Pandemic Unemployment Payment: Holidays in the Sun?

Mel Cousins, Trinity College Dublin

Recent reports have indicated that the Department of Social Protection (DSP) has sanctioned over 100 persons in receipt of the Pandemic Unemployment Payment (PUP) who took holidays abroad. A spokesperson for DSP stated that the PUP is ‘not paid to people who go on holidays abroad or when they are going through their subsequent 14 day quarantine (sic.) period’.

The Minister for Social Protection has focussed in interviews on the rationale for this approach, i.e. that the State should not subsidise people who are in breach of public health advice. However, this blog raises the question as to the legal basis for the DSP action.

Unlike most social welfare payments, PUP is based on an (unpublished) administrative scheme. Thus the normal rules in relation to claims, payments, decisions, appeals, etc. set out in the Social Welfare Acts do not apply. However, this does not mean that the scheme can be operated on an arbitrary basis and the normal rules of administrative (and human rights) law apply.  So the question arises as to what is the legal basis for the decision not to make payments to people on holidays and on their return?

The short answer to the question is that DSP does seem to have a legal basis for non-payment of PUP to persons who travel to countries not on the Green List from 10 (or possibly 27) July 2020. There does not appear to be a clear legal basis for refusing PUP to persons during a period of self-isolation.

A number of bases for non-payment might be suggested. First, in order to qualify for the payment, a person must ‘live in the Republic of Ireland’.  This is not a term found in general social welfare law. However, social protection cases in the UK have indicated that it is possible to be temporarily absent without ceasing to live in a country. There is also a challenge to a refusal of PUP ongoing in the case of a Romanian/Moldovan national who claims to live in Ireland but who says he was temporarily absent at the time he lost his employment. It would seem unlikely that the ‘live in’ Ireland rule could constitute a basis for non-payment on holidays.

Second, it has been suggested that PUP claimants are required to be genuinely seeking work. This is indeed on normal requirement for statutory unemployment payments. However, this requirement did not feature in the description of the PUP initially on the DSP website and appears to have been added only as of July 2020. Given this condition, it may be reasonable to conclude that a person abroad on holidays will not normally be GSW. However, it is less clear that a person self-isolating who can search for work and apply for work online and, if necessary, attend an online interview would not be GSW in that period.

A third basis for non-payment is that the scheme could simply provide that it is not to be paid abroad or during a period of self-isolation in line with official public health advice. It would appear that this is, in part, the actual basis for non-payment (albeit one not clearly communicated in the media to date). The current (27 July) scheme states that ‘Holiday entitlements rules are the same as those for Jobseeker's Payments’.

The Social Welfare Acts provide that jobseekers allowance and benefit are not payable where a person is ‘absent from the State’ but, in the case of jobseekers benefit, this is relaxed by Regulation to allow limited holidays abroad. However, on 10 July, the Minister made Regulations which provide that, in the context of the grave risk to human life and public health posed by Covid-19, jobseeker’s benefit will only be payable where the claimant is on holidays in accordance with ‘the Covid-19 General Travel Advisory in operation by the Department of Foreign Affairs’.

The DFA Travel Advisory remains to ‘avoid non-essential travel’ to most countries. However, following the Government’s adoption of a Green List, DFA now advises ‘normal precautions’ in relation to the 15 countries on the Green List. So it would appear that people on JSB and, in line with the approach set out above, people on PUP would be entitled to travel to the 15 Green List countries for holidays.

This rule would allow refusal of PUP during holidays abroad in any other (non-Green List) country. However, it would not appear to provide any basis for refusing PUP to a person during the self-isolation period in Ireland. Finally, this leaves open the question as to what ‘essential’ travel involves. The Minister for Social Protection has indicated that her Department will consider cases where a person has travelled for essential reasons.

The legal change to JSB was made as of 10 July. It is not clear when exactly the change was made to the PUP conditions although it has been made as of 27 July. Principles of administrative law would not seem to allow persons to be disqualified for a benefit on the basis of a rule which had not yet been made or of which they were unaware so the rule concerning non-payment of PUP abroad would seem to apply somewhere between 10 and 27 July (whenever it was actually made and notified to claimants).

(It should be noted that the DSP website currently states that ‘At present, holiday periods permitted for Jobseeker's payments have been suspended. Jobseeker's payments will not be made to anyone who travels abroad.’ This does not appear to be an accurate statement of the legal position.)

The PUP has now been extended to April 2021. Its initial operation on an administrative basis had several advantages including speed and flexibility. However, the disadvantages of operating a large system of payments on the basis of an unpublished scheme are apparent from this issue. It would seem desirable to move more quickly to transition claimants to the general statutory schemes and/or to put PUP on a statutory basis so that the normal rules (and appeals procedures) apply.

Mel Cousins is a visiting research fellow at the  School of Social  Work and Social Policy in Trinity College Dublin and a member of the COVID-19 Law and Human Rights Observatory.

Suggested citation: Mel Cousins, 'Pandemic Unemployment Payment: Holidays in the Sun?' COVID-19 Law and Human Rights Observatory (28 July 2020) https://tcdlaw.blogspot.com/2020/07/pandemic-unemployment-payment-holidays.html

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