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Saoirse Brady Policy and Advocacy Officer FLAC 1 March 2012

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. What is FLAC?. An independent human rights organisation

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Saoirse Brady Policy and Advocacy Officer FLAC 1 March 2012

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  1. 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

  2. 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. FLAC

  3. 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 FLAC

  4. 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 FLAC

  5. 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 FLAC

  6. FLAC

  7. 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. FLAC

  8. 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 FLAC

  9. 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 FLAC

  10. 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 • EuropeanCourt of Justice decisions overrule any interpretation of Administrative Commission (See http://www.welfare.ie/EN/Policy/EU/Euguide/Documents/Part2.pdf for more information) FLAC

  11. 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 FLAC

  12. 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: http://ec.europa.eu/justice/doc_centre/citizenship/movement/doc/ireland_compliance_study_en.pdf FLAC

  13. 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 FLAC

  14. 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 FLAC

  15. 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 FLAC

  16. 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. 34000 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 FLAC

  17. SNCBs – Applications and Appeals Awaiting Decision • Figures taken from response by Minister for Social Protection to a PQ on 23 November 2011 FLAC

  18. 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) • What 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? FLAC

  19. More Information • See our website www.flac.ie and www.airecentre.org • Sign up to PILA Bulletin at www.pila.ie • For more information on Irish social security schemes see www.welfare.ie • For information on social welfare appeals see www.socialwelfareappeals.ie • For information on EU social security coordination see http://europa.eu/legislation_summaries/internal_market/living_and_working_in_the_internal_market/c10521_en.htm and http://www.tress-network.org/ • For statistics on return of EU12 Accession State Nationals see: http://www.ria.gov.ie/en/RIA/Pages/2011_Statistics • For Parliamentary Questions see www.oireachtas.ie and www.kildarestreet.com FLAC

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