Pandemic Unemployment Payment (PUP) Holidays Update

Mel Cousins, Trinity College Dublin

Things have been moving rapidly on PUP since my earlier blog. The PUP scheme has been put on a statutory basis in the Social Welfare (Covid-19) (Amendment) Act 2020 (the text of the Act is not yet available at the time of writing and will be outlined in a future blog). And the Minister for Social Protection has announced that recipients of jobseekers payments and PUP will be entitled to take holidays abroad in Green List countries (for up to 2 weeks) and retain their payment. Claims which were disallowed (apparently only 85) will be contacted. This has been described as a U-turn in the media but it is arguable that this is what the law actually provided for. So how did we get here?

Two things were going on. First, given that the PUP is payable to those ‘living in Ireland’, the Department of Social Protection (DSP) were attempting to control people who left Ireland to ensure that incorrect payments were not being made. This is a perfectly legitimate aim though how it was implemented will be discussed below.

Second, sometime in June, a decision was made to change the usual rules under which jobseekers were allowed to take 2 weeks holidays abroad. This was set out in Regulations (SI 142 of 2007) in the case of jobseeker’s benefit and on an administrative basis in the case of jobseeker’s allowance. Whether this was an internal decision or linked to broader government policy to discourage travel (e.g. rules in relation to payment of public servants) is unclear. Again, while one can agree or disagree with it, this was a perfectly legitimate decision but one which required a change in the existing rules.

On 30 June, as FLAC has shown, DSP issued a circular on the issue which purported to suspend travel abroad and to say that people who returned from such travel could not be considered to be genuinely seeking work (GSW) during the period of two weeks self-isolation. There were several problems with this. First, the circular purported to ‘suspend’ the provisions of SI 142 of 2017. Of course, a circular cannot amend a Ministerial Regulation. In addition, the question of whether somebody is GSW is a question of fact. Given on-line jobsearch and applications and Zoom interviews, it is perfectly possible for a person to be GSW even if self-isolating so the circular appeared to attempt to unlawfully fetter the discretion of deciding officers. In addition, there was initially no GSW requirement for PUP though one was introduced sometime in July. At best one could describe this change as lacking transparency.

On 10 July, Minister Humphreys amended the Regulations (SI 142 of 2017). She could have ruled out all travel abroad but did not do so. Instead the Regulations provided that jobseeker’s benefit would 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’. At that time, DFA was advising against all non-essential travel abroad but this, of course, changed with the introduction of the Green List allowing travel to 15 countries.

Again with some lack of transparency as to when it happened, the rules of the PUP were changed to provide that ‘Holiday entitlements rules are the same as those for Jobseeker's Payments’. So, as set out in the earlier blog, this meant that people on PUP could also go abroad to Green List countries.  However, the Department appeared to interpret its own rules (incorrectly) as meaning that no travel abroad was possible.

When the issue broke in the media, the Government and Department obfuscated for a number of days failing to explain what it was doing, why or what the legal basis was. It introduced legislation to put PUP on a statutory basis which is a welcome measure. In the course of Oireachtas debates, the Minister now claimed that PUP was a supplementary welfare allowance payment under s. 202 of the Social Welfare Acts which allows payments in urgent cases. This came as a surprise to many people including, one assumes, whoever wrote the Departmental brief for the Minister where this is never mentioned and the authors of the Revised Estimates where PUP is shown separately to ‘urgent payments’.

As noted above, the Minister has now accepted that payments may be made to people travelling to Green List countries.

The remaining issue (which affects all those leaving the country) is the basis on which DSP obtains information as to their departure. This appears to be from social welfare inspectors questioning people in Dublin airport and other ports. The basis for this is s. 250(16B) of the Social Welfare Acts but, as several commentators have noted, this requires the inspector to have 'reasonable grounds to believe that there has been a contravention of this Act'. This would seem to rule out a general ‘stop and search’ of persons travelling through Dublin airport. However, given that about 2,500 cases have been identified, the Department might argue that it has reasonable grounds to believe that particular flights will include people who are contravening the Act. Whether this would stand up in court may be more debateable. The Data Protection Commission has now expressed "serious doubts" over the lawfulness of the collection of personal data in this manner.

There have been suggestions in the media that information must have come from other sources. If this was shown to be the case, this would be likely to raise further issues including (possibly) data protection issues. It is understood that the Data Protection Commissioner has requested further information on the issue.

DSP has carried out trojan work to put in place the PUP and to ensure that up to 600,000 people got paid. Control work is an essential part of putting in place such a payment. It is, therefore, unfortunate, that its image should be tarnished by, what might appear, a relatively small issue. As Albert Reynolds said, it’s the little things that trip you up.

But in another sense, this is not a small issue and raises concerns that the Government and DSP do not adequately appreciate the importance of the rule of law and transparency in the implementation of social services.

 

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 (PUP) Holidays Update’ COVID-19 Law and Human Rights Observatory Blog (31 July 2020) https://tcdlaw.blogspot.com/2020/07/pandemic-unemployment-payment-pup.html

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