The Gazette 1987

GAZETTE

JULY/ A UGUST

1987

Administration of Estates The Liabilities of Personal Representatives under the Social Welfare Code A cent ral d i s t i nc t i on in the social we l f a re s y s t em is that b e t we en soc i al i nsu r ance and social ass i s tance pa ymen t s. T h e f o rmer are based on the con t r i bu t i ons ma de by the c l a imant to the Soc i al I nsu r ance F u nd ( co l l ec ted n o w in the f o rm of P . R . S . I . ), wh i le the latter are paid if the c l a imant satis- fies the app r op r i a te means test. F r om the po i nt of v i ew of legal f o r m, bo th p a yme n ts exist in the f o rm of en t i t l emen t s, but social assistance has certain characteristics wh i ch reflect the pe r cep t i on that it is a f o rm of " h a n d - o u t ", f unded out of general taxat i on.

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at the date of the claimant's death, together with the pension payable, where appropriate, for the period of six weeks after that date. 3 Section 172 S. 1 72 makes further provision for the repayment to the Minister of overpaid old age pension. Where a claimant, who is in receipt of, or has applied for, an old age pension, fails to notify the Department of any increase of means within three months after the end of the month in which such increase took place, he, or his personal representative, shall be liable to repay to the Minister on demand any sums received to which he was not entitled. There are t wo statutory defen- ces available to the claimant in this situation. If he can, first, establish to the satisfaction of the Minister that he, the claimant, was unaware of the increase in means — s. 172(2), or, second, prove that there was no fraudulent intent and that there are no significant resources available to the claimant - s. 172(4). If the first defence is established, the claimant, or his estate, can arguably retain any overpaid pension, notwithstanding that there might be adequate monies available to satisfy any demand for repayment. It is worth contrasting the ob- ligation created by s. 1 72 to repay overpaid old age pension with the general obligation to repay over- paid social welfare payments. By virtue of s. 113(2) of the 1981 Act, regulations may provide, inter alia,

One such manifestation can be seen in the statutory obligations placed on the personal represen- tative administering an estate where the deceased was in receipt of a non-contributory (i.e. means- tested) old age pension. 1 The purpose of this note is to detail these obligations and to consider other aspects of the social welfare code of relevance to the adminis- tration of estates. by Gerry Why t e, BCL., LLM., MA(TCD)., B.L. Lecturer in Lew, Trinity College General provision for the old age pension is to be found in ss. 1 57 to 1 74 of the Social Welfare (Con- solidation) Act 1981, (hereinafter referred to as " t he 1 981 Ac t ") as amended. Reference is made to personal representatives in three of those sections. Section 169 By virtue of s. 169(3), a personal representative is liable to repay to the Minister any sums paid to the claimant in respect of the old age pension while the statutory con- ditions were not fulfilled or while he had been disqualified for receiving the pension. 2 S. 169(7), as amended, provides that such sums may be deducted from any monies, on account of old age pension, to which the personal representative becomes entitled, as personal re- presentative. This presumably refers to any pension outstanding

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for the repayment of social welfare in cases referred to in s. 300(5)(a) of the Act. 4 S. 300(5)(a), which deals with the revision of decisions by deciding officers or appeals officers, provides in relevant part: A revised decision . . . shall take effect as follows — (a) where any benefit . . . (or) assistance . . . will, by virtue of the revised decision, be disallowed or reduced . . . and the revised decision is given owing to the original decision having been given . . . by reason of any statement or representation (whether written or verbal) which was to the knowledge of the person making it false or misleading in a material respect or by reason of the wilful con- cealment of any material fact, (the revised decision) shall take effect as from the date on which the original decision took effect The significant point to note here is that the revised decision re- ducing or disallowing a social welfare entitlement will only have retrospective effect. 5 By contrast, the obligation to repay overpaid old

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