Thread by @williamhboney1

The most astonishing email you will ever read about how the State is unlawfully complicit in #bogusselfemployment

Serious questions, very serious questions, to be answered.
@IrishTimes @thejournal_ie @morningireland @TodaySOR @PatKennyNT

On the 17th December last, I emailed the Social Welfare Appeal's Office and requested:

"access to any and all precedential decisions of the SWAO regarding insurability of employment. I cite Opesyitan & ors -v- Refugee Appeals Tribunal & ors [2006] IESC 53

(26 July 2006) as precedent for accessing this information"

On the 20th December last, you replied:

"Each appeal dealt with the Social Welfare Appeals Office is looked at on a case by case basis and determined on its own particular facts. In cases of appeals relating to >

insurability of employment Appeals Officers have regard to the Code of Practice for Determining Employment and Self-Employment Status of Individuals"

>

I immediately replied with:
"your contention that "Each appeal dealt with the Social Welfare Appeals Office is looked at on a case by case basis & determined on its own particular facts" directly contradicts the following letter from Secretary General of Dept Social Protection -

Your reply also directly contradicts a statement from a Social Welfare Appeals Office Deciding Officer at an adjourned hearing in the SWAO in 2016 when the Deciding Officer stated his intent to use the cases of a number of builders in an appeal by JJ Rhatigan & Co. as,

>

and I quote, 'Test Cases'.

A separate reply regarding the use of the 'Code of Practice' will issue to you shortly, but in the interim, I would be most grateful if you would address the contradiction between your reply and the true factual position as described above"

>

Today, 9th January 2019, you replied with:

"Thank you for your email of 20 December 2018 (attached). As stated in our reply to you of 19 December 2018 each appeal dealt with the Social Welfare Appeals Office is looked at on a case by case basis and determined on its own

>

particular facts. In cases of appeals relating to insurability of employment Appeals Officers have regard to the Code of Practice for Determining Employment and Self-Employment Status of Individuals. welfare.ie/en/downloads/c….

On occasion over the years an approach of having >

'test cases' has been taken or considered by the Social Welfare Appeals Office. However, if such an approach is taken it is still necessary for the Appeals Officer to ensure that each case is considered on its own particular circumstances.

I trust this clarifies the position" >

Your reply is truly astonishing Ms McCormick. The Supreme Court decision clearly says that consistency is important to guard against arbitrary decision, irrespective of whether older decisions are precedential. Also there is an equality of arms aspect. If the SWAO

>

or Minister have access to previous decisions and I don’t then that is an issue, particularly where there are “test cases”.

I quote these passages from the Supreme Court judgment -

“Fair procedures require some reasonable mechanism for achieving consistency in both the interpretation and the application of the law in cases like this of a similar category. Yet, if relevant previous decisions are not available to an appellant, he or she has no way of knowing

whether there is such consistency. It is not that a member of a tribunal is bound by a previous decision, but consistency of decisions based on the same objective facts may, in appropriate circumstances, be a significant element in ensuring that a decision is objectively fair

rather than arbitrary.”

“Previous decisions of the Tribunal may be ones, which if applied in the appellant’s case would benefit the appellant but if there is no access he has no knowledge of them and indeed he has no guarantee that the member of the Tribunal has any personal

knowledge of the previous decisions made by different colleagues. It does not require an elaborate review of the relevant case law and fair procedures to come to the conclusion that such a secret system is manifestly unfair.

The unfairness is compounded if, as in this jurisdiction, the presenting officers as advocates against the appellants have full access to the previous decisions. That raises immediately an ‘equality of arms’ issue”.

You have NOT supplied me with any and all precedential decisions of the SWAO regarding insurability of employment despite the now undeniable fact that such precedents do exist.

You CANNOT have 'Test Cases' and at the same time determine each case on a case by case basis on it's

own particular facts. This is a blatant and deliberately deceptive contradiction in terms on your behalf.

The very fact that the SWAO now admits that it has precedential test cases runs contrary to precedents set by the Higher Courts in

>

Henry Denny & Sons (Ireland) LTD, trading as Kerry Foods v. The Minister for Social Welfare [1998] 1 IR 34. The SWAO is acting and has acted unlawfully in both considering and having 'Tests Cases'.