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GAZETTE
JANUARY/FEBRUARY 1990
Enforcing Maintenance Obligations
through the Welfare System
One of the interesting aspects of social welfare law is the extent
to wh i ch the State uses it as a means of social control. Among the
examples of this phenomenon listed by Cranston in his book.
Legal
Foundations of the Welfare
State
1
is the policy of enabling social
welfare administrations to recoup some of the expenditure on
social welfare benefits from those who have a legal obligation to
maintain claimants. Recent legislation extends the powers of the
Department of Soc i al Welfare in this respect and is likely to have
an impact on many cases of marital breakdown.
At present, the Department may
compel a person to maintain his or
her dependants in four different
situations:
(a) Where a person is in receipt of
one of a number of specified
welfare payments as his or her
sole or main source of income,
the Department may directly
enforce his or her maintenance
obligations by paying some of
the welfare directly to the
claimant's dependants. This is
done through the exercise of the
general power to pay welfare to
an "appointed person", rather
than to the claimant himself or
herself, and this power is
conferred by s.112(3) (b) of the
Social Welfare (Consolidation
Act 1981, (hereafter "the 1981
Act") as amended by s.16 of the
Social Welfare Act 1989 in
relation to insurance schemes
2
The power to make payments to
appointed persons has also
been extended to a number of
means-tested schemes, such as
unemployment assistance,
3
old
age (non-contributory) pension
and blind pension,
4
rent allow-
ance,
5
and supplementary wel-
fare allowance.
6
(b) In relation to two specific
welfare schemes,
7
deserted
wife's benefit [D.W.B.] and
deserted wife's allowance
[D.W.A.], an applicant must
have made reasonable efforts to
secure maintenance from her
spouse before she can be
eligible for payment.
8
The
authorities are also empowered,
in relation to a third scheme -
supplementary welfare allow-
ance [S.W.A.] - to require a
claimant to apply for such
supplementary or other benefits
to which he may be entitled
before granting the allowance,
and this presumably embraces
applications for maintenance
under the Family Law (Mainten-
ance of Spouses and Children)
By
Ge r ry Why te
L e c t u r e r - i n - L aw
Trinity Co l l ege, Dub l in
Act 1976 and the Judicial
Separtion and Family Law Re-
form Act 1989.
(c) Various Departmental means
tests provide for the aggrega-
tion of resources in the case of
married claimants and the net
effect of such provisions is to
compel the claimant to look to
his or her spouse as the primary
source of maintenance.
(d) Finally, the Department may
recover welfare already paid to
a claimant from that claimant's
relatives in certain specified
situations. It is this power which
has recently been extended by
Part III of the Social Welfare Act
1989 and which forms the
subject matter of this note.
Part III of the Soc i al Welfare
Act 1989
Part III of the Social Welfare Act
1989 effects significant changes in
respect of an individual's liability to
maintain a family member who is
in receipt of specified welfare pay-
ments. Heretofore, such a liability
only existed under the S.W.A.
scheme.
9
Section 12 of the 1989
Act now inserts seven new sect-
ions into the 1981 Act which
extend this liability to cover both
deserted wives' payments and
deserted husband's allowance
[D.H.A.], in addition to S.W.A.
". . . the Soc i al Welfare Act
1989 effects significant
changes in respect of an
individual's liability to main-
tain a family member . .
The new statutory provisions are
ss.314 to 320 of the 1981 Act
10
and s.13 of the Social Welfare Act,
1989.
11
Section 315 lists the
following categories of person who
can be obliged to contribute to the
support of claimants of D.W.B.,
D.W.A., D.H.A. and S.W.A.
(a) A man can be obliged to main-
tain his wife
12
and any child of
his under the age of 18 or,
(except in the case of S.W.A.),
21 where, in the latter case, the
child is receiving full-time
education or instruction by day
at any university, college, school
or other educational establish-
ment.
13
The father's obligation
to maintain in this context now
extends to his non-marital
children, though there is still no
obligation to maintain a com-
mon law spouse.
(b) A woman has similar obliga-
tions to maintain her husband
and children.
14
Where either D.W.A., D.W.B.,
D.H.A. or S.W.A. is paid to a per-
son's spouse or children
15
as
defined above, that person is liable
to contribute to the appropriate
"competent authority"
16
such
amount as that authority may de-
termine to be appropriate towards
such benefit or allowance.
17
5