The Gazette 1993

GAZETTE

JUNE 1993

| Boards, except that it does not make provision for revision of an earlier j decision where there was a mistake in I relation to the law or facts.) Such an officer may repeal the decision of an appeals officer where there has been a relevant change of circumstances since the original decision was made - j s.300(l) (b) - while an appeals officer may revise the decision of another appeals officer if the earlier decision was erroneous in the light of new evidence or new facts, or if there has been a relevant change of circumstances - s.300(3). Finally, the Chief Appeals Officer may also revise decisions of an appeals officer i where it appears to him that the Í earlier decision was erroneous by Í reason of some mistake having been in relation to the law or the facts - s.300(4). | In deciding when the revised decision takes effect, one has to distinguish I between three different types of case. First, where the original decision was made or continued in effect because of deliberate fraud on the part of the claimant or any other person, a revised decision which disallows or reduces the payment of welfare shall take effect as from the date on which the original decision took effect, subject to the discretion of the authorities to continue to apply the original decision to any period to which the fraud did not relate - s.300B(a). Second, where a revised decision to disallow or reduce welfare is given in the light of new evidence or new facts which have been | brought to the attention of the I authorities, it shall take effect from such date as the authorities shall determine, having regard to the new j facts or new evidence - s.300B(b). Finally, in all residual cases, a revised decision shall take effect as from the date considered appropriate

weeks), s/he must retain sufficient assets to repay such sum as may be due to the Minister or State in respect of any such overpaid assistance. ! Section 34(2) re-enacts, mutatis j mutandis, the rebuttable presumption, currently contained in s. 174 (3A) of "The purpose of this provision is to afford the Department the opportunity to see whether any overpayment of assistance to the claimant took place." the 1981 Act, inserted by s.33 of the Social Welfare Act 1991, that all of the deceased's assets at the time of death belonged to him/her for the ! entire of the period during which s/he j was in receipt of assistance. i Contravention of these provisions leaves the personal representative personally liable to repay to the Minister an amount equal to the amount, if any, due to the Minister from the estate in respect of overpaid assistance - s.34(3) of the 1993 Act, re-enacting, mutatis mutandis, s. 174(3) 1 of the 1981 Act. Given that, in most | cases, the personal representative would have relied on the advice of a I solicitor, contravention of these j ; provisions would presumably leave the | solicitor exposed to an action for j professional negligence. Bearing in j j | Obligation to repay welfare ! ! | The 1993 Act also proposes to extend j I the obligation of a claimant, or personal representative, as the case may be, to repay overpaid welfare. The current situation is quite complicated. For all social insurance payments and for some social j assistance payments, it is necessary for the Department to establish that the overpayment was due to fraud on the part of the claimant before an obligation to repay can arise. However special rules apply in relation to unemployment assistance, the old age ! [ mind that overpayment may have | continued for a number of years, j liability can quite easily run into ! thousands of pounds.

(non-contributory) pension and the widow's (non-contributory) pension which permit the Department to recover overpaid welfare even in the absence of fraud. The position with regard to the old age (non- contributory) pension is especially complex. Section 169(3) o f t he 1981 Act obliges a personal representative to repay, from the estate, any monies paid to the claimant while the statutory conditions for eligibility were not fulfilled or while s/he was disqualified for receipt of the pension. Section 172 of the 1981 Act provides, inter alia, that where a claimant fails to notify the Department of any increase in his/her means, s/he (or, where appropriate, the personal representative) is liable to repay to the Minister any pension received to which the claimant can show that s/he was unaware of the increase in means - s. 172(2) - or if s/he can show that there was no fraudulent intent and that there are no significant resources available to the claimant - s. 172(4). "The 1993 Act also proposes to extend the obligation of a claimant, or personal representative, as the case may be, to repay overpaid welfare." All of these diverse provisions will be superseded by S .300-300H of the 1981 Act, inserted by s.31 of the 1993 Act which consolidates, and in some cases, extends the powers of the authorities, 1 inter alia, to revise decisions and to recover overpaid welfare. The power to revise earlier decisions of a deciding officer may now be exercised by another deciding officer where it appears that the original decision was erroneous in the light of new evidence or new facts which have subsequently come to notice of the authorities; where there was some mistake in relation to the law or facts of the case; or where there has been a relevant change of circumstances since the original decision was given - s.300(l). (S.300A makes similar provision for Supplementary Welfare Allowance, a scheme administered by the Health

by the authorities, having regard to the circumstances of the case - s.300B(c).

Liability to repay overpaid welfare to the authorities is provided for by ss.300D and E o f t he 1981 Act. Section 300D (2) re-enacts the current power of the Minister to suspend the payment of welfare where some