The statutory procedures in processing an appeal are provided for in the Social Welfare Consolidation Act 2005 and/or the Social Welfare (Appeals) Regulations, 1998. References to "Sections" in the following are to provisions of the Act and references to "Articles" are to provisions of the Regulations.
1. Making an Appeal
1.1 Notification of appeal
In the case of a decision made by a Deciding Officer/Designated Person of the Department, any person who is dissatisfied with that decision may, by giving notice of appeal to the Chief Appeals Officer within the statutory time limit, have the question referred to an Appeals Officer for determination (Section 311). The Section is interpreted as applying to persons with a material interest in the decision.
While the statutory notice of appeal is to the Chief Appeals Officer, in practice it may be sent either directly to the Social Welfare Appeals Office or it may be handed in to any office of the Department of Employment Affairs and Social Protection for transmission to the Office.
A person making an appeal is entitled to know fully the basis on which the initial claim was disallowed.
There is no charge for making an appeal.
1.2 Time for making an appeal
The notice of appeal must be made within 21 days of the notification of the Deciding Officer's decision (Section 311 and Article 9) but notice of appeal made after that period may be accepted with the approval of the Chief Appeals Officer (Article 9).
In exercising discretion under this provision, factors to which the Chief Appeals Officer would have regard would include the reasons for the delay, the length of the delay (the longer the delay the more cogent should be the reason for the delay), the question at issue, the prospects of success and the interests of justice.
1.3 Content of appeal
The notice of appeal must contain a statement of the facts and contentions upon which the appellant intends to rely (Article 9). The statutory procedures require that the notice of appeal be accompanied by whatever documentary evidence the appellant wishes to submit in support of the appeal. In practice, however, documentary evidence submitted subsequent to the notice of appeal will be considered by the Appeals Officer.
1.4 Acknowledgement of appeal
Every notice of appeal received in the Office is acknowledged and a leaflet containing an introductory guide to the appeals system is enclosed with the acknowledgement.
The appeal is recorded on a computerised register of appeals which is then used for monitoring the appeal through the appeals process.
1.5 Withdrawal of appeal
A person may withdraw the appeal at any stage by giving notice in writing to the Chief Appeals Officer (Article 9), but in practice, notice of intention to withdraw an appeal will be accepted by telephone (followed by written confirmation) or personal call. An appeal may be deemed to be withdrawn where the indications are that the appellant is no longer interested in pursuing the appeal and so the appeal has effectively been abandoned.
2. Predetermination Procedures
2.1 Submission by Department
In the case of an appeal against the decision of a Deciding Officer/Designated Person, the Chief Appeals Officer is obliged to notify the Minister of the appeal. The Minister must then furnish to the Chief Appeals Officer a statement, by or on behalf of the Deciding Officer, showing to what extent the facts and contentions advanced in the grounds of appeal are admitted or disputed. Any information, document or item in the power or control of the Deciding Officer that is relevant to the appeal must also be furnished (Article 10).
In fulfilling this statutory requirement, the Department may undertake further investigation of any new facts or evidence arising from the appeal, for instance by a Social Welfare Inspector. In the case of a claim to a sickness or disability related payment, the Department may arrange a further examination by a Medical Assessor.
It is open to the Deciding Officer/Designated Person of the Department at this stage to make a revised decision on the question at issue but only if such a revised decision would be in favour of the appellant (Section 301). Where a revised decision is made at this stage, effect is given to it by the Department and the appeal is thereby resolved.
If a revised decision by the Deciding Officer/Designated Person is not possible, the papers are submitted to the Chief Appeals Officer for referral to an Appeals Officer for determination. An appellant will be advised of any additional evidence adverse to his/her case which arises from such further investigation and will be afforded an opportunity to comment on it.
2.2 Notice to concerned persons
Notice that an appeal has been submitted is issued to any other person who appears to be concerned, i.e. a person with a material interest in the case (Article 11). The calling of witnesses who might be in a position to furnish evidence in relation to the matter to be determined is a function of the Appeals Officer paragraphs 3.3.4 and 3.3.7 below.
2.3 Referral of appeal to Appeals Officer
On receipt of a submission from the Department, the question at issue is referred to an Appeals Officer (Section 257 or 257A) for determination and the appellant is so informed.
2.4 Alternate reference to Courts
The Chief Appeals Officer may, where s/he considers it appropriate, refer the appeal to the High Court for decision. This procedure has not been used to date but it is envisaged that its use would be confined to appeals where complex points of law would be involved (Section 306).
It is, also, open to the Chief Appeals Officer to certify that the ordinary appeals procedures are inadequate to secure the effective processing of an appeal and to direct that the appellant submit the appeal to the Circuit Court for determination (Section 307). In practice this procedure is confined to appeals where special arrangements might need to be made for the anonymity of witnesses at an oral hearing.
3. Appeals Procedures relating to determining appeals
3 1 Request for further information
An Appeals Officer to whom an appeal is referred may request any person concerned to furnish further particulars with respect to the appeal and may allow amendment of the notice of appeal and of any statements made (Article 12).
3.2 Summary procedures or oral hearing
Where the Appeals Officer is of the opinion that the appeal can be determined on the basis of the documentary evidence and without the need for an oral hearing s/he may determine the appeal summarily (Article 13).
Where the Appeals Officer considers that an oral hearing is required to determine the question at issue, s/he will arrange for an oral hearing of the appeal (Article 14).
The circumstances in which an oral hearing is required are not specified in legislation. In Kiely v. Minister for Social Welfare (Supreme Court 1977 l.R. 267) 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 those conflicts be resolved by an oral hearing".
More recently [Galvin v. the Chief Appeals Officer and the Minister for Social Welfare, High Court 1997 3 l.R 240] the High Court stated
"There are no hard and fast rules to guide an Appeals Officer or, on an application for judicial review, this court, as to when the dictates of fairness require the holding of an oral hearing. The case (like others) must be decided on the circumstances pertaining, the nature of the inquiry being undertaken by the decision-maker, the rules under which the decision-maker is acting and the subject matter with which he is dealing and account should also be taken as to whether an oral hearing was requested."
In practice an Appeals Officer will arrange an oral hearing in cases where there is conflict in the evidence presented by both parties or whenever a hearing is requested to enable the appellant to present his/her case adequately. An oral hearing would also invariably be held where the decision at issue has resulted in an overpayment of social welfare payment repayable by the appellant.
3.3 Venue for oral hearing
In the Dublin and surrounding areas appeals are heard in the Social Welfare Appeals Office in D'Olier House. Outside Dublin, the hearing is arranged at a venue convenient to the appellant.
Timely notices are sent to all parties concerned.
3.4 Attendance at oral hearing
The appellant will ordinarily appear at the oral hearing in person and may be accompanied by a member of his/her family or, with the consent of the Appeals Officer, by any other person.
An appellant may also be professionally represented if s/he so wishes.
Also present at the oral hearing may be the Deciding Officer/Designated Person who made the decision or they may be represented by another officer of the Minister. Any other person whom the Appeals Officer considers should be heard may also attend (Article 15). Every effort is made to keep the hearing as informal as possible.
3.5 Payment of Expenses
If a person has to travel to attend the hearing, the Appeals Officer will arrange reimbursement for reasonable travel and subsistence expenses and compensation for any loss of earnings (Section 316).
The costs of professional representation at an oral hearing are not paid. However, the Appeals Officer may make an award in regard to such representation but only in respect of the representative's actual attendance at the oral hearing (Section 316).
3.6 Format of oral hearing
Oral hearings are held in private and the aim is to keep the proceedings as informal as possible. However, the Appeals Officer may, if s/he thinks it appropriate, take evidence on oath and administer oaths to persons attending as witnesses at the hearing (Section 313).
The Appeals Officer will begin the hearing by introducing him/herself and all other persons present. S/he will also indicate if there are other persons whom it is intended to call to give evidence in the course of the hearing. The Appeals Officer will then outline the Deciding Officer's decision against which the appeal is being made, the grounds of the appeal and the Department's response to these grounds. Evidence will be taken from any witnesses.
At the hearing the appellant is afforded every opportunity to set out his/her case and to question any evidence offered by witnesses. Alternatively, his/her representative, should s/he have one, may do this on his/her behalf.
In a minority of cases the Appeals Officer may be compelled to postpone or adjourn the hearing. This might be necessary if, for example, a crucial witness is not available or some additional evidence requiring further investigation is introduced at the hearing. In other cases the Appeals Officer may agree to defer consideration of the appeal to give the appellant the opportunity of obtaining some further evidence in support of his/her case e.g. a Medical Consultant's report.
3.7 Failure to attend an oral hearing
Where a person fails to attend an oral hearing, the Appeals Officer may take such steps as s/he considers appropriate to determine the appeal (Article 17).
An Appeals Officer may, by giving notice in writing, require a person to attend an oral hearing and to produce any relevant documents. A person failing to comply with such a notice is guilty of an offence and, on summary conviction, may be fined up to €1,500 (Section 314). This provision has been availed of to require witnesses to attend to give evidence on the question being determined.
4. Post-determination appeal procedures
4.1 Decision of Appeals Officer
Following his/her consideration of the appeal, including evidence adduced at the oral hearing, the Appeals Officer will normally be in a position to make a decision within 2/3 weeks of the hearing.
The decision of the Appeals Officer will be in writing and, where the decision is not in favour of the appellant, will include a note on the reasons for the decision (Article 19).
4.2 Notification of decision
A notification of the decision and, in the case of an unfavourable decision the accompanying note of reasons, will be sent to the appellant and any other person concerned (Article 19). The relevant papers are returned to the Department at that stage for any necessary action in relation to the decision.
5. DECISION-MAKING BY APPEALS OFFICERS
5.1 Question for consideration
The question before the Appeals Officer for determination is the same question as was before the Deciding Officer/Designated Person who made the initial decision. The Appeals Officer is not confined to the grounds on which the initial decision was based and s/he may consider the question as if it were being determined for the first time (Section 311). In practice, the appeal will be concerned with the grounds for the initial unfavourable decision and an appellant will not be required to defend a possible failure to satisfy some other condition relating to the payment claimed.
5.2 Evidence to be considered
In considering the question at issue, the Appeals Officer will have regard to all relevant evidence including the documentary material. This material may include reports of Departmental Investigating Officers and, where appropriate, Medical Assessors, the grounds of appeal including any documentation submitted with it and the submission by or on behalf of the officer who made the decision. Other documentary evidence could consist of correspondence from an employer as to the occurrence of an occupational accident or in regard to how a person's employment terminated. As well as that, the Appeals Officer will also have regard to any facts emerging from the presentation of evidence at the oral hearing.
5.3 Application of legislation
The conditions underlying entitlement to benefit are contained in provisions of social welfare legislation [the Social Welfare Acts and Regulations made thereunder] and the Appeals Officer must apply this legislation to his/her findings of the facts in determining the question under appeal. Some issues may involve the application of other legislation or case law - such as whether a divorce might be recognised as valid or whether the conditions of an employment are as an employee or self-employed person.
Case law used consists of Irish Courts judgements and of decisions by other courts acknowledged in Irish courts judgements.
5.4 Statutory interpretations
Some appeals may involve issues which had not hitherto arisen and the decisions of Appeals Officers in those cases may provide guidance were the same issues to arise again, subject, of course, to the merits of individual cases.
The (published) annual report of the Chief Appeals Officer to the Minister contains summaries of cases determined by Appeals Officers, which the Chief Appeals Officer considers would be helpful in construing particular aspects of legislation or in making findings of facts based on particular circumstances.
6. REVIEW OF DECISIONS
6.1 Revision by an Appeals Officer or by Chief Appeals Officer
A decision of an Appeals Officer may be revised by an Appeals Officer in the light of new facts or new evidence brought to attention or if there has been a relevant change of circumstances since the decision was given (Section 317).
A decision of an Appeals Officer may also be revised by the Chief Appeals Officer if it appears to her/him that the decision was erroneous by reason of a mistake as to the facts or the law (Section 318).
In either case, the person concerned should submit a written statement of the grounds on which a review of the decision is sought. In all procedures, principles of natural justice are fully adhered to and, if such a review would have a material interest for some other person concerned, such other person would have to be afforded an opportunity to comment.
6.2 Review by Courts
The decision of an Appeals Officer is in general final and conclusive (Section 320), subject to appeal to the High Court on a point of law or review as described above.
It is also open to any appellant to seek a judicial review of a decision in the Courts if s/he feels that a decision is deficient for want of fairness of procedure. The courts, however, will not generally disturb a decision unless it is "plainly and unambiguously flying in the face of fundamental reason and common sense", the criterion laid down by the Supreme Court in The State (Keegan) v. Stardust Compensation Tribunal 1986 l.R. 642 as the test by which the reasonableness of decisions of tribunals are judged.
In 1995 in the context of consideration of a decision of an Appeals Officer which was the subject of an appeal to the High Court, that Court, in upholding the decision of the Appeals Officer, stated -
"The decision reached depends on the importance which the Appeals Officer attached to some facts. This was a balancing operation which is essentially a matter of degree and his conclusions should not be disturbed unless they are such that no reasonable person could draw them. In my opinion the Appellants have not shown that the conclusions drawn by the Appeals Officer are ones which no reasonable person could draw and neither have they shown that they were based on a mistaken view of the law."
In an appeal against that judgement, the Supreme Court (Hamilton, CJ) in upholding the decision stated that
"..it would be desirable to take this opportunity of expressing the view that the Courts should be slow to interfere with the decisions of expert administrative tribunals. Where conclusions are based on an identifiable error of law or an unsustainable finding of fact by a tribunal such conclusions must be corrected. Otherwise it should be recognised that tribunals which have been given statutory tasks to perform and exercise their functions, as is now usually the case with a high degree of expertise and provide coherent and balanced judgements on the evidence and arguments heard by them it should not be necessary for the courts to review their decisions by way of appeal or judicial review."
[Henry Denny & Sons (Ireland) Limited T/A Kerry Foods v. Minister for Social Welfare
(1998 1 l.R. 34]
GLOSSARY OF TERMS
Administrative (quasi-judicial) tribunal:
Used to denote a tribunal which is outside the hierarchy of the courts and exercises a jurisdiction which is conferred by statute. Article 37 of the Constitution of Ireland enables the enactment of legislation to provide for the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, to a person or body not a judge or court appointed or established under the Constitution.
A request by a person to have a decision of a Deciding Officer or an officer of a Health Service Executive considered afresh and determined by an Appeals Officer.
An Appeals Officer is an Officer in the Social Welfare Appeals Office who is appointed under legislation by the Minister to determine appeals.
An assessor is a person appointed by the Chief Appeals Officer to attend an oral hearing and provide information to the hearing on the question under appeal. Typically, in an appeal relating to unemployment payments, an assessor would be appointed to provide information on the employment situation in a region.
A Deciding Officer is an officer in the Department who is authorised by law to make decisions on entitlement to benefit and insurability of employment.
The documents, including all correspondence and reports, which are relevant to the question under appeal.
Entitlement to benefit:
To be entitled to benefit a person must fulfil such conditions as are set out in the legislation governing the particular scheme.
Insurability of employment:
The question here considers the nature of the employment and the appropriate (PRSI) contribution class payable.
A hearing of an appeal before an Appeals Officer at which the appellant may present his/her case in person and question any witnesses whose evidence may be relevant to the matter to be decided.
Question under appeal:
This is the subject matter of the appeal which the appellant is contesting, typically whether or not a person is entitled to a social welfare payment.
Relates to conditions, powers or procedures which are provided for in legislation.
A summary decision is a decision made by an Appeals Officer on the basis of documentary evidence available without the need for an oral hearing.
Insurability of employment (including self-employment)
Employment in insurable employment
Rate of employment contribution payable
Entitlement to become a voluntary contributor
Families and income support
Back to Work Family Dividend
Domicillary Care Allowance
Working Family Payment
Farm/ Fish Assist
Guardian's Payment (Contributory)
Guardian's Payment (Non-Contributory)
Jobseeker's Transitional payment
Health and Safety Benefit
One-Parent Family Payment (including Deserted Wife's
Allowance and Prisoner's Wife's Allowance)
Deserted Wife's Benefit
Widow's/Widower's contributory pension
Sickness and incapacity
Blind Person's Pension
Partial Capacity Benefit
Occupational Injuries Benefit
Death Benefit (Pensions for widows, widowers, orphans, parents and funeral expenses)
Constant Attendance Allowance
Occupational Injuries Benefit Medical Care
Elderly or retired
State Pension (Contributory)
State Pension (Non-Contributory)
State Pension (Transition)
Other appellable issues
Backdating of payments
Continued Payment for Qualified Children
Continued payment after death in the family
Contribution by Liable Relative
Delay in payment - loss of purchasing power
Living Alone Allowance
Rent Allowance (Private Rented Dwellings Act)
Widowed Parent Grant
Supplementary Welfare Allowance
Entitlement to basic allowance
Supplement, including Rent and Mortgage
Some Schemes not covered by the Appeals Process
Should you wish to have any decision on these reviewed, you should request a review from the Department of Social Protection.
Area Based incentives
Back to School Clothing and Footwear Allowance
Bottled/Natural Gas Allowances
Community Development Programme
Credits (Award of)
Free Electricity Allowance
Free Telephone Rental Allowance
Free Travel Scheme
Free TV Licence Allowance
Job Facilitation Programme
Overpayment (recovery under Code of Practice)
Part-time Job Incentive
Second Level Allowance
Signing arrangements to prove unemployment
Smokeless Fuel Allowance
Student Summer Jobs
Third Level Allowance
Voluntary/Community Welfare Services
VTOS (Department of Education and Science)
Supplementary Welfare Allowance Exceptional Needs and Urgent Needs Payments
Please note: If you have been refused any other Supplementary Welfare Allowance payment e.g. an Exceptional Needs Payment, Urgent Needs Payment, Allowances in Kind or any other "once off" payment, these are not appealable to this Office. Should you wish to have any decision on these reviewed, you should request a review by a "Review Officer"of the Department of Social Protection.