AIRE Centre Tri-City Project: Benefits, Payments and Challenges in the Irish Social Welfare Context Saoirse Brady Policy and Advocacy Officer FLAC 1 March 2012

FLAC2 What is FLAC? An independent human rights organisation Dedicated to the realisation of equal access to justice for all using the law as a way to achieve change Established in 1969 by law students to campaign for the introduction of a comprehensive civil legal aid scheme Campaigns on a range of legal issues but also offers some basic, free legal services to the public.basic, free legal services

Ways in which FLAC works Lo-call information line in Dublin office Receives more than 10,000 queries from general public or other bodies including CICs, NGOs, advocates Advice Centres First stop legal advice given by approx. 600 qualified lawyers who volunteer in 92 centres in 81 locations nationwide. Provides legal information Web resources Information sheets or ‘FLACsheets’ Strategic casework Limited but ongoing cases 1 March 2012FLAC3

1 March 2012FLAC4 Social Welfare Law Reform as Key Priority Area Reports Analysis of Direct Provision system for asylum seekers published in 2010 Currently working on report on the social welfare appeals process Policy submissions Social Welfare legislation Pre-Budget submissions Briefings for domestic and international human rights mechanisms

Social Welfare Law Reform (2) Information guides Habitual Residence Condition Social welfare appeals Process Immigrants’ entitlements to social security (joint publication) Strategic casework Application of Habitual Residence Condition to asylum seekers Spouse of EU worker suffering domestic violence Second tier advice Citizens Information Centres NGOs working on social security issues 1 March 2012FLAC5

1 March 2012FLAC6

Other Social Welfare Queries There were 282 social welfare queries and 220 immigration queries to information line in 2011 There were 131 queries in 2011 which required second-tier advice given to: 29 individuals including former clients 19 different NGOs in 63 instances 8 Citizens Information Centres in 27 instances 12 other organisations such as UNHCR, the Office of the Ombudsman, solicitors and consultants. 1 March 2012FLAC7

EU Social Security Law Applicable to Special Non-Contributory Benefits EC Regulation 883/04 Coordination of social security systems Article 70 defines Special Non-Contributory Benefit as: supplementary, substitute or ancillary cover against the risks covered by the branches of social security referred to in Article 3(1), and which guarantee the persons concerned a minimum subsistence income having regard to the economic and social situation in the Member State concerned Non-exportable Funded from general public expenditure – non-contributory element Residence is defined as habitual residence 1 March 2012FLAC8

Irish Special Non-Contributory Benefits Listed in Annex X Annex X of EC Regulation 883/04 lists the following payments as SNCBs in Irish social welfare system: Jobseekers Allowance State pension (non-contributory) Widow's and Widower's (non-contributory) pensions Disability Allowance Mobility Allowance Blind Pension 1 March 2012FLAC9

Implementation and Administration of 883/04 EC Regulation 987/09 Implements Regulation 883/04 Provides information on administration of social security schemes in each Member State Administrative Commission for the Coordination of Social Security Assists authorities in each Member State to apply 883/04 Issues non-binding decisions on interpretation of Regulations and cooperation between Member States European Court of Justice decisions overrule any interpretation of Administrative Commission (See for more information) 1 March 2012FLAC10

Possible introduction of Single Working-Age Payment Discussed at Joint Oireachtas Committee in January 2012 Working Group to report to Troika at end of March 2012 Proposed payment would replace: Jobseekers Allowance Disability Allowance One Parent Family Payment Farm Assist Blind Pension Widow(er)’s Non-Contributory Pension Carer’s Allowance 1 March 2012FLAC11

1 March 2012FLAC12 EU Directive 2004/38 Citizens Directive Right of EU citizens and family members to move and reside freely within territory of EU Member States May apply in this context to primary carer of EU citizen child, the spouse of an EU worker including victims of domestic violence etc. Transposed into Irish law by Statutory Instrument 656/2006 European Communities (Free Movement of Persons) (No 2) Regulations 2006 For more information on the transposition of Citizens Directive into Irish law see: c/ireland_compliance_study_en.pdf c/ireland_compliance_study_en.pdf

Habitual Residence Condition Applied to all special non-contributory benefits Introduced in May 2004 in light of EU enlargement Section 246 of Social Welfare (Consolidation) Act 2005 – the Principal Act Case C-90/97 Swaddling v. Adjudication Officer – five factors included in Social Welfare and Pensions Act 2007: (a) length and continuity of residence in the State or in any other particular country; (b) length and purpose of any absence from the State; (c) nature and pattern of the person’s employment; (d) person’s main centre of interest; and (e) future intentions of the person concerned as they appear from all the circumstances 1 March 2012FLAC13

Right to Reside Test Introduced in December 2009 Social Welfare and Pensions (No. 2) Act 2009 Persons listed in legislation as having a right to reside include: Irish citizens British nationals EU workers or EU nationals who meet certain criteria Convention or Programme refugees, their families and dependents Persons granted leave to remain or subsidiary protection 1 March 2012FLAC14

Current Issues Arising for EU Migrants living in Ireland Failure to accept applications for payments Verbal refusals Misapplication or misunderstanding of the Habitual Residence Condition 2 year rule or set timeframe being incorrectly applied Emphasis on employment requirement – not taking into account other factors Particular issues regarding access of Romanian and Bulgarian migrants due to work permit restrictions Misunderstanding by officials of applicable EU legislation and case-law EU workers and jobseekers Victims of domestic violence 1 March 2012FLAC15

Delays in Appeals System Consistently high rate of success on appeal suggests need for better first-instance decision- making 42 per cent success rate on appeal in 2010 Delays in processing of appeals by Social Welfare Appeals Office High volume of appeals – approx in 2011 Average processing times in 2011 were 25 weeks for summary decision and 52.4 weeks for decision when oral hearing involved (Response to PQ by Catherine Murphy TD, 26 January 2012) Figures above include average processing time of 13.7 weeks for Department of Social Protection processes 1 March 2012FLAC16

SNCBs – Applications and Appeals Awaiting Decision Figures taken from response by Minister for Social Protection to a PQ on 23 November March 2012FLAC17 Payment Appeals awaiting decision at 31/10/2011 Applications received to 31/10/11 Appeals Outstanding as percentage of applications Jobseekers Allowance 3,945204,1662% State Pension (N-C) 1975,9063% Widow(er)’s Pension (N-C) % Disability Allowance 3,23820,45716% Blind Pension %

Return of Destitute EU12 Accession State Nationals Destitute EU Nationals Referred to the Reception and Integration Agency by Homeless Person’s Unit or Gardai and assessed by Asylum Seeker and New Communities Unit 368 people returned from 1 January to 31 October 2011 (548 total in 2010) 226 to Romania (61.4 per cent) 54 to Poland (14.7 per cent) 27 to Latvia (7.3 per cent) 23 to Slovakia (6.3 per cent) 19 to Lithuania (5.2 per cent) Others (5.2 per cent) W hat safeguards are in place to ensure that people are not returned where they are awaiting a decision on appeal or have been wrongly refused payments? 1 March 2012FLAC18

More Information See our website and Sign up to PILA Bulletin at For more information on Irish social security schemes see For information on social welfare appeals see For information on EU social security coordination see nd_working_in_the_internal_market/c10521_en.htm and nd_working_in_the_internal_market/c10521_en.htm For statistics on return of EU12 Accession State Nationals see: For Parliamentary Questions see and March 2012FLAC19