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(there is a three year build-up period
allowed), and no one property should
make up more than 40 percent of the
total market value of the properties
in the business. The provisions also
allow for the creation of Group REITs,
provided each member of the group
satisfies the relevant conditions.
The new regime provides that property
income dividends paid by the REIT will
be subject to 20 percent Dividend
Withholding Tax (DWT), regardless of
the country of residence of the recipient.
It may be possible, however, to reduce
the rate of withholding tax under the
terms of a relevant Tax Treaty between
Ireland and the investor jurisdiction.
Property income dividends received
by Irish resident companies will not be
treated as franked investment income,
and will thus be subject to corporation
tax.
REITs are recognised as important
vehicles for property investment in
over 30 jurisdictions throughout the
world. As such, the REIT brand is
well recognised globally, and the Irish
regime has been introduced with a view
to attracting international investors to
the Irish property market.
The new Irish legislation is certainly
a good start, but in its current form it is
a work in progress. Although it may be
possible to reduce or in some cases
eliminate the 20 percent DWT through
the application of a relevant tax treaty,
in many cases the structure will give
rise to some exposure to Irish tax for
investors. However it is important to
note that this is also the case with
the many other competing regimes,
including the UK REIT regime, which
generally gives rise to a 15 percent
withholding tax under UK tax treaties.
Furthermore, although the REIT
is designed for investment in Irish
property, it is possible to use Irish REIT
structures to invest in foreign property,
however doing so could give rise to
tax leakage (given the application of
the DWT of 20 percent to distributions
from the REIT, regardless of the Irish
or non-Irish source of the underlying
rental income). The requirement for the
REIT to be Irish incorporated results in
a stamp duty charge of 1 percent on
the acquisition of shares in the REIT. It
is important to note that profits from any
development activities undertaken by
the REIT will be subject to corporation
tax at 25 percent. We are hopeful
that, once the regime is operational,
enhancements to the tax legislation
will be made in future Finance Bills, in
order to ensure that the REIT is fit-for-
purpose.
With international entrants joining
the market, Irish financial institutions
should have increasing opportunities
to find buyers for distressed property
assets, freeing up much-needed
capital for investment in other projects,
which should serve to contribute to the
stabilising of the property market, and
the wider economy, in time.
Investment funds
Traditionally, Investment Limited
Partnerships (ILPs), established under
the Investment Limited Partnerships Act
1994, were treated as opaque for Irish
tax purposes. However, in response
to calls by the Irish international funds
industry, the Finance Bill includes
measures to treat ILPs established
on or after February 13 2013, as
transparent for Irish tax purposes. The
tax treatment of ILPs after this date
will be very similar to the treatment of
Common Contractual Funds (CCFs).
ILPs have been removed from the
definition of Investment Undertaking,
and the tax treatment applying to ILPs
is now set out in a new section, Section
739J. This section provides that ILPs
are not chargeable to tax in respect
of income and gains (i.e. “profits”) on
underlying investments, but that those
profits are treated as accruing to the
unitholders in the ILP in proportion to
their relative investment in the ILP, as
if the unitholder held a corresponding
share in the underlying investments
directly.
A key advantage of the new ILP
regime is that, unlike CCFs, there is
no restriction on the types of investors/
partners permitted, other than they must
satisfy the qualifying investor criteria
from a regulatory perspective. Interest
withholding tax, DIRT, stamp duty and
CAT exemptions will continue to apply
to ILPs under the new regime.
The new ILP is expected to be the
investment vehicle of choice for private
equity investors, particularly for the
purposes of investing in green energy
and in real estate assets (including
Irish real estate). It will be possible
to “check the box” on the new ILP for
US tax purposes, which will provide
a more tax efficient result for US
investors, which will further enhance
the attractiveness of Irish funds for
this large pool of investors. The new
regime is expected to result in further
job creation in the funds industry which
already employs over 12,000 people
in Ireland.
This important change to the ILP
framework sends a clear and positive
message that Ireland is AIFMD
ready and open for business, and is
responding to the needs of the private
equity, real estate and alternative
investment community.
Other changes
There are other smaller changes in the
Bill that impact the financial services
sector, such as amendments to R&D tax
credits, Foreign Earnings Deduction,
Islamic Finance provisions, enhanced
foreign tax credit on certain dividends
from EU/EEA treaty countries,
elimination of interest withholding tax
on payments to approved pension
schemes, and a reduction in the
clawback period under the Intangible
Asset regime. Changes to DIRT and
the rate of tax on returns from life and
investment funds are given effect in
the Bill.
With Ireland being the premier global
location for aircraft leasing, there is
also good news for the aviation sector,
with the introduction of tax allowances
and accelerated allowances on certain
buildings used in connection with
commercial aircraft (from a date to be
determined by the Minister).
Wish list
Initiatives which the financial services
industry would like to see reflected
in the final version of the Bill include
a branch exemption for insurance
companies, pooling of tax credits
for leasing companies, the removal
of withholding tax for treasury/cash
pooling entities (regardless of the
recipient’s location) as well as a full
dividend participation exemption.
To sum up, this Bill reiterates that
Ireland is well and truly open for
business and the various initiatives
will hopefully play their part in our
continuing economic recovery.
Deirdre Power is a Tax Partner
specialising in financial services.
Niamh Jennings is a Senior Tax
Manager at Deloitte.
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Selling our forests is a dead loss
The Government is currently weighing up proposals to sell a wide range of State assets. Among them, the
harvesting rights of our state forestry company, Coillte. Niall Shanahan explains why this sale makes little
economic sense
Selling the rights to fell and sell timber
to private operators could see the end
of a profitable state company, a closure
of many, if not all, of the nation’s private
sawmills and a devastating blow to
tourism due to restricted access.
Moreover, the financial return on the
proposed sale would only generate
enough cash to pay three weeks interest
on the nation’s debts. The proposal,
quite simply, does not add up.
The Coillte branch of IMPACT trade
union, which represents 600 workers at
the state firm, is campaigning against
the proposed sale. Since last November
a coalition of other organisations
joined forces with IMPACT’s Coillte
members to form the Save Our Forests
campaign. These include the Society
of Irish Foresters, Birdwatch Ireland
and Mountaineering Ireland.
The Coillte branch of the union also
took steps to properly investigate
the economic consequences of the
proposal by commissioning economist
Peter Bacon to weigh up the economic
viability of the proposed sale. As it
turned out, Bacon unearthed some
uncomfortable truths.
No economic rationale
“The economic rationale for the
proposed sale of Coillte harvesting
rights no longer stands up and cannot
be justified,” was Bacon’s ultimate
assessment in his report. Assessment
of the Consequences of the Proposed
Sale of Coillte’s Timber Harvesting
Rights, published in January, found that
the State would remain liable for costs
of €1.3bn following a sale of harvesting
rights.
To cover these costs, Coillte would
need to sell timber at €78 per cubic
metre, which is “well above current or
recent prices.” The average recent price
paid for Coillte supplies to sawmills has
been just over €43 per cubic metre.
Bacon’s assessment concludes:
“To generate a sale valued at €1.3bn
would require an average price of €78
per m3. This is well above current or
recent prices and there is no basis
in these prices for assuming that this
would be achieved.” This means that,
rather than generating State income, a
sale of Coillte harvesting rights would
represent a substantial cost to the
exchequer.
The proposal requires the State
to continue to maintain the land the
forests are planted on, despite the loss
of profits currently generated by Coillte
timber sales.
The report says the overall result
of the Government’s proposal would
effectively liquidate Coillte as a viable,
commercial entity. “Given the non-
commercial activities of Coillte and
the residual land and forest that would
need to be managed, it should be seen
as a proposal to restructure Coillte
as a National Parks Service that will
depend on a state subsidy to carry out
its obligations. However, no argument
has been formulated to support such
a move and, when viewed as such,
the economic rationale for the sale
disappears,” it finds.
Bacon estimates the costs of a sale of
Coillte harvesting rights as follows:
Loss of funds from Coillte profit flow
at €565m; Coillte deficit funding
requirement
equalling
€313m;
economic cost of Coillte job losses,
€19m; Coillte debt liability at €172m;
Pension liability, €130m; and loss of
amenity value at €105m. This totals
€1,304m.
Bacon estimates the return on the sale
of the harvesting rights at €774m. With
an obligation to use half of the funds
raised to pay off debt, as part of the
Troika bailout agreement, this would
leave €387m. Bacon concludes of this
figure, “the funds raised would facilitate
repayment of 0.2 percent of the total
debt under this measure or provide 6.2
percent of the interest cost in 2012,
about three weeks of interest. Clearly,
from an accounting point of view, the
impact is marginal almost to the point
of being negligible.”
Jobs
In addition to the very real risk of
job losses at Coillte, there is also a
substantial risk of job losses in the
industries reliant on a strong supply of
good quality domestic timber product.
Bacon’s report says the proposed
sale has the potential to disrupt the
Irish timber processing sector, due to
lack of certainty over future supply. It
says job losses, which could arise in
the processing industry if timber were
exported without processing in Ireland,
would add to future costs to the State.
“There are risks associated with this
that go beyond the normal risks that
can be associated with projections
of timber prices. These include the
potential to disrupt the processing
sector, a possible cost factor that was
not included in the assessment of costs.
It is possible to envisage some options
to minimise this potential, such as a
piecemeal approach to the sale using
a policy that could be soon reversed or
a conditional sale, but it is unlikely that
such options would have any real value
in practice,” it finds.
‘Save Our Forests: The social,
economic and environmental case
against selling Coillte assets’, published
in November 2012, says the plans
could jeopardise up to 12,000 jobs in
the Irish forest products sector, which is
currently worth €2.2bn a year, including
€286m in exports.
These risks were further highlighted in
a special Oireachtas members briefing
in February, organised by the Save Our
Forests campaign, when Pat Glennon
of the Irish Timber Council (ITC),
the representative body for Ireland’s
sawmills, addressed the issue from the
perspective of the timber industry.
Mr Glennon said that the proposed
“a sale of Coillte
harvesting rights would
represent a substantial
cost to the exchequer.”
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sale of Coillte’s harvesting rights could
lead to the closure of all ten of Ireland’s
sawmills with the loss of 2,500 jobs.
The ITC has published a new report,
prepared by EPS Consulting, which
finds that it makes no sense for the
Government to proceed with the sale
from a either a commercial, economic
or financial point of view.
The loss of jobs in the wider timber
industry would disproportionately
affect rural communities throughout
the country, where the prospects of
replacement employment are minimal
at best.
Access
The inclusion of the wide range of
leisure groups in the Save Our Forests
campaign reflects very real concerns
about restricted access to, and through,
Coillte forests in the event that private
operators acquire the harvesting
rights.
Save Our Forests says prospective
buyers, set on the commercial
exploitation of timber, would be unlikely
to agree to maintain “safe and optimum”
access to forests without significant
incentives “which are unlikely to be
affordable at present.” This would
severely restrict countryside access in
Ireland, which has no public ‘rights of
way’ over private land, and where 18
million visits are made to Coillte forests
each year. This could also have a major
impact on the tourism sector. Coillte
estimates the value of tourism to these
amenities at €270m each year.
Drawing on the limited privatisation
experience of New Zealand, the
publication says: “commercially-driven
owners or concessionaires could not
be relied on to interpret access liberally,
or to undertake the expenditure
necessary to maintain forest land for
safe and optimum recreational use. It
is impossible to imagine how the State
could maintain public access to Coillte
lands after harvesting rights were sold
to private companies.”
Bacon notes, “Coillte owns most
of the forests with the best amenity
assets and has an open forest policy.
In addition, it is actively developing
facilities to improve the use of its forests
for this purpose. It currently manages
ten forest parks, over 150 recreation
sites and three mountain bike facilities,
along with over 50 percent of all off-
road long distance hiking routes in
Ireland. This is in some contrast to the
approach of private plantation owners
who have largely adopted a closed
forest approach.”
Bacon also identifies that Irish forests
do not have a clear physical separation
between forests of amenity value and
forests of commercial value, “Coillte
forests with amenity values are mostly
commercial plantations i.e. they have
been planted, often with the more
commercial species, with a view to
eventual felling to realise the timber
value”.
A good example of this cheek-by-jowl
arrangement can be found in places
like Ballinstoe, County Wicklow, where
existing mountain bike trails weave in
and out of areas where forest land has
already been commercially harvested.
Coillte’s open access policy means
that a balance has been successfully
struck
between
commercial
and leisure activity. However,
international experience suggests this
arrangement would be unthinkable,
and unmanageable, should private
operators acquire the harvesting rights.
In such circumstances, the losses to
local economies from reduced tourism
activity are inevitable.
Lessons of state asset sales
Matt Staunton, National Secretary for
IMPACT’s state enterprises division,
sees the proposal to sell Coillte’s forest
harvesting rights in the light of other
State asset sales. Invariably, he says,
the state has sold state assets “in haste,
and then has been forced to repent at
leisure”. Mentioning the example of
the sale of Eircom, Mr Staunton said
“the unseemly haste with which the
company was sold, along with all of its
essential infrastructure, has hindered
the development of broadband in
Ireland quite significantly. That failure
has put a dent in our international
competitiveness.” He added, “the
company was then mercilessly stripped
of its assets by several owners, and
left with a significant debt. This was
a profitable company with a leading
edge on the development of mobile
and broadband technology. It was
squandered for short term gains.”
Matt points out that Coillte does not
cost the taxpayer anything, but would
immediately require ongoing state
subsidies if the sale goes ahead. He
is certain that the proposed sale runs
similar risks to Eircom. “Looking at the
lifespan of the proposal, fifty to eighty
years, how could you ever be certain
that the land would not be acquired
outright by private interests? How could
you ensure that the forests themselves
would not be harvested beyond what’s
sustainable?”
“We have a fast growing, high quality
sustainable crop, which was only made
possible by decades of carefully skilled
planning. To abandon such a profitable
state enterprise, for three weeks worth
of interest repayment and a legacy
of maintenance costs, is a measure
beyond desperate.”
Following a Dáil debate on the issue
in February, Kildare TD Emmett Stagg
was moved to say that the sale is now
“most unlikely”. Minister for Public
Expenditure and Reform, Brendan
Howlin TD has acknowledged the work
of the Save Our Forests campaign
to highlight the issue, including the
publication of the Bacon report. While
the Government seems serious
about factoring Bacon’s report into
its considerations, the proposed sale
remains a live option. Until a decision
is announced, Coillte’s future hangs in
the balance.
Niall Shanahan is a Communications
Officer with IMPACT Trade Union.
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Junior Cycle reform: Making innovation
in education work
‘A Framework for Junior Cycle’ was published in October 2012 by the Minister for Education Ruairí Quinn
TD. In this article, Moira Leydon outlines why, from the practitioners perspectives, specifi c factors must be
taken into account during the reform process
October 4 2012 was a “landmark”
day in Irish education. On that day,
Minister Ruairí Quinn TD launched ‘A
Framework for Junior Cycle’ which, by
radically changing the curriculum and
assessment at Junior Cycle, aims to
bring innovation right into the heart of
teaching and learning in our schools.
The Junior Cycle is a crucial period in
young people’s education and social
development. As noted in the infl uential
ESRI longitudinal study of students’
experiences at junior cycle, “during this
period, young people form their attitudes
to school and to school subjects which
infl uence their likelihood of completing
school, their choices later in senior cycle
and even their post-school education
options”. The decision to change the
Junior Cycle curriculum preceded the
current Minister. In June, 2008 the then
Minister for Education and Science,
Mr Batt O’Keeffe, TD, directed the
National Council for Curriculum and
Assessment:
“It’s important that the NCCA reviews
international practice in this area,
examines what should be prioritised in
the totality of the junior cycle experience
and the nature and form of assessment
that would be most appropriate in the
context of what’s no longer a high-
stakes environment.”
Context for change
The context for change in education
is well documented internationally.
This context has most recently been
articulated in the EU Commission’s
Communication
on
Education.
“Rethinking Education; Investing in skills
for better socio-economic outcomes”
was launched on November 20, 2012
accompanied by seven staff papers
covering all aspects of education and
training. The Communication was
integrated into the conclusions of the
Education Council on February 15 2013.
(The policy documents are available
athttp://ec.europa.eu/education/news/
rethinking_en.htm.)
The EU Communication states that
the broad mission of education and
training encompasses objectives
such as active citizenship, personal
development and well-being, which
also go hand-in-hand with the need to
upgrade skills for employability. Across
the world teachers are being challenged
to transform educational outcomes.
Their role as transmitters of knowledge
is no longer enough. Policy objectives
such as lifelong learning, the knowledge
economy, and individual wellbeing
and social cohesion comprehend very
profound changes in thinking about
education. Infl uential international
reports such as the McKinsey reports in
2007, “How the world’s best performing
schools come out on top” and in 2010,
“How the world’s most improved school
systems keep getting better”, have
been decisive in shaping governments’
thinking on education reform (available
at
http://mckinseyonsociety.com/
downloads/reports/Education).
These reports have been underpinned
by the fi ndings from the international
benchmarking exercise that is
the biennial OECD Programme for
International Student Assessment
(PISA). In an inter-connected,
globalised world it is no surprise that
international data and discourse on
education have become “framing”
paradigms for change at national level.
Ireland is no exception in this regard;
however, the challenge for education
policy makers is not to “policy borrow”
initiatives which are successful in
different cultural contexts but to “policy
learn” and build on the strengths in the
current system.
A Framework for Junior Cycle: Key
elements
The Framework for Junior Cycle is a
complex policy document. It is clearly
based on a strong understanding of the
challenges ahead for schools, and for
society. It aims to improve the learning
experiences of young people and
thereby improve educational outcomes
overall. It will require radical changes
in the way schools deliver the Junior
Cycle curriculum and in the way that
curriculum is taught in the classroom. It
pays particular attention to embedding
quality assurance mechanisms in the
education system which will generate
evidence at school level to enable
the school to engage in continuous
improvement but also to inform policy
at Departmental and State level. It
contains a detailed timeframe for
the implementation of the proposed
changes. It provides for an inclusive
curriculum by introducing specifi c
curricular programmes for students with
special educational needs and, for the
fi rst time, a new aligned qualifi cation,
placed at Level 2 of the National
Qualifi cations Framework.
The key elements of the Minister’s
Framework for Junior Cycle are:
• Phased replacement of the Junior
Certifi cate examination with school-
based assessment over second and
third year;
• State certifi cate to document
achievement in the Junior Cycle will
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be replaced by a school certificate,
commencing in 2017;
• All subjects to be revised to a
common subject “specification”;
• Greater flexibility given to schools in
terms of how they deliver the curriculum
across the three-year cycle;
• Greater flexibility to schools in terms
of supporting the transition from primary
to second level education;
• Introduction of Short Courses to allow
schools to innovate in curriculum;
• Implementation of Literacy and
Numeracy Strategy across all subject
areas, plus the introduction of
standardised tests in English, Irish and
Mathematics; and
• Introduction of Junior Cycle
Achievement Profile which will provide
(i) a statement of the grades awarded
in the subjects or short courses studied
by students and (ii) a statement on
students’ broader engagement in
school such as attendance, teamwork,
extra-curricular activities, etc.
One of the most innovative aspects of
the Framework is the new way of looking
at knowledge. While the Framework
retains a subject-based curriculum,
the manner in which these subjects
are configured is radically different to
the current subject syllabuses. Under
the Framework, subjects will be re-
designed to reduce content in favour
of an emphasis on better conceptual
understanding by students; the
integration of 21st century learning
skills, such as managing information
and thinking, being creative, working
with others, managing myself and my
wellbeing, communicating; and specific
measureable learning outcomes
for students. The latter will be
supplemented by examples of students’
work across a variety of settings such
as essays, project work, visual displays,
aural presentations, group work and
traditional written examinations.
Use of ICT and digital media will be
important in all subject areas, especially
in the new English specification where
digital literacy will be a core area of
students’ learning. A further innovative
feature is that the entire subject
specification will be online so that
students and parents in particular will
have access to all that they need to
know about a subject including what
will be learned, how it will be assessed,
what will the student know and what
skills will they acquire at the end of the
three-year Junior Cycle programme.
How to make reform work in
education?
There is clearly much potential in the
Framework to renew aspects of our
second-level education. However, it
must be stated that teachers’ initial
response to Minister Quinn’s policy
launch on October 4 last was one of
shock. This collective response arose
from the proposals in the Framework to
replace the terminal externally assessed
Junior Certificate examination with a
model of school-based assessment and
the replacement of the State Certificate
of student achievement by a school
certificate. This is truly a radical policy
departure and differs significantly from
the advice provided to the Minister
by the statutory advisory body, the
National Council for Curriculum and
Assessment. Teachers also felt that
they had not been consulted on the
proposed changes. They felt that their
professional wisdom, experience and
expertise had been side-lined in the
decision-making process leading up to
the launch of the Framework.
This response has thrown up pertinent
questions on managing a reform process
in education. Within the OECD, there is
an emerging body of evidence on how
to “make reform happen” in education.
Dialogue with the practitioners is one
of the keys to successful education
reform. The importance of this dialogue
was highlighted in the 2011 OECD
Background Report for the International
Summit on the Teaching Profession.
The conclusion in this Report was
that teacher engagement in education
reform is not just important: it’s the most
important factor in securing reform in
education. It states:
“Learning outcomes are the results
of what happens in classrooms, thus
only reforms that are successfully
implemented in classrooms can be
expected to be effective. Teacher
engagement in the development and
implementation of reform is therefore
crucial and school reform will not work
unless it is supported from the bottom
up. This requires those responsible for
change to communicate their aims well
and involve the stakeholders who are
affected. But is also requires teachers
to contribute as architects of change,
not just its implementers.”(p.51)
The lesson to be drawn from this
OECD Report is clear: it is not enough
to design reforms to improve students’
learning and outcomes. In order for
such reforms to succeed, they must
address the legitimate concerns of the
practitioners.
Investment for quality education
Investment is the second necessary
factor for successful reform in education.
At a time of strained resources, this is
a hard case to make. However, it is a
case that must continue to be made.
Education reform is notoriously difficult
and investment cannot be ignored as
a “make-or-break” factor. The quality
paradigm for change in Irish education
developed by the National Council for
Curriculum and Assessment makes the
point that:
“Resources play an important role
in nudging and incentivising people
towards engaging with change. But they
are also more intrinsic to the process of
change than that. Investing in people,
in the learning environment, in aspects
of schools as learning organisations
is fundamental to establishing a
momentum for change.”(p. 14)
The entire thrust of the ‘Framework
for Junior Cycle’ is the evolution of the
school as a learning community. In this
context, the practitioners need time
to think, reflect, plan, and negotiate
change processes in their classroom
and across their subject departments.
This time must be allocated to schools.
This is a resource issue, which cannot
be ignored in the implementation of the
reform process.
Dialogue with teachers for effective
reform
Fundamental changes such as those
proposed in the Framework have
triggered concerns and fears among
teachers. The reform process and its
undoubted potential for innovation, for
radically transforming the educational
experiences of our 12 to 15 year
olds, will not deliver until there is
much greater involvement by the
practitioners in shaping the reforms.
Ultimately, the reform process must
move beyond a top-down, centralised
model to one where individual schools
are empowered to become learning
communities, where there is a high
degree of trust and confidence in the
assessment and certification models
and where the social goals of quality
in education and social inclusion are to
the forefront.
Moira Leydon is Assistant General
Secretary in the Education and
Research department of ASTI.
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Reforming the Social Welfare Appeals
System
The number of appeals to the Social Welfare Appeals Offi ce more than doubled between 2007 and 2011,
but this increase in volume is just one of the problems with the system. In this article Senator Katherine
Zappone outlines the details of the Seanad motion which seeks to reform the Social Welfare Appeals System
In November of last year I, together with
my Independent Senator colleagues,
put forward a motion in the Seanad
seeking a number of modest reforms
to the social welfare appeals system.
We presented these reforms as a cost-
effective use of the resources already
within the system. We hold an acute
awareness of the current economic
context coupled with the belief that
particularly in times of austerity, we
must have due regard to the principles
of fairness and justice, especially for
those who are most vulnerable.
TDs and Senators receive a huge
number of requests and complaints
from citizens and residents who are
experiencing enormous delays within
the appeals system. Many people are
waiting for decisions to be overturned
because the initial decision did not take
into account all the circumstances of an
individual or interpret accurately Irish
or EU social welfare law as it applies
to the individual’s circumstances.
These wrongful decisions were made
at the fi rst instance of decision-making
and contribute to the extremely high
number of appeals before the social
welfare appeals offi ce. A clear indicator
that the process is fl awed is the fact that
50 percent of decisions are overturned
on appeal. The most cost effective
change to the system could happen by
correcting the shortcomings within the
application process.
People who make an appeal face a
number of problems within the current
system. The number of social welfare
appeals has more than doubled in the
past fi ve years with 52,972 live appeals
in 2012. The average waiting time for
an appeal to be dealt with by summary
decision is 27.8 weeks in 2012. The
pressures on the system have resulted
in a number of appellants being unable
to access their fundamental rights
because of these delays, causing
destitution in some cases. The number
of appeals offi cers has been increased
to over 40 and other system reforms
have resulted in decreased waiting
times and increased productivity.
However, given the pressures exerted
in the current economic climate, it is
vital to highlight that the system is
almost at capacity (that is, effi ciencies
will not increase much more) owing to
the ever growing number of appeals and
the limited number of staff available to
deal with them. Consequently, we will
still have considerable delays in spite
of the current reforms.
‘Not Fair Enough’
The Free Legal Advice Centre (FLAC)
published research on the system
last year entitled, Not Fair Enough.
FLAC’s research provides us with an
analysis of the system from a human
rights law perspective. It offers a
lens with which to determine what is
lacking in the current system. It is an
objective analysis from the perspective
of the rule of law, and it highlights that
people have a right to social security,
to fair procedures, due process and
effective remedies. A person’s right to
fair procedures is enshrined in Article 6
of the European Convention on Human
Rights. Everyone is entitled to a fair
and public hearing within a reasonable
time by an independent and impartial
tribunal established by law.
Towards a reformed appeals system
The Government could meet these
human rights legal obligations as well
as improve the cost effectiveness of
the current system by conducting and
publishing an audit of independence
of the social welfare appeals system.
Such an audit could recommend ways
to further improve fair procedures in
the system and an appellant’s access
to justice. An audit provides us with an
objective benchmark of human rights
principles and standards of fair hearing
against which judgment can be made
with regard to the independence and
transparency of the current system.
An audit that assesses the system
according to the fi ve human rights
principles outlined below provides a
strong basis for such reform.
1. Independence
In 1986 the Commission on Social
Welfare recommended that an
independent chairperson for the
Appeals Offi ce be appointed rather
than appeals being made directly to
the Minister via the Department. While
the Offi ce has since been given its own
premises and staff, the Chief Appeals
Offi cer is still appointed by the Minister
for Social Protection. In 2007 the Chief
Appeals Offi cer, Bryan Flynn called
for the Appeals Offi ce to be made
statutorily independent. However, today
it remains a section of the Department
of Social Protection. The actual and
perceived independence of the Offi ce
is of crucial importance if the public are
to have confi dence in the system.
2. Equality of arms
There should be a fair balance between
the parties (an equality of arms).
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Current appeal procedures weigh
against appellants because they do not
have access to the same information as
those making the decision about their
case. Appellants are not automatically
given a copy of their social welfare file
which may contain useful information.
This file as well as a copy of the deciding
officer’s submission that contains
information on why the application
was rejected should be provided to
the appellant as a matter of course.
It should not be necessary to make a
freedom of information application to
access this information.
3. Right to an oral hearing
Appellants should also be informed
of their right to seek an oral hearing,
a right which they hold under Article 6
of the European Convention on Human
Rights. The granting of an oral hearing
should not be at the discretion of an
appeals officer. An option to request
an oral hearing ought to be included on
the appeals application form. Statistics
show there is a higher rate of success
on appeal in cases where an oral
hearing is held, compared to a decision
that is made on written evidence only.
Oral hearings allow for a teasing out
of the issues and the questioning of
evidence and decisions. One principle
of natural law and fair procedure is that
a person should have the opportunity
to make their case in the easiest form
possible. To take one example, a
separated woman with a large family,
not only had her one-parent family
payment stopped, but also received a
demand for €21,000, an alleged over-
payment. Her payment was stopped
in November 2009 and, following
consultation with FLAC, she made an
appeal to the social welfare appeals
office. The Department claimed that
she was co-habiting with her ex-partner.
As a result of a freedom of information
request the woman received her social
welfare file. This file contained a social
welfare inspector’s report which stated
that she was not cohabiting. The report
showed that the evidence on which
the Department based its opinion was
deficient. The woman had presented
written evidence in her initial application
that corroborated the inspector’s report,
but her file showed that this was not
taken into consideration. Following an
oral hearing that was held more than a
year after she appealed the decision, at
which FLAC represented her, the social
welfare appeals officer allowed her
appeal and rejected the overpayment
claim. The woman’s payment was
restored, but arrears were not granted
for a further three months.
At the end of January 2013 the
number of oral hearings being held
had increased and the success rate
at these hearings had also risen. The
majority of appeals remain, however,
by way of summary decision.
4. Civil legal aid
People have a right to legal assistance
in complex cases. It must be noted
that civil legal aid is not available for
representation at a social welfare
appeal. Appellants may seek assistance
from an NGO or lay advocate or they
may represent themselves. Some
appeals can deal with complex issues
of law. Therefore, appellants may be at
a disadvantage when presenting their
case without legal advice or assistance.
The Government should make civil
legal aid available in these instances.
Failing that, advocacy organisations
ought to be funded to assist people in
complex cases.
5. Consistency in decision-making
The last principle has to do with
consistency in decision-making within
the social welfare appeals system.
The appeals office does not maintain
a database of decisions which is
accessible to appellants about cases
which may be similar to their own. At
present, a database exists to assist
appeals officers in their work, but
all that would be needed is a minor
investment in anonymising software in
order to make a number of significant
decisions available to the appellants
and their advocates. This would assist
appellants’ preparations for appeals
significantly.
Conclusion
In a recent appearance before the
Joint Oireachtas Committee on Social
Protection, Chief Appeals Officer,
Geraldine Gleeson gave evidence to the
Committee that the number of appeals
had increased while the waiting times
have come down somewhat. Additional
appeals officers were hired in 2011
but significantly there has been loss of
experienced appeals officers leading
to longer processing times in 2012 and
beyond.
These minor improvements in an
overburdened system are inadequate.
Substantial analysis of the current
system must be undertaken with a
view to recommending systemic and
effective reforms, as outlined above.
To do otherwise would be to continue to
fail those most in need of assistance.
Katherine Zappone is an Independent
Senator.
“TDs and Senators
receive
a
huge
number of requests
and complaints from
citizens and residents
who are experiencing
enormous delays within
the appeals system.”
“The
Government
could meet these human
rights legal obligations
as well as improve
the cost effectiveness
of the current system
by conducting and
publishing an audit
of independence of
the social welfare
appeals
system.”
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Keeping Cork Moving: Cork prioritises key
infrastructure projects to protect and grow
investor appeal
Siobhan Bradley outlines Cork Chamber’s views on some of the strategic initiatives that the region have
progressed and some of the outstanding challenges in the region
If a region wishes to be an engine for
sustained economic growth, it must
offer as conducive and attractive a
business environment to entice and
secure commercial interest and inward
investment. According to the IDA
Horizon 2020 Strategy ‘the lesson of
the Irish experience with FDI is that
success is never permanent and to
stand still is to be left behind’.
Cork Chamber continue to work in
partnership with local government,
statutory agencies/bodies and key
regional stakeholders to prove
what is possible, even in adverse
circumstances, when vision, innovation,
collaboration and a
steadfast
commitment to recovery and growth
predominate. By tenaciously identifying
innovative initiatives in infrastructure,
concentrated cluster developments
and urban development planning, Cork
has successfully implemented strategic
plans which ensure that it is well
positioned to capitalise on opportunities
as a return to growth occurs.
Existing strengths of the region
Cork’s natural advantage in terms of
scale and critical mass, its diverse
industry base and well developed
geographic clusters of export-oriented
companies in the agrifood, tourism,
pharmaceutical and ICT sectors,
coupled with its unique energy
advantages have provided the region
with a well developed product of strength
to build on throughout the downturn. In
the last 18 months alone, the region
has built on its already strong economic
clusters by securing inward investment
from international pharmaceutical firms
such as Sangart, Biomarin and Eli Lilly
and global ICT leaders such as Apple,
FireEye, Huawei and Big Fish Games.
Meanwhile, indigenous companies
such as Voxpro, Carbery Group and
Barry & Fitzwilliam continue to provide
high quality employment and deliver
excellent products and services.
The Cork Gateway also benefits from
its renowned higher education and
research institutes which concentrate
on research development in areas of
most relevance to its existing industries,
including ICT/electronics, lifesciences,
food and the environment. The region’s
capacity and status as a lead player in
research and innovation was further
corroborated by Government’s recent
announcement that UCC/Tyndall
Institute have been awarded four of
the seven new world class research
centres as part of the €300m Science
Foundation Ireland/industry research
investment in Ireland.
Building stronger roots for economic
growth
Ambition, tenacity and vision have
been the core elements driving the
region’s strategic development.While
recognising that major investment in
infrastructure has been limited for the
short term, Cork’s strategies have
concentrated on the need to ensure that
sufficient levels of investment continue
over five year cycles to facilitate a
modal shift. Recent developments in
transport and infrastructure bear the
fruits of this hard work.
Building a sustainable transport
system
In February 2013, the Department
of Transport announced a five year
€8.3m funding package for sustainable
transport investment projects for Cork
City and suburbs. Currently, Cork has
a relatively low level of public transport
usage by commuters; eight percent in
comparison to Dublin’s 21 percent and
this investment which is part of a regional
cities sustainable transport programme
aims to improve the walking, cycling
and public transport experiences for
city commuters. Key projects in the
five year initiative include a €1.1m
investment to improve the accessibility
of Kent Station and its links to the city
centre, cycle corridors to link Douglas,
Ballyvolane and UCC to the city centre,
a €1m redevelopment of Parnell Place
and a €1m investment in a new City
Centre Movement Strategy (CCMS).
As the popularity of large suburban
shopping centres continues to increase
and impact on city centre foot fall,
strategic initiatives that improve vitality,
commercial activity and growth in the
city centre are to be commended. The
“Cork’s
natural
advantage in terms
of scale and critical
mass,
its
diverse
industry base and well
developed geographic
clusters of export-
oriented companies...”
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