Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Social Security (Minimum Standards) Convention, 1952 (No. 102) - Ireland (Ratification: 1968)

The Committee notes the information provided by the Government in its 43rd annual report on the application of the European Code of Social Security, which covers all accepted Parts of Convention No. 102 (Parts III, IV and X), as well as the relevant information provided in the previous reports on the Code and ratified ILO social security Conventions consolidated by the Committee in a single document for ease of use.

Part III (Sickness benefit) of the Convention, Article 69(f) and (g). Suspension of benefit. According to section 46 of the Social Welfare Consolidation Act 2005 (as amended), illness benefit payment may be stopped if the claimants, inter alia, become incapable of work through their own misconduct or behave in a way that is likely to delay their recovery. Please explain how these reasons for the disqualification are defined and applied in practice by the Department of Social Protection Deciding Officers and whether courts of law or other tribunals have given decisions in this respect.

Part III (Sickness benefit), Article 18(1). Part IV (Unemployment benefit), Article 24(1). Limits to the duration of benefit . (a) Days of benefit. According to the report, illness benefit is paid on a six-day week basis (Monday to Saturday), while jobseeker’s benefit is based on a seven-day week (Sunday is treated the same as any other day in the week, as a day of employment or unemployment as appropriate). Please explain the difference in the number of days in a calendar week for the purpose of paying illness or jobseeker’s benefits and in the manner in which these days are defined and compensated under both schemes.

(b) Periods of incapacity for work. According to the report, illness benefit is paid for each day on which an insured person is unable to work due to illness defined as a “day of incapacity for work”. Any three days of incapacity for work, whether consecutive or not, within a period of six consecutive days are treated as a period of incapacity for work and any two such periods, not separated by more than three days, are treated as one period of incapacity for work. In comparison with the Irish law, in the Convention the term “day” means a calendar day, the term “week” means seven consecutive days, and the benefit must be paid “in each case of sickness” throughout its duration, which may be limited to 26 weeks. Please explain what period or periods of incapacity for work recognized in Irish law would constitute one case of sickness for the purpose of the Convention, how many calendar days in one case of sickness may not be compensated as “days of incapacity for work”, and in what manner the waiting period for the first six days of a claim would be applied to each case of sickness.

(c) Age limit. Articles 14 and 20. According to the report, an insured person may receive illness benefit and jobseeker’s benefit up to the day before attaining the pensionable age (currently 66 years), which will rise to 67 in 2021 and 68 in 2028. The Committee understands from this information that while a considerable number of insured persons are expected to continue working beyond the current pensionable age, they will lose any further insurance protection in case of sickness or unemployment; illness or jobseeker’s benefit currently in payment will be automatically stopped on the day of the person’s 66th birthday, irrespective of the fact of whether or not the person concerned qualifies for receipt of an old-age pension. The Committee points out that the benefits in question shall be granted throughout the contingencies of sickness and unemployment, which are defined in the Convention by reference to the working ability of the persons protected without regard to their age. The Committee therefore asks the Government to explain how protection under Parts III and IV of the Convention is ensured to an employee who fell sick or lost his employment after attaining the age of 66 years, but has not yet paid the 520 contributions required for receipt of state Pension (Contributory).

Part III (Sickness benefit), Articles 17 and 18(1). Length of the qualifying and waiting periods. Part IV (Unemployment benefit), Article 23. Length of the qualifying period. In its 2016 Resolution on the application of the European Code of Social Security by Ireland, the Committee of Ministers of the Council of Europe asked the Government to be more precise in stating its intentions to bring the present parameters of the waiting period for the illness benefit (six days instead of three) and of the qualifying periods of contribution for the illness and jobseeker’s benefits (two years instead of several months) in line with those established by Articles 17, 18(1) and 23 of the Convention/Code No. 102. In response, the Government states that significant welfare savings taken as part of fiscal consolidation under the EU/ECB/IMF Programme for Support for Ireland ranged from reductions in weekly rates of payment to the abolition of certain schemes and included increasing the qualifying contribution conditions for illness benefit and jobseeker’s benefit in the Budget 2009 and increasing the number of waiting days for illness benefit in the Budget 2014. Over the period from April 2009 until 2014 savings in the order of €4 billion were introduced in social welfare expenditure. As the Government has restored financial stability, exited the EU/ECB/IMF Programme for Support for Ireland, since the Budget 2015, there has been scope, albeit limited, for social welfare improvements of €198 million aimed at low-waged households, the long-term unemployed, people with caring responsibilities and the elderly. This increased to €251 million in the Budget 2016, which represented 32.5 per cent of new current expenditure measures by the Government. However, in view of many competing requirements faced by the Government at this time it was not in a position in the Budget 2016 to limit the six-day waiting period for employees covered by work sick-pay schemes.

The Committee understands the difficult choices facing the Government to successfully steer Ireland’s welfare system through fiscal consolidation while maintaining the weekly rates of welfare payments and the inclusive nature of the overall system of supports. It takes due note of the Government’s statement that though its social security arrangements in respect of the qualifying contribution conditions for illness benefit and jobseeker’s benefit and the number of waiting days for illness benefit are not technically in accordance with the Convention/Code No. 102, Ireland remains determined to meet the requirement of all accepted Parts of the Code. As requested by the Committee of Ministers, Ireland’s obligations under the Code will be brought to the attention of the Minister for Social Protection for consideration in the context of the Budget 2017. The Committee notes in this connection that, in order to inform the policy options of the Minister, the Department of Social Protection undertakes social impact assessments of a wide range of social welfare budget options and packages in advance of the budget. Taking into account the increasing fiscal space for welfare programmes, the Committee would like the Department of Social Protection to undertake, in accordance with Article 71(3) of the Convention, a cost estimate and a social impact assessment of bringing the qualifying contribution conditions for illness benefit and jobseeker’s benefit and the number of waiting days for illness benefit into conformity with the Convention/Code.

Part IV (Unemployment benefit), Article 68. Suspension of benefit. The Committee has examined consolidated information from the Government’s reports on the Code and Convention No. 102 since 2011. It notes that the spectacular decrease in the unemployment rate from over 15 per cent in 2012 to 7.8 per cent in June 2016 has been accompanied by a marked strengthening of the regime of sanctions for non-compliance with a wide range of activation measures introduced by the authorities:

• (a) Thus, Sections 12 and 13 of the Social Welfare and Pensions (Miscellaneous Provisions) Act 2013 provide for a strengthening of the sanctions which apply in the case of refusals to engage with activation measures, including failure, without good cause, to participate in prescribed employment or work experience programmes and courses of education, training and development. As these sanctions are aimed at compelling a jobseeker to accept prescribed employment or activation measures under the threat of losing jobseeker’s benefit, the Committee asks the Government to explain to what extent “prescribed” employment, training or similar activation measures are deemed to be “suitable” in terms of Article 20 of the Convention/Code and what is considered to be “good cause” for refusal to participate in such measures.
• (b) According to the 2012 report on Convention No. 102, the disqualification for up to nine weeks for a refusal of an offer of suitable employment applied previously by the Deciding Officers of the Department of Social Protection has been replaced by a full disqualification. Indeed, Part 4: Disqualifications of the Jobseeker’s Benefit Guidelines (web-reference provided in the 2016 report on the Code) starts with the provision for a full disqualification for refusal of an offer of suitable employment, but in point (a) on the same page this offence is still punished by a disqualification for up to nine weeks. Please indicate which of these guidelines the Deciding Officer should apply. Article 69 of the Convention in this respect allows suspension of benefit “to such extent as may be prescribed”, it being understood that the sanction should be proportional to the gravity of the offence committed by the jobseeker. On the scale of the gravity of offences listed in Article 69, full disqualification might be appropriate in cases of a fraudulent claim (subparagraph (d)) or a criminal offence committed by the person concerned (subparagraph (e)), which are based on objective evidence and corresponding decisions of the courts. In contrast, disqualification for refusal of an offer of suitable employment is imposed by the Deciding Officer on the basis of his/her discretionary evaluation of what is “suitable” for the person concerned and whether this person places “unreasonable” restrictions on the nature of the employment sought, the hours of work, the rate of pay, the duration of the employment, the location of the employment, or any other unreasonable restrictions on the conditions of employment which he or she is prepared to accept. The Committee considers that such regulations give very wide discretionary power to the Deciding Officers to impose the extreme sanction of full disqualification for jobseeker’s benefit. Such administrative power, if abused in the zeal of the activation policies, may transform the unemployment benefit scheme into a system of economic compulsion to work under the threat of losing replacement income. As a safeguard against such development which would be contrary to the protective nature of social security benefits provided under the Convention, the Government may consider, on the example of other European countries, to allow full disqualification only after refusal of the second offer of suitable employment, re-establishing in the case of the first refusal, the sanction of disqualification for up to nine weeks depending on the individual circumstances of the claimer.
• (c) In its 2015 conclusion on the Code, the Committee asked the Government to provide proof that the Jobseeker’s Benefit Guidelines are applied by the Deciding Officers in such a way as to ensure that, in a situation where a person loses a job through misconduct, she/he would not suffer a further penalty of disqualification for receiving a jobseeker’s payment if the conduct, though blameable and giving sufficient grounds for dismissal, was not wilful. The Committee finds that the Jobseeker’s Benefit Guidelines are not clear on this issue as on one and the same page in Part 4 they permit disqualification for “loss of employment because of wilful misconduct” and “(b) Loss of employment through his/her own misconduct”, the latter illustrated by such examples as “bad time-keeping without valid reason” or “unreasonable behaviour at work”, which are not necessarily wilful behaviours. The Committee asks the Government to edit the Jobseeker’s Benefit Guidelines so as to eliminate all doubts that the misconduct of the person concerned may be punishable by the suspension of benefit only if such misconduct was wilful and has directly caused the contingency in question, in line with Article 69(f) of the Convention.

Part XI (Standards to be complied with by periodical payments), Article 66. Reference wage. With reference to the explanations contained in the ILO Technical Note published in Ireland’s country profile in NORMLEX, the Committee notes that, in accordance with Article 66(4)(b) of the Convention/Code No. 102, the Government determines the reference wage by reference to the category of “Other” in the Structure of Earning Survey (SES), which is based on the UK Standard Occupational Classification (SOC2010), with modifications to reflect Irish labour market conditions, and corresponds to International Standard Classification of Occupations (ISCO-88) Group 9. For the purposes of calculations in the report, the mean weekly earnings by male workers in the “Other” category have been used. This aligns to weekly payments of most benefits in Ireland. The weekly rate of earnings aligns to the data on monthly earnings. This will be used as the basis for the reference wage in the future.

Part XIII (Miscellaneous provisions), Article 76(1). Consolidated report on the Code and ILO social security Conventions. In its 2015 conclusions on the Code, the Committee invited the Government to coordinate the fulfilment of its compliance and reporting obligations under the Code, Convention No. 102 and the relevant provisions of the European Social Charter, 1961, with a view to improving the quality and consistency of the information provided in the reports. To facilitate the integrated management and comparative analysis of Ireland’s obligations under different social security instruments, the Committee referred the Government to the coordination tables, reporting timelines and relevant comments of the supervisory bodies compiled in the ILO Technical Note on the state of application of the provisions for social security of the international treaties on social rights ratified by Ireland, published in the country profile in NORMLEX. Consequently, the Committee has consolidated the information provided in the previous reports on the Code and ILO social security Conventions supplied during the period 2006–16. The reports supplied by Ireland prior to 2006 were not taken into account as the information contained in them is likely to be outdated. The information included by the Government in its reports but not directly relevant to the legal obligations under the respective provisions of the Code and ILO Conventions has not been retained. The resulting consolidated report (CR) thus contains all the relevant information provided by Ireland over the last decade on the application of these instruments and greatly improves the quality of reporting in terms of the consistency of the information available, coherence across different schemes and benefits providing protection, and the efficacy of the regulatory framework governing the national social security system.

With regard to the completeness of the available information, the CR reveals certain information gaps concerning indicated provisions and relevant questions of the report forms on the Code and ILO Conventions are included as a reminder to complete the CR with the requested information. With respect to the clarity of the information provided, particularly as regards rules and elements taken into account for the calculation of the level of benefits, in many instances it requires technical clarifications from the national experts and concrete references to the corresponding provisions of the national regulations. In order to facilitate the experts’ dialogue on these highly technical issues which depend upon the context in which they are used, the statements in question are highlighted and appropriate marks and questions are entered by the Committee directly in the text of the CR in square brackets. In view of the significant volume (125 pages) and the complexity of the CR, it is also equipped with user-friendly navigation signs and summary tables. The Committee attaches the CR to the present comments and asks the Government to complete it in the next reporting period with the missing information, technical clarifications, provisions of the national legislation and updated statistics.

Sources and consistency of statistical data. According to Article 76(1)(b), the reports on the Convention shall include evidence of compliance with statistical conditions specified with respect to the number of persons protected, the rates of benefits and the proportion of the financial resources constituted by the insurance contributions of employees protected. It should be noted that the same statistical information given in different reports often comes from different sources and databases used by different government agencies contributing to the report, and is not compatible. It is also not uncommon for the source of information not being indicated at all or the exact data being replaced by ad hoc estimates. The Committee recalls that one of the main characteristics of the Code and ILO social security Conventions consists in that compliance with their provisions is established by reference to precise numbers and percentages, which makes the quality, consistency and comparability of the statistical information an essential condition of the effective functioning of the supervisory mechanism. The Committee has therefore elaborated a simplified template for the statistical data requested in the report forms on the Code and ILO Conventions, which is attached to the present conclusions, and has prefilled it with the data given in the Government’s latest reports, which may at times appear to be divergent or controversial. The Committee asks the Government to check the data for consistency, to fill in the lacking information, to align the data for the same time basis to enable comparison, and to specify the official sources of statistics which shall henceforth be continuously used by the Government for this purpose.