Appeal Overruled: A failure to provide basic income for a family seeking asylum

This investigation is focusing on the failure of the HSE’s Community Welfare Service to implement the Appeals Officer’s appeal decision and on the adverse consequences of this failure for Ms Kileni and her family. Key issues for consideration are:

• what exactly was the decision of the Appeals Officer?
• what was the SCWO’s understanding of that decision?
• what procedures were available to the SCWO to challenge that decision?
• what were the consequences for Ms Kileni of the failure to implement the Appeals Officer’s decision?

 

The Appeals Officer’s Decision

The decision of the Appeals Officer, dated 12 December 2009, was that “the Appeal is allowed”.  This decision followed an oral appeal hearing which was attended by Ms Kileni (accompanied by an advocate from the Cairde organisation) and by the HSE Appeals Officer. The Appeals Officer wrote an eight page note of the oral hearing which shows that Ms. Kileni’s family history was outlined to her. The note sets out also the Appeals Officer’s analysis of the issues raised and the grounds on which she decided the appeal in favour of Ms Kileni. The key points of relevance in the Appeals Officer’s note were that:

• There was no decision disallowing SWA on the grounds that the appellant was not habitually resident in the State.
• The appellant had never been notified of a decision that her application had been refused because she had been found not to be habitually resident in the State.
• The Community Welfare Officer recorded on 13 November 2008, when the SWA application was made, that he was “unable to determine HRC (habitual residence condition) on the basis of the above information”.
• The Appeals Officer decided to confine her appeal decision “to the decision notified to the Appellant on 24 November 2008.” [ that is, that Ms Kileni was refused SWA as she had voluntarily left direct provision accommodation.]
• There is no legislative prohibition on, or disqualification from, SWA where a person voluntarily leaves Direct Provision accommodation.
• There was medical advice submitted by Ms Kileni’s advocates, by mental health professionals and HSE social workers concerning Ms Kileni’s own health as well as that of one of her daughters.
• Having regard to the evidence, including medical evidence, the Appeals Officer was satisfied that exceptional medical and social circumstances applied in the case.
• In all the circumstances, the Appeals Officer decided that she should “allow the appeal”.

 

The SCWO’s Understanding of the Appeal Decision

The SCWO made two enquiries by e-mail with the Appeals Officer in relation to her appeal decision. The SCWO confirmed in an interview with the Ombudsman's Investigators that he was aware of the contents of the Appeals Officer’s detailed appeal note before he made contact with her.

In the first e-mail, dated 21 December 2009, the SCWO asked the Appeals Officer to clarify which payment she was allowing i.e. “basic SWA or DPA” [Direct Provision Allowance], and if basic SWA, what rate of payment should be paid? “direct provision rate or full payment”?  On the same day the Appeals Officer replied:

“Appeal was against the disallowance of basic SWA full rate”.

In the second e-mail, dated 11 January 2010, the SCWO asked the Appeals Officer to

“identify the specific legislative basis for the payment of full rate basic SWA to a person who has been determined to be not habitually resident in Ireland and clarify if the payment is to be paid less the Direct Provision benefit and privilege”.

Again, the Appeals Officer replied on the same day.  In a lengthy e-mail the Appeals Officer said:

• that the sole reason notified by the Community Welfare Service to Ms Kileni for refusal of SWA was that she had voluntarily left her direct provision accommodation;
• that there was no decision on file that Ms Kileni was not habitually resident in Ireland;
• that her (Appeals Officer) decision was confined to the refusal of SWA on the basis that Ms Kileni had left direct provision accommodation;
• that Ms Kileni is “entitled to the rate of SWA appropriate to her needs”.

Subsequently, on 1 March 2010, the Appeals Officer wrote to Ms Kileni to say that her appeal decision was that she was entitled to the “Supplementary Welfare Allowance rate appropriate to your need less any means you may have”. A copy of this letter was given to the HSE at the time.

In the course of this investigation, the Ombudsman’s Office contacted the Appeals Officer in relation to a number of issues. The Appeals Officer provided a detailed written reply in which she explained:

• The appeal quite clearly “was against the disallowance of basic SWA full rate”. Decisions on the payment “generally referred to as DPA (Direct Provision Allowance) ... are not appealable to this [Social Welfare Appeals] Office as it is an administrative payment. Decisions on Supplementary Welfare Allowance payable under the Social Welfare Consolidation Act 2005 are appealable to this Office”.
• As regards her reference to payment at the "rate of SWA appropriate to her needs”,  the Appeals Officer said: “It is not the practice of an Appeals Officer to specify in his/her decision, the actual rate of payment to be made as this can vary depending on the circumstances which applied throughout the period to which the appeal relates." However, it was her intention that SWA would be paid “at the rate of SWA appropriate to her means, if any, assessed in accordance with the social welfare legislation.”  
• As regards what should happen in the event that the HSE disagreed with a decision of an Appeals Officer, she outlined various options for review (dealt with later in this report). She noted that none of these options had been followed. She also noted: “The onus is on the HSE to implement an Appeals Officer’s decision. The ... [HSE ] is required to implement the decision of the Appeals Officer on receipt of the decision. There are no provisions which permit payment to be withheld on the grounds that the Chief Appeals Officer is to be, or has been, asked to review an Appeals Officer’s decision.”

Notwithstanding the clarity of the Appeals Officer responses to his queries, the SCWO decided on 14 January 2010 to pay Ms Kileni at a reduced rate equivalent to the  level of the administrative (non-statutory) payment made to an asylum seeker in Direct Provision accommodation. A few weeks later, the SCWO decided that Ms Kileni was not habitually resident in the State and thus not eligible for any Supplementary Welfare Allowance. However, the SCWO continued to pay Ms Kileni at the reduced rate pending the outcome of an appeal against the habitual residence decision.

At interview, the SCWO said that the reason for the refusal decision, as given by the CWO, was incorrect. The SCWO said he had spoken with the CWO prior to his decision and indicated to the CWO that the application should be refused as Ms Kileni was not habitually resident in Ireland. However, this is quite problematic because (as commented upon by the Appeals Officer) there is no evidence on file that the issue of habitual residence had been put to Ms Kileni and that she had been allowed an opportunity to present her case. In fact the evidence on file is that the CWO, at the time of the application, recorded that he was NOT in a position to determine the habitual residence issue at that point. The fact that the SCWO apparently felt he was in a position to determine this issue, in the absence of a proper process, is of concern.

It is relevant to point out that in November 2008, when Ms Kileni first applied for SWA, there was no blanket legal exclusion from SWA in the case of asylum seekers. While it appears there was a practice, at first stage decision making, to regard asylum seekers as not habitually resident in the State, this practice was upset by some Appeals Officer decisions in 2008 and 2009.  In a number of appeal decisions, subsequently upheld by the Chief Appeals Officer, the appellant asylum seekers were found to be habitually resident in the State.  In late December 2009 the Oireachtas amended the law to provide that an asylum seeker (or any person awaiting a decision on application for leave to remain or subsidiary protection) cannot be regarded as being habitually resident. However, in November 2008, it would have been an open question as to whether Ms Kileni was, or was not, habitually resident in Ireland.

It is difficult to understand the logic of the SCWO’s thinking in regard to the possibility of paying Ms Kileni at a reduced, or “Direct Provision”, rate. In the case of Ms Kileni’s SWA application of November 2008, a decision that she was not habitually resident in the State would mean that she had no entitlement to a basic SWA payment at any rate. On the other hand, in the absence of a decision that she was not habitually resident, her SWA entitlement would fall to be calculated along the same lines as any other applicant. The primary consideration would be the assessment of means and, in the absence of any means (which appears to have been the case with her), Ms Kileni would presumably qualify for the full rate of SWA for herself and for her daughter then living with her. The only reason why her SWA might be paid at a reduced rate would be where she was assessed as having means (the possibility of assessing the value of benefit foregone – in the form of Direct Provision accommodation – is discussed below). In asking the Appeals Officer about payment at the “Direct Provision” rate, the SCWO was referring to a category of payment which has no legal basis and in relation to which the Appeals Officer has no function (See Note 1).

When interviewed, the SCWO said that he was surprised by the Appeals Officer’s decision. In an e-mail communication from the SCWO to the Reception and Integration Agency in late May/early June 2010, the SCWO referred to the Appeals Officer having allowed Ms Kileni’s appeal “on a technicality”.

In reality, it appears the SCWO regarded the Appeals Officer decision as a mistake as it did not take account of the underlying assumption, on his part, that Ms Kileni could not be regarded as habitually resident in the State. Even though the HSE had not taken the decision that Ms Kileni was not habitually resident, the SCWO appears to have expected that the Appeals Officer would have acted on the assumption that Ms Kileni should be found not to be habitually resident in the State. Subsequently, in February 2010, the SCWO dealt specifically with the issue and decided that Ms Kileni was not habitually resident in the State. At this point, the HSE was in a position to withdraw basic SWA payments entirely as Ms Kileni had been found not to satisfy one of the key eligibility conditions. However, the SCWO continued to pay Ms Kileni a reduced rate of SWA pending the outcome of her appeal on the habitual residence issue. Ms Kileni was successful with this appeal.

Benefit and Privilege

The SCWO has told the Ombudsman’s Office that he regarded the second e-mail from the Appeals Officer, on 11 January 2010, to be a revision of her original decision. The SCWO said that he interpreted the Appeals Officer’s phrase "appropriate to her needs" as taking account of any assessable means or means she had given up.  He referred to the 'benefit and privilege' of Direct Provision accommodation which Ms Kileni had given up and assumed that this was an item to be taken into account for the purposes of the means test (See Note 2). The SCWO said he was not aware of the exact value of such benefit and privilege but that the SWA, less such benefit and privilege, would be equivalent to the Direct Provision rate of €19.10. 

The rules for calculating means in SWA cases are set out in Part 4 of Schedule 3 to the Social Welfare Consolidation Act 2005. In the present context, Rule 1(2) is particularly relevant; it provides that in calculating the weekly means of a person, for SWA purposes, account shall be taken of:

“(2) all income in cash, including the net cash value of any non-cash earnings ... and the non-cash benefits that may be prescribed ...”

There is only one non-cash benefit prescribed for the purposes of Rule 1(2). This is prescribed by article 35 of Statutory Instrument No. 412 of 2007 as:

“... the net cash value to the person of meals, accommodation and related services provided under a scheme administered by the Department of Justice, Equality and Law Reform and known as direct provision, where the costs are met in full by the State."

However, as Ms Kileni was not in Direct Provision when she applied for SWA in November 2008, she was not receiving the non-cash benefit prescribed in Statutory Instrument No. 412 of 2007.  Nor had she been in the Direct Provision arrangement at any time between the initial SWA application and the date of the Appeals Officer’s decision.

The SCWO referred to Rule 1(4) of Part 4 of Schedule 3 to the Social Welfare Consolidation Act 2005 which deals with situations where a person may have deprived himself of means in order to qualify for SWA; this Rule provides that the following shall be taken into account in calculating means:

“all income and the value of all property of which the person has directly or indirectly deprived himself or herself in order to qualify ... for the receipt of supplementary welfare allowance”.

The key requirement is that the person must have deprived themselves of income or property in order to qualify for the allowance. The Direct Provision of meals, accommodation and related services is categorised as a non-cash benefit and, on the face of it, does not constitute either “income” or “property” for the purposes of Rule 1(4). It seems clear, therefore that it has no relevance to this case.

Even if it did constitute either “income” or “property”, it would be hard to conclude that Ms Kileni left Direct Provision

“in order to qualify ... for the receipt of supplementary welfare allowance” (See Note 3).

Ms Kileni left Direct Provision accommodation as, she says, it was unsuitable for her family (See Note 4).  She says the accommodation was overcrowded with herself and her two daughters living in one room of a four bedroom house which was shared with three other families.  Ms Kileni maintains that she witnessed gender based violence and that her daughter tried to commit suicide in the centre.  Ms Kileni says she raised the matter with the Reception and Integration Agency but was told there was no other accommodation available to her.  Ms Kileni says she left the centre for these reasons and also because the medical services she required for her daughter were available in Dublin only. In any event, the Appeals Officer noted Ms Kileni’s statement that she

“ had left this direct provision accommodation in August 2008 for social and medical reasons and I [Appeals Officer] accepted on the basis of all the evidence before me that this was the case.”

The SCWO’s interpretation of the Appeals Officer’s communication to him of 11 January 2010, as marking a revision of her original decision, simply does not stand up. If there had been such a revision, the Appeals Officer would have been obliged to inform Ms Kileni of this. The Appeals Officer did not so inform Ms Kileni.

Procedures to Challenge Appeals Officer Decisions

In circumstances where the SCWO was unhappy with the decision of the Appeals Officer, there were a number of legal options available to challenge that decision. Pending the outcome, in the event that one of these options was being pursued, it was not open to the SCWO to disregard the Appeals Officer decision or to substitute his own different decision for her decision.

The procedure for appealing the decision of an Appeals Officer of the Social Welfare Appeals Office is set out in the Social Welfare Consolidation Act 2005.

Under section 317 of the Social Welfare Consolidation Act 2005 an Appeals Officer may revise the decision of an Appeals Officer (including his or her own decision) where it appears that “the decision was erroneous in the light of new evidence or of new facts brought to his or her notice since the date on which it was given...”.  If the SCWO believed that there were new facts or evidence relevant to the case, it would have been open to him to bring this to the attention of the Appeals Officer and to seek a revision of the original decision.

Under section 318 of the Social Welfare Consolidation Act 2005, the Social Welfare Chief Appeals Officer “may, at any time, revise any decision of an Appeals Officer, where it appears to the Chief Appeals Officer that the decision was erroneous by reason of some mistake having been made in relation to the law or the facts.” A request for such a review may be made by any party, including by the SCWO or by the Department of Social Protection. Indeed, the Department itself in 2008/2009 sought reviews by the Chief Appeals Officer of some Appeals Officer decisions involving the habitual residence condition.

Under section 327 of the Social Welfare Consolidation Act 2005, “any person” who is “dissatisfied” with the decision of an Appeals Officer may appeal that decision to the High Court “on any question of law”. It is clear that this avenue of appeal is open to the HSE (or now to the Department of Social Protection).

It appears the SCWO’s thinking at the time was that the Appeals Officer had made a mistake in law by allowing a SWA appeal from a person in respect of whom a positive decision on the habitual residence condition had not been given. In these circumstances, a request from the SCWO for a review by the Chief Appeals Officer would have been appropriate. Having failed to avail of this option, it was not open to the SCWO to disregard the Appeals Officer’s decision or to decide to implement it in part only.

The SCWO said at interview that he was unaware of the procedure for requesting a review by the Chief Appeals Officer of an Appeals Officer’s decision. The SCWO said also that this case was the only one in which he had queried the decision of an Appeals Officer.

It is surprising that a SCWO, who plays a key managerial role in the operation of SWA, would not be aware of these provisions in social welfare law which has been in place since the 1950s.

Consequences for Ms Kileni

Ms Kileni was paid €11,882 in arrears of SWA in January 2011; but she had been without the full weekly payment to which she was entitled for a period of 26 months.  While Ms Kileni received some SWA payments on the basis of emergency needs during this period, she did not have a consistent source of basic income for herself and her family. Because of her status – awaiting a decision on her application for humanitarian leave to remain – she was not allowed to take up employment.

In the normal course, not having money for food, for rent, for clothing is self-evidently a huge trauma for any family. In the particular circumstances in which she found herself, the trauma for Ms Kileni and her family must have been very significant. During this time one of her daughters was in her final year in secondary school. During this time also her other daughter received medical treatment following her suicide attempt and was placed in foster care.  In addition, Ms Kileni herself had her own mental health difficulties and was found to be suffering Post Traumatic Stress Syndrome arising from experiences before coming to Ireland. She was attending counselling provided by a support service for victims of torture.

From the outset, social workers from the HSE and from the Lucena Clinic (Child and Adolescent Mental Health Service) had advocated in support of Ms Kileni’s SWA application on the basis that her daughter’s recovery, and return to her family, would be helped very considerably where the family had a regular income and appropriate accommodation.

Following the favourable Appeals Officer decision, a HSE social worker wrote to Ms Kileni’s Community Welfare Officer on 13 January 2010 to thank him “and your Department” for finding in favour of Ms Kileni. The social worker said that the decision, and the expected financial support, “will greatly relieve stress levels for Mrs Kileni, whom, as you may be aware, has experienced many significant traumatic events in her life to this point”. The social worker went on to say that his Department was then “co-ordinating reunification of [daughter] with her mother and sister” and that the“set date for the completion of reunification of this family is Friday 29 January 2010”. The social worker said that the reunification decision had been made “due to Ms Kileni’s assessed stability at this time and also that of her daughter”. This appears to be a reference both to the mental health status of mother and daughter as well as a reference to the anticipated financial stability consequent on the Appeals Officer decision. At that point, the social worker expected that Ms Kileni would continue to be paid at the full rate of SWA for herself and her daughters.

It is clear that the decision of the SCWO (communicated to Ms Kileni on 14 January 2010) to pay SWA at the reduced rate (equivalent to the Direct Provision rate) upset the plans for family reunification.  In the apparent belief that the Appeals Officer had revised her original decision, and had now awarded reduced rate SWA only, two HSE social workers wrote jointly to the Chief Appeals Officer on 25 January 2010. They wrote “to appeal against the latest judgement from your respective Office’s to overturn your previous decision to find in favour of Ms Kileni...”. The social workers referred to the decision to reunite the Kileni family and said that “the positive ruling from your Office allowing Mrs Kileni’s appeal and being allowed the full payment amount had a bearing on this decision”.  The social workers asked that this “revised” decision be reconsidered as

“the payment of the full rate for one adult and two dependants would prove invaluable in positively advancing family stability away from one of a very delicate nature previously”.

As the Appeals Officer had not revised her favourable decision, the social workers’ “appeal” made no difference. In the event, the family reunification plan was not implemented and, even at the time of writing this report, the daughter of Ms Kileni has not been reunited with her mother and her sister. In light of the fact that she was not receiving full rate SWA, and thus was unable to afford accommodation on her own (See Note 5), Ms Kileni and her daughter moved to Direct Provision accommodation in a hostel in Dublin.  At the time of writing, Ms Kileni lives in hostel accommodation with one daughter while her other daughter (for whom Direct Provision is untenable) lives with a foster family.

One cannot say with any certainty that the family would have been reunited successfully had the Appeals Officer decision been implemented fully. Had the family reunited on 29 January 2010, as planned by the HSE social workers, their situation would have deteriorated significantly within weeks as, on 19 February 2010, the SCWO decided that Ms Kileni was not habitually resident in the State and thus was not entitled to basic rate Supplementary Welfare Allowance. This decision was subsequently overruled by a Appeals Officer in August 2010 but by then, unable to pay for rented accommodation, Ms Kileni and one of her daughters had returned to Direct Provision accommodation.

Nevertheless, it is clear that the failure to implement the Appeals Officer decision had far-reaching negative consequences for the Kileni family. On 27 May 2010 the lead social worker dealing with the family sent a lengthy report to his HSE Principal Social Worker seeking the Principal’s support in having the Appeals Officer decision implemented fully. On the question of family reunification, the social worker said that matters had progressed well “at an emotional level and no child protection or welfare issues remain to be addressed ...”. Significantly, the social worker reported that “solely due to financial and accommodation concerns, reunification has yet to take place”. The social worker warned that “continuing to be paid the direct provision rate alone will in all probability have a detrimental effect on this family and will greatly preclude the reunification experience for all”. Finally, pointing out that “a significant weekly foster payment is being made to [the daughter’s] foster carers”, the social worker pleaded for

“an amicable joined up response from the various bodies within the HSE to address these unique but nonetheless exceptional circumstances”.

The Principal Social Worker passed on this report to the Community Welfare Service (including the SCWO) but without any apparent outcome. The HSE joined up response, sought by the social worker, did not happen. In the meantime, as pointed out by the HSE social worker, the HSE was paying the foster carers an allowance of €350 per week and, in addition, the foster carers were paid Child Benefit in respect of Ms. Kileni’s daughter.

In summary, the failure of the SCWO to implement fully the decision of the Appeals Officer was incorrect and without justification. The Kileni family suffered considerably as a consequence of that failure and, indeed, it would seem that these adverse consequences persist to this day.

The Ombudsman, in practice, deals with very few complaints made by or on behalf of asylum seekers. This is because of a restriction on her jurisdiction, dating back to the enactment of the original Ombudsman Act in 1980, in relation to asylum seekers. The Ombudsman does not have jurisdiction in the case of actions of the Department of Justice and Equality “taken in the administration of the law relating to immigration or naturalisation”. The State’s most important interactions with asylum seekers occur within the area of law relating to immigration or naturalisation. Ireland is almost unique amongst those countries which have a public service Ombudsman in having the State’s key interactions with asylum seekers excluded from jurisdiction. Other than by way of judicial review, this important area of public administration is (and has been) effectively free of any external oversight (See Note 6).

In conducting this investigation, and in finalising this report, the Ombudsman has been aware of a significant and growing public unease regarding the arrangements for asylum seekers in this country. More and more, questions are being raised now about the appropriateness of the “Direct Provision” arrangements particularly as they impact on family life, on mental health and on the welfare of children. However the Ombudsman, on the basis of one investigation, cannot purport to make a finding on this general issue.

 

Note 1 :

There appears to be some confusion about the so-called “Direct Provision” payment. Where this payment is made to people living in Direct Provision accommodation it is not, in any legal sense, a payment under the SWA scheme. It appears to be a non-statutory payment administered by the HSE (now the Department of Social Protection) on behalf of the Department of Justice and Equality. There is no equivalent payment to asylum seekers living outside of Direct Provision.

Note 2 :

It is a feature of some social welfare means tests that the assessed value of a benefit foregone, or given up, may be included as an item of means – even where the benefit is no longer enjoyed.

Note 3 :

She left the Direct Provision accommodation in August 2008 but did not apply for SWA until November 2008.

Note 4 :

Prior to the oral hearing, the SCWO informed the Appeals Officer as follows:”... I contacted the [Reception and Integration Agency] to ascertain the standard of the direct provision accommodation that Ms Kileni walked out of in Co Mayo and was assured that it was of a very high standard.”

Note 5 :

The friends with whom Ms Kileni shared a house in Dublin had moved away.

Note 6 :

At the end of 2011 there were 238 outstanding High Court actions against the Office of the Refugee Applications Commissioner.  Source: Annual Report 2011: Office of Refugee Applications Commissioner

Having carried out an investigation under section 4 of the Ombudsman Act 1980 (as amended) the Ombudsman finds (See Note 1).

• 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 Kileni 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.

 

Note 1:

In its response to a draft of this report, the Department of Social Protection said that it "accepts that there was an unwarranted and significant delay in the payment of arrears inthis case as the officer dealing with the appeal did not ensure the Social Welfare Appeals Office (SWAO) decision was followed up in full." The Department also said that the SCWO should "have implemented the SWAO decision in full".

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. The Ombudsman understands that the HSE has now written to Ms Kileni and has apologised for what occurred. If this apology had not already been made, the Ombudsman would be recommending that such an apology should be made.

In view of the significant adverse consequences suffered by Ms Kileni and her family, as set out in this report, the Ombudsman recommends 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 is being 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.

Emily O’Reilly
Ombudsman 

June 2013

Ms Kileni complained to the Ombudsman about the failure of the Health Service Executive (HSE) to implement an appeal decision in her favour on her application for Supplementary Welfare Allowance (SWA).  Ms Kileni's complaint is that this failure to implement the appeal decision, made by an Appeals Officer of the Social Welfare Appeals Office, has had a significant adverse effect on herself and her family, not least because of the very difficult circumstances in which she and her family found themselves at the time.

The background to this case is that Ms Kileni and her two dependent children came to Ireland in 2007 as asylum seekers. Initially, she was paid SWA at what is known as the Direct Provision rate while living in Direct Provision accommodation in Mayo. This rate is intended for private necessities only as, with Direct Provision, the claimant is regarded as not having housing or food costs. At the time, the rate was €19.10 a week for an adult and €9.60 for a child dependant.

In November 2008, because (she says) she found the Direct Provision accommodation unsuitable in her particular circumstances, Ms Kileni went to live with friends in Dublin and applied for SWA at the standard rate. This application was refused. She appealed this decision, initially through the HSE appeal arrangements and subsequently to the Social Welfare Appeals Office. In June 2009 she attended an oral hearing at the Social Welfare Appeals Office. In December 2009 the Appeals Officer allowed the appeal. However, following this appeal decision in her favour, the HSE failed to implement the decision and did not pay the arrears due retrospective to the date of original application in November 2008.

In January 2011 - thirteen months after the decision of the Appeals Officer and 26 months after her application - the HSE paid Ms Kileni arrears of SWA retrospective to November 2008. These arrears were paid following the involvement of the Ombudsman's Office.

With the payment of the arrears due to her, Ms Kileni's initial complaint to the Ombudsman, concerning the HSE's failure to implement the Appeals Officer's decision, has now been resolved.  However, she continues to complain about the delay in paying these arrears and contends that this delay has caused not only financial hardship but extreme distress to herself and her family. For example, a decision to reunite Ms Kileni with a daughter, who was in foster care, appears to have been influenced by the positive decision of the Social Welfare Appeals Office in December 2009.  However, the reunification seems to have been delayed as the Appeals Officer's decision was not implemented at the time.