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11 1952

SOCIAL WELFARE ACT, 1952

PART IV.

Finance, Administration and Legal Proceedings.

Finance.

Social Insurance Fund.

39. —(1) There shall be established a fund (to be called the Social Insurance Fund and in this Act referred to as the Fund) comprising a current account and an investment account.

(2) The Minister shall manage and control the current account of the Fund.

(3) The Minister for Finance shall manage and control the investment account of the Fund.

(4) Save where otherwise specifically provided—

(a) sums payable into the Fund shall be paid into the current account of the Fund, and

(b) sums payable out of the Fund shall be paid out of that account.

(5) Moneys standing to the credit of the current account of the Fund and not required to meet current expenditure shall be transferred to the investment account of the Fund.

(6) Whenever the moneys in the current account of the Fund are insufficient to meet the liabilities of that account, there shall be transferred to that account from the investment account of the Fund such sums as may be necessary for the purpose of discharging those liabilities.

(7) Subject to subsection (6) of this section, moneys standing to the credit of the investment account of the Fund shall be invested by the Minister for Finance and income arising from any such investment shall be paid into that account.

(8) An investment pursuant to subsection (7) of this section may be in any securities in which trustees are for the time being by law empowered to invest trust funds or in any of the stocks, funds and securities as are for the time being authorised by law as investments for Post Office Savings Bank funds.

(9) (a) The amount by which the income of the Fund for any financial year is less than its expenditure shall be paid into the Fund out of moneys provided by the Oireachtas.

(b) The income and expenditure of the Fund for a financial year shall be determined for the purposes of this subsection by the Minister on such basis as may be agreed upon between him and the Minister for Finance.

(10) Any sums payable into the Fund pursuant to paragraph (a) of subsection (9) of this section, shall be paid in such manner and at such times as the Minister for Finance may determine.

(11) Accounts of the Fund shall be prepared in such form, in such manner and at such times as the Minister for Finance may direct and the Comptroller and Auditor General shall examine and certify every such account and a copy thereof, together with the report thereon of the Comptroller and Auditor General, shall be laid before each House of the Oireachtas.

Expenses of Minister, etc.

40. —(1) Any expenses incurred by the Minister or any other Minister in carrying this Act into effect shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

(2) There shall be paid to the Minister for Finance out of the Fund, at such times and in such manner as the Minister for Finance may direct, such sums as the Minister may estimate, on such basis as may be agreed upon between him and the Minister for Finance, to be the part of the said expenses of the Minister or any other Minister which relates to the scheme of social insurance established by this Act, and any sums so paid shall be appropriated in aid of moneys provided by the Oireachtas for carrying this Act into effect.

(3) In estimating expenses for the purposes of subsection (2) of this section, there shall be included such amount as, in the opinion of the Minister for Finance, represents the amount of the accruing liability in respect of any superannuation or other retiring allowances, lump sums or gratuities accruing in respect of the employment of any officer or other person for the purposes of this Act.

Administration.

Deciding officers.

41. —The Minister may appoint from his officers such and so many persons as he thinks proper to be deciding officers for the purposes of this Act, and every person so appointed shall hold office as a deciding officer during the pleasure of the Minister.

Decisions by deciding officers.

42. —(1) Subject to the provisions of this Act and in accordance with any relevant regulations, every question arising—

(a) in relation to a claim for benefit,

(b) as to whether a person is disqualified for benefit,

(c) as to the period of any disqualification for benefit,

(d) as to whether an employment is insurable employment,

(e) as to what rate of employment contribution is payable by an employer in respect of an employed contributor,

(f) as to who is the employer of an employed contributor,

(g) as to whether a person is entitled to become a voluntary contributor, or

(h) on any such other matter relating to this Act as may be prescribed,

shall be decided by a deciding officer.

(2) A reference in this section to a question arising in relation to a claim for benefit includes a reference to a question whether benefit is or is not payable.

Appeals officers.

43. —(1) The Minister may appoint from his officers such and so many persons as he thinks proper to be appeals officers for the purposes of this Act, and every person so appointed shall hold office as an appeals officer during the pleasure of the Minister.

(2) One of the appeals officers shall be designated by the Minister to be the Chief Appeals Officer and another of them shall be designated by the Minister to act as the deputy for the Chief Appeals Officer when that Officer is not available.

(3) The Chief Appeals Officer shall be responsible for the distribution, amongst the appeals officers, of the references to them and for the prompt consideration of such references.

Appeals and references to appeals Officers.

44. —(1) If any person is dissatisfied with the decision given by a deciding officer under section 42 of this Act, the question shall, on notice of appeal being given to the Minister within the prescribed time, be referred to an appeals officer.

(2) A deciding officer may, if he so thinks proper, instead of deciding it himself, refer in the prescribed manner any question which falls to be decided by him under section 42 to an appeals officer.

(3) Regulations may provide for the procedure to be followed on appeals and references under this section.

(4) An appeals officer, when deciding a question referred under subsection (1) of this section, shall not be confined to the grounds on which the decision of the deciding officer was based, but may decide the question as if it were being decided for the first time.

(5) The decision of an appeals officer on any question specified in paragraph (a), (b) or (c) of subsection (1) of section 42 of this Act which is referred to him under this section shall, subject to subsections (3) and (4) of section 46 of this Act, be final and conclusive.

(6) An appeals officer shall, on the hearing of any matter referred to him under this section, have power to take evidence on oath and for that purpose may administer oaths to persons attending as witnesses at such hearing.

(7) An appeals officer may, by giving notice in that behalf in writing to any person, require such person to attend at such time and place as is specified in the notice to give evidence in relation to any matter referred to such appeals officer under this section or to produce any documents in his possession, custody or control which relate to any such matter.

(8) A notice under subsection (7) of this section may be given either by delivering it to the person to whom it relates or by sending it by post in a prepaid registered letter addressed to such person at the address at which he ordinarily resides.

(9) A person to whom a notice under subsection (7) of this section has been given and who refuses or wilfully neglects to attend in accordance with the notice or who, having so attended, refuses to give evidence or refuses or wilfully fails to produce any document to which the notice relates shall be guilty of an offence under this subsection and shall be liable on summary conviction thereof to a fine not exceeding twenty pounds.

(10) An appeals officer may, in relation to any matter referred to him under this section, award to any person any costs or expenses (including expenses representing loss of remunerative time) which he considers reasonable, and the award shall be payable by the Minister.

(11) (a) The Minister may appoint any person whom he considers suitable to sit as an assessor with an appeals officer when any question which appears to the Minister to require the assistance of assessors is heard.

(b) The Minister may constitute, on the basis of districts or otherwise as he considers appropriate, panels of persons to sit as assessors with appeals officers and members may be selected in the prescribed manner from such panels to sit as aforesaid when any question which is of a class prescribed as being appropriate for the assistance of assessors is heard.

(c) Any matter referred to an appeals officer under this section and to be heard by the appeals officer sitting with any such assessor may, with the consent of the parties appearing at the hearing, but not otherwise, be proceeded with in the absence of the assessor.

(12) The Minister may pay to assessors referred to in subsection (11) of this section such amounts in respect of expenses (including expenses representing loss of remunerative time) as the Minister, with the sanction of the Minister for Finance, determines.

Reference or appeal to High Court.

45. —Where any question other than a question specified in paragraph (a), (b) or (c) of subsection (1) of section 42 of this Act is referred to an appeals officer—

(a) the Minister may, on the request of the Chief Appeals Officer, refer the question for the decision of the High Court, and

(b) if the question is decided by an appeals officer, any person who is dissatisfied with the decision may appeal therefrom to the High Court on any question of law.

Revision of decisions.

46. —(1) A deciding officer may, at any time and from time to time, revise any decision of a deciding officer, if it appears to him that the decision was erroneous in the light of new evidence or of new facts which have been brought to his notice since the date on which it was given or by reason of some mistake having been made with respect to the law or the facts, or if it appears to him in a case where benefit has been payable that there has been any relevant change of circumstances since the decision was given, and the provisions of this Act as to appeals shall apply to such revised decision in the same manner as they apply to an original decision.

(2) The provisions of subsection (1) of this section shall not apply to a decision relating to a matter which is on appeal or reference under section 44 of this Act unless the revised decision would be in favour of a claimant for benefit.

(3) An appeals officer may, at any time and from time to time, revise any decision of an appeals officer, if it appears to him that the decision was erroneous in the light of new evidence or of new facts brought to his notice since the date on which it was given, or if it appears to him in a case where a claim for benefit has been allowed that there has been any relevant change of circumstances since the decision was given.

(4) The Chief Appeals Officer may, at any time and from time to time, revise any decision of an appeals officer, if it appears to him that the decision was erroneous by reason of some mistake having been made with respect to the law or the facts, and, save where the question is a question specified in paragraph (a), (b) or (c) of subsection (1) of section 42 of this Act, any person who is dissatisfied with the revised decision may appeal therefrom to the High Court on any question of law.

(5) A revised decision given by a deciding officer or an appeals officer shall take effect as follows:—

(a) where benefit 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, or having continued in effect, by reason of any statement or representation (whether written or oral) which 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, it shall take effect as from the date on which the original decision took effect, but, in a case in which the benefit is by way of periodical payment, the original decision may, in the discretion of the deciding officer or appeals officer (as the case may be) continue to apply to any period covered by such original decision to which such false or misleading statement or representation or such wilful concealment of any material fact does not relate,

(b) in any other case, it shall take effect as from the date considered appropriate by the deciding officer or appeals officer (as the case may be), but any payment of benefit already made at the date of the revision shall (without prejudice to its being treated, in accordance with regulations for the purposes of paragraph (b) of subsection (2) of section 48 of this Act, as paid on account of another benefit) not be affected.

(6) A reference in this section to revision includes a reference to revision consisting of a reversal.

Administration of benefit.

47. —(1) Provision may be made by regulations as to the time and manner of payment of benefit, and as to the information and evidence to be furnished by beneficiaries when applying for payment of benefit, and, with the consent of the Minister for Posts and Telegraphs, for payment of benefit in specified cases through the Post Office.

(2) Regulations made pursuant to this section as to the time of payment of benefit may—

(a) provide for enabling a person to whom benefit is payable to nominate another person to receive the benefit on his behalf,

(b) as respects widow's (contributory) pension, or orphan's (contributory) allowance provide, notwithstanding anything in this Act, for adjusting the commencement and termination of benefit, or of changes in the rate of benefit, so that payments shall not be made in respect of periods less than a week or at different rates for different parts of a week,

(c) provide for extinguishing the right to any sum payable by way of benefit where payment thereof is not obtained within six months or such shorter period as may be prescribed from the time at which that sum is receivable in accordance with the regulations.

(3) Regulations may also provide—

(a) for enabling a person to be appointed to exercise, on behalf of a claimant or beneficiary who is under sixteen years of age or who may be or become unable for the time being to act, any right or power which the claimant or beneficiary may be entitled to exercise under this Act, and for authorising a person so appointed to receive and deal with any sum payable by way of benefit on behalf of the claimant or beneficiary,

(b) in connection with the death of any person, for enabling a claim for benefit to be made or proceeded with in his name.

(4) Regulations may also provide that probate or other proof of title of the personal representative of any deceased person may be dispensed with in the case of payment of any sum representing benefit, and that in any such case the sum may be paid or distributed to or among the persons appearing in the manner provided by the regulations to be entitled to receive the said sum or any part thereof, either as being persons beneficially entitled thereto under any testamentary instrument or as next of kin, or as being creditors of the deceased person, or to or among any one or more of such persons exclusive of the others, or, in the case of any illegitimacy of the deceased person or any child of his, to or among such person or persons as may be directed by the regulations.

Interim payments, arrears and repayments.

48. —(1) Regulations may make provision as respects matters arising—

(a) pending the decision under this Act (whether in the first instance or on an appeal or reference, and whether originally or on revision) of any claim for benefit or of any question affecting any person's right to benefit or to receipt thereof or any person's liability for contributions, or

(b) out of the effect of any appeal or revision of any decision under this Act on any such claim or question.

(2) Without prejudice to the generality of subsection (1) of this section, regulations made pursuant thereto may include provision—

(a) for the suspension of benefit where it appears to the Minister that there is or may be a question whether the conditions for receipt thereof in accordance with a decision are or were fulfilled or whether the decision ought to be revised,

(b) for treating any benefit paid to any person under a decision or by virtue of any provisions of the regulations, which it is subsequently decided was not payable, as paid on account of any other benefit which it is decided was payable to him, or, in a case referred to in paragraph (a) of subsection (5) of section 46 of this Act, for the repayment of any such benefit and the recovery thereof by deduction from other benefit or otherwise.

Inspectors.

49. —(1) The Minister may, with the sanction of the Minister for Finance, appoint such and so many persons as he thinks proper to be inspectors for the purposes of this Act.

(2) An inspector shall, for the purposes of the execution of this Act, have power to do all or any of the following things:—

(a) to enter at all reasonable times any premises or place liable to inspection under this section;

(b) to make such examination and inquiry as may be necessary for ascertaining whether the provisions of this Act are being or have been complied with in any such premises or place;

(c) to examine, either alone or in the presence of any other person, as he thinks fit, with respect to any matters under this Act on which he may reasonably require information, every person whom he finds in any such premises or place, or whom he has reasonable cause to believe to be or to have been an insured person, and to require every such person to be so examined and to sign a declaration of the truth of the matters in respect of which he is so examined;

(d) to exercise such other powers as may be necessary for carrying this Act into effect.

(3) The occupier of any premises or place liable to inspection under this section, and any person who is or has been employing any person in insurable employment, and the servants and agents of any such occupier or other person, and any insured person, claimant for benefit or person in respect of whom benefit is claimed, shall furnish to an inspector all such information and produce for inspection all such registers, cards, wages sheets, records of wages and other documents as the inspector may reasonably require for the purpose of ascertaining whether contributions are or have been payable, or have been duly paid in respect of any person, or whether benefit is or was payable to or in respect of any person.

(4) If any person—

(a) wilfully delays or obstructs an inspector in the exercise of any power under this section, or

(b) refuses or neglects to answer any question or to furnish any information or to produce any document when required so to do under this section, or

(c) conceals or prevents or attempts to conceal or prevent any person from appearing before or being examined by a person appointed under this section,

he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding ten pounds, but no one shall be required under this section to answer any questions or to give any evidence tending to incriminate himself.

(5) Every inspector shall be furnished with a certificate of his appointment, and on applying for admission to any premises or place for the purposes of this Act shall, if so required, produce the said certificate.

(6) The premises and places liable to inspection under this section are any premises or places where an inspector has reasonable grounds for believing that any persons are or have been employed in insurable employment.

(7) Where any premises or place are or is liable to be inspected by an inspector or officer appointed or employed by, or are or is under the control of, some other Minister, the Minister may make arrangements with that other Minister for any of the powers or duties of inspectors appointed under this section being carried out by an inspector or officer employed by that other Minister, and, where such an arrangement is made, such inspectors or officers shall have all the powers of an inspector appointed under this section.

Birth, marriage and death certificates.

50. —(1) Where, for the purposes of this Act, the age, marriage or death of any person is required to be proved by the production of a certificate of birth, marriage, or death, any person shall, on presenting a written requisition in such form and containing such particulars as may be directed by the Minister for Health and, on payment of the appointed fee, be entitled to obtain a certified copy of the entry of the birth, marriage, or death (as the case may be) of that person in the register of births, marriages, or deaths (as the case may be) under the hand of the registrar or superintendent registrar or other person having the custody thereof, and forms for such requisition shall on request be supplied without any charge by every registrar of births and deaths, and by every superintendent registrar or other person having the custody of the register.

(2) The Minister for Health may, with the consent of the Minister and of the Minister for Finance, by regulations appoint fees for the purposes of this section and different fees may be appointed for different certificates.

Exemption from stamp duty.

51. —Stamp duty shall not be chargeable on any cheque, pay order, or other document by which a payment of any benefit or of any refund, repayment or return pursuant to this Act is made, nor on any receipt given for any such payment.

Legal Proceedings.

General provisions as to offences.

52. —(1) If any person—

(a) buys, sells or offers for sale, takes or gives in exchange, or pawns or takes in pawn any insurance card or any used insurance stamp, or

(b) affixes any used insurance stamp to any insurance card, or

(c) for the purpose of obtaining any benefit or other payment under this Act, whether for himself or some other person, or for any purpose connected with this Act—

(i) knowingly makes any false statement or false representation or knowingly conceals any material fact, or

(ii) produces or furnishes, or causes or knowingly allows to be produced or furnished, any document or information which he knows to be false in a material particular,

he shall be guilty of an offence under this subsection and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds or, at the discretion of the Court, to imprisonment for any term not exceeding three months or to both such fine and such imprisonment.

(2) Where a person aids, abets, counsels, or procures an employee of his to commit any offence referred to in paragraph (c) of subsection (1) of this section, or conspires with the employee for the commission by the employee of any such offence, such person shall be guilty of an offence under this subsection and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds or, at the discretion of the Court, to imprisonment for any term not exceeding three months or to both such fine and such imprisonment.

(3) If any employer fails to pay any employment contribution which he is liable under this Act to pay or deducts or attempts to deduct the whole or any part of any employer's contribution in respect of a person from that person's remuneration, such employer shall be guilty of an offence under this subsection and shall be liable on summary conviction thereof to a fine not exceeding ten pounds.

(4) Regulations may provide for offences consisting of contraventions of or failures to comply with regulations and for the recovery on summary conviction of such offences of fines not exceeding specified amounts not exceeding ten pounds, together with, in the case of continuing offences, further such fines in respect of each of the days on which the offences are continued.

(5) In any proceedings under subsection (1) of this section with respect to used insurance stamps, an insurance stamp shall be deemed to have been used if it has been affixed to an insurance card or cancelled or defaced in any way whatsoever and whether it has actually been used for the purpose of payment of a contribution or not.

(6) Nothing in this section or in any regulations pursuant thereto shall be construed as preventing the Minister from recovering by means of civil proceedings any sums due to the Fund.

General provisions as to prosecutions.

53. —(1) Proceedings for an offence under this Act or under regulations shall not be instituted except by or with the consent of the Minister or by an officer authorised in that behalf by special or general directions of the Minister.

(2) A prosecution for an offence under this Act or regulations may be brought at the suit of the Minister.

(3) Notwithstanding any provision in any Act specifying the period within which summary proceedings may be commenced, proceedings in respect of an offence under this Act or under regulations may be commenced at any time within the period of three months from the date on which evidence, sufficient in the opinion of the Minister to justify a prosecution for the offence, comes to his knowledge, or within the period of twelve months after the commission of the offence, whichever period last expires.

(4) For the purposes of subsection (3) of this section, a certificate, sealed with the official seal of the Minister, as to the date on which such evidence as aforesaid came to his knowledge shall be conclusive evidence thereof.

(5) In any proceedings for an offence under this Act or regulations, the wife or husband of the person charged with the offence shall, notwithstanding any other Act, be competent to give evidence, whether for or against the said person, but the wife or husband shall not be compellable either to give evidence or, in giving evidence, to disclose any communication made to her or him during the marriage by the said person.

Recovery of sums due to the Fund by civil proceedings.

54. —All sums due to the Fund shall be recoverable as debts due to the State and, without prejudice to any other remedy, may be recovered by the Minister as a debt under statute in any court of competent jurisdiction.

Application of Probation of Offenders Act, 1907.

55. —Where—

(a) the employer of an employed contributor is charged with an offence in relation to payment of employment contributions in respect of such contributor, and

(b) the Court proposes to make an order under subsection (1) of section 1 of the Probation of Offenders Act, 1907,

the Court shall not make such order until it is satisfied that all arrears in respect of such contributions have been paid by such employer.

Certificate of decision by deciding officer or appeals officer.

56. —A document purporting to be a certificate of a decision made pursuant to this Act or regulations by a deciding officer or an appeals officer and to be signed by him shall be prima facie evidence of the making of the said decision, and of the terms thereof, without proof of the signature of such officer or of his official capacity.

Effect of decision under the Act.

57. —In any proceedings for an offence under this Act or regulations or in any proceedings involving any issue related to the payment of contributions or for the recovery of any sums due to the Fund, a decision on any question relevant to the proceedings given in accordance with this Act shall, unless an appeal or reference in respect of the decision is pending or the time for appealing against the decision has not expired, be conclusive for the purpose of those proceedings and—

(a) if any such decision which might be so given has not been obtained and the decision is necessary for the determination of the proceedings, the question shall be submitted for decision in accordance with this Act, and

(b) where any such appeal or reference is pending or the time for so appealing has not expired or any question has been submitted under the foregoing paragraph, the court dealing with the case shall adjourn the proceedings until such time as a final decision on the question has been obtained.

Priority of employment contributions in winding up and bankruptcy.

58. —(1) There shall be included among the debts which, under section 209 of the Companies (Consolidation) Act, 1908, are, in the distribution of the assets of a company being wound up to be paid in priority to all other debts, all employment contributions payable by the Company during the four months before the commencement of the winding up or the winding-up order, and that Act shall have effect accordingly, and formal proof of the debts to which priority is given under this subsection shall not be required except in cases where it may otherwise be provided by rules made under that Act.

(2) Subsection (1) of this section shall not apply where a company is wound up voluntarily merely for the purposes of reconstruction or of amalgamation with another company.

(3) There shall be included among the debts which, under section 4 of the Preferential Payments in Bankruptcy (Ireland) Act, 1889, are, in the distribution of the property of a bankrupt or arranging debtor, to be paid in priority to all other debts, all employment contributions payable by the bankrupt or arranging debtor during the four months before the date of the order of adjudication in the case of a bankrupt or the filing of the petition for arrangement in the case of an arranging debtor, and that Act shall have effect accordingly, and formal proof of the debts to which priority is given under this subsection shall not be required except in cases where it may otherwise be provided by general orders made under the said Act.

Married woman.

59. —A married woman shall, with respect to employment contributions—

(a) be capable of suing and being sued (including suing and being sued under section 35 of this Act), and

(b) be subject to the law relating to bankruptcy and to the enforcement of judgments and orders,

in all respects as if she were unmarried.