The 2012 Social Welfare Act allows payments to be docked to destitution levels – Katherine Zappone
One of the more objectionable sections of the recently-passed Social Welfare Act 2012 deals with the recovery of overpayments from social-welfare recipients. The Act takes away their entitlement to minimum-income protection. This was not raised during the debate on the Bill due to a Government guillotine. However, it must be asked if this section of the Act is at the expense of fair procedures and basic human rights.
The state does have a right to recover overpayments of social-welfare income. But the state does not have a right to recover this debt in a way that puts the social-welfare recipient in a position where she or he receives an income less than is required to meet the most basic needs.
Before this Act there was a statutory limit on the recovery powers of ‘Authorised Officers’, officers of the Department of Social Protection charged with recovering debt. Authorised Officers could not, unless they received written consent, recover money to an amount that left a person’s residual income below the relevant Supplementary Welfare Allowance rate. This allowance is the social welfare code’s measure of the amount of income that a person needs to meet basic needs.
Now an Authorised Officer will have the power to recover up to 15% of someone’s personal social welfare payment without consent. In the case of a single person on Jobseekers Allowance of €186 per week, for example, the official will be able to take €28.20 at source. A Dublin man who, admittedly fraudulently, claimed over €50,000 in illness payments was recently reported to be struggling to make payments of €75 a week out of a disability pension of around €200 per week.
The Authorised Officer now holds the power to pursue a level of debt recovery that can push a person into destitution, regardless of how the debt was incurred.
Minister Burton has called this a fraud-countering measure, although overpayment can arise for many reasons, only some of which are fraud-related. In cases of alleged fraud the Department of Social Protection may opt to proceed with a prosecution. A prosecution for fraud is conducted separately to the debt-recovery system. So there is already a legal route to pursue people suspected of fraud.
According to figures provided by the Department of Social Protection in 2011, 207 cases were referred to the State Solicitor’s office with a view to criminal prosecution. This is clearly a very small number. There is absolutely no need to take away the right of every social welfare recipient to minimum-income protection regardless of how the debt occurred.
Clearly many overpayment cases are not due to fraud and even if the overpayment arose because of alleged fraud, it should not be within the Department’s authority to implement a policy of destitution.
The provision also goes against provisions set out by Minster Alan Shatter in the personal insolvency legislation. Debt-recovery provisions include clear legal protection for debtors of a minimum income. The new personal insolvency service is required to draft guidelines outlining a reasonable standard of living and essential income for debtors though social welfare recipients benefit from no such protection. Non-judicial debt-settlements and courts dealing with bankruptcies must refer to these guidelines.
The law states that determining this minimum income, which individuals are entitled to retain before payments are made to creditors, is not a matter that can be left to administrative discretion alone. The guidelines must have regard to measures and indicators of poverty and “the need to facilitate the social inclusion of debtors and their dependants, and their active participation in economic activity in the State”. The development of these guidelines ensures fair procedures. There are no such guidelines for Department of Social Protection Authorised Officers.
If the Social Welfare 2012 Act is to respect basic human rights and be part of an enlightened whole-of-government approach to debt recovery, this section of the new Act must be removed.