to December 1991 and that compensation for the delay in making this payment be paid in accordance with the arrangements sanctioned by the Department of Finance (letter of 18 December 1986 from the Department of Finance to the Department of Social Welfare).
I have decided not to make any deduction from the recommended payment despite my finding that Mr. Smith did, to some extent, contribute to the failure to get adequate advice on his pension entitlement. Even following my recommendation, Mr. Smith will still have lost out on pension entitlement for the period April 1983 to April 1986.
Recommendations - General
91. Arising from the three cases generally, I make the following recommendations:
(i) - that the Department of Social Welfare continue to develop its information services with a view to maximising the public's understanding of the scope and application of social insurance entitlements; and that particular attention be paid to ensuring the public is aware of the requirement to claim payments at particular times and of the penalties imposed where there is a delay in making a claim.
(ii) - that the Department of Social Welfare provide all late applicants, who are not receiving full arrears, with information on the circumstances in which pension arrears may be paid on an extra-statutory basis. (The extra-statutory arrangements will have to be published in any event when the proposed Freedom of Information Bill is enacted.)
(iii) - that in addition to the information measures mentioned above, and in the course of developing its computer systems, the Department of Social Welfare aim to be in a position to notify all potential contributory old age pension recipients of a possible entitlement in advance of reaching pension age.
(iv) - that in the case of delayed contributory pension claims, the Department of Social Welfare should, in the absence of an appropriate amendment to the Regulation, exercise its present extra-statutory discretion to pay arrears of pension, up to the level of full arrears, where (a) the delay arises due to an error for which the Department has some culpability; (b) failure to pay the arrears (or some portion thereof) would result in hardship for the claimant; (c) the delay arises due to some
mental or physical incapacity on the part of the claimant, or as a result of events or circumstances (including situations of force majeure) outside of the claimant's control and where to withhold arrears would be inequitable.
(v) - that the Department of Social Welfare should, as a matter of urgency, and no later than six months from the date of this report, give further and serious consideration to cases not falling within the categories in Recommendation (iv) above with a view to mitigating the adverse effects on late claimants so that any penalty suffered would be more in proportion with the failure (whether through ignorance or bad advice) to claim on time.
92. I have made Recommendation (iv) above in the context that it can be implemented using the present extra-statutory arrangement and without amending the Regulation. I share the Department's expressed view that, preferably, exceptions of the kind recommended should be set out in the Regulation with the extra-statutory arrangement being used to deal with those exceptional cases which will still inevitably occur but cannot be anticipated.
93. I am, therefore, surprised and disappointed with the approach being adopted in Section 32 of the Social Welfare Bill, 1997 (as initiated). On the one hand, there is the welcome extension of the period for which arrears will be paid. On the other, there is the solidifying into primary legislation of the rigidity and fundamental inequity of the present Regulation. I would draw attention to the Council of Europe's handbook Principles of Administrative LawConcerning the Relations Between Administrative Authorities and Private Persons (1996). One of the substantive principles of
Administrative Law is equality before the law and the Council has this to say:
"The principle of equality before the law does not mean that the administrative authorities should not carefully and fairly consider each individual case by reference to the applicable laws and rules. The laws and rules should not be drawn up so as to prevent the administrative authorities from treating every case in a manner appropriate to its circumstances."
94. I have structured General Recommendation (v) above to reflect my view that the substantive principle of proportionality should be brought into the treatment of arrears cases. I recognise, however, that the Regulation would have to be amended to do so. Again I quote the Council of Europe handbook:
"The observance of the principle of proportionality constitutes an all-embracing requirement in a State governed by the Rule of Law. According to that principle, public authorities may curtail the rights of citizens vis-a-vis the State only to the extent which is indispensable for the protection of the public interest. There must be a reasonable relation between the means chosen and the purpose pursued...
Moreover, the burden imposed on the private person must stand in a reasonable relationship to the benefit which that private person and the general public will draw from the act...
The prohibition against using excessive means obliges the public authorities to use milder means where more stringent means are not more promising, as regards the achievement of the purpose pursued."
95. I am strongly of the view that a system imposing proportionate penalties, which would still be severe in many cases, would not in any way weaken the Department's ability to regulate the claims process so as to ensure proper administration and sound financial management.
KEVIN MURPHYOMBUDSMAN
14 MARCH 1997