The Gazette 1987

GAZETTE

JULY/

UGUST

1987

Administration of Estates

The Liabilities of Personal

Representatives under the Social

Welfare Code

A cent ral d i s t i nc t i on in the social we l f a re s y s t em is that

b e t we en soc i al i nsu r ance and social ass i s tance pa ymen t s.

T h e f o rmer are based on the con t r i bu t i ons ma de by the

c l a imant to the Soc i al I nsu r ance F u nd ( co l l ec ted n o w in the

f o rm of P . R . S . I . ), wh i le the latter are paid if the c l a imant satis-

fies the app r op r i a te means test. F r om the po i nt of v i ew of

legal f o r m, bo th p a yme n ts exist in the f o rm of en t i t l emen t s,

but social assistance has certain characteristics wh i ch reflect

the pe r cep t i on that it is a f o rm of " h a n d - o u t ", f unded out

of general taxat i on.

One such manifestation can be

seen in the statutory obligations

placed on the personal represen-

tative administering an estate

where the deceased was in receipt

of a non-contributory (i.e. means-

tested) old age pension.

The

purpose of this note is to detail

these obligations and to consider

other aspects of the social welfare

code of relevance to the adminis-

tration of estates.

Gerry Why t e,

BCL., LLM., MA(TCD)., B.L.

Lecturer in Lew, Trinity College

General provision for the old age

pension is to be found in ss. 1 57

to 1 74 of the Social Welfare (Con-

solidation) Act 1981, (hereinafter

referred to as " t he 1 981 Ac t ") as

amended. Reference is made to

personal representatives in three of

those sections.

Section 169

By virtue of s. 169(3), a personal

representative is liable to repay to

the Minister any sums paid to the

claimant in respect of the old age

pension while the statutory con-

ditions were not fulfilled or while he

had been disqualified for receiving

the pension.

S. 169(7), as

amended, provides that such sums

may be deducted from any monies,

on account of old age pension, to

which the personal representative

becomes entitled,

as personal re-

presentative.

This presumably

refers to any pension outstanding

at the date of the claimant's death,

together with the pension payable,

where appropriate, for the period of

six weeks after that date.

Section 172

S. 1 72 makes further provision for

the repayment to the Minister of

overpaid old age pension. Where a

claimant, who is in receipt of, or

has applied for, an old age pension,

fails to notify the Department of

any increase of means within three

months after the end of the month

in which such increase took place,

he, or his personal representative,

shall be liable to repay to the

Minister on demand any sums

received to which he was not

entitled.

There are t wo statutory defen-

ces available to the claimant in this

situation. If he can, first, establish

to the satisfaction of the Minister

that he, the claimant, was unaware

of the increase in means — s.

172(2), or, second, prove that

there was no fraudulent intent and

that there are no significant

resources available to the claimant

- s. 172(4).

If the first defence is established,

the claimant, or his estate, can

arguably retain any overpaid

pension, notwithstanding that

there might be adequate monies

available to satisfy any demand for

repayment.

It is worth contrasting the ob-

ligation created by s. 1 72 to repay

overpaid old age pension with the

general obligation to repay over-

paid social welfare payments. By

virtue of s. 113(2) of the 1981 Act,

regulations may provide,

inter alia,

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for the repayment of social welfare

in cases referred to in s. 300(5)(a)

of the Act.

S. 300(5)(a), which

deals with the revision of decisions

by deciding officers or appeals

officers, provides in relevant part:

A revised decision . . . shall take

effect as follows — (a) where

any benefit . . . (or) assistance

. . . will, by virtue of the revised

decision, be disallowed or

reduced . . . and the revised

decision is given owing to the

original decision having been

given . . . by reason of any

statement or representation

(whether written or verbal)

which was to the knowledge of

the person making it false or

misleading in a material respect

or by reason of the wilful con-

cealment of any material fact,

(the revised decision) shall take

effect as from the date on which

the original decision took effect

The significant point to note here

is that the revised decision re-

ducing or disallowing a social

welfare entitlement will only have

retrospective effect.

By contrast,

the obligation to repay overpaid old

129