The Gazette 1991

GAZETTE

i SEPTEMBER 1991

Irish Criminal Law Journal

Edited by:

Shane Murphy, Barrlster-at-Law

With a foreword by:

The Hon. Mr Justice Hugh O'Flaherty

It is appropriate that legal practitioners and academics

specialising in this area should develop a forum for

balanced reflection on the operation of our present system

of criminal justice. It is envisaged that this journal will

provide a forum for both academic analysis and practical

reflection on developments in Ireland, north and south.

The second issue each year will, in addition to the regular

articles, contain law reports and case references to the

leading decisions of the courts relating to criminal law.

In his Foreword Mr Justice Hugh O'Flaherty comments: I

am satisfied that this journal will be a profound source of

inspiration both to the practising and academic lawyer and,

indeed, the layman who has an interest in the workings of

the criminal law.

ISSN 0791-539X

Published twice a year: June and December

Annual subscription: £35.00

THE ROUND HALL PRESS

Kill Lane, Blackrock, Co. Dublin

Telephone (01) 2892922; Fax. (01) 2893072

deceased's assets at the time of his

death belonged to him for the entire

period during which the pension

was paid. Furthermore, s.174 (3B),

also inserted by s.33 of the 1991

Act, confers on the Minister a

discretion to mitigate amounts

determined to be due to him in

accordance with sub-s.3A where it

appears equitable to him to do so.

A most important point to note

in this context is that contravention

of s.174 (3) leaves the personal

representative

personally

liable, and

not just liable in his capacity as

personal representative, 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. Given that in the majority

of cases the personal representa-

tive will have relied on the advice

of a solicitor, if such a contra-

vention does occur, one would

expect him to be able to seek, in

effect, an indemnity against his

legal adviser by bringing a claim for

professional negligence.

Obligation to repay overpaid

pension - Sections 169 and 172

In some cases the personal

representative will be faced with a

demand for repayment of overpaid

(non-contributory) old age pension.

This can arise under t wo

provisions.

By virtue of s. 169 (3) of the 1981

Act, a personal representative is

liable to repay to the Minister any

sums paid to the claimant in

respect of non-contributory old age

pension

while the

statutory

conditions were not fulfilled or

while he was disqualified for

receiving

the pension.

This

liability would appear to be

absolute in the sense that it does

not appear to be necessary for the

authorities to establish fraud on the

part of the claimant in order to be

able to claim back such over-

payments. Section 169 (7), as

amended by s.24 of the Social

Welfare Act, 1984, provides,

inter

alia,

that such sums may be

deducted from any monies to

which the personal representative

becomes entitled,

as personal

representative,

on account of non-

contributory old age pension. This

presumably refers to any such

pension outstanding at the date of

the claimant's death, together with

any such pension payable, where

appropriate, for the period of six

weeks after that date.

This means

of recovery is without prejudice to

the general power of the Minister

under s.169 (3) to recover the

overpaid pension. The decision as

to whether the statutory conditions

for eligibility were fulfilled or

whether the claimant had been

disqualified for receipt of the

pension has to be made by a

deciding officer of the Department

of Social Welfare

and such a

decision is subject to the appellate

procedures set out in Part VIII of

the 1981 Act as amended by Part

V of the Social Welfare Act, 1990.

This is in contrast to decisions

made pursuant to s.172 of the 1981

Act, to which I now turn.

Section 172 deals with recovery

of overpaid pension in a very

specific situation,

viz.

where the

pensioner failed to notify the

Department of an increase in

means. Sub-section (1), as

amended by s.53 of the Social

Welfare Act, 1991, obliges an old

age pensioner, or any person who

has applied for a non-contributory

old age pension, to notify the

Minister of any increase in the

means of the person within three

months after the end of the month

in which such increase occurred.

Sub-section 2 provides in relevant

part:

A person who contravenes

subsection 1 or, in case he is

dead, his personal representative

shall, unless it is shown to the

satisfaction of the Minister that

the person was not aware of the

increase to which the contra-

vention related...be liable to

repay the Minister on demand

any sums received by way of non-

contributory old age pension to

which he was not entitled. Section

172(3) provides that any such sum

payable shall be a debt due by the

person to the Minister.

There are two statutory defences

available to the claimant in this

situation. First, sub-section 2 itself

provides that if the claimant can

establish to the satisfaction of the

Minister that he, the claimant, was

unaware of the increase in means,

no liability to repay will arise. This

defende is presumably also avail-

able to the personal representative

if the latter can establish that the

288