The Gazette 1990

GAZETTE

JANUARY/FEBRUARY 1990

Though this is not explicitly pro-

vided for in the new provisions, it

is submitted that the relative's

obligation to contribute is depend-

ent on the claimant being entitled

to receive one of the four welfare

payments in question.

So, for

example, if the competent authority

mistakenly paid D.W.A. to a woman

who did not satisfy the statutory

definition of "deserted wife"

because she had not taken all

reasonable steps to secure main-

tenance from her husband, it would

seem unjust that the cost of this

error could simply be passed on to

the claiant's spouse. In the same

way, it is arguable that there is an

implicit obligation on the compet-

ent authority to notify the spouse

or parent, as the case may, as soon

as possible of the fact of the

claimant's receipt of welfare. The

presumption of constitutionality

which applies to s.316 implies,

inter

alia,

that the "proceedings, pro-

cedures, discretions and adjudica-

tions which are permitted, provided

for or prescribed by an Act of the

Oireachtas are to be conducted in

accordance with the principles of

constitutional justice."

It is sub-

mitted that such principles require,

in the present context, that the

maintaining relative be notified of

his or her liability at the earliest

possible opportunity, rather than

allow a liability to develop of which

he or she is unaware.

Once it can be shown that the

claimant is the spouse or child of

the person against whom it is

sought to enforce the obligation to

contribute and that such claimant

is properly in receipt of one of the

specified payments, the obligation

to contribute appears to be quite

strict and is qualified only by the

person's ability to pay. In particular

the fact that the claimant may be

guilty of desertion or adultery will

not affect his or her spouses's

liability under this provision.

Nor

does there seem to be any basis for

defending proceedings under s.316

simply on the grounds that the

parties had been separated and

living apart prior to the claimant

receiving the appropriate welfare

payment. Furthermore, private

maintenance arrangements made

between the parties whereby one

spouse agrees to take no, or an

inadequate amount of, mainten-

ance cannot affect the statutory

liability imposed by s.316.

An interesting point in relation to

the liability of parents to support a

child

is whether such liability is

joint or joint and several. If the

former, then judgment against

either one bars any further action

against the other even if the com-

petent authority has not obtained

the fruits of the judgment. This

problem does not arise if liability is

joint and several. The legislation is

"An interesting point in

relation to the liability of

parents to support a child is

whether such liability is joint

or joint and several."

silent on this issue but there are

convincing arguments in favour of

liability being joint and several,

based on the presumption, in the

context of statutory interpretation,

against intending what is incon-

venient or unreasonable.

Enforcement of the obligation to

maintain is through recourse to the

District Court by the competent

authority, but only after notice of

this application to court has been

served on the person liable to make

the contribution -

S.316.

Section 316(4) provides that where

the Court is satisfied that such

person has failed or neglected to

make the contribution and that he

or she was able to contribute to the

benefit or allowance granted, it

shall fix the amount of the contri-

bution to be made and shall order

the payment of such contribution

to the competent authority by way

of such payments as the Court

shall think proper.

It follows that

if the defendant can establish ina-

bility to contribute, the Court

cannot make any order.

Contributions due from a person

under s.316(1) may be offset, either

in whole or in part as the com-

petent authority may determine, by

payments made by such person

pursuant to a court order under the

Family Law (Maintenance of

Spouses and Children) Act,

1976.

By the same token, a

claimant of D.W.A., D.W.B., D.H.A.

or S.W.A. is obliged to transfer to

the

appropriate

competent

authority payments received by

such claimant pursuant to a court

order made under the 1976 Act -

s.318.

This obligation does not

appear to exist where the main-

tenance is being paid pursuant to

an agreement between the parties,

as opposed to a court order. If such

transfer is not made, the claimant's

benefit or allowance will be

reduced by the amount which he or

she is liable to transfer.

It is not clear whether the com-

petent authority can recover, pur-

suant to s.316, a sum greater in

amount than that paid to the

claimant by way of benefit or

allowance. Such a result would

seem to be quite unreasonable and

at odds with the purpose of this

provision, which is to enable the

State to shift, in whole or in part,

the burden of maintaining a claim-

ant onto the claimant's spouse or

parents, as the case may be. At the

same time, it is regrettable that the

Minister did not see fit to re-enact

the terms of s.215(5) of the 1981

Act, which expressly limited the

amount which the health board

could recover to the amount of

S.W.A. granted, together with the

cost of the legal proceedings. It

could be argued that the failure to

re-enact this provision meant that

the

Oireachtas

deliberately

intended to allow the Court to order

the repayment of a sum greater

than that paid to the claimant,

though it is difficult to envisage any

situation in which such an order

could be justified. From the

relative's point of view, of course,

it could equally be argued that the

failure to re-enact this provision

A I J A

Survey o f

Internat ional

Arbi trat ion

Co n f e r e n ce

Strasbourg

29th, 30th, 31st

March, 1990

For further details please

contact:

Michael Irvine,

Matheson Ormsby

Prentice,

3 Burlington Road,

Dublin 4.

Tel: (01) 760981

Fax: (01) 760501