The Gazette 1993

GAZETTE

JUNE 1993

question has arisen as to whether the

conditions of eligibility are fulfilled or

whether the original decision should

be revised.

Section 300D(4) provides

that where a decision has been revised

in order to disallow or reduce a

welfare payment made to a person, any

welfare paid to that person in

accordance with the original decision

shall be repayable to the Social

Insurance Fund, the Minister or the

health board, as the case may be, to

the extent to which such payment

would not have been made if the

revised decision had been made first.

Liability to repay is imposed on the

claimant, on any person to whom the

welfare was paid on behalf of the

claimant, or on the personal

representative of the claimant. Section

300E is a new provision, dealing with

cases of overpayment made by way of

clerical error. In such a case, the

claimant or his personal

representative, or any person to whom

the welfare was paid on behalf of the

claimant, is liable to repay the

sum in question on demand to the

Social Insurance Fund, the Minister

or the health board, as the case

may be.

Under the present legislation, the

Minister has a discretion to mitigate

amounts of overpaid old age pension

due to him from an estate where it

appears equitable to him to do so -

s.!74(3B) of the 1981 Act, inserted by

: s.33 of the Social Welfare Act, 1991.

Section 300G( 1) of the 1993 Act now

i provides that, in relation to all cases

where there is a liability to repay

welfare to the authorities, that

; repayment may be deferred,

suspended, reduced or cancelled in

accordance with a code of practice

which the Minister intends to

introduce by way of statutory

instrument. This reliance on a code of

practice is a new feature in the Social

Welfare Acts and nothing is said in the

Act about the legal status of the code.

However one would not be entirely

surprised if it amounted to nothing

more than a statement of good

I administrative practice on this point,

rather than operating as a binding

legal code.

"This reliance on a code of

practice is a new feature in the

Social Welfare Acts and nothing

is said in the Act about the legal

status of the code."

Means of recovery

The 1993 Act provides for a number of

different ways in which overpaid

welfare may be recovered by the

authorities. Sums arising through a

clerical error are liable to be repaid on

demand -

.300E. Sums arising as a

result of a revised decision made

pursuant to ss.30() and 300A are,

without prejudice to any other remedy,

recoverable as debts due to the State

and may be recovered as a debt under

statute or simple contract debt in any

court of competent jurisdiction -

.300F (1), (3) and (5). Overpaid

welfare howsoever arising may, as an

alternative and without prejudice to

any other method of recovery, be

recovered by deduction from any

welfare payment, (other than

supplementary welfare allowance) to

which they claimant is or becomes

entitled, subject to the proviso that,

where this method of recovery is used,

overpaid child benefit or family

income supplement may be recovered

only from payments of child benefit or

family income supplement

respectively -

.300F (6) and (7). In

this context, one might query the

constitutionality of

.300F (8) of the

1993 Act which purports to allow the

Minister to exercise the power of

deduction, notwithstanding that,

inter

alia,

proceedings have been instituted

in a court for the recovery of the sum

due. This does seem,

prima facie,

to be

an infringement of the independence

of the judiciary.

Time limits for initiating

proceedings

Finally, s.34 (4) of the Act re-enacts,

mutatis mutandis,

s. 169 (11) of the

1981 Act, inserted by s.34 of the 1991

Act, dealing with time limits.

Proceedings for the recovery of social

assistance due from the estate shall be

maintainable against the estate if

brought at any time within two years

commencing on the date on which the

notice of intention to distribute the

assets and the schedule of assets are

received by the Minister, or within any

other period fixed in any other

enactment, whichever is the longer.

Concluding comments

The changes to be wrought by 1993

Act in the area of recovery of overpaid

welfare have the merit of securing

some degree of rationalisation of the

current complicated position.

However, that rationalisation will be

brought at the price of extending the

liability of welfare claimants, personal

representatives and, by extension, their

legal advisers. This demonstrates, once

more, that solicitors who ignore the

operation of the social welfare code do

so at their peril.

*Gerry Whyte, a fellow of Trinity

College Dublin, is senior lecturer in

Law at TCD.

•

References

1. The authorities referred to here are

community welfare officers and

superintendent community welfare

officers in relation to Supplementary

Welfare Allowance, a scheme

administered by the Health Boards; and

deciding officers, appeals officers and

the Chief Appeals Officer in relation to

schemes administered by the

Department of Social Welfare.

2. S.300D (3) contains a similar provision,

mutatis mutandis, dealing with

Supplementary Welfare Allowance.

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177