Dáil Éireann debate -
Tuesday, 24 Sep 2024

The Minister will be familiar with this case. Mr. Matt McGranaghan is a musician. He successfully took a case to the scope section in respect of his status as being self-employed or not being self-employed. An appeal was lodged and it was successful. That found against Mr. McGranaghan, but subsequently, according to the Workplace Relations Commission, there were several examples of information provided during the appeal that was factually incorrect. That case is now on the Minister's desk. Does she intend to act on it and, if so, what action does she intend to take?

The social welfare appeals office is an office of the Department that is responsible for determining appeals against decisions relating to social welfare entitlements. The office is administered by the Chief Appeals Officer. The Chief Appeals Officer and her team of appeals officials are independent in their decision-making functions. As Minister, I need to be conscious of the independence of the office, its functions and the decisions it makes.

The question at issue in the appeal referenced by the Deputy was whether the worker referred to had been working for the appellant employer under a contract of service or under a contract for services during a particular period. The worker had received a decision from my Department on 18 November 2020 determining that he had been working as an employee and was employed at class A.

I am advised that the appellant employer appealed the decision to the social welfare appeals office.

He made his decision based on the evidence before him. The evidence was sufficient to allow him to find that the appeal was allowed. He found that the person was employed under a contract for services as a contractor. I understand the chief appeals officer subsequently reviewed correspondence from the worker outlining a number of concerns he had about the appeal officer’s decision stating that it contained multiple errors in fact and in law. Section 318 of the Social Welfare Consolidation Act 2005 allows the chief appeals officer to revise a decision in which it appears to the chief appeals officer that the decision was erroneous by reason of some mistake in relation to the law or the facts. I understand the chief appeals officer will carry out a review of the appeal decision in this case under section 318 of the Social Welfare Consolidation Act.

The Deputy should be aware that my Department’s decision regarding PRSI class has no effect on an individual’s status for tax or employment rights purposes. The Office of the Revenue Commissioners deals with tax treatment and the Workplace Relations Commission deals with employment rights issues.

I thank the Minister. Has the decision by the chief appeals officer to review that decision been conveyed to the applicant, Mr. McGranaghan? I was not aware of that fact. Is it a recent development?

In principle, it is vitally important that the Minister of the day is not setting aside appeals that are grounded in a process. It is important due process happens and so on. There is an issue, obviously, where an appeal decision is arrived at in good faith by the appeals office but which is based on facts that are not correct. Mr. McGranaghan has now been vindicated by the Workplace Relations Commission’s finding. It is clear from that finding, which was under oath, there were several prima facie examples of criminal offences, or potential criminal offences, under sections 251 and 252 of the Social Welfare Consolidation Act 2005.

A judicial review of the process might have been appropriate in this regard. I do not refer to the decision in the individual case but rather in terms of the process.

As I understand it, the person received a decision in November 2020 in which it was determined the person had been working as an employee. The employer then appealed that decision and that appeal was successful. Following that, the person sent further information to the appeals office. Based on that additional information and the outcome of the Karshan judgment, the chief appeals officer now intends to carry out a section 318 review of this specific case. The person concerned will be contacted by the appeals office and advised of the next steps in this case.

It is important we allow the section 318 review to be completed. That is the next step in this process as I understand it.

Exactly.

It is important the processes work and if they are not working that there is some mechanism to ensure they work. Obviously, when an appeal is found on facts which turn out not to be facts or to be fabricated, misrepresented or whatever, the decision of such an appeal has a questionable basis and it is important we have a mechanism to address that. I will have to consider the point the Minister has made in respect of the review. My request here had been for a judicial review because judicial reviews obviously consider how decisions were arrived at, rather than necessarily the outcome. I am going to have to consider that. Can the Minister inform me when that decision was arrived at and when the review began?

As the Deputy is aware, the appeals office is independent of the Minister. The chief appeals officer has the power under section 318 of the Social Welfare Consolidation Act 2005 to revise a decision where it appears to him or her that the original appeal decision was incorrect. Given the decision of the Supreme Court in respect of the Karshan judgment, the chief appeals officer has now decided the appropriate course of action in this case is to carry out a section 318 review. I cannot tell the Deputy what the outcome of that review will be because that is a matter for the appeals office.

The appeals office is independent and everyone has the right to use it. If a person feels a decision is incorrect, he or she has every right to submit additional information and ask for it to be looked again. That seems to be what is happening in this case. While some appeals take longer than others, the appeals office is working to try to reduce waiting times.

I thank the Deputy for raising this matter. The social welfare appeals office is an office of the Department of Social Protection which is responsible for determining appeals against decisions in relation to social welfare entitlements. The office is administered by the chief appeals officer. The chief appeals officer and her team of appeals officers are independent in their decision-making functions. As Minister, I need to be conscious of the independence of the office, its functions and the decisions it makes.

Deciding officers and appeals officers are required to apply the law on a case-by-case basis. All statutory decisions are bound by the relevant provisions of the Social Welfare Consolidation Act 2005 and associated regulations. The legislation provides for a transparent and fair decision-making process in conjunction with the control of social welfare schemes. Every claimant is entitled to have his or her claim considered in the context of determinations of entitlement under the relevant social welfare legislation and in accordance with the principles of natural justice. Test or sample cases are not relied upon when making decisions relating to entitlements to social welfare payments.

I am informed by the chief appeals officer that the social welfare appeals office does not rely on test cases to determine the employment status of all workers in a sector. Every individual making an appeal always has the opportunity of having any evidence in his or her own case presented to and considered by an appeals officer.

The Comptroller and Auditor General has examined the Department’s approach to the determination of employment or self-employment on several occasions in recent years, most recently in 2022. This examination included reviews of cases which it selected at random. It was found that cases were determined on their own merits through the application of the criteria set out in the code of practice on determining employment status.

The Minister spoke about the policy as it is now. In the social welfare appeals office decision 2022476, which is dated 20 January 2023, the appeals officer states that while test cases may have been used in the past, they were used in very specific and limited circumstances. That is not terribly long ago - it is about a year and a half ago. While the Department may not currently be using tester sample cases, it is clearly an acknowledgement they have been used in the past. When were test cases last used by the appeals office or by the Minister’s own Department?

I do not have a copy of what the Deputy is quoting from, but if the Deputy wishes to send it on, I will be happy to look at it. I am informed by the chief appeals officer the social welfare appeals office does not rely on test cases to determine the employment status of all workers in a sector.

Any individual making an appeal always has the opportunity to have the evidence in his or her case presented to and considered by an appeals officer. Every case is considered on its own merits. As I said in my initial reply, the Comptroller and Auditor General has examined the Department's approach to the determination of employment or self-employment on a number of occasions over recent years, most recently in 2022. The Comptroller and Auditor General's examination included reviews of cases selected at random and found that cases were determined on their own merits through the application of the criteria set out in the code of practice on determining employment status.