Appeal Submission Guidelines - Guidelines for submitting appeals to the SWAO
INDEX
Introduction
1. Deciding Officer's Decision
1.1 Pre-decision
1.2 The Decision
1.3 Notification of Decision to Applicant
2. The Notice of Appeal
3. The Review of Decision by DO
3.1 Is it an appeal at all?
3.2 Reviewing the decision
3.3 Referral for futher Investigation or for Medical Examination
3.4 Notifying of a revised DO decision
3.5 Withdrawal of Appeal by appellant
4. Deciding Officer's Submission
5. The Appeal file - proper presentation
6. Linked Appeal files
7. Oral Appeal Hearings
8. Further Review after the AO's decision
8.1 DO Review
8.2 AO Review
8.3 CAO Review
Appendix 1
Appendix 2
Appendix 3
Introduction
The Social Welfare Appeals Office (SWAO) operates independently of the Department of Social Protection (DSP) and is responsible for determining appeals made by persons who are dissatisfied with decisions of Deciding Officers (DOs) of the Department and also Designated Officers of Health Service Executive. [Information of a general nature about the role of the SWAO is contained at the Freedom of Information Guide on the website - www.socialwelfareappeals.ie/foipage.html]
The purpose of these guidelines is to set out the procedures to be followed by DOs in submitting appeals to the SWAO.
Summary
The Guidelines are divided into different sections that make up the key elements of the decisions and appeals process: -
1. The DO’s decision (Section 1)
- There must be a valid DO’s decision based, on evidence, and made in accordance with social welfare legislation. See separate Guidelines entitled “Decision-Making”.
- All relevant issues/questions for decision should be addressed at the start. 'Piece-meal’ consecutive decisions on the same claim should be avoided.
2. The client’s appeal (Section 2)
- The appeal should be made in writing within 21 days of notification of the DO’s decision and should set out the grounds on which the decision is disputed.
- Late appeals may be allowed at discretion of Chief Appeals Officer
3. Review of decision by DO in light of the appeal (Section 3)
- The DO must review his/her decision in the light of the appeal contentions. All arguments should be considered
- Refer for further investigation / report if needed
- Revise decision if warranted, and only if in favour of the appellant.
- Advise the SWAO if the appeal is resolved or withdrawn
4. The DO’s appeal submission & presentation of Appeal File (Sections 4 & 5)
- The DO submission and presentation of the appeal file must be of the highest standard
- The submission should outline the decision and the grounds / evidence on which it was based.
- DO must address / comment on the extent to which the appeal contentions made by the appellant are accepted or rejected.
- The submission and file should be tabbed
- The appeal file should be returned to the SWAO within 3 weeks of receipt
Section 7 reminds DOs that they may be called upon to give evidence at oral appeal hearings and Section 8 sets out the position in relation to further reviews following the AO’s decision.
1. Deciding Officer’s Decision
1.1. Pre-decision
- Make sure that your decision is in respect of the “questions” arising under S. 300 of the SW Consolidation Act 2005 - see Appendix 1. Questions that are not for formal decision by DOs are set out in Appendix 2.
- Address all relevant “questions” at the start. Avoid multiple consecutive “piece-meal” decisions on different questions of the same claim that are likely to result in a series of decisions (and appeals). (For example, a Disability Allowance claim may have questions in relation to (i) Habitual Residence, (ii) Means and (iii) Medical issues).
- Observe Fair Procedures and the Principles of Natural Justice at all stages of the process i.e.,
(i) Rule against Bias (the DO must be unbiased), and
(ii)Right to a fair hearing (the other side must be heard)
- Keep the decision-making role of the DO separate from the investigative role of the SWI. (This ensures that DOs have no personal involvement in the investigation of a case which could prejudice their judgement).
- If further investigation or clarification is needed make sure that this is done before making a decision. (Decisions must be based on evidence – not on perceptions or guesswork).
- Be aware of the difference between a disallowance (no entitlement at all – e.g. “not available for employment” ) and a disqualification (underlying entitlement but disqualified from receiving payment for a specified period – e.g. “dismissed through misconduct”).
1.2 The Decision
- The DO’s decision must be in writing and should start with the words “I decide that…”. The decision should be legibly signed and dated by the DO. Where Electronic Signatures are used, as in SDM, these must be recorded on the system.
- The wording should be clear and easily understood (i.e. no jargon, acronyms or codes) and, also, should be in accordance with the legislation.
- The date of award, disallowance or disqualification should be shown on the decision.
- In the case of disqualifications for fixed periods (e.g. in the case of Jobseekers payments) the period or number of weeks of disqualification should be shown.
- In the case of negative decisions a note of explanation on the reasons for the decision should be given
- In the case of a revised decision (see Revised Decision Guidelines) that results in an overpayment specify whether the provisions of Section 302 (a), 302 (b) or 302 (c) apply – i.e. whether an overpayment exists. This will assist the Appeals Officer when considering whether to hold an Oral Hearing.
1.3. Notification of Decision to applicant
The notification of the DO’s decision should: -
Accurately record the details of the decision itself
- Include an explanation for the reason(s) for the decision – if the decision is to refuse the claim or award at a reduced rate
- Specify the effective date of decision and the consequent amount of overpayment if any
- Advise the customer that s/he may have his/her case reviewed by a deciding officer
- Advise the client of the right of appeal to the Chief Appeals Officer
Key Points
- There must be a valid DO’s decision made before there can be a right of appeal
- Negative decisions should be explained
- The notification of decision should include details of the right of review and the right of appeal
2. The Notice of Appeal
[The relevant legislation on social welfare appeals is contained in Chapter 2 of Part 10 of the Social Welfare Consolidation Act 2005 and in the Social Welfare (Appeals) Regulations, 1998 (SI 108 of 1998)].
- Any person (who has a material interest in the case) and who is dissatisfied with the decision of a DO may appeal to the Chief Appeals Officer. The appeal must be in writing and within 21 days of the notification of the DO’s decision (although the Chief Appeals Officer has discretion to accept a late appeal).
- The appeal should be addressed to the Chief Appeals Officer, Social Welfare Appeals Office, D’Olier House, D’Olier Street, Dublin 2
- The appeal should contain a statement of the facts and contentions upon which the appellant intends to rely and should be accompanied by whatever supporting documentary evidence the appellant wishes to submit.
- If an appeal is handed in to an office of the DSP or to a SWLO it should be immediately transmitted to the SWAO where it will be registered and acknowledged.
3. Review of Decision by DO
3.1 Is it an appeal at all?
Once registered in the SWAO the appeal will be sent to the DO who should firstly check to confirm that it is a valid appeal. If there is no DO’s decision (see Section 1.2 above) there is no right of appeal. In such cases the SWAO should be notified immediately so that the case may be withdrawn from appeal proceedings and closed on the SWAO register. Any request for clarification or explanation in the client’s letter should also be dealt with by the DSP at this point.
3.2 Reviewing the decision
If there is a valid appeal the DO must carefully examine the arguments put forward by the appellant to see whether or not the decision should be revised either in full or in part. Remember that the decision may be revised by the DO only if in favour of the appellant (S 301(3) of the SW Consolidation Act 2005). Reasons for such a revised decision might include: -
- New evidence or new facts that have come to light
- A mistake having been made in relation to the law or the facts, or
- A relevant change in the Appellant's circumstances that warrants a more favourable decision.
It is not open for a DO to impose a further ground of disallowance or disqualification at this point.
3.3 Referral for further Investigation or for Medical Examination
Where there is a conflict between the statements in the appeal and the initial report or where new evidence is introduced it may be necessary to have further enquiries undertaken by a Social Welfare Inspector.
In appeals involving sickness or disability related payment, the DSP may arrange a further examination by a Medical Assessor.
On receipt of the Social Welfare Inspector’s or Medical Assessor’s report the DO should again review the merits of the appeal as outlined at Section 3.2 above.
3.4 Notifying of a revised DO decision
Where fully allowed the client should be informed of the revised DO decision and the SWAO notified that the appeal has been resolved.
Where partly allowed the client should be asked whether s/he is satisfied with the revised decision or whether s/he wishes to pursue the appeal. If the revised decision has made a significant improvement, and is likely to satisfy the appellant, a letter to the client may indicate that failure to respond will be interpreted as satisfaction.
3.5 Withdrawal of Appeal by appellant
A person may withdraw his/her appeal at any stage by writing to the Chief Appeals Officer. In practice, this is also sometimes done by phone or personal call. To avoid misunderstanding, where an appeal is withdrawn by phone call, a letter should be issued to the appellant confirming the action taken on foot of the phone call.
Similarly, where an appeal is withdrawn on a personal call to an office of the DSP, a written note of the withdrawal should be obtained, a copy given to the appellant, and a copy sent to the SWAO.
Note:
- The DO must examine the appeal contentions in detail
- The DO may make a revised decision in favour of the appellant (if appropriate)
- Where the appeal is not proceeding for any of the reasons outlined above it is absolutely essential that the SWAO is informed so that the appeal may be 'closed’.
4. Deciding Officer’s submission
- The appeal submission should be completed promptly – and both the submission and appeal file returned to the SWAO within 3 weeks, where further investigation by a Social Welfare Inspector or a Medical Assessor is not required. (see section 3.3).
- The quality of appeal submissions must be of the highest possible standard. Experienced officers should check and certify all appeal files being submitted by their office conform to the required standards.
- The submission should be headed “Appeal Submission” with the appellant’s name; PPSN and the issue being decided e.g. "Insurability"; "Means"; "Contribution conditions" etc shown. In JA/JB appeals the forms UP18 or UP18a, (appeal submission forms) should be completed in a typed format if possible.
- The submission and file should be tabbed - see Section 5 following
- The DO’s decision should be clearly and accurately recorded (see paragraph 1.2 above). The Section of the Act supporting the decision should be quoted where the case is complex
- Where the effective date of the DO’s decision results in an overpayment or where there are allegations of fraud – the amount of any such overpayment should be specified, as this will assist the Appeals Officer when considering whether to hold an Oral hearing.
- The SWAO should be notified of appeals where prosecutions are also in progress
- The grounds for the decision should be set out (e.g. SWI report or statement by appellant, etc).
- The response by the DO to the grounds of appeal advanced by the appellant should be set out as part of the submission. (Art 10 of SI 108 of 1998).
• The DO should indicate how far those grounds are fully accepted, partially conceded or wholly rejected.
• Care should be taken to address each and every argument put forward by the appellant.
• Where a point of substance is made in the appeal with which the DO does not agree, it must be rebutted or otherwise it may be taken that he/she accepts the point as valid.
• Remember that a general comment to the effect that the DO “is satisfied with the original decision” may not adequately address the appeal contentions.
- If a DO wishes to attend an oral appeal hearing (in the event that there is one) this should be mentioned at the end of the appeal submission
Before returning an appeal submission please refer to the submission checklist (attached in appendices)
Safety concerns
The SWAO should be notified of any client who has a history of violence or intimidation that may give rise to concern for the safety of staff or witnesses in the event of an oral appeal hearing. These concerns should be conveyed by phone directly to the Deputy Chief Appeals Officer or the Office Manager of the SWAO. Under no circumstances should this information be put on the case file which will go before the AO as it could be seen as prejudicial to the appellant.
5. The Appeal file – proper presentation
There is a checklist in Appendix 3 which Deciding Officers should use when finalising their appeal submission.
- The file should be presented in "book form" i.e. in chronological order starting with the oldest documents at the front nearest the left hand side of the file cover.
- The DO decision and the key items of evidence relied upon in arriving at the decision (including SWI’s reports, Medical reports, statement by appellant, etc.) should be tabbed. The Tabs should be in logical sequence and visible (protruding from file). The corresponding tab numbers should be quoted on the DO’s submission (Section 4 above). The multiple use of Tab A, Tab B and Tab C should be avoided – if necessary use A1, A2, A3 etc
- If original documents / reports are not available good quality photocopies may be used. However, poor quality copies or multiple photocopies of the same document should be avoided. Remember, the AO can only rely on the evidence before him / her and illegible material cannot be taken into consideration.
- Medical Assessor Reports (where relevant) should be filed at the back of the file – so that they can be detached and returned to MRA Section when the appeal has been finalised.
Note
- To ensure that proper procedures are being followed all files being submitted to the SWAO should be checked and certified by an experienced officer.
- It is important that any errors or omissions are corrected before files are submitted for consideration by an AO. This is especially so in respect of appeals where the consequences of the decision may be significant.
6. Linked Appeal files
Where the same issue (question) has already been the subject of an AO’s decision the previous appeal file should be attached wherever possible (e.g. different members of the same household where assessing means).
Similarly, if there are a number of appeals received with the same issue in contention the files should be linked. (E.g. Scope / insurability question relating to a number of employees of the same company)
7. Oral Appeal Hearings
From time to time DOs may be asked by the AO to attend an appeal hearing to give evidence setting out the basis for the decision, the evidence relied upon and the relevant legislation. The DO may be asked to clarify points but not cross examined. If the DO is not in a position to attend an oral appeal hearing when requested to do so s/he may be represented by another DO who is familiar with the issue under appeal. [A DO is also entitled under the legislation to attend an appeal hearing without being asked if s/he so wishes – but should alert the SWAO in advance].
SWIs may also be requested to attend as witnesses at oral hearings to give evidence in relation to their investigations / findings. SWIs may be subject to cross–examination by appellants in relation to aspects of their reports – see paragraph 4.
8. Further reviews after the AO’s decision
8.1 DO Review
Where new evidence comes to light that relates to a period not covered by the AO's decision, the DO should give a fresh decision (under S 301 of the SW Consolidation Act 2005).
8.2 AO Review
Where the new evidence relates to the period that is covered by the AO’s decision, the file should be referred back to the AO for consideration (under S 317 of the SW Consolidation Act 2005).
If there is a doubt as to whether or not it is “new evidence” the material in question should be referred to the AO.
“New Evidence” means some new and relevant fact which has either occurred or has come to light since the (AO’s) decision was made, of which the AO could not have been reasonably aware beforehand.
It is not open to an appellant to deliberately refrain from submitting evidence in the first instance, and thereafter proceed to make (repeated) applications for review, based on evidence which should have been previously submitted.
8.3 CAO Review
If an error has been made by an AO in relation to the law or the facts the CAO may revise the decision (under S 318 of the SW Consolidation Act 2005). If a DO considers that such an error has occurred s/he should make a submission to DSP management with a view to having a review carried out by the CAO. Formal submissions seeking a review by the Chief Appeals Officer under S 318 should be signed off at senior management (Principal Officer) level in the DSP.
Information and advice on appeals submissions can be found in DAO Bulletins 3, 5, 9 and most recently on page 6 of DAO Bulletin No.13.
Appendix 1
List of Questions that are for decision by a Deciding Officer (Extract from Section 300 of the Social Welfare Consolidation Act 2005)
300 - (1) Subjest to this Act, every question to which this section applies shall, save where the context otherwise requires, be decided by a deciding officer. [Decisions by deciding officers 1993a247(1); 1997 s29(1)(a)]
(2) Subject to subsection (3) this section applies to every question arising under -
(a) Part 2 (social insurance) being a question -
(i) in relation to a claim for benefit,
(ii) as to whether a person is or was disqualified
for benefit
(iii) as to the period of any disqualification for
benefit,
(iv) as to whether an employment is or was
insurable employment or insurable (occupational
injuries) employment,
(v) as to whether a person is or was employed in an
insurable employment or insurable (occupational
injuries employement,
(vi) as to the rate of employment contribution which
is or was payable by an employer in respect of an
employed contributor,
(vii) as to who is or was the employer of an employed
contributor,
(viii) as to who is or was entitled to become a voluntary
contributor,
(ix) on any other matter relating to Part 2 that may be
prescribed,
(x) as to whether an employment is or was an insurable
self-employment,
(xi) as to whether a person is or was in insurable self-
employment, or
(xii) as to the rate of self-employment contribution
which is or was payable by a self-employed contributor,
(b) Part 3 (social Assistance) other than Chapter 9
(supplementary welfare allowance),
(c) Part 4 (child benefit)
(d) Part 5 (respite care grant),
(e) Part 6 (family income supplement),
(f) Part 7 (continued payment for a qualified children)
(g) Part 8 (EU payments),
(h) Part 9 (general provisions relating to social insurance,
social assistance and insurability), and
(j) Part 12 (liability to maintain family).
Appendix 2
List of “questions” that are not for decision by a Deciding Officer under the legislation (Part 10 of the Social Welfare Consolidation Act 2005)
The following are administrative decisions that fall outside the scope of the formal Decisions & Appeals provisions of the legislation. These decisions are made by officers of the DSP but not in their capacity as Deciding Officers. There is no right of appeal to the SWAO.
-
The awarding of credited contributions
-
The acceptance of claims (including furnishing of information at claim stage)
-
The suspension of payments under Section 334 of the SW Consolidation Act 2005
-
Overpayments arising from administrative errors (e.g. due to error in calculation of entitlement)
Decisions in relation to the non statutory schemes, including: -
-
Back to Education Scheme
-
Back to Work Scheme
-
Free Electricity
-
Free TV Licence
-
Free Travel schemes
-
National Fuel Scheme etc
Appendix 3
Checklist for Deciding Officers
This checklist should be completed for each appeals file.
- Formal decision on file
- Decision reason given to appellant
- Relevant legislation cited
- Decision reviewed in light of appeal
- All supporting evidence on file
- All documents legible (or typed)
- Documents tabbed
- Comments on appellant’s contentions
- Request to attend hearing [yes/no]
- File checked & signed off by experienced officer