The Gazette 1993

GAZETTE

JUNE 1993

brought at any time within two years commencing on the date on which the notice of intention to distribute the assets and the schedule of assets are received by the Minister, or within any other period fixed in any other enactment, whichever is the longer. The changes to be wrought by 1993 Act in the area of recovery of overpaid welfare have the merit of securing some degree of rationalisation of the current complicated position. However, that rationalisation will be brought at the price of extending the liability of welfare claimants, personal representatives and, by extension, their legal advisers. This demonstrates, once more, that solicitors who ignore the operation of the social welfare code do so at their peril. *Gerry Whyte, a fellow of Trinity College Dublin, is senior lecturer in Law at TCD. • References 1. The authorities referred to here are community welfare officers and superintendent community welfare officers in relation to Supplementary Welfare Allowance, a scheme administered by the Health Boards; and deciding officers, appeals officers and the Chief Appeals Officer in relation to schemes administered by the Department of Social Welfare. 2. S.300D (3) contains a similar provision, mutatis mutandis, dealing with Supplementary Welfare Allowance. In Ireland COT DEATH is the largest killer of children under the age of two. The Irish Sudden Infant Death Association supports bereaved families and funds cot death research. If your client wishes to make a will in favour of Cot Death Research further information is available from I S I D A Carmichael House, 4 North Brunswick Street, Dublin 7. Telephone: 8747007 / 8732711 Concluding comments

question has arisen as to whether the conditions of eligibility are fulfilled or whether the original decision should be revised. 2 Section 300D(4) provides that where a decision has been revised in order to disallow or reduce a welfare payment made to a person, any welfare paid to that person in accordance with the original decision shall be repayable to the Social Insurance Fund, the Minister or the health board, as the case may be, to the extent to which such payment would not have been made if the revised decision had been made first. Liability to repay is imposed on the claimant, on any person to whom the welfare was paid on behalf of the claimant, or on the personal representative of the claimant. Section 300E is a new provision, dealing with cases of overpayment made by way of clerical error. In such a case, the claimant or his personal representative, or any person to whom the welfare was paid on behalf of the claimant, is liable to repay the sum in question on demand to the Social Insurance Fund, the Minister or the health board, as the case may be. Under the present legislation, the Minister has a discretion to mitigate amounts of overpaid old age pension due to him from an estate where it appears equitable to him to do so - s.!74(3B) of the 1981 Act, inserted by : s.33 of the Social Welfare Act, 1991. Section 300G( 1) of the 1993 Act now i provides that, in relation to all cases where there is a liability to repay i welfare to the authorities, that ; repayment may be deferred, suspended, reduced or cancelled in accordance with a code of practice instrument. This reliance on a code of practice is a new feature in the Social Welfare Acts and nothing is said in the Act about the legal status of the code. However one would not be entirely surprised if it amounted to nothing more than a statement of good I administrative practice on this point, rather than operating as a binding legal code. which the Minister intends to introduce by way of statutory

"This reliance on a code of practice is a new feature in the Social Welfare Acts and nothing is said in the Act about the legal status of the code."

Means of recovery

The 1993 Act provides for a number of different ways in which overpaid welfare may be recovered by the authorities. Sums arising through a clerical error are liable to be repaid on demand - S .300E. Sums arising as a result of a revised decision made pursuant to ss.30() and 300A are, without prejudice to any other remedy, recoverable as debts due to the State and may be recovered as a debt under statute or simple contract debt in any court of competent jurisdiction - S .300F (1), (3) and (5). Overpaid welfare howsoever arising may, as an alternative and without prejudice to any other method of recovery, be recovered by deduction from any welfare payment, (other than supplementary welfare allowance) to which they claimant is or becomes entitled, subject to the proviso that, where this method of recovery is used, overpaid child benefit or family income supplement may be recovered only from payments of child benefit or family income supplement respectively - S .300F (6) and (7). In this context, one might query the constitutionality of S .300F (8) of the 1993 Act which purports to allow the Minister to exercise the power of deduction, notwithstanding that, inter alia, proceedings have been instituted in a court for the recovery of the sum due. This does seem, prima facie, to be an infringement of the independence of the judiciary.

Time limits for initiating proceedings

Finally, s.34 (4) of the Act re-enacts, mutatis mutandis, s. 169 (11) of the 1981 Act, inserted by s.34 of the 1991 Act, dealing with time limits. Proceedings for the recovery of social assistance due from the estate shall be maintainable against the estate if

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