The Gazette 1993

GAZETTE

IMNAGEMNJUNE 1993

Liability of Personal Representatives

under the Social Welfare Code

Recent amendments in the

Social Welfare Act, 1993

by Gerry Whyte*

Introduction

For the second time in two years, the

Department of Social Welfare has

made changes in the provisions of the

social welfare code dealing with the

obligations placed on personal

representatives administering estates.

The major change here is to extend

these provisions to apply to estates

where the deceased had been in receipt

any

form of social assistance, not

merely the old age pension, as is the

current position. By virtue of s.41 of

the Social Welfare Act, 1993,

however, a ministerial order is

required before these changes take

effect.

Obligation to provide information

By virtue of the proposed

.294F (2),

I inserted by s.27 of the Social Welfare

! Act, 1993, a social welfare inspector

may,

inter alia

, require the personal

representative of a person who was at

any time in receipt of any welfare

payment to furnish the inspector with

such information and to produce to

him/her such documents, within such

period as may be prescribed, as the

inspector may reasonably require. This

would apply in respect of any estate

where the deceased had been in receipt

of any form of social welfare - either

social insurance, social assistance,

family income supplement or child

benefit - and contrasts with the

existing provision, s.174 of the Social

Welfare (Consolidation) Act, 1981, as

amended by s.33 of the Social Welfare

Act, 1991, which only applies to an

I estate where the deceased had been in

; receipt of the non-contributory old age

| pension. Failure to comply with such

request shall be an offence, punishable

on summary conviction by a fine not

exceeding £ 1,000 and/or imprisonment

not exceeding 12 months and on

conviction on indictment, by a fine not

exceeding £10,000 and/or

imprisonment not exceeding 3 years -

ss.294F (6) and 294L (the latter

inserted by s.28 of the 1993 Act). The

offence may arguably be made out

even where the failure to comply with

the request is not wilful.

Distribution of assets

Section 34 of the 1993 Act proposes

that, where a deceased person had

been, at any time, in receipt of social

assistance, certain conditions,

currently set out in s. 174(3) of the

1981 Act and re-enacted

mutatis

mutandis

with slight amendments by

Gerry Whyte

s.34 of the 1993 Act, must be satisfied

before the estate may be distributed.

"Assistance" is defined by s.2 of the

1981 Act as "assistance under Part III

i [of the 1981 Act]". At present this

consists of unemployment assistance,

old age (non-contributory) pension,

blind pension, widow's (non-

contributory) pension, orphan's (non-

contributory) pension, deserted wife's

allowance, prisoner's wife's allowance

supplementary welfare allowance, pre-

retirement allowance, lone parent's

allowance and carer's allowance. A

further means-tested payment, family

income supplement, is not assistance

for this purpose as it is provided for by

Part IVA of the 1981 Act, though one

might query the logic of excluding this

scheme from the scope of s.34. A

number of other schemes, since

repealed, were formerly regarded as

assistance under Part III - these

include unmarried mother's allowance,

single woman's allowance, deserted

husband's allowance and widower's

(non-contributory) pension. Logically

these should also fall within the ambit

of s.34, though it is a nice question as

to whether the present draft could be

construed as having this effect. In any

event, it would now appear that, when

these provisions of the 1993 Act are

activated, personal representatives (or

their legal advisors) will, in future,

have to ascertain whether the deceased

was, at any time, in receipt of social

assistance. The simplest way of doing

this would be to have the Department

check their records, using the

deceased's PRSI number where

appropriate. However, the fact that the

Department's records might not

disclose whether the deceased was

ever in receipt of assistance is no

defence to any claim which may be

taken under this part.

Where it transpires that s.34 does

apply, the personal representative

must, not less than three months

before commencing to distribute the

assets: i) inform the Minister, by

notice in writing, of the intention to

distribute the assets and ii) provide the I

Minister with a schedule of the assets.

1 The purpose of this provision is to

afford the Department the opportunity

to see whether any overpayment of

assistance to the claimant took place.

Where the personal representative

receives a written request from the

Minister within the following three

months (the current position is eight

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