The Gazette 1987

GAZETTE

JULY/

UGUST

1987

age pension under s. 169(3) is

absolute in its terms and does not

depend on the establishment of

fraud. To the extent that there is

any inconsistency between these

two provisions in relation to the old

age pension, it would appear to be

resolved in favour of the appli-

cation of s. 169(3), by virtue of the

presumption of statutory inter-

pretation,

genera/ia special/bus non

derogant,

i.e. general provisions do

not derogate from specific ones.

Section 174

The third reference to personal re-

presentatives in this part of the

1981 Act occurs in s.174. Again

a liability is imposed but, unlike ss.

169 ( 3) and 172 ( 2 ), on this

occasion it is a

personal

one. S.

1 74(1) provides:

The personal representative of a

person who at any time was in

receipt of old age pension, shall,

at the request of a social welfare

officer made for the purposes of

an inquiry and report in relation

to the pension, and within such

period (not being less than 30

days) as may be specified in the

request:

(a) furnish to the officer such

information, books and docu-

ments relating to the affairs

of the person which are in the

power, possession or pro-

curement of the personal re-

p r esen t a t i ve as he may

reasonably require and permit

the officer to take extracts

from the books and docu-

ments and furnish to him

such information as he may

reasonably require in relation

to such extracts, and

(b) authorise the officer to

inspect any entries relating to

the affairs of the person in the

books of any bank (including

any savings bank) and to take

copies of such entries and

furnish to the officer such in-

formation which is within the

power, possession or pro-

curement of the personal

representative as he may

reasonably require in relation

to such entries.

Failure to comply with s. 1 74(1)

is an offence punishable, on

summary conviction, to a fine not

exceeding £500 or imprisonment

for a term not exceeding 1 year, or

to both such fine and imprison-

ment,' or on conviction on indict-

ment to a fine not exceeding

£2,000 or imprisonment for a term

not exceeding 2 years, or to both

such fine and imprisonment.

Where a deceased claimant was

in receipt of a non-contributory old

age pension. S. 174(3) further

requires the personal represent-

ative to notify the Minister in

writing, not less than three months

before the distribution of assets

occurs, of his intention to distribute

such assets. A personal represen-

tative «who contravenes sub-

section 3 shall be

personally

liable

to repay to the Minister an amount

equal to the amount, if any, which

was due to the Minister from the

estate in respect of overpaid old

age pension.

Miscellaneous

It is worth noting a number of mis-

cellaneous aspects of the social

welfare code which are of interest

in this context. By virtue of s. 1 20

of the 1981 Act, unpaid social

insurance contributions form part

of the "preferential debts" which

rank after funeral, testamentary

and administration expenses in the

administration of the estate. If a

health board incurred expense in

relation to the burial of the

deceased, it may obtain repayment

of such expenses from the estate

of the deceased, or indeed, from

any person liable to maintain the

deceased immmediately before his

death - s. 216 of the 1981 Act.

On the credit side, it should be

noted that a number of social

welfare payments fall due on the

death of a person. Wi dows'

pensions are, perhaps, the most

obvious, but in addition it may be

possible to claim a death grant (ss.

107 — 109); a survivor's benefit,

for a widower who is incapable of

self-support by reason of some

physical or mental infirmity and

whose wife had been in receipt of

retirement pension or contributory

old age pension (s. 87); and death

benefit if the deceased died as a

result of an occupational accident

or disease (ss. 49 —53 ) .

Further-

more, if the deceased had been in

receipt of any one of a number of

specified social welfare payments

and had an adult dependant, his

social welfare payment continues

to be paid for a period of 6 weeks

after his death (s. 125). Finally, s.

112(4) empowers the Minister to

make regulations providing that

probate or other proof of title of the

personal representative of any

deceased person may be dispensed

within the case of payment of

social welfare payments and also

providing for the manner of

distribution of such payment. The

implementing regulations here are

the Social Welfare (Claims and

Payments) Regulations, 1952, in

particular art. 17 thereof.

FOOTNOTES

Hereinafter referred to simply as "the

old age pension". It should be noted

that the s t a t u t o ry

provisions

considered in this article also apply

to the Blind Pension, which originated

as a variant of the old age pension.

The statutory conditions for receipt

of the non-contributory old age

pension are that the claimant has

attained 66 years of age and that he

satisfies the appropriate means test.

A claimant is disqualified — if he is

absent from the State; is imprisoned

for any offence; is in receipt of a

contributory old age pension; or

during the six month period following

the date of a conviction under s.

169(1) of the 1981 Act.

S. 125 of the 1981 Act.

The relevant regulations are the

Social Welfare (General Benefit)

Regulations 1 9 53 (S. I. No.

16/1953), as amended by S. I. No.

126/1963.

See

The State (Hoo/ahan) -v- Min. for

Social Welfare,

unreported. High

Court, 23 July, 1986.

Recently applied by the Supreme

Court in

D.P.P. -v- Scott Grey,

unreported, 12 March 1986.

This can also be claimed as a grant

in respect of funeral expenses —

s. 53.

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