Decision Making and Natural Justice


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Index

  1. APPOINTMENT AND ROLE OF DECIDING OFFICERS
    • Questions not for determination by Deciding Officers
    • Consistency in Decision Making
  1. CIRCUMSTANCES OF APPLICANTS / PROVISION OF INFORMATION
  1. BASIC PRINCIPLES OF EVIDENCE AND PROOF
    • Burden of Proof
    • Responsibility for obtaining evidence
    • Statements of claimant
    • Extract from Court Ruling
    • Facts
  1. WEIGHING THE EVIDENCE
    • Three types of evidence:
      1. 1. Direct Evidence
      2. 2. Circumstantial or indirect evidence
      3. 3. Hearsay evidence
  1. NATURAL JUSTICE
    • Rule (1) - the other side must be heard
    • Rule (2) No one should be judge in his/her own cause
    • Suspension of Payment
    • Disclosure of documents
  1. RECORDING OF DECISIONS
    • Reasons for Decisions
    • Disallowances on more than one ground
  1. THE DECISION
    • What happens if NJ is not followed
    • Judicial Review

FUNCTIONS OF DO'S – SUMMARY


1. APPOINTMENT AND ROLE OF DECIDING OFFICERS (DOs)

DOs are appointed under the legislation to decide every question in relation to the following social insurance and social assistance provisions in the Social Welfare Acts:

  • in relation to a claim for benefit(see note 1), including whether benefit is or is not or was or was not payable,
  • as to whether a person is or was disqualified for benefit,
  • as to the period of any disqualification for benefit,
  • as to whether an employment is or was insurable employment or insurable (occupational injuries) employment,
  • as to whether a person is or was employed in an insurable employment or insurable (occupational injuries) employment,
  • as to what rate of employment contribution is or was payable by an employer in respect of an employed contributor,
  • as to who is or was the employer of an employed contributor,
  • as to whether a person is or was entitled to become a voluntary contributor,
  • on any such other matter relating to Part II (Social Insurance) as may be prescribed,
  • as to whether an employment is or was an insurable employment,
  • self-employment,
  • as to whether a person is or was in insurable self-employment,
  • as to what rate of self-employment contribution is or was payable by a self-employed contributor.

Questions not for determination by DOs

Decisions on the granting of credits, the furnishing of information in relation to claims, and claims for the various non-statutory schemes are determined by officials acting on behalf of the Minister (and not by a DO). Officials taking such decisions should, of course, apply the principles of Natural Justice, as set out in this guideline to their work.

Consistency in Decision Making

DOs are bound by the legal provisions in the Social Welfare Acts and Regulations. In considering cases the DO should be familiar with any guidelines issued by Management in relation to the legislation concerned. Such guidelines are issued to ensure consistency of decisions by DOs generally. If a DO considers that a particular guideline is incorrect and proposes to make a decision which conflicts with it, s/he should notify management so that the guideline can be corrected, if appropriate.

Note 1:
"benefit" for this purpose includes all social insurance and social assistance benefits excluding Supplementary Welfare Allowance (SWA).

2. CIRCUMSTANCES OF APPLICANTS/ PROVISION OF INFORMATION:

It is worth noting that some claimant's circumstances require especially sensitive consideration e.g.

  1. A programme refugee or a convention refugee, someone who has been granted refugee status by the Irish state.
  2. An asylum seeker - someone who claims refugee status and whose claim has not yet been definitively evaluated
  3. Someone who may have left their home because of domestic violence which may make them especially vulnerable.

It is important that they are treated with empathy and understanding and, as in all applications for schemes from any claimant, it is essential that staff do not display, by action or words, prejudice against the individual or their status.

Some customers may be suspicious of state organisations based on their experience of government bodies in their own countries of origin.

Note: DSP may meet a particular once-off need by way of an exceptional needs payment under the supplementary welfare allowance scheme. Payments under this category cover once-off costs such as back-to-school clothing and footwear and are not subject to the habitual residence condition.

Interpreters

Be conscious that some customers first language may not be English and interpretation may be required. For full details of the interpretation service available in DSP, click here.

Sometimes, claimants attend DSP Offices with accompanying relatives as interpreters (e.g. spouse, partner or children). This is not ideal – sometimes the claimant may not wish to recount painful events in the presence of relatives.

It may be necessary to use an interpreter of the same gender as the applicant, especially on occasions in which the information concerns health and medical care, or humiliating experiences such as torture, rape or imprisonment.
If an interpreter is used when interviewing a customer, this fact should be noted on file. Equally, if an interpreter is not available and the customer's level of English is poor this should also be noted on file.

Note: An interpreter service should be offered if a claim is reviewed at a later stage also, where warranted.

Points to note:

  1. It is important that customers are not deterred from applying for a scheme even if it appears that they may not qualify. Customers should not be told verbally that they will not qualify for a scheme/allowance etc. All customers are entitled to make an application and if entitlement does not exist they have a right to receive a written decision which clearly gives the grounds and reasons for refusal and the right to seek a review or to appeal the decision.
  2. It is important that customers are advised of other possible entitlements such as SWA or Exceptional Needs Payments (ENP) or entitlements to additional benefits such as Family Income Supplement (FIS) etc.
  3. Consider whether another scheme might be more beneficial to customer e.g. if a person applies for JA but s/he is a widow(er), s/he should be advised to apply for Widow (er)'s and Surviving Civil Partner's Pension (WSCPP)
  4. All efforts should be made to help customers make a claim and understand the importance of providing supporting documentation e.g. where there are language difficulties assistance should be provided by offering interpreter services.

If all facts and supporting evidence are established at claim initiation stage there is less likelihood of reviews and appeals being requested thus cutting down on workloads.

Disallowances on more than one ground:

Where an appeal is made against the decision of a DO, the AO is confined to the question the DO has determined. If, therefore, a DO considers that a claimant fails to satisfy more than one of the conditions of entitlement, s/he should impose a disallowance or disqualification in respect of all such conditions. For instance, the DO's decisions on a claim for Jobseeker's Benefit might be that the claimant is (1) disallowed `not available for work' and (2) disqualified for payment `left employment of own accord'.

3. BASIC PRINCIPLES OF EVIDENCE AND PROOF

Burden of Proof:

In general when a person makes a claim for benefit or assistance the burden of proof is upon that person to prove the conditions governing the claim are satisfied. The burden of proof at this point is proof on a balance of probability, that is the DO, on the evidence available, should be able to say "I think it is more probable than not".

The following points should be borne in mind:-

1. Initially the burden of proof lies upon the claimant to prove the conditions governing the claim are satisfied. For example, if the claimant asserts "I have no money" s/he must be prepared to sign/submit relevant authorities/statements required by the Department. If his/her style of living indicates s/he is living in poor conditions it would then be a matter for the Department to produce rebutting evidence. However, if his/her circumstances or style of living is such that it could not be maintained without some other source of income, it is valid and proper that the DO may require a satisfactory explanation.

2. Where a claimant contends that they cannot obtain evidence requested, the DO should be as helpful as possible but emphasise that as a matter of law the burden of providing evidence to support a claim must in general rest upon the claimant. However, the claimant cannot be held responsible for failure to produce evidence where it was not within his/her power to do so.

3. Where the claimant has been awarded benefit and a question arises of withdrawing it or of reducing the amount of payment, the burden is on the Department to show that his/her entitlement has changed, or that there was fraudulent concealment of relevant facts. In the case of allegations of such change or concealment, a higher degree of probability is required i.e. there must be clear evidence available to establish the truth of the allegation.

4. Where a criminal court convicts a person of an offence related to obtaining or receipt of benefit, the burden of proof is on the claimant to show that the circumstances have changed since the period covered by the conviction.

Responsibility for obtaining evidence

It is the responsibility of the claimant to obtain evidence to support a claim. However, some claimants may find it difficult or impossible to obtain evidence themselves and DOs and others involved in the process should be as helpful as possible while emphasising that, as a matter of law, the burden of providing evidence to support a claim rests upon them.

Statements of claimant

An assertion by a claimant such as: "I did not work when claiming benefit" does not necessarily establish a fact. However, there is no rule of law which says a claimant's statement must be corroborated. Naturally, the DO should test the statement for consistency with other available evidence, and clear up any contradictions that may arise.
If a DO does not accept statements provided this should be clearly indicated to the claimant, specifying the reasons why.

Where a claimant voluntarily provides information to the Department, confirming a change in their circumstances such as commencing employment, a record of this should be kept on their claim. In this situation staff should take special care in ensuring that the claimant states all relevant information clearly and that both claimant and DO are in agreement on the content and nature of the information provided. A record should be recorded electronically on the claim on bomi. Customers shoud be requested to provide written evidence of the change in circumstances, such as the new employment contract, if this is not available when they report of a change in circumstances. The fact that further information was sought from the claimant should also be recorded, as necessary.

Extract from Court Ruling:

"It seems to me that the Deciding Officer was entitled to have regard to the personal circumstances of the applicant; the obvious demands on his very limited resources; the value of the vehicle which he owned; the cost of maintaining it and the purposes for which it might be used. If he drew, as it seems to me that he did draw, the inference that the applicant had a more substantial income, or, alternatively an undisclosed source of income which would result in the applicant exceeding the maximum permitted statutory figure such a decision could not be described as unreasonable, less still "plainly and unambiguously flying in the face of fundamental reason and common sense" which is the criterion laid down by the Supreme Court in The State (Keegan) v Stardust Victims Compensation Tribunal[1986] I.R.642 as the test by which decisions of administrative tribunals will be judged."
[Corcoran v Minister for Social Welfare etc. (1990 224. I.R.)]

Facts

A fact is defined as either a circumstance or an occurrence which must have existed at the time the decision is given, the truth of which is known, accepted or proved.

In general, each decision must be given on the facts as they exist and not in anticipation of a future state of facts. The exception is that a claim may be made in advance of the day from which entitlement would start.

The determination of the facts is a matter for the DO and, if appealed, the AO. The courts may examine the legality of the decision (e.g. the application of the law or natural justice) but they are not a further court of appeal regarding the facts.

4. WEIGHING THE EVIDENCE

A DO should approach the determination of claims and questions by first considering the evidence. From that evidence the facts of the case should be established. The DO then should apply the law to the established facts. This approach should be applied irrespective of the benefit or assistance concerned.

Evidence may be written or oral.

Three types of evidence:

1. Direct Evidence

  • Direct evidence relates to the facts in dispute. Direct evidence is regarded as best evidence and outweighs any another evidence.

Examples:

  • A report by an investigating officer that he saw a claimant working on a building site.
  • A birth certificate, provided the deciding authority is satisfied it refers to the claimant, would be direct evidence of the age of the person claiming.

2. Circumstantial or indirect evidence

Circumstantial or indirect evidence tends to establish a fact by inference. It is the proof of "facts in issue" (i.e. the facts that control the decision) by means of other facts.

Examples:

  • The investigator saw the claimant's car at a building site and the claimant, a painter, was seen leaving the building site with painting equipment, getting into the car and driving away.
  • Church and school records are circumstantial evidence of age.

3. Hearsay evidence

Hearsay evidence is based on what has been reported by others rather than directly observed.

Example:

  • The investigating officer reports he was told by Mr X that the claimant was working on a building site

Proportionality

In Heaney v. Ireland [1994]. The elements necessary, where a restriction of a right is
involved, are that the restrictions must:-
"(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;
(b) Impair the right as little as possible, and
(c) Be such that their effects on rights are proportional to the objective"

Natural Justice requires that the claimant be afforded an opportunity of challenging the evidence. If the claimant does not refute the evidence, the hearsay evidence becomes valuable, and the investigator's opinion on its reliability should be obtained.

Points to Note:

The weight to be given to these categories of evidence must be carefully considered but it has to be a matter for the judgement of the individual DO concerned.
Many facts will be submitted with an application made to the decision-maker.
Others might be obtained through inquiries or investigation. This may require the decision maker to:

  • Review documents further where there is incomplete or conflicting information;
  • Seek a report from a Social Welfare Inspector or
  • Seek specialist advice e.g. refer to Department of Justice and Equality regarding right to reside.

There are many factors that may affect the weight of evidence e.g. the age, reliability or demeanour of a witness, the proximity in time of certain acts to those under investigation and the number of possible explanations of a particular event.

Care should be exercised when considering applications to ensure that speculation is not entered into.

The decision-maker should demonstrate how he or she arrived at their decision and what evidence was taken into account.

See Natural Justice Rule (1) (below) – the other side must be heard.

5. NATURAL JUSTICE (NJ)

Every claimant is entitled to have their claim considered in accordance with the principles of natural and constitutional justice and in the context of determinations of entitlement under the social welfare legislation that includes:

  1. The right to know the information, upon which a decision is being made,
  2. The opportunity to comment upon any reports or documents being used in reaching the decision and to present his or her case,
  3. The right to know the reasons for any adverse decision,
  4. The right to have all relevant evidence considered and irrelevant evidence not taken into account,
  5. To have the decision made by an impartial person whose discretion has not been fettered and
  6. Where it is necessary for a fair determination of the issues, an oral hearing.

Over the years, the Courts have laid down rules for administrative bodies to ensure that persons seeking benefits etc. are dealt with in a scrupulously fair manner. These rules, which are known as the Rules of NJ, apply to all administrative bodies and tribunals.

The following rules are addressed to DOs in making decisions on claims for a social welfare payment but apply also to all staff in the Department who makes other types of decisions that could have an adverse effect on the person concerned.

Rule (1) - the other side must be heard

This rule requires that every person who may be adversely affected by a decision must be informed of any statement or allegation affecting his/her claim of which s/he was not aware and on which any pending suspension or unfavourable decision may be based and must be given an opportunity to refute or comment before payment is suspended or before a decision is given in the case.

Action to be taken

In general, the need for action arises only where the evidence on which the suspension or the decision will be based has come from a source other than the claimant him/herself e.g. an employer in regard to the reason for the loss of employment, or information ascertained by a Social Welfare Inspector other than that furnished by the claimant him/ herself.

Application of this rule arises most frequently in the case of revised decisions on current claims and suspensions where consideration is being given to reducing or withdrawing a person's existing entitlement. It can also arise in the case of fresh or renewed claims where information is received that conflicts with that furnished by the claimant e.g. a report from an employer, evidence of undisclosed means, evidence that the claimant's spouse or children are not residing with or being supported by the claimant etc.

However, it does not apply where, for instance:

  • The information is provided by the claimant (e.g. date of birth, composition of means) or
  • The information is based on the person's insurance or earnings record, and is consistent with the employment history disclosed.

Spelling out the Implications

Where the continuing entitlement to a benefit is being reviewed, the possible consequences of the review must be made clear to the claimant. For instance, if a claimant for Jobseeker's Benefit has left a job of his/her own accord and the DO proposes to impose a disallowance 'not genuinely seeking work' (rather than a disqualification for up to 9 weeks), this should be pointed out and it should be explained that, in that event, payment will be discontinued on an on-going basis.

Allegations of abuse

Reports of abuse (whether confidential, anonymous or otherwise) should be used by investigators as an indication of suitable lines of enquiry. However being "hearsay evidence" they have no weight as evidence.

See Guidelines to Investigators "Confidential & Anonymous Reports" for action to be taken in investigating, reporting following investigation, and filing of such reports.

Reports of abuse (whether confidential, anonymous or otherwise) should be used by Scheme Areas and Inspectors as an indication of suitable lines of enquiry.

The allegation must either be proved independently by an investigator obtaining sufficient evidence or by obtaining an admission from the customer/ or where the claimant does not refute the evidence put to them, before reporting to the DO.

Reports given in confidence

Information given in confidence in letters containing allegations of abuse should not be available to the DO when making a decision. The decision would be invalid under the rules of NJ if a DO (or AO) was, or might appear to have been, influenced by information that was not disclosed to the claimant, and which the claimant had no opportunity to rebut.

Removal of Confidential Report

When the investigation is complete, the confidential report should be removed from the file by the Investigator.

The report of the Inspector should make no reference to the existence of the confidential report. This means that the facts of the case should be outlined for the DO without reference to the report received.

Disclosure of documents received in confidence

See "Disclosure of Documents" below re a person's entitlement under Natural Justice to obtain a copy of all relevant documents on his/her file.

However what has been received in confidence, been withheld from the report submitted to the Deciding Officer, and therefore has not had (or will not have) a direct bearing on the decision, should not be disclosed.

Information not received in Confidence

The only exception to this is where the author has given written permission for his/her identity and the contents to be disclosed to the claimant and is willing to be confronted by the claimant e.g. at an appeal hearing. In such cases the contents of the allegation can be referred to by the Investigator in reporting to the DO.

However, wherever possible the Investigator should seek to obtain sufficient direct evidence to prove whether the allegations are true, so that any decision will be based on such and not rely on third party evidence.

Interview
Where the person attends at the Office for interview about the case, s/he should be:

  • informed that his/her entitlement is being considered/reviewed,
  • told the information available to the Department in relation to the case,
  • advised about the conclusion of the DO in the matter i.e. the [revised] decision s/he proposes to make,
  • Given the opportunity to put his/her side of the case before a decision is made.

In order to have a record for future use that such notification has taken place, a note signed and dated by the relevant officer should be made of the interview. This note should contain a record of any relevant observations made by the claimant.

Written Communication

Where the claimant is being dealt with by post, a 'natural justice' letter, structured as above and setting out the position in full should issue. In the normal way, the person should be given at least 7 days to respond before a decision is made by the DO.

Notification in writing should also be used where the claimant requires time to reply or in any case where it is considered that an interview was (or would be) unsatisfactory or that more formal procedures are required.

Summary of Rule (1)
The DO must satisfy him/herself that:

  • The person is aware of all information that could adversely affect his/her entitlement,
  • The person was notified that his/her entitlement was under review and of the possible effects of the review (e.g. that payment could be discontinued or reduced),
  • The person was given a positive opportunity to comment, and to submit any facts or information to correct any inaccuracy or incompleteness in the information,
  • Any comments made by the person are clearly and fully reflected in the file and are considered before a decision is made.


(See also the "Reasons for Decision" guideline regarding the obligation to explain to the claimant the basis of the decision, so that the claimant is able to address the relevant issues in the context of an appeal.)

Rule (2) No one should be judge in his/her own cause

A DO is required to make an independent judgement on the application of the law, and is not subject to directions when making a decision. A DO must determine the question before him/her and there should not be even an appearance of the case having been decided on the basis of another person's say-so. Accordingly, while it is acceptable to seek advice from others on a point, a DO should never refer a file for directions as to what decision to give.

[For this reason also, inspectors should be careful, in submitting cases to DOs, not to use wording such as "submitted for disallowance" but instead to use the expression "submitted for consideration of disallowance".

The DO may seek clarification from an inspector in relation to aspects of the report but should not discuss the decision s/he proposes to make in the case.

Claims by Friends etc.

If the claimant is known to the DO in a personal capacity (e.g. a friend, relation, in law, close neighbour etc.), s/he should not decide the case but should refer it to another DO.

Suspension of Payment

The legislation provides for suspension of payment in cases where there is reason to believe that the person concerned does not fulfil the conditions for the benefit or assistance in payment, or that the rate in payment is incorrect. Suspension should not be imposed unless there is reasonable belief that the basic conditions are not being fulfilled.

As in the case of a decision to disallow, disqualify or reduce payment, the claimant must be informed before payment is suspended and be given an opportunity to state his or her case.
(See also guidelines on cases where Community Employment (CE) opportunities are not taken up).

Disclosure of documents

A person is entitled to obtain on request, for the purpose of making a case to the Deciding Officer or considering or preparing an appeal, a copy of any documents etc. that were or will be taken into account by the DO (or AO) in making a decision on the case.
His/her solicitor should similarly be facilitated on request. (This does not require an application under the Freedom of Information Act, but see also those Guidelines for further information therein).

Such documents would include:

  • report of an investigation (e.g. on means abuse) by the Social Welfare Inspector but not the details of anonymous reports,
  • reports of examinations by Medical Assessors for Sickness Benefits purposes,
  • reports by employers on the reason why the person left employment,
  • Reports by employers on an industrial accident for Occupational Injuries purposes.

Reports received from external sources in confidence (anonymous letters or confidential tip-offs from persons who are not willing to be quoted) should not be disclosed.

6. RECORDING OF DECISIONS

When the DO has reached a decision on a question, it should be recorded in writing, including electronically, where the DO is using an ICT System in the Department which meets the required standards for electronic signatures for records and decisions.

The decision must be conveyed to the person concerned1.

Under SI No 142 of 2007, while the record of the decision in DSP must be signed (in writing or electronically) by the DO, the memorandum or letter which issues to the customer does not have to be signed.

Note: Many of the Departments system-generated letters to customers are not signed but carry the name of the relevant DO.

More detailed advice on drafting decision letters can be found in the guideline "Reasons for Decisions"

Decisions must be:

  • Clearly written;
  • Properly signed (written or electronic signature (initials not sufficient) name typed or written in capitals underneath)
  • Dated.

1 Or, in the case of decisions relating to insurability, scope etc, to all of the parties subject to the decision – see Art 191 of SI 142 of 2007 for the specific legal provisions.

Please note:

Reasons for Decisions

Where the decision is unfavourable to the claimant, the DO must give the reason for the decision e.g. where a claim is rejected or is allowed at less than the maximum rate of payment. For this purpose a distinction needs to be made between:

  • The 'grounds' of disallowance (e.g. the statutory condition which is not fulfilled) and
  • The 'reason' for it (why the grounds are not met)

    (See fuller treatment in "Reasons for Decision" Guideline.)

The reasons should be given in language the claimant will understand.

In cases where the decision is fully favourable to the claimant, it will not normally be necessary for the DO to record the reasons. However, if the decision to allow a case is exceptional, the DO should indicate in a note the factors that justify the award in the particular case.

Disallowances on more than one ground:

Where an appeal is made against the decision of a DO, the AO is confined to the question the DO has determined. If, therefore, a DO considers that a claimant fails to satisfy more than one of the conditions of entitlement, s/he should impose a disallowance or disqualification in respect of all such conditions. For instance, the DO's decisions on a claim for Jobseeker's Benefit might be that the claimant is (1) disallowed 'not available for work' and (2) disqualified for payment 'left employment of own accord'.

7. THE DECISION

Explain, explain, explain!!!

A customer who is awarded the maximum amount payable does not mind how you came to your decision but a customer who is disallowed, disqualified or receiving a reduced amount will want, and is entitled to, a full and easily understood explanation. A properly presented decision will also reduce the number of reviews and appeals.

All decisions should be given in a legible fashion using everyday language and there should be enough detail to be meaningful. The use of jargon should be avoided.

The principles of NJ emphasise the importance of giving adequate information to the customer regarding the reasons why the claim has been turned down or allowed at a reduced rate. It ensures that NJ is seen to be applied at each step and enables the customer to present an informed appeal.

The reasons must be given in simple language so that someone who does not know the Department's jargon can understand it. The legal basis should also be referred to so that it is evident that the DO was operating within the law.

Many appeals could be avoided. These often arise because the customer does not know or understand the reasons behind the decision or what would constitute a solid basis of appeal.

Follow up Action

Depending on the response from the claimant, further clarification from the person who furnished the information may or may not be necessary. If the claimant refuses or neglects to make any statement in the matter, the case can be submitted to the DO for decision as the requirements of natural justice will have been complied with by notifying the claimant and giving him/her the opportunity to respond.

What happens if NJ is not followed?

A failure to observe the principles of NJ leaves a decision liable to be overturned. DOs (and AOs) are performing administrative functions but must act judicially.(see note 2)

Decisions of DOs and AOs are open to judicial review. Therefore, if a determination of a claimant's entitlements has been made in breach of the principles of natural and constitutional justice, the claimant can seek to have the decision overturned in the High Court by way of judicial review.

Judicial Review

A judicial review is not an appeal; it is a review, not of a decision, but of the way in which a decision was reached.

Note 2:
Minister for Social, Community and Family Affairs v Scanlon [2001] 1 IR 64

Summary!

DO's should

  • comply with legislative provisions
  • make decisions in good faith and for a proper, intended and authorised purpose
  • act reasonably and impartially
  • apply the values that the legislation promotes, professional values and the values of the DSP, not personal values
  • examine only relevant considerations and ignore irrelevant ones
  • make decisions based on supporting evidence
  • giving adequate weight to a matter of importance and not give excessive weight to a matter of no great importance
  • provide the person affected by the decision with procedural fairness and
  • make decisions independently and openly

DO's must not

  • act outside of their powers
  • handle matters in which they have an actual or reasonably perceived conflict of interest.
    Last modified:19/04/2016
     

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