The Gazette 1993

GAZETTE

JUNE 1993

weeks), s/he must retain sufficient

assets to repay such sum as may be

due to the Minister or State in respect

of any such overpaid assistance.

! Section 34(2) re-enacts,

mutatis

mutandis,

the rebuttable presumption,

currently contained in s. 174 (3A) of

"The purpose of this provision is

to afford the Department the

opportunity to see whether any

overpayment of assistance to the

claimant took place."

the 1981 Act, inserted by s.33 of the

Social Welfare Act 1991, that all of

the deceased's assets at the time of

death belonged to him/her for the

entire of the period during which s/he

was in receipt of assistance.

Contravention of these provisions

leaves the personal representative

personally liable

to repay to the

Minister an amount equal to the

amount, if any, due to the Minister

from the estate in respect of overpaid

assistance - s.34(3) of the 1993 Act,

re-enacting,

mutatis mutandis,

s. 174(3)

of the 1981 Act. Given that, in most

| cases, the personal representative

would have relied on the advice of a

solicitor, contravention of these

;

provisions would presumably leave the |

solicitor exposed to an action for

professional negligence. Bearing in

[ mind that overpayment may have

| continued for a number of years,

liability can quite easily run into

thousands of pounds.

| Obligation to repay welfare

| The 1993 Act also proposes to extend

I the obligation of a claimant, or

personal representative, as the case

may be, to repay overpaid welfare.

The current situation is quite

complicated. For all social insurance

payments and for some social

assistance payments, it is necessary for

the Department to establish that the

overpayment was due to fraud on the

part of the claimant before an

obligation to repay can arise. However

special rules apply in relation to

unemployment assistance, the old age !

(non-contributory) pension and the

widow's (non-contributory) pension

which permit the Department to

recover overpaid welfare even in the

absence of fraud. The position with

regard to the old age (non-

contributory) pension is especially

complex. Section 169(3) o f t he 1981

Act obliges a personal representative

to repay, from the estate, any monies

paid to the claimant while the statutory

conditions for eligibility were not

fulfilled or while s/he was disqualified

for receipt of the pension. Section 172

of the 1981 Act provides,

inter alia,

that where a claimant fails to notify

the Department of any increase in

his/her means, s/he (or, where

appropriate, the personal

representative) is liable to repay to the

Minister any pension received to

which the claimant can show that s/he

was unaware of the increase in

means - s. 172(2) - or if s/he can show

that there was no fraudulent intent

and that there are no significant

resources available to the claimant -

s. 172(4).

"The 1993 Act also proposes to

extend the obligation of a

claimant, or personal

representative, as the case may

be, to repay overpaid welfare."

All of these diverse provisions will be

superseded by

.300-300H of the 1981

Act, inserted by s.31 of the 1993 Act

which consolidates, and in some cases,

extends the powers of the authorities,

inter alia, to revise decisions and to

recover overpaid welfare. The power

to revise earlier decisions of a

deciding officer may now be exercised

by another deciding officer where it

appears that the original decision was

erroneous in the light of new evidence

or new facts which have subsequently

come to notice of the authorities;

where there was some mistake in

relation to the law or facts of the case;

or where there has been a relevant

change of circumstances since the

original decision was given - s.300(l).

(S.300A makes similar provision for

Supplementary Welfare Allowance, a

scheme administered by the Health

| Boards, except that it does not make

provision for revision of an earlier

decision where there was a mistake in I

relation to the law or facts.) Such an

officer may repeal the decision of an

appeals officer where there has been a

relevant change of circumstances since

the original decision was made -

s.300(l) (b) - while an appeals officer

may revise the decision of another

appeals officer if the earlier decision

was erroneous in the light of new

evidence or new facts, or if there has

been a relevant change of

circumstances - s.300(3). Finally,

the Chief Appeals Officer may also

revise decisions of an appeals officer

i where it appears to him that the

Í earlier decision was erroneous by

Í reason of some mistake having been

in relation to the law or the facts -

s.300(4).

| In deciding when the revised decision

takes effect, one has to distinguish

I between three different types of case.

First, where the original decision was

made or continued in effect because of

deliberate fraud on the part of the

claimant or any other person, a revised

decision which disallows or reduces

the payment of welfare shall take

effect as from the date on which the

original decision took effect, subject

to the discretion of the authorities to

continue to apply the original decision

to any period to which the fraud did

not relate - s.300B(a). Second, where a

revised decision to disallow or reduce

welfare is given in the light of new

evidence or new facts which have been

| brought to the attention of the

I authorities, it shall take effect from

such date as the authorities shall

determine, having regard to the new

j facts or new evidence - s.300B(b).

Finally, in all residual cases, a

revised decision shall take effect as

from the date considered appropriate

by the authorities, having regard

to the circumstances of the case -

s.300B(c).

Liability to repay overpaid welfare to

the authorities is provided for by

ss.300D and E o f t he 1981 Act.

Section 300D (2) re-enacts the current

power of the Minister to suspend the

payment of welfare where some