The Gazette 1991

GAZETTE

i SEPTEMBER 1991

deceased had been unaware of any

increase in means. If this defence

is made out, then it would appear

that the claimant, or his estate, can

retain any overpaid pension, not-

withstanding that there might be

adequate monies available to

satisfy any demand for repayment.

Second, s.172(4) provides that

[w]here a person has contra-

vened subsection (1) and the

Minister is satisfied that there

was, in relation to the contraven-

tion, no fraudulent intent on the

part of the person and that there

are no significant resources

available to the person, sub-

sections (2) and (3) shall not

apply in relation to the increase

referred to in subsection (1).

This presumably covers a situ-

ation in which the person was

aware of the increase in means but

was not aware of the obligation to

report such increases to the

Minister. Given that, the likely pur-

pose of s.172(4) is to avoid pushing

a pensioner w i th inadequate

resources further into poverty, it

may be that this defence would not

be relevant after his demise and

that, therefore, it may not be

available to his personal repre-

sentative. The position here is

unclear.

By way of contrast with s.169(3),

s.172 clearly envisages that all

decisions under that section are to

be made by the Minister (in reality

the executive officers acting on his

behalf) rather than by the deciding

officers of the Department. It

follows that there is no right of

appeal from any decision made

under this section.

A further difference between

these two provisions is that if the

claimant can show that he had not

acted with fraudulent intent, he

had gone a considerable way

towards establishing a statutory

defence to a claim under s.172.

However no comparable defence is

available to a claim under s.169 (3),

where liability to repay overpaid

pension would appear to be strict.

This strict liability may be com-

pared with the general obligation to

repay overpaid social welfare

payments. By virtue of s.113 (2) of

the 1981 Act, regulations may

provide,

inter alia,

for the repay-

ment of social welfare in cases

referred to in s.300 (5) (a) of the

Act.

Section 300 (5) (a), which

deals with the revision of decisions

by deciding officers or appeals

officers, provides in relevant part:

"A revised decision . . . shall

take effect as follows - (a)

where any benefit . . . (or)

assistance . . . will, by virtue of

the revised decision, be

disallowed or reduced . . . and

the revised decision is given

owing to the original decision

having been given . . . by reason

of any statement or repre-

sentation (whether written or

verbal) wh i ch was to the

knowledge of the person making

it false or misleading in a

material respect or by reason of

the wilful concealment of any

material fact, [the revised

decision] shall take effect as

from the date on which the

original

decision

took

effect

The significant point to note here

is that the revised decision

reducing or disallowing a social

welfare entitlement can only have

retrospective effect where the

original decision resulted from a

fraudulent misrepresentation on

the part of the claimant.

The

State (Hoo/ahan) -v- Minister for

Social Welfare

Barron J. held that

before s.300 (5) (a) could be

invoked, the claimant must be

given an opportunity to present his

side of the case in relation to the

allegation of fraud. This contrasts

with s.169 (3) and to the extent

that there is any inconsistency

between these two provisions in

relation to the non-contributory old

age pension, it is submitted that it

should be resolved in favour of the

application of s.169 (3) by virtue of

the presumption of statutory

interpretation,

generalia special/bus

non derogant,

i.e. general provisions

do not amend or alter specific

ones.

Time limits for the making of

claims under ss.169 and 172

A new provision inserted by s.34 of

the Social Welfare Act, 1991 -

s.169 (11) - provides for the time

limit within which proceedings may

be brought against the estate of a

deceased person of the recovery of

overpaid non-contributory old age

pension under either s.169 (3) or

s.172 (2). Such proceedings must

be brought within the period of two

years commencing on the date on

which the notice and schedule of

assets referred to in s.174 (3) is

received by the Minister or within

any other period fixed in any other

enactment, whichever is the longer.

The breadth of the second limb of

this provision is quite extraordinary

and raises the possibility that this

time limit may be amended by

legislation which has little obvious

connection with the Social Welfare

Acts. It should be noted that s.169

(11) deals 'only with proceedings

taken against the estate of a

deceased pensioner and therefore

one presumes that .claims taken

". . . proceedings [under s.169

(3) or s.172 (2)] must be brought

within the period of two yesrs

[from submission of the notice

end schedule of sssets] or

within any other period fixed in

any other enactment, whichever

is the longer".

directly against a pensioner are

subject to the normal limitation

period of six years from the date on

wh i ch the cause of action

accrued.

Miscellaneous

Other aspects of the welfare code

may be of interest to practitioners

in this context. By virtue of s.120 of

the 1981 Act, unpaid social

insurance contributions form part

of the preferential debts which rank

after funeral, testamentary and

administration expenses in the

Incorporated Law

Society of

Ireland

CONSULTATION

ROOMS

Four Courts

With effect from

1 September, 1991

the cost of hiring a

Consultation Room will

by £20 per hour or part

of an hour.

289