Social Welfare Act, 1993
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PART VI Pre-Consolidation Amendments to Align and Consolidate Various Provisions of the Social Welfare Code | ||
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Alignment and consolidation of provisions relating to claims and payments, powers and duties of social welfare inspectors and offences. |
27.—The Principal Act is hereby amended by the insertion after section 294 (as amended by section 21 of the Act of 1988) of the following Part: | |
“PART VIIA | ||
Administration | ||
Preliminary | ||
Definitions. | ||
294A.—In this Part— | ||
‘benefit’ means— | ||
(a) any benefit described in section 17, | ||
(b) any assistance described in section 134 (1), | ||
(c) child benefit, | ||
(d) family income supplement. | ||
CHAPTER 1 | ||
Claims and Payments | ||
Claims. | ||
294B.—(1) It shall be a condition of any person's right to any benefit that he makes a claim therefor in the prescribed manner. | ||
(2) Regulations may provide for disqualifying a person for the receipt of any benefit if he fails to make his claim for such benefit within the prescribed time, but any such regulations may provide for extending, subject to such conditions as may be prescribed, the time within which a claim may be made. | ||
(3) Regulations may provide for provisionally allowing a claim for benefit before the date on which the claimant will actually become entitled to such benefit, in such manner and subject to such conditions as may be prescribed. | ||
(4) For the purposes of this Act, any claim or notice made or sent by post or by any other method shall be deemed to have been made or given on the date of receipt of such claim or notice by an officer of the Minister. | ||
Payments. | ||
294C.—(1) Regulations may provide for— | ||
(a) the time and manner of payment of benefit, | ||
(b) the information and evidence to be furnished by a claimant or beneficiary when applying for payment of benefit, and | ||
(c) in consultation with An Post, the payment of specified benefits through An Post. | ||
(2) Regulations made under this section as to the time of payment of benefit may provide— | ||
(a) notwithstanding anything contained in this Act— | ||
(i) in the case of specified benefits (other than child benefit), for adjusting the commencement and termination of such benefit, or for changes in the rate of such 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, | ||
(ii) in the case of child benefit, for adjusting the commencement and termination of such benefit, or for changes in the rate of such benefit, so that payments shall not be made at different rates for different parts of a month, | ||
(b) 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 regulations. | ||
Payment to persons other than claimant or beneficiary. | ||
294D.—(1) Regulations may provide— | ||
(a) for enabling a person to whom benefit is payable to nominate another person to receive that benefit on his behalf, | ||
(b) 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 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, | ||
(c) 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 disabililty benefit, unemployment benefit, injury benefit, old age (contributory) pension, retirement pension, invalidity pension, unemployment assistance, pre-retirement allowance, old age pension or blind pension, so much of the benefit, pension, assistance or allowance, as the Minister considers reasonable in the circumstances: | ||
Provided that in no case shall the amount to be dealt with in this manner exceed the total amount payable less the amount payable by virtue of section 21 (1), 32 (1), 44 (1), 81 (1), 86 (1), 91 (1), 137 (1) (b) (i), 156B (1) (a) or 162 (1) (d), as appropriate, | ||
(ii) in respect of widow's (contributory) pension or deserted wife's benefit, so much of the pension or benefit as is payable by virtue of section 95 (1) or 103 (1), as appropriate, or in respect of lone parent's allowance, so much of the allowance as is payable in respect of a qualified child by virtue of section 198C (1), | ||
(iii) in respect of disablement pension, child benefit or family income supplement, so much of the pension, benefit or supplement as the Minister considers reasonable in the circumstances, | ||
(d) in connection with the death of any person, for enabling a claim for benefit to be made or proceeded with in his name, subject to such conditions as may be prescribed. | ||
(2) 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. | ||
Statutory declarations. | ||
294E.—Regulations prescribing a form of application for any purpose may require that all or any of the statements made by the claimant in such form be verified by a statutory declaration and that such statutory declaration may be taken and received by a deciding officer or by any other officer of the Minister or such other person authorised by the Minister in that behalf. | ||
Social welfare inspectors. | ||
294F.—(1) The Minister may appoint from his officers such and so many persons as he thinks proper to be social welfare inspectors for the purposes of such provisions of Parts II, III, IV, IVA, X and this Part as he may determine in the case of such appointments. | ||
(2) Every social welfare inspector shall investigate into and report to the Minister upon any claim for or in respect of benefit and any question arising on or in relation to such benefit which may be referred to him by the Minister, and may, for the purpose of such investigation and report require— | ||
(a) a claimant or a beneficiary, | ||
(b) the spouse or any employer of the claimant or beneficiary, | ||
(c) in the case of child benefit, any person in charge of a child in respect of whom the claim is made, | ||
(d) a person liable to contribute under section 316 (1) or any employer of any such person, and | ||
(e) the personal representative of a person who was at any time in receipt of any benefit, | ||
to furnish him with such information and to produce to him such documents, within such period as may be prescribed, as he may reasonably require. | ||
(3) A social welfare inspector shall, for the purposes of Parts II, III, IV, IVA, X and this Part, have power to do all or any of the following— | ||
(a) to enter, without prior notification, at all reasonable times any premises or place liable to inspection under this section, | ||
(b) to make such examination and enquiry as may be necessary for ascertaining whether the provisions of Part II, III, IV, IVA, X or 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 on which he may reasonably require information for the purposes of Part II, III, IV, IVA, X or this Part, every person whom he finds in any such premises or place, or who 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 Parts II, III, IV, IVA, X and this Part into effect. | ||
(4) The occupier of any premises or place liable to inspection under this section, and any other person who is or has been employing— | ||
(a) any person in insurable employment or insurable (occupational injuries) employment, or | ||
(b) any claimant or beneficiary, | ||
and the servants and agents of any such occupier or other person, and any insured person, claimant or beneficiary or person in respect of whom such a benefit is claimed, shall furnish to a social welfare inspector all such information and produce for inspection all such registers, cards, wages sheets, records of wages and other documents as the social welfare inspector may reasonably require for the purposes 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. | ||
(5) Any person who holds a certificate of authorisation under section 17 (as amended by section 28 of the Finance Act, 1992 ) of the Finance Act, 1970 , shall, upon the request of a social welfare inspector, furnish such certificate for inspection by him. | ||
(6) If any person— | ||
(a) wilfully delays or obstructs a social welfare inspector in the exercise of any duty or 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 social welfare inspector or any other person appointed under this section, | ||
he shall be guilty of an offence. | ||
(7) Notwithstanding the preceding provisions of this section, a person shall not be required under this section to give any evidence or answer any question tending to incriminate himself. | ||
(8) Every social welfare inspector shall be furnished with a certificate of his appointment, and on entering any premises or place for the purposes of Parts II, III, IV, IVA, X and this Part shall, if so requested, produce the said certificate. | ||
(9) The premises or places liable to inspection under this section are any premises or places where a social welfare inspector has reasonable grounds for believing that— | ||
(a) persons are, or have been, employed, or | ||
(b) there are, or have been, self-employed persons, | ||
and any premises or place where a social welfare inspector has reasonable grounds for believing that any documents relating to persons in employment or to self-employed persons are kept. | ||
(10) Where any premises or place is liable to be inspected by an inspector or by an officer appointed, employed by, or under the control of, another Minister of the Government, the Minister may make arrangements with that other Minister for any of the powers or duties of a social welfare inspector appointed under this section to be vested in the inspector or officer employed by that other Minister and, where such an arrangement is made, such inspector or officer shall have all the powers of a social welfare inspector appointed under this section for the purposes of the inspection. | ||
(11) Where a person is required by subsection (4) to produce records required pursuant to regulations made under section 15 (5), he shall, upon the request of a social welfare inspector, produce such records at his registered address or his principal place of business. | ||
(12) A person who fails to comply with a request to produce records under subsection (11) within 21 days following the issue of such request in writing sent by registered post to him at his registered address or his principal place of business shall be guilty of an offence. | ||
(13) Records of persons employed which an employer is obliged to maintain under regulations made under section 15 (5) which are produced to a social welfare inspector shall be prima facie evidence that those persons were employed by that employer and of the earnings of such persons and of the periods during which such persons were employed by him. | ||
Employers to keep copies of statements issued under Minimum Notice and Terms of Employment Act, 1973 . | ||
294G.—Where an employer issues to an employee a statement containing the particulars specified in section 9 of the Minimum Notice and Terms of Employment Act, 1973 , he shall retain a copy of such statement for a period of two years from the date on which that statement was issued and shall furnish such copy on demand to a social welfare inspector for inspection under section 294F. | ||
False statements and offences, including offences relating to bodies corporate. | ||
294H.—(1) If, for the purpose of— | ||
(a) obtaining or establishing entitlement to payment of any benefit for himself or for any other person, or | ||
(b) obtaining or establishing entitlement to payment of any benefit for himself or for any other person which is in excess of that which he was entitled to, or | ||
(c) avoiding the making by himself or any other person of any repayment under this Act, | ||
or for any other purpose connected with this Act, any person— | ||
(i) knowingly makes any statement or representation (whether written or verbal) which is to his knowledge false or misleading in any material respect, 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. | ||
(2) An employer or any servant or agent of an employer who aids, abets, counsels or procures an employee in the employment of that employer to commit any offence under subsection (1) shall be guilty of an offence. | ||
(3) In the case of a person convicted of an offence under this section the period of disqualification applied in accordance with the provisions of section 300BB shall be extended to 3 months and the provisions of that section shall be construed and have effect accordingly. | ||
(4) A person convicted of an offence under this section in relation to child benefit shall be disqualified for the receipt of child benefit for the period of 3 months immediately following the date of the conviction. | ||
(5) Where a person is convicted of an offence under subsection (1) or (2) and by reason of that offence any benefit (other than child benefit) was received by an employee of his which he was not entitled to receive, such person shall be liable to pay to the Minister on demand a sum not exceeding the amount of such benefit which by reason of the said offence was paid to that employee while in his employment and that sum, if not so repaid, may be recovered by the Minister as a debt under statute in any court of competent jurisdiction. | ||
(6) Notwithstanding the provisions of subsection (5) or any other provisions of this Act under which amounts of benefit (other than child benefit) may be recovered, the amount recovered by the Minister in any case may not exceed the amount of benefit received by the employee which he was not entitled to receive. | ||
(7) Regulations under this Act may provide for offences consisting of contraventions of or failures to comply with such regulations and, where such offences are provided for, a person guilty of any such offence shall be liable on summary conviction to the penalties provided for in section 294L (1) (a). | ||
(8) Where an offence under this Act is committed by a body corporate and, in the case of an offence under subsection (1), where the offence is committed by an employee or officer of the body corporate, and is proved to have been so committed with the consent, connivance or approval of or to have been attributable to any wilful neglect on the part of any person, being a director, manager, secretary or other officer of the body corporate or a person who was purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of an offence and shall be liable to be proceeded against and punished as if he were guilty of the first-mentioned offence. | ||
(9) It shall be a good defence to a prosecution for an offence under subsection (8) 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. | ||
(10) Any summons or other document required to be served for the purpose of proceedings under this Act 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. | ||
Offences in relation to employment contributions. | ||
294I.—(1) If an employer— | ||
(a) fails to pay at or within a prescribed time any employment contribution which he is liable under Part II to pay, | ||
(b) 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, or | ||
(c) makes a deduction from the remuneration of a person in respect of any employment contribution which the employer is liable under Part II 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. | ||
(2) An employer, or a servant or agent acting on behalf of such employer, who, for the purpose of evading or reducing the amount of his liability in respect of employment contributions which he is liable to pay under Part II and which he has not paid— | ||
(a) knowingly makes any statement or representation (whether written or verbal) which is to his knowledge false or misleading in any material respect, or knowingly conceals any material fact, or | ||
(b) 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, | ||
shall be guilty of an offence. | ||
(3) A person who is guilty of an offence under this section shall be liable— | ||
(a) on summary conviction, to the penalties provided in section 294L (1) (a), | ||
(b) on conviction on indictment, to a fine not exceeding £10,000 or such amount as is equivalent to twice the amount so unpaid or deducted, whichever is the greater, or to imprisonment for a term not exceeding 3 years, or to both. | ||
(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 Part II to pay, he shall be liable to pay to the Social Insurance Fund a sum equal to the amount which he has failed to pay and, on such 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 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. | ||
(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. | ||
Information to be furnished by employers. | ||
294J.—(1) An employer shall furnish to the Minister in writing in respect of any person who is or was in his employment such particulars, including particulars as to periods of employment, as are required by the Minister to enable determination or review of a claim to any benefit by or in respect of that person. | ||
(2) Regulations may specify the particulars which an employer shall furnish under subsection (1) and prescribe the manner in which such particulars shall be so furnished. | ||
(3) A person who fails to comply with subsection (1) or regulations made under subsection (2) shall be guilty of an offence. | ||
Application of Probation of Offenders Act, 1907. | ||
294K.—Where— | ||
(a) (i) the employer of an employed contributor is charged with an offence in relation to payment of employment contributions in respect of that contributor, or | ||
(ii) a person is charged under this Act with an offence in relation to the receipt of any benefit, 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 or any amounts due to be repaid in respect of such benefit have been repaid.”. |