Foilsiú
Operational Guidelines: Decision Making and Natural Justice
Foilsithe
An t-eolas is déanaí
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Foilsithe
An t-eolas is déanaí
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Deciding Officers (DOs) and Designated Persons (DP) are appointed under section 299(1) and (2) of the Social Welfare Consolidation 2005 (as amended) to decide questions in relation to the following social insurance and social assistance provisions in the Social Welfare Acts. As the rules and principles are broadly similar, the following guidance will refer generally to DOs/DPs and to decisions also to be understood as ‘determinations of a Designated Person’.
Deciding Officers and Designated Persons are independent in their decision making. A DO or DP is required to make an independent judgement on the application of the law on a case by case basis. While a DO/DP is not subject to directions when making decisions they should be familiar with any guidelines issued by the department in relation to the questions or determinations before them. These guidelines are issued by the department to enhance the consistency of decisions.
The questions arising for statutory decision include those:
Notes:
*"benefit' for this purpose includes all social insurance and social assistance benefits, Child Benefit, Carer’s Support Grant, Working Family Payment and Back to Work Family Dividend, {excluding, other than in certain circumstances, Supplementary Welfare Allowance (SWA) for example, a basic SWA payment paid pending the decision/ appeal on another claim, or Rent Supplement}.The legislation describes the person making a claim or in receipt of a social welfare payment using a range of terms that include applicant, claimant, beneficiary, relevant person etc. These terms have been standardised to ‘customer’ throughout these guidelines for ease of reference.
DPs are appointed to decide a person’s entitlement to Supplementary Welfare Allowance (SWA) and the amount of any such allowance.
Officials acting on behalf of the Minister make decisions on the granting of credited contributions, the furnishing of information in relation to claims, and on claims for the various non-statutory schemes. Officials carrying out such administrative decisions must also apply the principles of natural justice to their work. Section 5 of this guideline sets out these principles in greater detail.
The department’s primary objective is to put the customer at the centre of service delivery. Having, or asking for the right information at the right time is the key to ensuring that the decision-making process is efficient at delivering high quality, timely and fair decisions. Therefore, every effort must be made to help customers make a claim and to understand the reasons for and importance of providing supporting documentation. If all facts on entitlements and supporting evidence are established at claim initiation stage, the quicker the processing and determination of entitlements will be.
A quality decision is one that is:
The customer must be clearly advised of the decision and any consequences it may have, and of their rights to review and appeal.
The department’s Customer Charter commits to communicate effectively with customers to ensure a clear understanding of the decision making process, from the inputs to the outcome, and the reasons behind these. The Charter also sets out what the customer’s responsibilities to the department are, in terms of ongoing engagement, information provision and claim maintenance. These Mutual Commitments are included on all application forms and the customer signs a Declaration Statement to confirm (1) data integrity, accuracy and completeness and (2) understanding of need for data maintenance and the consequences for noncompliance.
These mutual commitments and basic principles of burden of proof are reflected in the operational protocols for DOs/DPs set out below.
In general, when a person makes a claim for benefit or assistance, the burden of proof is upon that person to prove the conditions governing the claim are satisfied.
The following points should be borne in mind:
a) It is the responsibility of the customer to obtain evidence to support a claim, except where the evidence is already readily available to the department. The department already holds a considerable amount of information on identity, claim history and circumstances of our customers across our integrated IT systems. This information is already accessible to staff with the required access permissions. Therefore, it is not necessary to seek core information again from the customer unless an update is required.
b) The department’s Privacy statement explains the sources and forms of personal data the department retains to support processing of claims, while protecting personal data. When requesting additional information from a customer, the DO/DP should explain exactly what information is required and why.
c) While DO/DPs and others involved in the process should be as helpful as possible, they should emphasise that as a matter of law, the burden of providing evidence to support a claim must in general rest upon the customer. A customer will not be held responsible for failing to produce evidence where the DO/DP has determined that it was not within his/her power to obtain the evidence.
d) When new information comes to light since the award of any benefit which affects a customer’s current entitlement by way of a reduction or disallowance the burden is on the department to explain why the customer’s entitlement has changed. This principle also applies in the case of suspected fraudulent activity or deliberate concealment of facts or evidence.
A DO/DP should approach the determination of claims and questions for decision by first considering the evidence. From that evidence, the facts of the case should be established.
A fact is defined as either a circumstance, an occurrence, or event which must have existed at the time the decision is given. It is an actual occurrence, the truth of which is known, accepted or proved.
Evidence may be written or oral.
Direct evidence relates to the facts in dispute. Direct evidence is regarded as best evidence and outweighs any other evidence.
Circumstantial or indirect evidence is established by inference connected to established facts.
Hearsay evidence is based on what has been reported by others rather than directly observed.
Hearsay evidence has no weight as evidence until proven independently, or by admission from the customer.
Many facts will be submitted with an application made by the customer. Others may be obtained from information already held by the department.
Care should be exercised when considering applications to ensure that speculation is not entered into. Where necessary, additional evidence might be obtained through inquiries or investigation.
This may require the decision maker to:
An assertion by a customer such as: "I have no money" does not necessarily establish a fact. However, there is no rule of law which says a customer's statement must be corroborated. Then the DO/DP is expected to test these statements for consistency with other available evidence, and clear up any contradictions that may arise.
If an assessment of lifestyle factors indicates s/he is living in poor conditions then the department must prove otherwise by producing rebutting evidence. However, if his/her circumstances or lifestyle is such that it could not be maintained without some source of income then it is valid and proper that the DO/DP may require a satisfactory explanation. If a DO/DP does not accept statements provided following a consistency check, this should be clearly indicated to the customer, specifying the reasons why.
Where a customer voluntarily provides information to the department, confirming a change in their circumstances such as commencing employment, a record of this must be kept on their claim. Staff must ensure that a record of the customer’s declaration and all relevant information is confirmed with the customer and maintained accordingly.
Reports of social welfare abuse (whether confidential, anonymous or otherwise) are regarded as allegations and not facts. Such reports are used by DOs/DPs and inspectors as an indication of suitable lines of enquiry. However being "hearsay evidence" they have no weight as evidence until allegations are proven independently, or by admission from the customer. Investigators are tasked to obtain sufficient direct evidence to prove whether the allegations are true, so that any decision will be based on such and not rely on third party evidence.
The department publishes operational guidelines for officers engaged in investigations of questions arising on a person’s entitlement. These publications provide a general overview of the circumstances giving rise to further investigation. There are clear practices based on natural justice principles and data protection legislation governing how such information is used in investigating and deciding claims.
The following titles advise further on the operational guidance:
These guidelines set out the actions to be taken in the investigation, reporting, data protection and record retention aspects to this process and clarifies the information that may be legally disclosed to the data subject and decision maker.
Data Protection legislation does place some limitation on the release of personal data. When notifying a person of a decision, the department is conscious of the need not to release data relevant to a third party, unless it is clear that the third party are aware that this might happen and have agreed to it.
There are many factors that may affect the weight of evidence e.g. the age, reliability or demeanour of a witness, the proximity in time of certain acts to those under investigation and the number of possible explanations of a particular event.
The weight to be given to such factors must be carefully considered and is a matter of judgement for the individual DO/DPs concerned.
In Heaney v. Ireland [1994]. The elements necessary, where a restriction of a right is
involved, are that the restrictions must:-
"(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;
(b) Impair the right as little as possible, and
(c) Be such that their effects on rights are proportional to the objective"
The determination of the facts is a matter for the DO/DP and, if appealed, the Appeals Officer. In general, each decision must be given on the facts as they exist and not in anticipation of a future state of facts. The DO/DP then should apply the law to the established facts.
The decision-maker should demonstrate how he or she arrived at their decision and what evidence was taken into account. This approach should be applied irrespective of the benefit or assistance concerned. The courts may examine the legality of the decision (e.g. the application of the law or natural justice) but they are not a further court of appeal regarding the facts.
Every customer is entitled to have their claim considered in accordance with the principles of natural and constitutional justice and in the context of determinations of entitlement under the social welfare legislation that includes:
1. The right to know the information, upon which a decision is being made,
2. The opportunity to comment upon any reports or documents being used in reaching the decision and to present his or her case,
3. The right to know the reasons for any adverse decision,
4. The right to have all relevant evidence considered and irrelevant evidence not taken into account,
5. To have the decision made by an impartial person whose discretion has not been fettered and
6. Where it is necessary for a fair determination of the issues, an oral hearing.
Over the years, the Courts have laid down rules for administrative bodies to ensure that persons seeking benefits etc. are dealt with in a fair manner. These rules, which are known as the rules of natural justice, apply to all administrative bodies and tribunals.
The following rules are addressed to DOs/DPs in making statutory decisions on claims for a social welfare payment but apply also to all staff in the department who make other types of decisions that could have an adverse effect on the person concerned.
This rule requires that every person who may be adversely affected by a decision must be informed of any statement or allegation affecting his/her claim of which s/he was not aware and on which any pending suspension or unfavourable decision may be based. The person must be given an opportunity to refute or comment before payment is suspended or before a decision is given in the case.
In general, the need for action arises only where the evidence on which the suspension or the decision will be based has come from a source other than the customer e.g. an employer in regard to the reason for the loss of employment, or information ascertained by a Social Welfare Inspector other than that furnished by the customer.
Application of this rule arises most frequently in the case of revised decisions on current claims and suspensions where consideration is being given to reducing or withdrawing a person's existing entitlement. It can also arise in the case of fresh or renewed claims where information is received that conflicts with that furnished by the customer e.g. a report from an employer, evidence of undisclosed means, evidence that the customer's spouse or children are not residing with or being supported by the customer etc.
However, it does not apply where, for instance:
Data Protection legislation does place some limitation on the release of personal data. When notifying a person of a decision, the department is conscious of the need not to release data relevant to a third party, unless it is clear that the third party are aware that this might happen and have agreed to it.
Where the continuing entitlement to a benefit is being reviewed, the possible consequences of the review must be made clear to the customer. For instance, if a customer for Jobseeker's Benefit has left a job of his/her own accord and the DO proposes to impose a disallowance ‘not genuinely seeking work’ (rather than a disqualification for up to 9 weeks), this should be pointed out and it should be explained that, in that event, payment will be discontinued on an on-going basis.
Where the person attends at the Office for interview about the case, s/he should be:
In order to have a record for future use that such notification has taken place, a note signed and dated by the relevant officer should be made of the interview. This note should contain a record of any relevant observations made by the customer.
*Data Protection legislation does place some limitation on the release of personal data. When notifying a person of a decision, the department is conscious of the need not to release data relevant to a third party, unless it is clear that the third party are aware that this might happen and have agreed to it.
Where the customer is being dealt with by post, a ‘natural justice’ letter, structured in the same manner as the interview above and setting out the position in full should issue. In the normal way, the person should be given at least 7 days to respond before a decision is made by the DO/DP.
The DO/DP must satisfy him/herself that:
(Please see also the Operational Guidelines: Reasons for Decisions "Reasons for Decisions" guideline regarding the obligation to explain to the customer the basis of the decision, so that the customer is able to address the relevant issues in the context of an appeal.)
Accordingly, while it is acceptable for DOs/DPs to consult locally with colleagues and/or training officers a DO/DP should never refer a file or a question on entitlements to another person, for directions as to what decision to make.
Social welfare inspectors reports following an investigation are submitted to DOs/DPs for their consideration and therefore do not make any recommendation on the decision to be made.
While the DO/DP may seek clarification from an inspector in relation to aspects of the report, the DO/DP must not discuss the decision s/he proposes to make in the case to avoid challenges to its validity.
Suspension should not be imposed unless there is reasonable belief that the basic conditions are not being fulfilled. All reasonable efforts should be made to contact the customer before payment is suspended. As a matter of natural justice, the customer must be notified of any questions on entitlement and be given an opportunity to respond in the case of a decision to disallow, disqualify or reduce a payment.
A person is entitled under natural justice to obtain a copy of all relevant documents* that were relied upon by the deciding officer in reaching a decision. This also applies when an entitlement is under review. This allows the person to make his or her case to the deciding officer or to prepare an appeal.
Such documentation will be available to the person on request and does not require an application under the Freedom of Information Act (See FOI Guidelines for further information). The same information is made available to the customer’s solicitor or known appointed agent where the customer has confirmed this authority.
The department undertakes to hold confidentially any information provided, subject to the department’s obligations under law, including the Data Protection and Freedom of Information Acts.
Such documents would include:
Depending on the response from the customer, further clarification from the person who furnished the information may or may not be necessary.
If the customer refuses or neglects to make any statement in the matter, the case can be submitted to the DO/DP for decision as the requirements of natural justice will have been complied with by notifying the customer and giving him/her the opportunity to respond.
* Data Protection legislation does place some limitation on the release of personal data. When notifying a person of a decision, the department is conscious of the need not to release data relevant to a third party, unless it is clear that the third party are aware that this might happen and have agreed to it.
This section summarises more comprehensive guidance on the legislative and operational requirements for the recording of statutory decisions. The “Reasons for Decisions” guideline is the primary guideline on the statutory process requirements.
In summary, statutory decisions must be:
Note: While the record of the decision must be signed (in writing or electronically) by the appointed officer, the memorandum or letter which issues to the customer does not have to be signed (Article 191 of S.I 142 of 2007 refers).
* Or, in the case of decisions relating to insurability of employment etc, to all of the parties subject to the decision – see Art 191 of SI 142 of 2007 for the specific legal provisions.
Where the decision is unfavourable to the customer, the DO/DP must give the reason for the decision e.g. where a claim is disallowed or is allowed at less than the maximum rate of payment. For this purpose, a distinction needs to be made between:
The decision should be conveyed clearly to the customer. Where a decision results in an overpayment the DO must ensure that a decision letter issues with the correct legislation, that it includes a right of appeal/review and that details of the overpayment amount and how it was calculated are provided to the customer.
In cases where the decision is fully favourable to the customer, it will not normally be necessary for the DO/DP to record the reasons. However, if the decision to allow a case is exceptional, the DO/DP should indicate in the recorded decision the factors that justify the award in the particular case.
Where an appeal is made against the decision of a DO/DP, the Appeals Officer (AO) is confined to the decision(s) before him/her being appealed. If, therefore, a DO considers that a customer fails to satisfy more than one of the conditions of entitlement, s/he should impose a disallowance or disqualification in respect of all such conditions. For instance, the DO's decisions on a claim for Jobseeker's Benefit might be that the customer is (1) disallowed ‘not available for work’ and (2) disqualified for payment ‘left employment of own accord’. Alternatively a DO’s decision on a claim for an assistance payment might be that a person (1) does not satisfy HRC and (2) is assessed as having means in excess.
A customer who is awarded the maximum amount payable may not need to know how you came to your decision but a customer who is disallowed, disqualified or receiving a reduced amount will want, and is entitled to, a full and easily understood explanation.
All decisions should be given in a legible fashion using everyday language and there should be enough detail to be meaningful. The use of jargon is discouraged as this is meaningless to the customer.
It should be noted that Data Protection legislation places some limitations on the release of personal data. When notifying a person of a decision, the department is conscious of the need not to release the specific data relevant to a third party without permission. In such cases, the grounds for determining that a condition has not been satisfied will be set out in the reasons given for the decision.
Many appeals could be avoided by providing the customer with more information on the rationale for a decision thereby creating a better understanding of the reasons behind the decision.
Finally, if an entitlement is not established, it is important that customers are advised of other possible entitlements such as Supplementary Welfare Allowance (SWA), Exceptional Needs Payments (ENP) or Urgent Needs Payments (UNP), or entitlements to additional benefits such as Working Family Payment (WFP) etc. This direction can be included in the decision letter along with information on the customer’s right to request a review and/or an appeal of the decision.
A failure to observe the principles of natural justice leaves a decision liable to be overturned. DOs/DPs (and AOs) are performing administrative functions but must act judicially*.
Decisions of DO/DPs and AOs are open to judicial review. Therefore, if a determination of a customer’s entitlements has been made in breach of the principles of natural and constitutional justice, the customer can seek to have the decision overturned in the High Court by way of judicial review.
A judicial review is not an appeal; it is a review not of a decision, but of the way in which a decision was reached.
* Minister for Social, Community and Family Affairs v Scanlon [2001] 1 IR 64
Officers appointed to take statutory decisions should
DOs/DPs must not