Social Welfare (Consolidation) Act, 1981

• Permanent Page URL

Disablement benefit.

[1966 OI, s. 9]

43.—(1) Subject to this Part, an insured person who suffers personal injury caused on or after 1st May, 1967, by accident arising out of and in the course of his employment, being insurable (occupational injuries) employment, shall be entitled to disablement benefit if he suffers as a result of the accident from loss of physical or mental faculty such that the extent of the resulting disablement assessed in accordance with the following provisions of this section amounts to not less than one per cent.; and, for the purposes of those provisions, there shall be deemed not to be any relevant loss of faculty when the extent of the resulting disablement, if so assessed, would not amount to one per cent.

(2) Disablement benefit shall not be available to an insured person until after the third day of the period of 156 days (Sundays being disregarded) beginning with the day of the relevant accident nor until after the last day, if any, of that period on which he is incapable of work as a result of the relevant accident:

Provided that, if he is not so incapable on any day, being the 4th or a later day after the relevant accident, before the end of that period, he may claim, and if otherwise entitled, be awarded, disablement benefit as from that day, but in that event the fact that he is or may be so incapable on a subsequent day of the period shall be disregarded for the purposes of this subsection.

(3) For the purposes of this section, the extent of disablement shall be assessed, by reference to the disabilities incurred by the claimant as a result of the relevant loss of faculty, in accordance with the following general principles—

(a) save as hereafter provided in this subsection, the disabilities to be taken into account shall be all disabilities (whether or not involving a loss of earning power or additional expense) to which the claimant may be expected, having regard to his physical and mental condition at the date of the assessment, to be subject during the period taken into account by the assessment as compared with a person of the same age and sex whose physical and mental condition is normal;

(b) any such disability shall be treated as having been incurred as a result of the relevant loss of faculty except that, subject to the provisions of any regulations made under subsection (4), it shall not be so treated in so far as the claimant either—

(i) would in any case have been subject thereto as the result of a congenital defect or of an injury or disease received or contracted before the relevant accident, or

(ii) would not have been subject thereto but for some injury or disease received or contracted after, and not directly attributable to that accident;

(c) the assessment shall be made without reference to the particular circumstances of the claimant other than age, sex and physical and mental condition;

(d) the disabilities resulting from such loss of faculty as may be prescribed shall be taken as amounting to 100 per cent. disablement and other disabilities shall be assessed accordingly.

(4) Provision may be made by regulations for further defining the principles on which the extent of disablement is to be assessed, and such regulations may in particular direct that a prescribed loss of faculty shall be treated as resulting in a prescribed degree of disablement; and, in connection with any such direction, nothing in subsection (3) (c) shall be taken as preventing the making of different provision, in the case of loss of faculty in or affecting hand or arm, for right-handed and for left-handed persons.

(5) The period to be taken into account by an assessment of the extent of a claimant's disablement shall be the period (beginning not earlier than the end of the injury benefit period, and limited by reference either to the claimant's life or to a definite date) during which the claimant has suffered and may be expected to continue to suffer from the relevant loss of faculty: provided that, if on any assessment the condition of the claimant is not such, having regard to the possibility of changes therein (whether predictable or not), as to allow of a final assessment being made up to the end of the said period—

(a) a provisional assessment shall be made, taking into account such shorter period only as seems reasonable having regard to his condition and the said possibility, and

(b) on the next assessment the period to be taken into account shall begin with the end of the period taken into account by the provisional assessment.

(6) An assessment shall state the degree of disablement in the form of a percentage and shall specify the period taken into account thereby and, where that is limited by reference to a definite date, whether the assessment is provisional or final:

Provided that—

(a) the said percentage and period shall not be specified more particularly than is necessary for the purpose of determining in accordance with this section the claimant's rights as to disablement benefit, and

(b) a percentage between 20 and 100 which is not a multiple of 10 shall be treated—

(i) if it is a multiple of 5, as being the next higher percentage which is a multiple of 10, and

(ii) if it is not a multiple of 5, as being the nearest percentage which is a multiple of 10.

(7) (a) Where the extent of the disablement is assessed for the period taken into account as amounting to less than 20 per cent., disablement benefit shall be a gratuity (in this Chapter referred to as a disablement gratuity)—

(i) of an amount fixed, in accordance with the length of the said period and the degree of disablement, by a prescribed scale, but not in any case exceeding the amount set out in Part II of the Second Schedule ,

(ii) payable, if and in such cases as regulations so provide, by instalments.

(b) The scale prescribed for the purposes of paragraph (a) shall be the same for all persons, except that a lower amount may be fixed thereby for cases where, at the beginning of the period taken into account by the assessment, the beneficiary is under the age of 18 years, and may be made to depend on the date on which the beneficiary will attain that age, or the beneficiary, being over the age of 18 years, is a married woman other than a married woman living apart from and unable to obtain any financial assistance from her husband:

Provided that—

(i) such lower amount shall not in any case be less than two-thirds of the amount to which the beneficiary would otherwise be entitled, and

(ii) in the case of either class of beneficiary mentioned in this paragraph, the higher rate shall be payable if the beneficiary would, if he or she were in receipt of injury benefit rather than disablement gratuity, be entitled to an increase of that benefit for a qualified child or children or for an adult dependant.

(8) Where the extent of the disablement is assessed for the period taken into account as amounting to 20 per cent. or more, disablement benefit shall be a pension (in this Chapter referred to as a disablement pension) for that period at the weekly rate set out in column (2) of Part III of the Second Schedule appropriate to the degree of disablement:

Provided that—

(a) where that period is limited by reference to a definite date, the pension shall cease on the death of the beneficiary before that date, and

(b) where the beneficiary is under the age of 18 years or, being over that age, is a married woman other than a married woman living apart from and unable to obtain any financial assistance from her husband, the weekly rate for any degree of disablement shall be the rate set out in column (3) of Part III of the Second Schedule appropriate to the degree of disablement unless the beneficiary would, if in receipt of injury benefit rather than disablement pension, be entitled to an increase of that benefit for a qualified child or qualified children or for an adult dependant.

(9) (a) Where, apart from this subsection, a gratuity would fall to be paid under subsection (7) in a case in which the period taken into account by the assessment of disablement is the period of the claimant's life or a period exceeding 7 years, the following provisions shall have effect if the claimant opts, before the gratuity is paid, for the substitution of a pension for the gratuity—

(i) the gratuity shall not be paid,

(ii) disablement benefit shall be a pension (in this Chapter also referred to as a disablement pension) at the weekly rate appropriate in accordance with a prescribed scale,

(iii) the disablement pension shall be for the period taken into account by the assessment of disablement subject to the proviso that, where that period is limited by reference to a definite date, the pension shall cease on the death of the beneficiary before that date.

(b) The following provisions shall apply in relation to the scale prescribed for the purposes of this subsection—

(i) the scale shall be the same for all persons, except that a lower amount may be fixed thereby for cases where the beneficiary is under the age of 18 years or, being over that age, is a married woman other than a married woman living apart from and unable to obtain any financial assistance from her husband, unless the beneficiary would, if in receipt of injury benefit rather than disablement pension, be entitled to an increase of that benefit for a qualified child or qualified children or for an adult dependant,

(ii) different amounts may be specified in relation to the different percentages under 20 per cent., but each such amount shall not be less than the amount which bears to the appropriate amount of disablement pension (set out in Part III of the Second Schedule ) for a degree of disablement of 20 per cent., the same proportion as the percentage with respect to which it is specified bears to 20 per cent.

(10) Notwithstanding section 298 (1), an appeal shall not lie against a provisional assessment of the extent of disablement before the expiration of two years from the date of the first assessment of the extent of disablement in the case, nor where the period taken into account by the assessment falls wholly within those two years.