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GAZETTE
i SEPTEMBER 1991
Recent changes in the liabilities of
personal representatives under the
Social Welfare Code
Legal practitioners may be interested to note recent changes,
effected by the Social Welfare Act, 1991, to the statutory
obligations placed on personal representatives administering an
estate where the deceased had been in receipt of a non-contributory
(i.e. means-tested) old age pension.
1
Such pensions would often
be paid to self-employed persons who, because they did not pay
PRSI, would not qualify for the contributory old age pension and
thus the contents of this article should be of particular, though not
exclusive, interest to practitioners with a rural clientele.
General provision for the non-
contributory old age pension is to
be found in Sections 157 to 174 of
the Social Welfare (Consolidation)
Act, 1981 (hereinafter referred to as
" t he 1981 Ac t ") as amended.
Sections 169, 172 and 174 are
especially relevant to personal
representatives.
Obligation to provide informa-
tion to the Department of Social
Welfare - s.174
Perhaps the most significant
provision in the 1981 Act referring
to personal representatives is s.174,
as amended by s.33 of the Social
Welfare Act, 1991. Sub-section (1)
provides:
"The personal representative of
a person who at any time was in
receipt of [non-contributory] 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 procure-
ment of the personal re-
presentative 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 o f f i cer to
inspect any entries relating to
the affairs of the person in the
books of any bank (including
by
Gerry F. Whyte
F.T.C.D.
any savings bank) and to take
copies of such entries and
furnish to the officer such
information which is within
the power, possession or pro-
curement of the personal re-
presentative as he may
reasonably require in relation
to such entries."
Failure to comply wi th this
provision is an offence punishable,
on summary conviction, to a fine
not
exceeding
£ 5 00
or
imprisonment for a term not
exceeding 1 year, or to both such
fine and imprisonment, or on
conviction on indictment to a fine
not
exceeding
£ 2 , 0 00
or
imprisonment for a term not
exceeding 2 years or to both such
fine and imprisonment.
Sub-section 3 imposes certain
conditions which must be satisfied
before the assets of the deceased
can be distributed. This provision,
as amended by s.33 of the 1991
Act, now provides:
"The personal representative of
a person who was at any time in
receipt of a pension shall before
distributing the assets of the
person -
a) (i) inform the Minister, by
notice, in writing de-
livered to the Minister, of
his intention to distribute
the assets, and
(ii) provide the Minister with
a schedule of the assets
of the estate,
not less than three months
before the distribution com-
mences and
(b) if requested in writing by the
Minister, within eight weeks of
the furnishing of the notice and
schedule of assets referred to in
paragraph (a), ensure that
sufficient assets are retained, to
the extent (if any) appropriate, to
repay any sum wh i ch is
determined to be due to the
Minister or the State (as the case
may be) in respect of -
(i) payment of pension to the
person at a time when the
person was not entitled to
receive the pension, or
(ii)payment of pension to the
person of an amount in excess of
the amount which the person
was entitled to receive."
So where one is dealing with the
estate of a non-contributory old age
pensioner, the personal representa-
tive must always prepare a written
notice of his intention to distribute
the assets and submit such notice,
together with a schedule of assets
of the estate, to the Minister at
least three months before distri-
bution begins.
The purpose of this
provision is to afford the Depart-
ment the opportunity to see
whether any overpayment of
pension took place. Then, in those
cases in which a written communi-
cation is received from the Minister
within the succeeding eight weeks,
sufficient assets must be retained
in order to meet any possible claim
from the Minister arising out of
overpaid pension. In this context it
should be noted that s.174(3A),
inserted by s.33 of the 1991 Act,
provides for a presumption, which
can be rebutted by the personal
representative, that all of the
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