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27 1993

SOCIAL WELFARE (CONSOLIDATION) ACT, 1993

PART IX

LIABILITY TO MAINTAIN FAMILY

Interpretation.

[1989, s. 12(1); 1990, s. 13; 1992, s. 20]

284.—(1) In this Part—

allowance” means deserted wife's allowance, lone parent's allowance or supplementary welfare allowance;

antecedent order” means—

(a) an order under section 286 (4),

(b) an order under section 286 (5) (insofar as it is deemed to be an order under section 17 of the Enforcement of Court Orders Act, 1926 ), or

(c) an order under section 286 (5) (insofar as it is deemed to be an order under section 5 of the Enforcement of Court Orders Act, 1940 );

attachment of earnings order” means an order under section 287;

benefit” means deserted wife's benefit;

competent authority” in relation to deserted wife's benefit, deserted wife's allowance and lone parent's allowance means the Minister, and in relation to supplementary welfare allowance means the health board which granted that allowance to a recipient;

earnings” means any sums payable to a person—

(a) by way of wages or salary (including any fees, bonus, commission, overtime pay or other emoluments payable in addition to wages or salary or payable under a contract of service),

(b) by way of pension or other like benefit in respect of employment (including an annuity in respect of past services, whether or not rendered to the person paying the annuity, and including periodical payments by way of compensation for the loss, abolition or relinquishment, or diminution in the emoluments, of any office or employment);

order of the Court” means a maintenance order, a lump sum order, a variation order or an interim order under the Family Law (Maintenance of Spouses and Children) Act, 1976 , an order under section 10 of that Act or an order of the Court made on foot of a separation agreement.

[1989, s. 12(1)]

(2) Every reference in this Part to a person who is liable to maintain another person shall be construed as meaning a person who by virtue of section 285 is liable to maintain such other person.

Liability to maintain family.

[1989, s. 12(1)]

285.—For the purposes of sections 110, 152, 158 and 171 and without prejudice to any obligations imposed by law or otherwise, the following provisions shall have effect, that is to say—

(a) a man shall be liable to maintain—

(i) his wife, and

(ii) any child of his, being a child who is under the age of 18 years or (save for the purposes of section 171) who is of or over that age and under the age of 21 years, and is receiving full-time education or instruction by day at any university, college, school or other educational establishment,

and

(b) a woman shall be liable to maintain—

(i) her husband, and

(ii) any child of hers, being a child who is under the age of 18 years or (save for the purposes of section 171) who is of or over that age and under the age of 21 years, and is receiving full-time education or instruction by day at any university, college, school or other educational establishment.

Contribution towards benefit or allowance.

[1989, s. 12(1)]

286.—(1) Where a benefit or allowance is paid to any recipient, every person who is liable to maintain that recipient or to maintain any child in respect of whom an increase in such benefit or allowance is granted, shall be liable to contribute to the competent authority such amount as that authority may determine to be appropriate towards such benefit or allowance.

[1989, s. 12(1); 1992, s. 21]

(2) Where a person who is liable to contribute under subsection (1) (subsequently referred to in this Part as “the liable relative”) fails or neglects to contribute, the competent authority may apply to the District Court for an order directing the liable relative to make such contribution towards the benefit or allowance.

[1989, s. 12(1); 1992, s. 21]

(3) The competent authority, before making an application to the District Court under subsection (2), shall serve notice of the application on the liable relative.

[1989, s. 12(1); 1992, s. 21]

(4) Where the District Court is satisfied that, at the time of the hearing of an application by the competent authority under subsection (2), the liable relative had failed or neglected to make the contribution required under subsection (1) and was able to contribute to the benefit or allowance granted, the District Court shall fix the amount of the contribution to be made by the liable relative and shall order the payment thereof to the competent authority by way of such payments as the Court shall think proper.

[1992, s. 21]

(5) An order made by the District Court under subsection (4) shall, for the purposes of its variation or enforcement, be deemed to be an order for payment by instalments made under section 17 of the Enforcement of Court Orders Act, 1926 , and the said section 17 shall be construed accordingly.

[1992, s. 21]

(6) The District Court may, on the application of either the liable relative or the competent authority, vary in accordance with the provisions of section 5 of the Enforcement of Court Orders Act, 1940 , an order made by it under subsection (4) and the said section 5 shall, with any necessary modifications, be construed accordingly:

Provided that any such application made by either party be notified to the other party in advance.

[1992, s. 21]

(7) The District Court may, on application by the competent authority in whose favour an order was made under subsection (4) for an order for the arrest and imprisonment of the debtor under section 6 of the Enforcement of Court Orders Act, 1940 , proceed in accordance with the provisions of the said section 6.

[1992, s. 21]

(8) The provisions of—

(a) section 4 (1) (inserted by section 3 (3) of the Courts (No.2) Act, 1986) of the Enforcement of Court Orders Act, 1940 (which relates to the duration of instalment orders), and

(b) section 5 (4) (inserted by section 3 of the Courts (No.2) Act, 1986 ) of the Enforcement of Court Orders Act, 1940 (which relates to the duration of variation orders),

shall not apply to orders made under subsection (4) of this section.

Attachment of earnings order.

[1992, s. 22]

287.—(1) (a) On application to the District Court by a competent authority on whose application the District Court has made an antecedent order, the Court may, to secure payments under the antecedent order, if it is satisfied that the liable relative is a person to whom earnings fall to be paid, make an attachment of earnings order.

(b) References in paragraph (a) to an antecedent order made by the District Court shall include references to such an order made, varied or affirmed on appeal from that Court.

[1992, s. 22]

(2) An attachment of earnings order shall be an order directed to a person who (at the time of the making of the order or at any time thereafter) has the liable relative in his employment and shall operate as a direction to that person to make, at such times as may be specified in the order, periodical deductions of such amounts (specified in the order) as may be appropriate, having regard to the normal deduction rate (within the meaning of subsection (4)(a)) and the protected earnings rate (within the meaning of subsection (4)(b)), from the liable relative's earnings and to pay the amounts deducted at such times as the Court may order to the District Court clerk specified by the attachment of earnings order for transmission to the person or competent authority entitled to receive payments made under the relevant antecedent order.

[1992, s. 22]

(3) An attachment of earnings order shall not be made without the consent of the liable relative, unless the District Court is satisfied that the liable relative has, without reasonable excuse, defaulted in the making of any payment under the relevant antecedent order.

[1992, s. 22]

(4) An attachment of earnings order shall—

(a) specify the normal deduction rate, that is to say, the rate at which the District Court considers it reasonable that the earnings to which the order relates should be applied in satisfying the relevant antecedent order, not exceeding the rate appearing to the District Court to be necessary for the purpose of—

(i) securing payment of the sums falling due from time to time under the relevant antecedent order, and

(ii) securing payment within a reasonable period of any sums already due and unpaid under the relevant antecedent order,

(b) specify the protected earnings rate, that is to say, the rate below which, having regard to the resources and the needs of the liable relative, the District Court considers it proper that the relevant earnings should not be reduced by a payment made in pursuance of the attachment of earnings order, and

(c) contain, so far as they are known to the District Court, such particulars as it considers appropriate for the purpose of enabling the liable relative to be identified by the person to whom the order is directed.

[1992, s. 22]

(5) Payments under an attachment of earnings order shall be in lieu of payments of the like total amount under the relevant antecedent order that have not been made and that, but for the attachment of earnings order, would fall to be made under the relevant antecedent order.

Obligations on employer in relation to attachment of earnings order.

[1992, s. 22]

288.—(1) Where an attachment of earnings order or an order varying it is made, the employer for the time being affected by it shall, if it has been served upon him, comply with it; but he shall be under no liability for non-compliance therewith before 10 days have elapsed since the service.

[1992, s. 22]

(2) Where an attachment of earnings order is served on any person and the liable relative is not in his employment or the liable relative subsequently ceases to be in his employment, that person shall (in either case) within 10 days from the date of service or, as the case may be, the cesser, give notice of that fact to the District Court.

[1992, s. 22]

(3) On any occasion when a person makes, in compliance with an attachment of earnings order, a deduction from a liable relative's earnings, he shall give to the liable relative a statement in writing of the total amount of the deduction.

[1992, s. 22]

(4) Such court registrar or court clerk as may be specified by an attachment of earnings order shall cause the order to be served on the employer to whom it is directed and on any subsequent employer of the liable relative concerned of whom the registrar or clerk so specified becomes aware and such service may be effected by leaving the order or a copy of the order at, or sending the order or a copy of the order by registered prepaid post to, the residence or place of business in the State of the person to be served.

Payments under attachment of earnings order.

[1992, s. 22]

289.—Any payments made to a District Court clerk under an attachment of earnings order shall, when transmitted by him to the competent authority entitled to receive those payments, be deemed to be payments made by the liable relative so as to discharge any sums payable under the relevant antecedent order.

Powers of District Court.

[1992, s. 22]

290.—(1) In relation to an attachment of earnings order or an application for such an order, the District Court that made the order or to which the application is made may, before or at the hearing or while the order is in force—

(a) order the liable relative to give to the District Court, within a specified period, a statement in writing signed by him containing—

(i) the name and address of any person by whom earnings are paid to him,

(ii) specified particulars as to his earnings and expected earnings and as to his resources and needs, and

(iii) specified particulars for enabling the liable relative to be identified by any employer of his, and

(b) order that any person appearing to the District Court to have the liable relative in his employment to give to the Court, within a specified period, a statement signed by that person, or on his behalf, containing specified particulars of the liable relative's earnings and expected earnings.

[1992, s. 22]

(2) Notice of an application for an attachment of earnings order served on a liable relative may include a requirement that he shall give to the District Court, within the period and in the manner specified in the notice, a statement in writing of the matters referred to in paragraph (a) of subsection (1) and of any other matters which are or may be relevant to the determination of the normal deduction rate and the protected earnings rate to be specified in the order.

[1992, s. 22]

(3) In any proceedings in relation to an attachment of earnings order, a statement given to the District Court in compliance with an order under paragraph (a) or (b) of subsection (1) or with a requirement under subsection (2) shall be admissible as evidence of the facts stated therein, and a document purporting to be such a statement shall be deemed, unless the contrary is shown, to be a statement so given.

Changes in employment.

[1992, s. 22]

291.—Where an attachment of earnings order is in force—

(a) the liable relative shall notify in writing the District Court that made the order of every occasion on which he leaves any employment, or becomes employed or re-employed, not later (in each case) than 10 days from the date on which he does so,

(b) the liable relative shall, on any occasion on which he becomes employed or re-employed, include in his notification under paragraph (a) particulars of his earnings and expected earnings from the relevant employment,

(c) any person who becomes an employer of the liable relative and knows that the order is in force and by what Court it was made shall, within 10 days of his becoming the liable relative's employer or of acquiring that knowledge (whichever is the later), notify the District Court in writing that he is the liable relative's employer, and include in his notification a statement of the liable relative's earnings and expected earnings, and

(d) any person who is an employer of the liable relative and knows that the order is in force and by what Court it was made shall, within 10 days of such occurence notify the competent authority and the District Court in writing of any increase in earnings paid to the liable relative.

Determinations by District Court.

[1992, s. 22]

292.—(1) Where an attachment of earnings order is in force, the District Court that made the order shall, on the application of the employer concerned or the liable relative or competent authority to whom payments are being made under the order, determine whether payments (or any portions thereof) to the liable relative of a particular class or description specified by the application are earnings for the purpose of the order, and the employer shall give effect to any determination for the time being in force under this section.

[1992, s. 22]

(2) Where an application under this section is made by the employer, he shall not incur any liability for non-compliance with the order as respects any payments (or any portions thereof) of the class or description specified by the application which are made by him to the liable relative while the application or any appeal in consequence thereof or any decision in relation to the application or appeal is pending, but the foregoing provisions of this subsection shall not, unless the District Court otherwise orders, apply as respects such payments (or any portions thereof) if the employer subsequently withdraws the application or, as the case may be, abandons the appeal.

Liable relative in service of State.

[1992, s. 22]

293.—(1) Where a liable relative is in the service of the State, a local authority for the purposes of the Local Government Act, 1941 , a harbour authority within the meaning of the Harbours Act, 1946 , a health board, a vocational education committee established by the Vocational Education Act, 1930 , or a committee of agriculture established by the Agriculture Act, 1931 , or is a member of either House of the Oireachtas—

(a) in a case where a liable relative in the service of the State is employed in a department, office, organisation, service, undertaking or other body, its chief officer (or such other officer as the Minister of the Government by whom the department, office, organisation, service, undertaking or other body is administered by may from time to time designate) shall, for the purposes of this Act, be regarded as having the liable relative in his employment,

(b) in a case where a liable relative is in the service of such an authority, board or committee, its chief officer shall, for the purposes of this Act, be regarded as having the liable relative in his employment,

(c) in any other case, where a liable relative is paid out of the Central Fund or out of moneys provided by the Oireachtas, the Secretary of the Department of Finance (or such other officer of the Minister for Finance as that Minister may from time to time designate) shall, for the purposes of this Act, be regarded as having the liable relative in his employment, and

(d) any earnings of a liable relative paid out of the Central Fund or out of moneys provided by the Oireachtas shall be regarded as paid by the chief officer referred to in paragraph (a) or (b), as the case may be, the Secretary of the Department of Finance or such other officer as may be designated under paragraph (a) or (c), as the case may be, as may be appropriate.

[1992, s. 22]

(2) If any question arises in proceedings for or arising out of an attachment of earnings order as to what department, office, organisation, service, undertaking or other body a liable relative in the service of the State is employed in for the purposes of this section, the question may be referred to and determined by the Minister for Finance.

[1992, s. 22]

(3) A document purporting to contain a determination of the Minister for Finance under subsection (2) and to be signed by an officer of the Minister for Finance shall, in any such proceedings as are mentioned in that subsection, be admissible in evidence and be deemed, unless the contrary is shown, to contain an accurate statement of that determination.

[1992, s. 22]

(4) In this section references to a liable relative in the service of the State shall include references to a liable relative to whom earnings are paid directly out of moneys provided by the Oireachtas.

Discharge, variation or lapse of attachment of earnings order.

[1992, s. 22]

294.—(1) The District Court that made an attachment of earnings order may, if it thinks fit, on the application of the competent attachment of authority, the liable relative, or the District Court clerk on whose application the order was made, make an order discharging or varying that order.

[1992, s. 22]

(2) Where an order varying an attachment of earnings order is made under this section, the employer shall, if it has been served upon him, comply with it, but he shall be under no liability for non-compliance before 10 days have elapsed since the service.

[1992, s. 22]

(3) Where an employer affected by an attachment of earnings order ceases to have the liable relative in his employment, the order shall, in so far as that employer is concerned, lapse (except as respects deductions from earnings paid after the cesser by that employer and payment to the person in whose favour the order was made of deductions from earnings made at any time by that employer).

[1992, s. 22]

(4) The lapse of an order under subsection (3) shall not prevent its remaining in force for other purposes.

Cesser.

[1992, s. 22]

295.—(1) An attachment of earnings order shall cease to have effect upon the discharge of the relevant antecedent order, except as regards payments under the attachment of earnings order in respect of any time before the date of the discharge.

[1992, s. 22]

(2) Where an attachment of earnings order ceases to have effect, the clerk or registrar of the Court that made the order shall give notice of the cesser to the employer.

Offences.

[1992, s. 22]

296.—(1) When, without reasonable excuse, a person—

(a) fails to comply with subsection (1) or (2) of section 288 or section 291 or an order under section 290 or section 294 (2), or

(b) gives to a court a statement pursuant to section 290 (1), or a notification under section 291, that is false or misleading, or fails to give any statement,

and the competent authority as a result fails to obtain a sum of money due under an attachment of earnings order, that sum may be sued for as a simple contract debt in any court of competent jurisdiction by the competent authority or the District Court clerk to whom such sum falls to be paid, and that court may order the person to pay to the competent authority or the District Court clerk, as appropriate, such amount (not exceeding the sum aforesaid) as in all the circumstances the court considers proper for distribution in such manner and in such amounts as the court may specify to the competent authority for whose benefit the attachment of earnings order was made.

[1992, s. 22]

(2) Where a person gives to a District Court—

(a) a statement pursuant to section 290, or

(b) a notification under section 291,

that is to his knowledge false or misleading, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 6 months or to both.

[1992, s. 22]

(3) A person who contravenes section 288 (3) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000.

Payments under order of court to offset contributions.

[1989, s. 12(1)]

297.—Where an order of the Court has been granted to a person who is in receipt of a benefit or allowance, the payments made under that order shall offset either in whole or part, as the competent authority may determine, contributions due by the person liable to contribute pursuant to section 286(1) to such benefit or allowance.

Recipient of benefit or allowance to transfer to competent authority payments under order of court.

298. —(1) A person who is in receipt of a benefit or allowance shall be liable to transfer to the competent authority payments made to that person in compliance with an order of the Court.

[1989, s. 12(1)]

[1992, s. 23(b)]

(2) A person who claims a benefit or allowance may be required by the competent authority to consent to the transfer to the competent authority of payments made to that person in compliance with an order of the court, such transfer to be conditional on the award of benefit or allowance to that person.

[1989, s. 12(1); 1992, s. 23(a)]

(3) Where a person who is in receipt of benefit or allowance fails to comply with the provisions of subsection (1) the benefit or allowance being paid to that person shall be reduced by the amount which that person is liable under subsection (1) to transfer to the Minister.

Investigations by health boards.

[1989, s. 12(1); 1992, s. 24]

299.—(1) A health board may investigate into any question arising on or in relation to supplementary welfare allowance granted by the board and may, for the purpose of such investigation, require a liable relative or any employer of any such person to furnish the health board with such information and to produce to the health board for inspection such documents relating to that person as the health board may reasonably require.

[1989, s. 12(1); 1992, s. 24]

(2) Where a liable relative or the employer of any such person fails to comply with the provisions of subsection (1) he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or on conviction on indictment to a fine not exceeding £10,000.