22 / 436
GAZETTE
JANUARY/FEBRUARY 1990
meant that the relative could not be
made liable for the cost of the legal
proceedings instituted in order to
enforce the obligation to contribute,
as a liability to pay legal costs
would seem to exceed the strict
terms of the obligation to con-
tribute as provided for in s.316(1).
"It is not clear whether the
competent authority can
recover, pursuent to s.316 [of
the 1981 Act] a sum greater in
amount than that paid . . . "
It is worth commenting briefly on
the manner in which claimants of
D.W.A., D.W.B. or D.H.A. appear to
be affected by this provision. In the
case of D.W.A. or D.W.B.
29
a
claimant, in order to qualify for
such a payment must have
attempted and failed to secure
maintenance from the deserting
spouse.
30
The only exception to
this is where the claimant is in
receipt of maintenance of incon-
siderable extent,
31
which does not
affect the claimant's status as a
deserted wife. The obligation to
secure maintenance from the
deserting spouse is a continuing
one, so that a woman in receipt of
a deserted wife's payment must
avail of any reasonable opportunity
of obtaining maintenance from her
husband. If such maintenance is
secured, the claimant ceases to be
a deserted wife for the purposes of
the Social Welfare code, and con-
sequently becomes disentitled for
receipt of D.W.A. or D.W.B., unless
the maintenance can be deemed to
be inconsiderble. In the latter case,
it would appear that if such main-
tenance is being paid pursuant to
a court order, the claimant must
transfer it to the Department,
whereas if it is being paid pursuant
to a maintenance agreement
between the parties, no such obli-
gation exists.
32
This would appear
to be somewhat anomalous and
it is not clear that this result was
clearly envisaged by the Oir-
eachtas. However, s.318 has yet to
come into operation and therefore
it remains to be seen how the
Department will apply this pro-
vision in practice.
Finally, s.319 confers powers of
investigation on the Department
and the Health Boards into any
question arising on or in relation to
any of the four welfare payments
affected by these provisions and
further provides that the investi-
gating officer may require a person
liable to contribute under s.316(1),
or his or her employer, to furnish
the officer with such information
and to produce for inspection such
documents relating to the person
as the officer may reasonably
require. Failure to comply with this
request is an offence punishable,
on summary conviction, by a fine
not exceeding £1,000, or on con-
viction on indictment, by a fine not
exceeding £10,000.
NOTES
1. Weidenfeld & Nicholson, (1985).
2. See also S.I. No. 277 of 1972.
3. S. 148(4) of the 1981 Act and S.I. No.
143 of 1973.
4. S. 1 70(4) and S.I. of No. 117 of 1975.
5. S.23(3) of the Housing (Private Rented
Dwellings) Act 1982 and S.I. No. 220
of 1982.
6. S.219 oif the 1981 Act and S.I. No.
168 of 1977.
7. It will not be surprising if a similar
condition is also introduced in relation
to the new Deserted Husband's
Allowance which has yet to be brought
into effect.
8. This follows from the definition of
deserted wife in the Social Welfare
(Deserted
Wife's
Allowance)
Regulations 1970 - S.I. No. 227 of
1970
as amended by S.I. No. 74 of
1972.
9. See ss.214 and 215 of the 1981 Act,
though the roots of this legislation can,
in fact, by traced back to the Poor Relief
(Ireland) Act 1838 which provided in
s.53 that a man was liable to maintain
his wife and any children under the age
of 15, a widow was liable to maintain
her children and a mother was liable to
maintain any illegitimate children she
had.
10. These provisions will come into effect,
and the existing provisions be repealed,
on such day or days as the Minister may
direct. To date no such Ministerial order
has been made.
11. Though ss.214-5 will continue in force
until such time as the Minister decides
- s. 12(3) of the 1989 Act.
12. In the UK, the High Court ruled that the
word "w i f e" in the comparable
provision of the old National Assistance
Act, 1948, included the wife in a
polygamous marriage -
Din -v-
National Assistance Board
[19671 2
Q.B. 213.
1 3. The reason for excluding S.W.A. in this
situation stems presumably from the
fact that full-time students are not
entitled to S.W.A. - see s.201 of the
1981 Act.
14. The immediate legislative predecessor
to s.315 - s.214 - was unmistakably
sexist in the manner in which it
delineated the obligation to maintain -
women were obliged to maintain their
non-marital children, whereas men had
no such obligation - but happily any
such sexism is now absent from the
current provisions.
1 5. In the case of the children, the welfare
might be paid directly, e.g. the payment
of S.W.A. to a teenager who has left
home, or indirectly as an increase on the
welfare paid to the other parent. In
either event, the maintaining relative is
liable to contribute to any welfare paid
to, or in respect of, such children.
16. The Department, in the case of the first
three of these payments, and the Health
Board, in the case of S.W.A.
1 7. The former provision, s.21 5, appeared,
on the face of it, to be somewhat more
flexible, in that it referred to the
relative's obligation to contribute to the
health board "according to his ability"
towards any S.W.A. granted to the
claimant. As we shall see, however,
ability to pay does feature in the new
provisions at the enforcement stage of
the proceedings.
18. See
South Cork Public
Assistance
Board -v- O'Regan
11949) I.R. 415,
decided under the comparable pro-
visions of the Public Assistance Act,
1939.
19.
East Donegal Co-op -v- A.G.
119701 I.R.
317.
20. See the old case of
McEvoy-v- Kilkenny
Union Guardians
(1896) 30 I.L.T.R.
1 56 for a decision to this effect under
the comparable provisions of the Poor
Relief (Ireland) Act, 1838.
21. See
National Assistance
Board -v-
Parkes
[ 1 955) 2 Q.B. 506;
Stopher
-v-
National Assistance Board
119551 1
Q.B. 486;
National Assistance Board -
v- Prisk
[19541 1 All E.R. 443. See
Casey, "The Supplementary Benefits
Act: Lawyer's Law Aspects" (1968) 19
N.I.L.Q. 1.
22. And also relevant in the case of spouses
of a polygamous marriage having to
maintain one of their number - see
n. 1 2 above.
23. See Casey,
loc. cit.,
p.9.
24. It is worth noting, incidentally, that
s.45 of the Status of Children Act,
1987, provides
inter alia,
that a
finding of parentage in proceedings
taken under the legislative prede-
cessor to s.316-s.21 5 of the 1981
Act - shall be admissible in evidence
in any subsequent civil proceedings
for the purpose of establishing
parentage.
25.
Quaere
whether there is a
lacuna
in the
law here relating to enforcement of
such an order as the 1989 Act does not
provide that the references to order in
the Enforcement of Court Orders Act,
1940 shall encompasss a District Court
order made pursuant to s.316. See, by
way of comparison, s.38 of the Family
Law (Maintenance of Spouses and
Children) Act, 1976.
26. S.31 7. The relevant court orders under
the 1976 Act are maintenance orders,
lump sum orders, attachment of
earnings orders, variation orders or
interim orders - s.314(1).
27. S. 13(1 )(d) to (g) of the 1989 Act
amends various provisions of the 1976
Act in order to enable such payments
to be transferred direct to the Minister
or the Health Board, as the case may
be. This obligation does not extend to
any person who, prior to the com-
mencement of this section, is in receipt
of one of the specified payments and
a maintenance payment made pursuant
to a court order under the 1976 Act.
However, where such an order is varied
by the Courts after this section comes
into effect, such a person shall be liable
to transfer to the competient authority
the amount by which the original
payment was varied, assuming the
variation was upwards.
7