Foilsiú
Operational Guidelines: Reasons for Decisions/Determinations
Foilsithe
An t-eolas is déanaí
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Foilsithe
An t-eolas is déanaí
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
The purpose of this guideline is to clarify the level of detail that must be provided to a customer where the decision is not in his or her favour.
The High Court has found that the ‘short and general reasons’ given in some decisions are inadequate. The Court has set a standard of reasoning expected to be reflected in a Deciding Officer’s (DO) or Designated Person’s (DP) decision.
This guideline sets out the principles to be followed in giving reasons for decisions. It provides guidance on how they should be applied in practice.
A quality decision is one that is:
The customer must be clearly advised of the decision and any consequences it may have, and of their rights to review and appeal.
Article 191 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (as amended) [S.I. No. 142 of 2007] provides that decisions on social welfare claims must be set out in writing and, where the decision is unfavourable, the reasons for the decision must also be recorded and included in the notification to the person concerned.
Article 40 of the S.I. No. 412 of 2007 sets out similar rules for determinations made by Designated Persons (DPs) on claims for Supplementary Welfare Allowance payments. As the rules and principles are broadly similar, the following guidance will refer generally to DO/DPs and to decisions also to be understood as ‘determinations of a Designated Person’.
Extract from the Regulations:
Article 191 of S.I. No. 142 of 2007 (as amended)
Decision of deciding officer
(1) The decision of a deciding officer shall be in writing and signed by him or her.
(2) Where the decision of the deciding officer is not in favour of the person, the deciding officer shall set out in writing the reasons for the said decision.
(3) Subject to sub article (4), the Minister shall, as soon as may be after the decision is made, cause a memorandum of -
(a) the decision, and
(b) where it is not in favour of the person, the reasons for the said decision
to issue to the person.
(4) In the case of a decision arising under section 300(2)(a), other than decisions arising under sub-paragraphs (i), (ii) and (iii) of that section, the Minister shall, as soon as may be after the decision is made, cause a memorandum of -
(a) the decision, and
(b) the reasons for the said decision, to issue to the parties who are subject to the decision.
Article 40 of S.I. No. 412 of 2007 (as amended)
Determination of Designated Person
40. (1) A determination by a designated person for the purposes of determining a claim to supplementary welfare allowance shall be in writing and signed by him or her.
(2) Where any determination made by a designated person is not in favour of the person making the claim, the designated person shall attach to the determination a note of the reasons for the said determination.
(3) The Minister shall, as soon as may be after the making of the determination, cause a memorandum of
(a) the determination, and
(b) where in accordance with sub-article (2) of this article the determination is not in favour of the person, the reasons for the said determination, to be issued to the person making the claim.
The regulations distinguish between the DO/DP decision itself (which must be signed) and the “memorandum” of the decision which issues to the person. While it would be considered good practice, the “memorandum” that is the communication which issues to the customer does not necessarily have to be signed by the DO/DP. However, the DO/DP must sign his or her decision on file (either electronic or paper).
The DO/DP must sign his/her name in full on the decision. The signature can be written or electronic. Use of an electronic signature as a signature for a record or a decision is permitted under legislation including The Interpretation Act 2005.
This requires the DO/DP to set out his/her reasons for the decision as part of that decision. The DO/DP is only required to give reasons where any element of the decision is not in favour of the customer. To explain what is meant by an unfavourable decision or element thereof, it is not uncommon for a DO/DP to be making a decision on multiple grounds of entitlement for some claims. These include, for example, claims that may comprise a means assessment, claims for dependants, habitual residency among other scheme-specific conditions. The customer may satisfy some conditions in full, while other element may be disallowed, or allowed at a lesser rate or later date, depending on the individual case circumstances. The DO/DP may decide to give reasons even in a situation where the decision is in favour of the customer as a matter of good practice.
The notification that issues with the decision and reasons combined therein is sufficient “memorandum” for most purposes where the eligibility criteria are clear and not subject to any judgment for example, if determining an entitlement on the total contributions paid, or age criteria, a means threshold etc. Generally, a separate page with the reasons is not required in these circumstances unless it is standard operational procedure in the relevant business area. However, for the ‘memorandum’ on unfavourable decisions requiring judgment such as on illness, medical or care provision grounds, the customer must be provided with clear reasons on the ground(s) disallowed.
The 'other' sub-paragraphs refer to decisions on insurability i.e. Scope decisions where both the employee and employer may be subject to the decision.
Communications regarding unfavourable decisions should be guided by the following principles:
(a) Consistency
• Reflect a consistent format and style in all communications of unfavourable outcomes
• Use the recommended structure set out in the framework letter of notification in Appendix 1.
(b) Make a clear distinction between the legislative grounds for the decision and your reasons for that decision:
• Check that all references to legislation are correct and complete
• Explain the legislative requirements (grounds) in Plain English
• State ‘ground(s)’ for disallowance or unfavourable decision i.e. criteria not fulfilled.
….If more than one ground is disallowed or unfavourable….
• clarify which is the principal or over-riding consideration and explain that all grounds remain open for determination should circumstances change.
(c) Reasons must be clear:
• State the main reasons in the body of the letter
• Add cross references to all attachments that elaborate on rationale
• Give at least one reason for each ground decided, more if possible. Must show engagement with the facts
• To demonstrate that the claim has been evaluated in accordance with the information and supporting documentation associated with the application….
• Facts/evidence must be clearly set out
• Separate the relevant facts from the irrelevant facts. Distinguish the facts from supporting evidence.
• Identify the conflicts in the evidence or the disputes in relation to those facts – Test: look for consistency, credibility and consensus between different sets of evidence. Outline the reasons why the facts advanced by one party may be preferred over another party. For example, the evidence may comprise several medical inputs, including that of the Department’s medical assessor, a general practitioner’s report, medical consultants and occupational therapists amongst others for medical, illness or care provision claims. The DO/DP must explain why certain facts are accepted and other related evidence rejected.
• Describe how you have come to an interpretation based on those facts, and the weights accorded to same i.e. decision maker’s logic and judgment
• Provide objective and material evidence to back-up a conclusion.
See the Guideline on on Decision Making and Natural Justice, Section 3 for further advice on this. Appendix 2 also directs to supplementary information on this topic.
(d) The communication must reflect that the decision is objective, well-founded, and there is a clear rationale for the outcome.
(e) Reflect principles of natural justice
• Show you heard the other side
• Give reasons for the outcome
• Tell what was considered relevant
• Give an opportunity to contest.
(f) The DO/DP decision on file should outline the process applied to establish the facts considered relevant at that point in time. This is needed in case of later review requests.
(g) Be informative and constructive
• On what to do next (rights to a review and appeal)
• On where to get more information
• On right to reapply if circumstances change.
The DO/DP is required to:
1. Keep a written, signed and dated record of the decision
2. Record the reasons if the decision is unfavourable on any ground in full or partially.
3. If there is more than one ground disallowed / disqualified, the reason for each one must be recorded.
The Department is required to notify the person in writing of the decision and, if unfavourable, give the reasons why.
A distinction needs to be made between these two terms. The 'grounds' for a decision consist of the relevant condition in the legislation that is not satisfied. The 'reason(s)' for the decision explain why that condition is not satisfied.
Note: this distinction is also reflected in the structure and content of the framework letter of notification. The ‘grounds’ are expressed in precise, legislative terms extracted from the relevant legislation. This is the minimum requirement. Best practice is to include an explanation of the conditions being assessed by the DO.
The ‘reason(s)’ will logically follow the grounds statement(s). The reason statement, while clear and concise, must also explain the failed condition.
The following three examples reflect an adequately reasoned decision to disallow specific grounds by drawing on the facts available to validate the conclusion. The level of detail to be provided in the explanation for a given reason will vary according to the complexity of the eligibility criteria and the number of grounds being decided.
Remember that you must give reasons in full and show that you have engaged with the facts of the individual case.
The person concerned is not entitled to Jobseeker's Benefit on the grounds that she is not available for employment. The reason for this decision is that she is placing unreasonable restrictions on the nature of the employment she is prepared to accept. While this person has considerable management experience in retail across various locations, she has limited her consideration of jobs to those within a five-mile radius of her home.
The person concerned is not entitled to Illness Benefit on the grounds that he does not satisfy the contribution condition which requires him to have a minimum of 39 paid or credited contributions in the relevant tax year (also known as the Governing Contribution Year or GCY). The reason for this decision is that, according to the Department's records, he had a total of 27 contributions (paid and credited) in the GCY. Furthermore, the person concerned does not satisfy any of the alternative tests. See the Guidelines on Illness Benefit for more information about alternative tax years that can be used to accumulate contributions.
The person concerned is not entitled to Disability Allowance on the grounds that s/he does not satisfy the medical criteria. The reason for this decision is that although the person has a disability/illness, the evidence does not indicate that this is likely to last for at least a year. To qualify for Disability Allowance, the person must satisfy four conditions that include the medical criteria, a means assessment, be habitually resident in the State and be between 16 and 66 years of age. The communication of an unfavorable decision on any ground will be personalized to suit the individual’s case circumstances and reasons will be given for the outcome.
The person concerned does not qualify for SWA Rent Supplement on the grounds that they, their spouse, partner or co-habitant are in full-time employment (30 hours per week or more) as provided for by Section 198 (4)(a)(iii) of Social Welfare (Consolidation) Act 2005.
The communication used to notify a person of an unfavourable decision should include sufficient information to enable that person to understand:
1. The relevant grounds/conditions considered
2. The reason(s) for the decision reached
3. That the process of analyses was comprehensive, structured, objective and
4. The communication on a decision and/or determination must give detail on the right of review and/or provision for an appeal.
The Principles-based framework letter in Appendix 1 sets out the various elements that must be included in the notification of the decision (the “memorandum”).
Data Protection legislation places some limitation on the release of personal data. When notifying a person of a decision, a DO/DP should be conscious of the need not to release data relevant to a third party, unless it is clear that the third party is aware of this and agrees to it.
It may be relatively rare when a DO/DP is making a decision based on information from a third party who has not provided this information to the customer. Here are some examples.
Joe (aged 19) applies for Jobseekers Allowance. On the application form he states that both his parents (with whom he lives) are employed, but he does not have their earnings. However, his parents are prepared to give this data directly to the Department on the understanding that the details are not given to Joe. The DO decides that Joe does not satisfy the means test due to assessment of the Benefit & Privilege of living in the family home. Releasing the full details of the means assessment in this case would be in conflict with Data Protection legislation. Joe may be advised that he does not satisfy the means test, but the details of his parents’ earnings may not be released.
Brian and Mary are married. Brian applies for Jobseekers Allowance. On the form, he says that he does not have information regarding Mary’s bank accounts, as they had always kept part of their finances separate. Mary agrees to send the details to the Department for the purposes of assessing Brian’s claim, on the condition that details of her savings are not released to Brian. The DO decides that Brian qualifies for a reduced rate of JA due to the money in Mary’s accounts. In notifying the decision to Brian, the DO can indicate that the reduced rate is due to the means test which includes all income of the couple, but the DO cannot give information regarding the amount of money held by Mary.
See Appendix 2 for more supplementary information on this topic.
The framework below shows the various elements that should be included when you are notifying a person about an unfavourable decision. (Note: grey italic type used to reflect advice on drafting).
(Letter headed paper if available)
Address of Section (Include if not pre-printed)
Person's name, Address, PPS No
Quote Reference Number if relevant Telephone No
Date
Dear Mr/Mrs/Ms (Use surname only)
[Statement of outcome]: In relation to your claim to...... made on ......, it has been decided by a Deciding officer that you are not entitled to…... [with effect from …...to….... ] on the grounds that you.....(See section 7 on Grounds and Reasons)
Governing legislation:
This decision is based on…… [incorporate the complete, relevant legislative extracts from the Social Welfare Consolidation Act 2005 and relevant associated regulations e.g. the Social Welfare (Consolidated Claims, Payments and Control Provisions) Regulations 2007 (i.e. sections, sub-sections, articles and sub-articless), or other as relevant].
The reason[s] why you do not qualify is that you
Remember Principles: (c) Reasons must be clear (d) Show engagement with the facts!
Principles: (e) Objectivity (f) Natural Justice (d) Balanced analysis!
In reaching this decision, the points made by you in your letter of ......were taken into account. (Include this paragraph only if a person has put forward a case.)
(Medical/care claims only: In reaching this decision, the Department’s Medical Assessor’s opinion was taken into account. The reasons are in the attached sheet [cross-refer to Tab})
(Reflect the analysis and testing of evidence, the evaluation to establish the facts, then your conclusions drawn from the process e.g.
I note XXX has…..(short time/ temporary duration)….(and has in the past/recently)…therefore, likely that…..‘
This report says, whereas that report states, but on balance…….etc.
I am persuaded by….because….
However, the evidence provided does not substantiate that you…...
I consider evidence A more determinative of facts / current situation than evidence B”).
If you consider this decision is incorrect, there are a number of options available to you:
More information on how to do this is available at: https://www.gov.ie/en/service/ce66b1-how-to-appeal-a-decision-about-your-social-welfare-claim/
IMPORTANT: The statutory time-limit for submitting an Appeal is within 21 days of the date of this Decision (i.e. this letter). Failure to submit an appeal in a timely manner may result in the appeal being rejected. If you wish to seek a review before you appeal, it is important that you do so as soon as possible.
Further information on the scheme/payment conditions is available on: https://www.gov.ie/en/collection/97885-operational-guidelines/
If you require further clarification regarding this decision, please contact this section at the above address. Remember to quote your PPS number (found at the top of this letter) in any ‘phone or written contact with this Office.
If you are in financial need you may qualify for Supplementary Welfare Allowance subject to satisfying the eligibility conditions. You can get full details of this allowance from the Community Welfare Service at your local Intreo Office.
Yours sincerely,
First-name Surname
Deciding Officer