Seminar notes - Ballymun Community Law Centre

Report
COMPARATIVE SOCIAL WELFARE
LAW: IRELAND
Laura Feely, Legal Intern FLAC (Free
Legal Advice Centres), 27 August 2013
1
Sources of Social Welfare Law
Primary legislation
 Social Welfare (Consolidation) Act 2005
otherwise referred to as the Principal Act
 Principal Act amended each year through other
social welfare acts but only consolidated every ten
years
Secondary legislation
 Regulations and Statutory Instruments used to
implement changes or specify procedure for
legislative provisions
 Social welfare (consolidated claims, payments
and control) Regulations 2007 – updated
regularly but not consolidated
2
Other Relevant Sources
EU Directives and Regulations including but not
limited to:
 Citizens Directive 2004/38/EC on right to move
and reside freely
 Regulation 883/04 coordinates social security
systems
EU case law may be relevant
 For example Swaddling and Zambrano judgments
Operational Guidelines
 Guidelines issued to Deciding Officers and
decision-makers within the Department on a range
of policy issues and payment schemes
Available on www.welfare.ie
3
Social Welfare Payments
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Social Insurance Payments- applicant must
satisfy specific social insurance contribution
conditions (PRSI contributions)
Means-Tested Payments- designed for people who
do not have enough PRSI contributions to qualify
for the equivalent social insurance-based payments
Universal Payments- They are paid regardless of
person’s income or social contributions
Supplementary Welfare Schemes e.g.
supplementary welfare allowance (SWA), rent
supplement, exceptional and urgent needs
payment. SWA provides a basic weekly allowance to
eligible people who have little or no income.
4
Social Welfare Payments
Categories
Disability and Illness e.g. Illness Benefit, Disability
Allowance, Blind Pension
Carer’s e.g. Carer’s Allowance, Domiciliary Carer’s Allowance
Unemployment e.g. Jobseekers Allowance, Jobseekers
Benefit
Older & Retired People e.g. State Pension (Contributory),
State Pension (Non-Contributory)
Families & Children e.g. Child Benefit, One-Parent Family
Payment, Maternity Benefit
Death Related Benefits e.g. Widow’s Widower’s or Surviving
Civil Partner’s Pension (Contributory/Non-Contributory)
Farming and Fishing e.g. Farm Assist
Back to Education i.e. Back to Education Allowance
Additional Payments e.g. Fuel Allowance, Household
Benefits Package
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5
Making an Application-Basic Information
See FLAC checklist on making a social welfare
application at: www.flac.ie/resources
Guide to social welfare services ‘SW4’ leaflet is
available in a variety of languages. Interpreter
can be requested.
A person should find out about all of their
entitlements and apply within the time limit
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Social welfare local office – find out where the
nearest office is here: bit.ly/localSWoffice
Citizens Information Centre
Check the Citizens Information website for clear
information on payments and criteria:
http://www.citizensinformation.ie/en/.
Steps to the Application Process
Apply for a payment in writing using official
application form
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Available from local SW office or online www.welfare.ie
Note: you cannot make an application verbally either in
person or over the phone
Supply as much information as possible and any
requested documents at the outset to ensure there
is no delay in dealing with application.
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Try to keep copies of application and any related
documents
DSP officials obliged to consider application
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7
Habitual Residence Condition (HRC)
Question of fact
Introduced in May 2004 in light of EU enlargement-Section
246 of the Principal Act
Five factors which make up the HRC test are taken from
CJEU Case C-90/97 Swaddling v. Adjudication Officer
 (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
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8
Habitual Residence Condition (HRC)
In some cases an applicant may also have to
complete the HRC1 form in addition to the form for
the primary payment
•Means-tested payments
•Child Benefit
See FLAC’s guide at: www.flac.ie/resources
There are certain exemptions to the HRC in the
case of EU workers and Family Benefits and SWA
A useful link for EU nationals to see if they qualify
for certain residence based payments is:
http://www.eubenefitsadviser.org/
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9
Right to reside test
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Question of law
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More frequently used by the Department of Social
Protection
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Introduced into legislation in December 2009
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Persons listed in legislation as having a right to reside
include:
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Social Welfare and Pensions (No. 2) Act 2009 which amends s.246 of
Principal Act
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
List is non-exhaustive
10
Refusal of an application
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The Deciding Officer (DO) must issue a written decision
with reasons for refusal – a verbal refusal does not count
 All reasons must be given at the outset – the DO cannot
add other reasons at a later date
Ask DO to review decision and provide any additional
documents/supporting evidence to assist the claim
 Quicker decision
 Can still make a social welfare appeal
Seek temporary support
 Supplementary Welfare Allowance (although subject to
HRC)
 Exceptional/Urgent Needs Payments not subject to HRC
but once-off payments
 St Vincent de Paul in short-term
11
Making a Social Welfare Appeal
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Make an appeal using Notice of Appeal form:
www.socialwelfareappeals.ie
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Check out FLAC’s Guide at: www.flac.ie/resources
Time limit of 21 days but usually accepted after
this time at discretion of Chief Appeals Officer
Ask for an oral hearing when making an appeal
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No cost to make an appeal
Better success rate at oral hearing
Gives appellant an opportunity to explain his/her case or
correct any misunderstandings
No civil legal aid for representation at social
welfare appeal hearings
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12
May get advice but will depend on means and merit test
Making a Freedom of Information Request
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Request social welfare file under (FOI) Acts 1997 –
2003
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Must be done applicant’s own name
Can use application form on www.welfare.ie or
Write letter including name and address, PPS number, type
of payment, dates of application
Address to FOI Officer in relevant payment section or FOI
unit
Will take four weeks to process
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Acknowledgment within 2 weeks
Can be done at same time as requesting review/appeal
Can supplement appeal with any information afterwards
No response may be deemed a refusal and appealed to more
senior official and failing that, the Information
Commissioner
Maladministration
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Customer can complain to the Department of Social
Protection using the Complaints and Comments
form.
The Office of the Ombudsman can consider
complaints against the DSP in relation to
maladministration including:
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decisions taken without proper authority,
undesirable administrative practices,
undue delays or
a lack of response to correspondence.
But must make complaint to DSP first and give
it an opportunity to rectify the situation.
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Social Welfare Law Reform
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Information guides
Guides to making a social welfare application, social welfare appeals
and the Habitual Residence Condition
Strategic casework
Application of Habitual Residence Condition to different categories of
people – asylum seekers, refugees, EU migrants, non-EU nationals,
Irish citizens
Second tier advice
Citizens Information Centres and NGOs working on social security
issues
Policy work and critical analysis
Research reports – Not Fair Enough: making the case for the reform of
social welfare appeals system (2012)
Submissions on legislation, Budget and policies
Member of Migrant Consultative Forum with Department of Social
Protection-established after the publication of Person or Number?
report by Crosscare, Nasc and Doras Luimni
15
Further Information
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See our website www.flac.ie – campaigns and resources sections
For further information on social welfare appeals process see FLAC’s
report, Not Fair Enough: making the case for reform of the social
welfare appeals system
For more information on Irish social security schemes, legislation
and guidelines see www.welfare.ie
See also www.citizensinformation.ie
For information on social welfare appeals see
www.socialwelfareappeals.ie
For information on EU social security coordination see
http://www.tress-network.org/
Sign up to PILA Bulletin at www.pila.ie
For parliamentary questions and debates see www.oireachtas.ie
16
American Welfare System
Kendra Rychlick & Megan Crenshaw
William Sampson Fellows, University
of Washington, School of Law
Legal interns at Ballymun
Community Law Centre & FLAC
“We fought a war on poverty, and
poverty won”
-Ronald Regan
How Social Security is Financed
History of American Welfare
• 61.9 million people receiving some type of benefits
in 2012
▫ (U.S. population = 316.5 million)
▫ 46 million Americans (15% of population) are
considered poor
• Sources of Welfare law
▫ Federal /State law
▫ Legislation
 1996 Personal Responsibility and Work Opportunity
Reconciliation Act (Welfare reform Act)
▫ Case Decisions
The Structure of Social Welfare
Federal
Government
Programs
1930-1990:
• Discontent
grows with
welfare
system
• Reform
becomes hot
topic
• Welfare
Reform Act
passed
1990-Present Day:
Shifted control of the
US welfare system
Federal
Government
Programs &
Funding
State Programs
State Programs
State Programs
Elderly Benefits
• Social Security Retirement
• Federal Pensions
• Survivors Benefits
Medicare and Medicaid
• Medicare - Insurance which covers people over
65 as well as younger people with certain
disabilities
• Medicaid - A state run program that provides
hospital and medical coverage for people with
low income or little to no resources
Disability Benefits
• Federal law requires a very strict definition of
disability. The administration does not offer
payments for partial disability, only total
disability.
• Must meet 2 earning tests
 Recent work test (based on age at time disability
begins)
 Duration of work test to show you worked long
enough to collect social security
Disability – SSI
• For people with low income/no resources who
are blind, disabled or 65+
• Based on income and resources
• MUST be a US citizen or national
• With SSI may still be eligible for food stamps
and Medicaid
• Children on SSI – People under 18 with
disabilities
Family Benefits
Temporary Assistance for Needy Families
Definition: TANF provides assistance and work opportunities to
needy families by granting States the Federal funds and wide
flexibility to develop and implement their own welfare
programs.
▫ Replaced Aid to Families with Dependent Children (AFDC)
program, the Job Opportunities and Basic Skills Training (JOBS)
program, and the Emergency Assistance (EA) program.
▫ Ended Federal entitlement to assistance and instead created
TANF as a block grant.
Federal Requirements: Work requirements, Five year time limit,
State Maintenance of Effort
Eligibility: Varies by State
Key Case: Goldberg v. Kelly
• Procedural Due Process
• Welfare benefits are statutory entitlements
Families with Children
Federal Child Care and Development Grants: (Federally Funded, State
Administered)
Definition: Child care assistance is available to eligible families through
State agencies that administer Federal Child Care and Development
grants.
Eligibility: Varies by State.
Head Start: (Federally Funded, Administered by Public and Private
Agencies)
Definition: Head Start is a federal program that promotes the
school readiness of children ages birth to 5 from low-income
families by enhancing their cognitive, social and emotional
development. requirements.
Eligibility: Determined by the Federal regulations.
Food Assistance
SNAP: Supplemental Nutrition Assistance Program (Federally Funded, State
Administered)
Definition: The Supplemental Nutrition Assistance Program is the new name for the Food Stamp program. These
benefits are used to buy food and help eligible low-income households obtain more nutritious diets by increasing
their food purchasing power at grocery stores and supermarkets.
Eligibility: Varies by State.
Washington Basic Food Program (Federally Funded, State Administered)
Definition: Basic Food in Washington helps low income people make ends meet by providing monthly benefits to
buy food.
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Your Basic Food benefits are based on your family size and income.
Receive an EBT (electronic benefits transfer card) or have benefits deposited in savings or checking account.
Eligibility: Washington State residents who meet
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Federal program requirements
Citizenship or alien status requirements
Food Assistance Program (State Funded, State Administered
Definition: FAP is the State food assistance program that provides benefits to legal immigrants who are not
eligible for the federal Supplemental Nutrition Assistance Program (SNAP), called Basic Food in Washington,
solely because of immigration status.
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Benefits based on household income and the number of eligible people in the home.
Receive half the amount of food benefits they would receive if they were eligible for SNAP.
Households can receive a mix of FAP and SNAP benefits depending on the citizenship or alien status of each person
in the home.
Eligibility: Legal immigrants who meet all the Basic Food requirements except citizenship or alien status.
Housing
Low Income Home Energy Assistance Program (Federally Funded- State and Tribes administer)
Definition: LIHEAP is a Federally-funded program that helps low-income households with their
home energy bills.
 Bill payment assistance.
 Energy crisis assistance.
 Weatherization and energy-related home repairs.
Eligibility: Varies by State.
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The LIHEAP program in community determines eligibility regulations.
NOTE: LIHEAP assistance is not guaranteed.
Housing and Essential Needs Program (State Funded & Administered by local homeless and housing
providers)
Definition: The Washington State Department of Commerce administers the program, which may
provide housing and other assistance for recipients of state-funded Medical Care Services.
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Assistance with limited rent and utilities,
personal health and hygiene items,
cleaning supplies,
And transportation.
Eligibility: Determined by State DSHS.
Unemployment
Definition: Unemployment Insurance is a method of safeguarding individuals
against distress for a short period of time after they become unemployed. It is
designed to compensate only employable persons who are able and willing to
work and who are unemployed through no fault of their own.
▫
Established in 1935 when President Franklin D. Roosevelt signed the Social
Security bill which contained provisions for UI.
Federal and State Joint Venture:
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Financed by both federal and state unemployment taxes.
Uniformity through Federal payroll tax.
Variation in State regulations.
Eligibility: Varies by State
Currently: Federal cuts to reduce government deficit. Unemployment on the
rise.
Welfare Benefits for US Non-Citizens
• People entering the country may not qualify for
benefits until they have been in the US for at
least 5 years
• Qualified residents barred from SSI and food
stamps until they become citizens
• Refugees and asylees are eligible for all welfare
benefits for the first 7 years in the country
American Welfare Conclusion
Social security
income minus
costs as a
percentage of
taxable payroll
Tuesday, 27th August 2013
Polish Social Welfare payments are divided into:
Social Insurance payments which are available
to people who pay contributions
and
Social Assistance payments that are a form of
social support for people who are not entitled
to benefit from other types of social support
National Legislation:
 Constitution of the Republic of Poland
 Various Acts
Polish Social Welfare Law is strongly
influenced by European treaties,
directives and regulations.
Macedonia
 United States
 Canada
 Australia
Republic of South Korea
 Austria
 Germany
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Social Insurance Institution – ZUS
 Agricultural Social Insurance - KRUS
 Ministry of Labour and Social Policy
 National Health Fund
 Open Pensions Fund
 Occupational Pension Programme
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ZUS is the Polish state organisation responsible for
social insurance matters, that is responsible for:
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Establishing the entitlements for social insurance benefits
Paying out the social insurance benefits
Assessment and collection of the social insurance and health
insurance contributions
Maintaining individual accounts of the insured and the
accounts of the contribution payers
Kind of benefit
Kinds of benefits awarded to
pensioners in 2011
Average
Amount
in PLN
% of
average
monthly
earning
Total pensions
1370.81
(€324)
46.6%
Old-age pensions
1471.30
(€348)
50.0%
Disability pensions
1096.34
(€259)
37.2%
Survivor’s pensions
1292.07
(€305)
43.9%
Average Amount of
Pensions in 2011
Criteria for classification
1st Pillar
2nd Pillar
3rd Pillar
Participation in the
system
Compulsory
Compulsory
Voluntary
Social Objective
Basic level of benefits
Basic level of benefits
High level of benefits
System management
Public
Private
Private
Financing
From current
contributions
Funded
Funded
Calculation of benefit
amount
On the basis of
contribution after
indexation
On the basis of capital
founded contributions
On the basis of capital
funded contributions
This pension is granted to an insured person
that :
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Is incapable of work
Completed required contributory and noncontributory period
The incapacity for work must have occurred during
certain contributory or non-contributory periods
Training Pension
To qualify for this pension an
individual must meet the
conditions to receive
disability pension and has a
decision on the advisability
of vocational retraining due
to incapacity to work in
earlier occupation.
Survivor’s pension
This pension is awarded to
entitled family members of
a person who- on the day
of death- had the
established entitlement to
an old-pension or
disability pension or met
the requirement for award
of one of these benefits.
Sick Pay is payable to the
employee for period of
incapacity for work of a
total not exceeding 33
days in a calendar year.
Sick Pay
Sickness Allowance is
payable to the
employee from the 34th
day of incapacity for
work.
Sickness Allowance
Maternity Allowance is payable to any insured women who within the period of
sickness insurance or within the period of parental leave:
 Gives birth to a child;
 Takes in a child of up to 7 years and files a petition for the adoption;
 Takes in a child up to the 7 years with intention to be a foster family.
The child’s mother can transfer the remaining of her maternity leave to the
father of the child after 14 weeks of maternity leave. If child father does not
wish to take up the remaining leave, mother is obliged to use the leave fully
and not to shorten it.
The duration of the Maternity Allowance payment depends on the number of
children being born or brought up.
Care allowance is payable during a period
of release from work due to the
necessity of taking personal care of a
healthy child under 8 years of age, a
sick child under 14 years of age or
other sick member of the family.
Both the child’s mother and father are
entitled to Care Allowance, however
only one of them may avail of it at the
time.
This Grant aims to cover the costs of the
funeral of insured person, pensioners,
or their family members as well as
persons who on the day of death did
not had the established entitlement to a
pension but met requirements for its
award.
The allowance is only awarded when there
is no one else in the household who
could take care of a child or of the other
family member.
Care Allowance
Death Grant
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The principle of subsidiarity
The principle of individualisation
The principle of Human Dignity
The principle of consideration of
Beneficiaries’ needs
The principle of Beneficiaries’
cooperation
Social Assistance
General Principles
Family Allowance is a means tested
payment.
It is payable until the child :

Reaches 18 years of age

Completes school education
Family benefits may be claimed
by:
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Families are also able to get a supplement
in respect of the childbirth that is a
lump sum of 1000 pln (€250).
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Both parents;
One of the parents;
The child’s legal guardian;
The child’s actual guardian;
Child who is 18, is still
pursuing education and is not
a dependant of their parents
The one parent family payment is payable
at a monthly rate of 170 pln (€40).
Family Allowance
Assessment
This benefit is payable as assistance to persons entitled to
maintenance allowance.
Child is able to claim this benefit when the execution of
maintenance money that are due is ineffective.
Benefit from the Maternity Fund is a means tested test.
The maximum amount of payment is 500 PLN (€118) a month
for each child which is financed by the State budget.
Eligible people who are temporarily staying in Poland may
receive healthcare benefits on equal terms with Polish
citizens. During a temporary stay in Poland you might be
entitled to:
Primary healthcare
 Specialist out-patients care
 Hospital treatment
 Dental treatment
Rescue and medical transport service
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You are entitled to this allowance after registering with the relevant
poviat labour office, if:
 There are no offers of employment, training, internship etc
appropriate to you and
 You were employed for at least 365 days over 18 months prior to
the date you registered.
Current amount of the unemployment benefit is 188 euro a month for
the first three months and 148 euro thereafter.
Usually you are entitled to receive payment for 6 months.

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