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GAZETTE
APRIL 1994
The Social We l f a re (Consol idat ion)
Ac t 1993: Extension of a Personal
Representat ive 's Liabi l i ty
by Raphael King, Solicitor*
Most solicitors acting in the
administration of estates will be aware
of the obligations imposed by
previous Social Welfare Acts on the
personal representatives of deceased
old age pensioners. However, they
may be unaware of the changes
introduced by the Social Welfare
(Consolidation) Act, 1993, which
have extended these duties and
obligations.
The situation which previously
obtained related only to deceased
persons who had been in receipt of a
non-contributory old age pension or a
blind pension. Section 174 of the
Social Welfare (Consolidation) Act,
1981, as amended by section 33 of the
Social Welfare Act, 1991, provided
that the personal representative of
such a deceased's estate was bound to
give three months notice to the
Minister for Social Welfare before
distribution of the estate and to
provide the Department with a copy of
the schedule of assets. If the personal
representative failed to do so and if
there was a refund due, then the
personal representative became
personally liable to the Minister for
the amount due to the Minister from
the estate in respect of the overpaid
old age pension or blind pension.
The Social Welfare Act, 1993 greatly
extended the duty imposed on
personal representatives administering
estates. This Act has been repealed
and replaced by The Social Welfare
(Consolidation) Act, 1993.
Section 280 of the Social Welfare
(Consolidation) Act, 1993 provides as
follows:-
"(1) The personal representative of a
person who was at any time in
receipt of assistance shall, not
less than three months before
commencing to distribute the
assets of that person:-
Raphael King, Solicitor
(a) inform the Minister, by notice
in writing delivered to the
Minister, of his intention to
distribute the assets, and
provide the Minister with a
schedule of the assets of the
estate, and
(b) if requested in writing by the
Minister within three months
of the furnishing of the notice
and schedule of assets referred
to in paragraph (a), ensure that
sufficient assets are retained,
to the extent (if any)
appropriate, to repay any sum
which may be determined to
be due to the Minister or the
State (as the case may be) in
respect of:-
(i) payment of assistance to
the person at a time when
the person was not entitled
to received such assistance
or
(ii) payment of assistance to
the person of an amount
in excess of the amount
which the person was
entitled to receive.
Section 280 goes on to provide that a
personal representative who
contravenes sub-section (1) and who
distributes the assets of the deceased
person without payment of any sum
due to the Minister in respect of
payments to which the deceased was
not entitled or, alternatively, payments
of assistance in excess of the amount
to which the deceased was entitled,
shall be personally liable
to repay to
the Minister an amount equal to the
amount which the Minister would
have received if, in the course of the
administration, the said amount had
been duly taken into account and
repaid to the Minister.
It is clear that the objective of this
section is to allow the Department of
Social Welfare the opportunity to see
from the schedule of assets whether
any overpayment of assistance took
place. There is a presumption in
section 280 that the assets owned by
the deceased at the date of death
belonged to him for the entire period
during which he was in receipt of
assistance. (Ref. section 280(2).) This
presumption applies in the absence of
evidence to the contrary.
We can see therefore that the 1993
Act introduced radical changes. The
situation outlined previously above in
relation to the Social Welfare
(Consolidation) Act, 1981 applied
only to estates where the deceased had
been in receipt of a non-contributory
old age pension or a blind pension.
The situation now is that the personal
representative assumes this liability in
any situation where the deceased was
in receipt of assistance as defined by
the Act.
"Assistance" under the Act means
Unemployment Assistance, Pre-
Retirement Allowance, Old Age (non-
contributory) Pension, Blind Pension,
Widows and Orphans (non-
contributory) Pensions, Deserted
Wives Allowance, Prisoners Wives
Allowance, Lone Parents Allowance,
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