The Gazette 1992

GAZETTE

DECEMBER 1992

Liability to Maintain

by Mel Cousins BL

This article examines the liability to

maintain provisions in the Social

Welfare code in the light of recent

amendments in the Social Welfare

Act, 1992.

Introduction

The introduction by the Minister for

Social Welfare in November, 1990 of

the lone parent's allowance and of

the liability to maintain provisions

has led to an important shift in the

balance between public and private

support for lone parents. Support

can come either from the public

authorities by way of social welfare

payments or privately by way of

maintenance from (ordinarily) the

father/husband. Prior to November,

1990, the primary onus was on

private support and it was only

where efforts to enforce the

maintenance obligation failed that

the Department of Social Welfare

would step in to provide public

support. Following the recent

changes, the primary responsibility

remains, in theory, on private

support. However, the Department

will now step in much more quickly

to provide public support without

insisting on prolonged efforts to

enforce the maintenance obligation.

The Department now has the power

to recover some or all of the lone

parent's payment from the other

spouse or parent.

Such legislation has existed since the

time of the Poor Law and existed in

relation to Supplementary Welfare

Allowance (which is administered by

the regional health boards) prior to

1989. However, it appears to have

largely fallen into disuse and did

not, in any case, apply to any

payments administered directly by

the Department of Social Welfare.

The legislation extending the liability

to mairitain provisions to

Departmental payments was

contained in the Social Welfare Act,

Mel Cousins

1989. However, it did not come into

force until November, 1990. Even

then, it required considerable

administrative work to bring the

provisions into operation and it is

only now that the Department has

begun to attempt to enforce this

obligation.

The Minister for Social Welfare,

speaking in the Dail on 26 March,

1992,

stated that almost 6,000 cases

had been examined to determine

liability on the part of a spouse.

The cases fell into three categories.

Sixteen per cent were employed or

self-employed. 47% were social

welfare recipients; and 37% could

not be traced. Maintenance recovery

is being pursued only in the case of

employed or self-employed persons

i.e. just over 1,000 persons (including

83 living in the UK). At that time 32

determinations had been issued

directing that weekly payments be

made to the Department. However,

the Minister stated that recovery had

"not been very successful" and

payments had been received in six

cases only. Nine cases had been

prepared for civil debt proceedings

for non-compliance with the

determinations.

It seems likely that, if the

Department is to enforce seriously

the liability to maintain provisions,

considerable litigation will ensue.

This article looks at the legal and

administrative rules which apply in

this area and considers some of the

issues which may arise.

The Legislation

Briefly, section 314 of the Social

Welfare (Consolidation) Act, 1981

(the Act)

provides that every person

is liable to maintain his or her

spouse and any child under the age

of 18 years or (except in the case of

supplementary welfare allowance)

between the age of 18 and 21 while

the child is in full-time education.

These provisions apply to deserted

wife's allowance and benefit, lone

parent's allowance and

supplementary welfare allowance.

Where a claimant receives such a

payment, every person who is liable

to maintain that claimant is liable to

repay to the Department of Social

Welfare or the Health Board (as the

case may be) such amount of the

payment as that body may determine

to be appropriate. The maximum

amount which may be deducted

cannot exceed the total social

welfare payment being paid to the

claimant.

The Initial Determination

The initial determination that a

person "is liable to contribute and the

amount of that contribution is made

by an officer of the Department of

Social Welfare.

However, such

decisions are not made by "deciding

officers" and there is therefore no

statutory right of appeal to the

Social Welfare Appeals Office. No

guidance is given in the Act as to

how the amount of the contribution

is to be assessed and no regulations

have been drawn up. However, the

Department has established internal

administrative guidelines to guide

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