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 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 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 6 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 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. Try to keep copies of application and any related documents DSP officials obliged to consider application 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 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/ 9 Right to reside test Question of law More frequently used by the Department of Social Protection Introduced into legislation in December 2009 Persons listed in legislation as having a right to reside include: 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 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 Make an appeal using Notice of Appeal form: www.socialwelfareappeals.ie 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 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 12 May get advice but will depend on means and merit test Making a Freedom of Information Request Request social welfare file under (FOI) Acts 1997 – 2003 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 13 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 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: 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. 14 Social Welfare Law Reform 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 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. 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 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. 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. 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. 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: ▫ ▫ ▫ 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 Social Insurance Institution – ZUS Agricultural Social Insurance - KRUS Ministry of Labour and Social Policy National Health Fund Open Pensions Fund Occupational Pension Programme ZUS is the Polish state organisation responsible for social insurance matters, that is responsible for: 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 : 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 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: Families are also able to get a supplement in respect of the childbirth that is a lump sum of 1000 pln (€250). 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 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.