The Gazette 1993

GAZETTE

IMNAGEMNJUNE 1993

Liability of Personal Representatives under the Social Welfare Code

exceeding £ 1,000 and/or imprisonment not exceeding 12 months and on conviction on indictment, by a fine not exceeding £10,000 and/or imprisonment not exceeding 3 years - ss.294F (6) and 294L (the latter inserted by s.28 of the 1993 Act). The j offence may arguably be made out even where the failure to comply with the request is not wilful. Section 34 of the 1993 Act proposes that, where a deceased person had been, at any time, in receipt of social assistance, certain conditions, currently set out in s. 174(3) of the 1981 Act and re-enacted mutatis mutandis with slight amendments by Distribution of assets

Recent amendments in the Social Welfare Act, 1993

retirement allowance, lone parent's allowance and carer's allowance. A further means-tested payment, family income supplement, is not assistance for this purpose as it is provided for by Part IVA of the 1981 Act, though one might query the logic of excluding this scheme from the scope of s.34. A number of other schemes, since repealed, were formerly regarded as assistance under Part III - these include unmarried mother's allowance, single woman's allowance, deserted husband's allowance and widower's (non-contributory) pension. Logically these should also fall within the ambit of s.34, though it is a nice question as to whether the present draft could be construed as having this effect. In any event, it would now appear that, when these provisions of the 1993 Act are activated, personal representatives (or their legal advisors) will, in future, have to ascertain whether the deceased was, at any time, in receipt of social assistance. The simplest way of doing this would be to have the Department check their records, using the deceased's PRSI number where appropriate. However, the fact that the Department's records might not disclose whether the deceased was ever in receipt of assistance is no defence to any claim which may be taken under this part. Where it transpires that s.34 does apply, the personal representative must, not less than three months before commencing to distribute the notice in writing, of the intention to distribute the assets and ii) provide the I Minister with a schedule of the assets. i assets: i) inform the Minister, by

by Gerry Whyte*

Introduction

For the second time in two years, the Department of Social Welfare has made changes in the provisions of the social welfare code dealing with the obligations placed on personal representatives administering estates. The major change here is to extend these provisions to apply to estates where the deceased had been in receipt of any form of social assistance, not merely the old age pension, as is the current position. By virtue of s.41 of the Social Welfare Act, 1993, however, a ministerial order is required before these changes take effect. Obligation to provide information By virtue of the proposed S .294F (2), I inserted by s.27 of the Social Welfare ! Act, 1993, a social welfare inspector may, inter alia , require the personal representative of a person who was at any time in receipt of any welfare payment to furnish the inspector with such information and to produce to him/her such documents, within such period as may be prescribed, as the inspector may reasonably require. This would apply in respect of any estate where the deceased had been in receipt of any form of social welfare - either social insurance, social assistance, family income supplement or child benefit - and contrasts with the existing provision, s.174 of the Social Welfare (Consolidation) Act, 1981, as amended by s.33 of the Social Welfare Act, 1991, which only applies to an I estate where the deceased had been in ; receipt of the non-contributory old age | pension. Failure to comply with such request shall be an offence, punishable on summary conviction by a fine not

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Gerry Whyte

s.34 of the 1993 Act, must be satisfied before the estate may be distributed. "Assistance" is defined by s.2 of the 1981 Act as "assistance under Part III i [of the 1981 Act]". At present this consists of unemployment assistance, old age (non-contributory) pension, blind pension, widow's (non- contributory) pension, orphan's (non- contributory) pension, deserted wife's allowance, prisoner's wife's allowance supplementary welfare allowance, pre-

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1 The purpose of this provision is to afford the Department the opportunity to see whether any overpayment of assistance to the claimant took place. Where the personal representative receives a written request from the Minister within the following three months (the current position is eight

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