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1 1981

SOCIAL WELFARE (CONSOLIDATION) ACT, 1981

CHAPTER 17

Administration, Legal Proceedings and Finance

Administration

Decisions.

[1952, s. 42; 1961 MP s. 16]

111. —(1) Every question arising—

(a) in relation to a claim-for benefit,

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

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

[1966 OI, s. 36]

(d) as to whether an employment is or was insurable employment or insurable (occupational injuries) employment,

(e) as to whether a person is or was employed in an insurable employment or insurable (occupational injuries) employment,

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

(g) as to who is or was the employer of an employed contributor,

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

(i) on any such other matter relating to this Part as may be prescribed,

shall be decided by a deciding officer in accordance with Part VIII .

(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 or was or was not payable.

Administration of benefit.

[1952, s. 47]

112. —(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 under 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,

[1960 AM, s. 12; 1966 OI, s. 30; 1970, s. 15; 1973, s. 17]

(b) in respect of old age (contributory) pension, retirement pension invalidity pension, widow's (contributory) pension, orphan's (contributory) allowance, deserted wife's benefit or occupational injuries benefit (other than injury benefit) provide, notwithstanding anything in this Part, for adjusting the commencement and termination of benefit, or for 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 6 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 16 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 Part 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,

[1972, s. 9]

(b) where it appears to the Minister that the circumstances so warrant, for enabling a person to be appointed to receive and deal with on behalf of a claimant or beneficiary—

(i) in respect of disability benefit, unemployment benefit, old age (contributory) pension, retirement pension or invalidity pension, so much of the benefit or pension as is payable by virtue of sections 21 , 32 , 81 , 86 and 91 respectively,

(ii) in respect of widow's (contributory) pension, so much of the pension as is payable by virtue of section 95 (1),

(iii) in respect of injury benefit or disablement pension, so much thereof as is payable by virtue of section 44 ,

(c) 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.

[1952, s. 48]

113. —(1) Regulations may make provision in relation to matters arising—

(a) pending the decision under this Part or Part VIII (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 Part or Part VIII on any such claim or question.

(2) Without prejudice to the generality of subsection (1), regulations made thereunder 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,

[1961, MP, s. 17; S.I. Nos. 227 of 1970, 190 of 1973, 209 and 220 of 1974]

(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 section 300 (5) (a) for the repayment of any such benefit and the recovery thereof by deduction from any benefit or any assistance (except orphan's (non-contributory) pension, supplementary welfare allowance or children's allowance) as may be specified, or otherwise.

Inspectors.

[1952, s. 49]

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

(2) An inspector shall, for the purposes of the execution of this Part, 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 Part 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, in relation to any matters under this Part 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 Part into effect.

[1966 OI, s. 36]

(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 or insurable (occupational injuries) 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.

[1976 (No. 2). s. 3]

(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 to do so 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—

(i) on summary conviction, to a fine not exceeding £500 or (at the discretion of the court) to imprisonment for a term not exceeding one year, or to both such fine and such imprisonment, or

(ii) on conviction on indictment, to a fine not exceeding £2,000 or (at the discretion of the court) to imprisonment for a term not exceeding two years, or to both such fine and such imprisonment,

but no one shall be required under this section to answer any question 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 Part shall, if so required, produce the said certificate.

[1976 (No. 2), s. 3]

(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 and any premises or places where an inspector has reasonable grounds for believing that any insurance cards or any other documents relating to persons in employment are kept.

(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, another 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.

Legal Proceedings

Offences, including offences relating to bodies corporate.

[1952, s. 52; 1976 (No. 2), s. 4]

115. —(1) (a) If any person—

(i) 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,

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

(iii) affixes to any insurance card a forged or counterfeit stamp,

he shall be guilty of an offence.

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

(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.

(c) Where a person aids, abets, counsels or procures an employee of his to commit any offence under paragraph (a) or (b) or conspires with the employee for the commission by the employee of any such offence, such person shall be guilty of an offence.

(d) A person who is guilty of an offence under this subsection shall be liable—

(i) on summary conviction, to a fine not exceeding £500 or (at the discretion of the court) to imprisonment for a term not exceeding one year, or to both such fine and such imprisonment, or

(ii) on conviction on indictment, to a fine not exceeding £2,000 or (at the discretion of the court) to imprisonment for a term not exceeding two years, or to both such fine and such imprisonment.

(e) In any proceedings under this subsection in respect of 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, and whether or not it has actually been used for the purpose of payment of a contribution.

(f) (i) A person convicted of an offence under this subsection in relation to a benefit other than orphan's (contributory) allowance, maternity benefit, death grant or death benefit under section 52 or 53 , shall be disqualified for the receipt of that benefit for a period of 6 months immediately following the date of the conviction.

(ii) Subparagraph (i) shall not have effect in relation to an offence (other than an offence relating to unemployment benefit) committed before 12th July, 1976.

(2) (a) If any employer fails to pay at or within a prescribed time any employment contribution which he is liable under this Part to pay, he shall be guilty of an offence.

(b) If any employer 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, the employer shall be guilty of an offence.

(c) If any employer makes a deduction from the remuneration of a person in respect of any employment contribution which the employer is liable under this Part to pay and fails to pay at or within a prescribed time the employment contribution in respect of which the deduction was made, the employer shall be guilty of an offence.

(d) A person who is guilty of an offence under this subsection shall be liable—

(i) on summary conviction to a fine not exceeding £500 or (at the discretion of the court) to imprisonment for a term not exceeding one year, or to both such fine and such imprisonment, or

(ii) on conviction on indictment, to a fine not exceeding £2,000 or such amount as is equivalent to twice the amount so unpaid or deducted, whichever is the greater, or (at the discretion of the court) to imprisonment for a term not exceeding two years, or to both such fine and such imprisonment.

(3) Regulations may provide for offences consisting of contraventions of or failures to comply with regulations and for the imposition, at the discretion of the court—

(a) on summary conviction of such offences, of fines not exceeding specified amounts of not more than £500 or of imprisonment for a term not exceeding one year, or of both such fines and such imprisonment, or

(b) on conviction on indictment of such offences, of fines not exceeding specified amounts of not more than £2,000 or of imprisonment for terms not exceeding two years or of both such fines and such imprisonment, together with, in the case of continuing offences, further such fines in respect of each day on which the offences are continued.

[1966 OI, s. 37]

(4) (a) Where an employer has been convicted under this section of the offence of failing to pay any employment contributions which he is liable under this Part to pay, he shall be liable to pay to the Social Insurance Fund or the Occupational Injuries Fund, as the case may be, a sum equal to the amount which he has failed to pay and, on such a conviction, if notice of the intention to do so has been served with the summons or warrant, evidence may be given of the failure on the part of the employer to pay other employment contributions in respect of the same person during the three years preceding the date when the notice was so served, and on proof of such failure the court may order the employer to pay to the Social Insurance Fund or the Occupational Injuries Fund, as the case may be, a sum equal to the total of all the employment contributions which he is so proved to have failed to pay, and the employer's right of appeal against the conviction under the section shall include a right to appeal against such an order.

(b) Any sum paid by an employer under this subsection shall be treated as a payment in satisfaction of the unpaid employment contributions, and the insured person's portion of those employment contributions shall not be recoverable by the employer from the insured person.

[1966 OI, s. 37]

(5) Nothing in this section or in regulations under this section shall be construed as preventing the Minister from recovering by means of civil proceedings any sums due to the Social Insurance Fund or the Occupational Injuries Fund.

[1976 (No. 2), s. 6]

(6) Where an offence under this Part or under regulations made under this Part is committed by a body corporate, every person who at the time of the commission of the offence was a director, manager, secretary or other officer of the body corporate or was purporting to act in any such capacity shall also be guilty of that offence.

(7) It shall be a good defence to a prosecution for an offence under subsection (6) for a person to show that the offence was committed without his knowledge and that he exercised all such diligence to prevent the commission of the offence as he ought to have exercised, having regard to the nature of his position as director, manager, secretary or other officer and to all the circumstances.

(8) Any summons or other document required to be served for the purpose of proceedings under this Part on a body corporate may be served—

(a) by leaving it at or sending it by post to the registered office of the body corporate,

(b) by leaving it at or sending it by post to any place in the State at which the body corporate conducts business, or

(c) by sending it by post to any person who is a director, manager, secretary or other officer of the body corporate or is purporting to act in any such capacity at the place where that person resides.

General provisions as to prosecutions.

[1952, s. 53]

116. —(1) Proceedings for an offence under this Part or under regulations made under or applying the provisions of this Part 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 Part or under regulations made under or applying the provisions of this Part may be brought at the suit of the Minister.

[1976 (No. 2), ss. 5, 11]

(3) Notwithstanding any provision in any Act specifying the period within which proceedings may be commenced, a prosecution for an offence under this Part or under regulations made under or applying the provisions of this Part may be brought at any time within whichever of the following periods later expires—

(a) the period of three months commencing on the date on which it is certified in writing sealed with the official seal of the Minister that evidence sufficient to justify the institution of that prosecution came into the procurement or possession of the Minister, or

(b) the period of two years commencing on the date on which the offence was committed.

(4) For the purposes of subsection (3), 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 Part or under regulations made under or applying the provisions of this Part, 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 that 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, as the case may be, during the marriage by that person.

(6) Where in a prosecution for an offence under this Part, or under regulations made under or applying the provisions of this Part, it is shown to the satisfaction of the court—

(a) that an application has been made by a person (in this section referred to as the defendant) for benefit under this Part, and

(b) that as a result of that application benefit under this Part has been paid to any person (whether or not such benefit was that applied for and whether or not it was paid to the defendant),

the defendant shall be presumed to have given any information contained in the application (or to have caused it to be given on his behalf) and, where such information is false, with full knowledge of such falsity and with intent that it should deceive; but this presumption may be rebutted.

Recovery of sums due to the Social Insurance Fund by civil proceedings.

[1952, s. 54; 1966 OI, s. 37]

117. —All sums due to the Social Insurance Fund or the Occupational Injuries 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 proceedings jurisdiction.

Application of Probation of Offenders Act, 1907.

[1952, s. 55]

118. —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 section 1 (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.

Effect of decision.

[1952, s. 57; 1966 OI, s. 37]

119. —In any proceedings for an offence under this Part or under regulations made under or applying the provisions of this Part or in any proceedings involving any issue related to the payment of contributions or for the recovery of any sums due to the Social Insurance Fund or the Occupational Injuries Fund, a decision on any question relevant to the proceedings given in accordance with this Part or Part VIII 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 Part and Part VIII , 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 paragraph (a), the court dealing with the case shall adjourn the proceedings until such time as a final decision on the question has been obtained.

Winding-up and bankruptcy.

[1976 (No. 2), s. 7]

120. —(1) In this section “the Act of 1889” means the Preferential Payments in Bankruptcy (Ireland) Act, 1889.

(2) Any sum deducted by an employer from the remuneration of an employee of his in respect of an employment contribution due by the employer and unpaid by the employer in respect of such contribution shall not form part of the assets of a limited company in a winding-up under the Companies Act, 1963 , and in such a winding-up a sum equal in amount to the sum so deducted shall, notwithstanding anything in that Act, be paid to the Social Insurance Fund in priority to the debts specified in section 285 (2) of that Act.

(3) Any sum deducted by an employer from the remuneration of an employee of his in respect of an employment contribution due by the employer and unpaid by the employer in respect of such contribution before the date of the order of adjudication or the filing of the petition for arrangement (as the case may be) shall not form part of the property of the bankrupt or arranging debtor so as to be included among the debts which under section 4 of the Act of 1889 are in the distribution of such property to be paid in priority to all other debts, but shall, before such distribution and notwithstanding anything in the Act of 1889, be paid to the Social Insurance Fund in priority to the debts specified in section 4 of the Act of 1889.

(4) Formal proof of a debt to which priority is given by this section shall not be required except where required by or under the Act of 1889 or the Companies Act, 1963 .

[1952, s. 58 (3); 1972, s. 10]

(5) There shall be included among the debts which under section 4 of the Act of 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 twelve 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 that Act.

Married women.

[1952, s. 59]

121. —A married woman shall, in respect of employment contributions—

(a) be capable of suing and being sued (including suing and being sued under section 132 ), 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.

Finance

Social Insurance Fund.

[1952, s. 39]

122. —(1) The Social Insurance Fund (in this section and in section 123 referred to as the Fund) established under the Social Welfare Act, 1952 , shall continue in being and to comprise 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), 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 under subsection (7) 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 which 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 sum payable into the Fund under subsection (9) (a) 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.

Payments from Fund for acquisition of land, etc.

[1950, s. 21; 1952, s. 68]

123. —(1) Payments may be made out of the Fund in respect of expenditure by the Minister on the acquisition of lands, premises, furniture or equipment or the construction or reconstruction of premises, and any such lands, premises, furniture or equipment shall be held by the Minister on behalf of the Fund.

(2) A payment shall not be made under subsection (1) save with the consent of the Minister for Finance.

(3) There shall be an investment return in respect of payments made out of the Fund under subsection (1) and such return shall be in the form of contributions to the Fund in respect of the payments made out of the Fund.

(4) The contributions to be made under subsection (3) shall be at rates to be agreed upon from time to time between the Minister and the Minister for Finance and shall be paid into the Fund out of moneys provided by the Oireachtas.

(5) The Minister may dispose of any lands, premises, furniture or equipment which he has acquired, constructed or reconstructed under this section and any moneys which he receives in respect of any such disposal shall be paid into the Fund.

(6) A disposal shall not be effected under subsection (5) save with the consent of the Minister for Finance.