Publication
Operational Guidelines: SWI - SWIs and Appeal Hearings
From Department of Social Protection
Published on
Last updated on
From Department of Social Protection
Published on
Last updated on
The legislative provisions relating to Appeals Officers, Chief Appeals Officer and Decisions by Appeals Officers are in:
There are two ways in which an appeal may be determined - summary and oral.
Where an Appeals Officer is of the view that the documentary evidence, that is departmental papers and documents submitted by an appellant in support of an appeal, are comprehensive and do not raise any conflict as to the question at issue, she or he may determine the appeal summarily.
However, where this is not possible, an oral hearing must be arranged to resolve the matters at issue.
In some cases appellants request an oral hearing at the time of lodging their appeal. This request is granted at the discretion of the Appeals Officer.
The circumstances in which an oral hearing is required are not specified in legislation.
In Kiely V. Minister for Social Welfare (Supreme Court, 1977) the Court stated that:
"An appeal is of such a nature that it can be determined summarily if a determination of the claim can fairly be made on a consideration of the documentary evidence.
If however, there are unresolved conflicts in the documentary evidence, as to any matter essential to a ruling of the claim, the intention of the Regulations is that these conflicts shall be resolved by an oral hearing."
The Courts have also held that where essential facts are in controversy a hearing which is required to be oral and confrontational for one side but which is allowed to be based on written and therefore unquestionable evidence on the other side has neither the semblance nor the substance of a fair hearing. Consequently, where an appellant disputes the contents of a report, an oral hearing is necessary to resolve the conflict and the attendance at the hearing of the person who prepared the report usually the Social Welfare Inspector, is required to corroborate the facts.
Over 5,000 appeals are determined after oral hearings each year, many of which require the attendance of the Social Welfare Inspector.
Oral hearings are held in private. The aim is to keep the proceedings as informal as possible. In attendance are the Appeals Officer, the appellant and, in some instances, whomever the appellant may bring to accompany or to represent him or her. Also any person whom the Appeals Officer considers may be able to provide information on the appeals issue may also be present.
Social Welfare Inspectors frequently fall within this category.
At certain types of cases Assessors may also be present but these are mainly JB or JA cases relating to GSW conditions and not involving a Social Welfare Inspector.
An appellant may present his or her own case and it is not unusual for an appellant to be unrepresented at the hearing. Indeed, the social welfare appeals system is specifically designed so that a person may put their own case to the Appeals Officer.
However, legal or other professional representation is allowed if desired, although any costs incurred in such representation are not reimbursed. Alternatively, an appellant may be accompanied by a relative, community worker, public representative or trade union representative.
Appellants are advised of the importance of fully understanding the basis of the department's decision and it is recommended to them that they should seek from the department any clarification they require to present their case.
The Appeals Officer will begin the hearing by introducing him or herself and all other persons present. She or he will also indicate if there are other persons whom it is intended to call to give evidence in the course of the hearing.
All witnesses, including the Social Welfare Inspector(s), may be present at that stage or they may be asked to remain outside until the Appeals Officer is ready to hear their testimony. This is a matter for the Appeals Officer who is by law authorised to determine the procedure at the oral hearing.
The Appeals Officer will then outline the Deciding Officer's decision which is under appeal, the grounds of the appeal and the department's response to these grounds.
He or she will then begin taking evidence from any witnesses whom it is proposed to hear. The Appeals Officer has the authority to hear the appeal as if it were being determined for the first time but in making a decision she or he is, of course, subject to the same requirements of the law as the Deciding Officer who made the first decision. In the great majority of cases the appeal is determined by way of a review of the decision of the Deciding Officer.
The courts have held that the social welfare appeals process is an adversarial one and, although hearings are informal, appellants have an absolute right to question any aspect of the case being presented against them. This means that any witnesses, including Social Welfare Inspectors are liable to be questioned on their evidence by the appellant or his or her representative.
If the Appeals Officer considers that a question is irrelevant or repetitious or that the tone of the questioning is unreasonable or vexatious he or she may see it necessary to intervene.
However, it must be stressed that the appellant has an absolute right in natural justice to an opportunity to question the department's case.
The Appeals Officer may also ask questions of both sides for the purpose of clarification.
The status of the Inspector at an appeals hearing is, therefore, that of witness. As such she or he is not responsible for the prosecution of the department's case. (At certain hearings a Deciding Officer may attend for this purpose). However, an Inspector can help to make the case by the manner in which she or he gives evidence and the comprehensiveness of his or her report.
As a witness, the Inspector's role at the oral hearing would not then extend to the right to cross examine an appellant. If factual inaccuracies are being advanced by the appellant the Inspector can request from the Appeals Officer the opportunity to rebut and this will normally be afforded. Moreover, frequently all that is at issue at the oral hearing is the outline of facts as presented in the report of the Inspector and the informal nature of the appeal hearing will enable a general discussion between all parties as to the facts.
In general, the decision of an Appeals Officer is final and conclusive, subject to appeal to the High Court on a point of law.
However, a judicial review of the proceedings can be sought via the courts if a person feels that the procedures of the hearing lacked fairness. Appeals Officers must, therefore, ensure that appeals hearings are conducted fairly, impartially and are fully in accordance with the principles of natural justice.
An Appeals Officer will also be concerned that the appellant has confidence in the even-handedness of the proceedings.
Inspectors who may be acquainted with Appeals Officers should therefore be careful to avoid any familiarity, (for example addressing the AO by his or her first name) because it can be readily, and at times deliberately, misconstrued and the inference made that the Appeals Officer might be influenced by personal friendship.
Similarly, care should be taken to ensure that the investigator does not enter the hearing room before the claimant or the Appeals Officer or remain after the oral hearing has concluded.
Even though an Appeals Officer may be a former colleague any form of socialising in the vicinity of the hearing centre, for example taking a coffee break together in the hotel cafeteria, could place the Appeals Officer or indeed, the Inspector in an invidious position.
It is essential that no allegation can be raised that an investigator was presenting evidence to the Appeals Officer privately without the opportunity for the claimant to rebut it.