S.I. No. 364/1993 - Social Welfare (Social Assistance) Regulations, 1993.

S.I. No. 364 of 1993.

SOCIAL WELFARE (SOCIAL ASSISTANCE) REGULATIONS, 1993.

The Minister for Social Welfare, in exercise of the powers conferred on him by sections 3 , 4 , 120 , 121 , 126 , 129 , 153 , 155 , 162 , 164 , 169 , 207 , 211 and 243 of the Social Welfare (Consolidation) Act, 1993 (No. 27 of 1993), and Rule 1 of Part I and Rule 2 of Part II of the Third Schedule of the said Act and after consultation with An Post, hereby makes the following Regulations:—

PART I GENERAL

1 Citation.

1. These Regulations may be cited as the Social Welfare (Social Assistance) Regulations, 1993.

2 Definitions.

2. In these Regulations—

"the Act of 1990" means the Social Welfare Act, 1990 (No. 5 of 1990);

"activity" means participation by a person—

( a ) aged 21 years or over in a course of education approved by the Minister as being at second level or aged 23 years or over in a course of education approved by the Minister as being at third level, at a centre approved by the Minister in consultation with the Minister for Education leading to a certificate recognised by the Minister for Education, or

( b ) in a course of education, training or development approved by a company, known as an Area Partnership, in consultation with the Minister, or

( c ) aged 21 years or over in such other course of education as the Minister may from time to time approve;

"allowance" means, save where the context otherwise requires, lone parent's allowance, deserted wife's allowance, prisoner's wife's allowance or carer's allowance under Part III, as the case may be;

"beneficiary" means a person entitled to assistance, pension or allowance under Part III, as the case may be;

"carer" means a carer as defined in section 163;

"claimant" means a person who has made a claim for assistance, pension or allowance under Part III, as the case may be;

"continuous period of unemployment" shall be construed in accordance with subsection (3) of section 120;

"court" means a court to which either the Courts of Justice Acts, 1924 to 1961, or the Courts (Supplemental Provisions) Acts, 1961 to 1991 applies;

"local office" means an office of the Department of Social Welfare or other place appointed by the Minister as a local office for the purpose of the Principal Act;

"nursing home" has the meaning assigned in section 2 of the Health (Nursing Homes) Act, 1990 (No. 23 of 1990);

"prescribed relative allowance" has the meaning assigned to it by section 163;

"the Principal Act" means the Social Welfare (Consolidation) Act, 1993 ;

"prison" or "place of detention" means a place to which either the Prisons Acts, 1826 to 1977, or the Criminal Justice Act, 1960 (No. 27 of 1960) applies or, in relation to another State, any analogous place in which a person is detained by order of a responsible authority in that State;

"relevant pensioner" has the meaning assigned to it by section 163;

"responsible authority" means any court, Commission or Tribunal properly constituted according to the laws of a State in which a person has been committed to a prison or to a place of detention.

3 Interpretation.

3. In these Regulations—

( a ) a reference to a Part or Chapter, section or Schedule is to a Part or Chapter or section of or Schedule to the Principal Act, unless it is indicated that a reference to some other enactment is intended,

( b ) a reference to an article is to an article of these Regulations, unless it is indicated that a reference to some other Regulations is intended, and

( c ) a reference to a sub-article is to the sub-article of the article in which the reference occurs, unless it is indicated that a reference to some other article is intended.

4 Commencement.

4. These Regulations shall come into operation on the 10th day of December, 1993.

5 Revocations.

5. The Regulations specified in column (1) of the Schedule to these Regulations are hereby revoked to the extend specified in column (2) of the said Schedule.

PART II UNEMPLOYMENT ASSISTANCE AND PRE-RETIREMENT ALLOWANCE

6 Day of unemployment.

6. For the purposes of unemployment assistance, a day shall be treated as a day of unemployment if it is a day in respect of which a person—

( a ) proves unemployment in accordance with article 7, and

( b ) does not work for wages or other remuneration, whether paid in money or otherwise.

7 Prescribed manner for proving unemployment.

7. A person shall prove unemployment for the purposes of section 120 (1) (b) by attending at a local office at such time as the Minister may direct for the purpose of making a written declaration, in such form as the Minister may determine or by making such declaration in such other manner as the Minister may determine, that

( a ) he has been continuously unemployed since the date of his application for unemployment assistance, or

( b ) he has been unemployed or expects to be unemployed during each day in respect of which unemployment assistance is claimed.

8 Calculation of means.

8. (1) The yearly value of any property mentioned in Rule 1 (1) of Part I of the Third Schedule shall be ascertained as follows—

( a ) the yearly value of the first £400 of the capital value of the property shall be taken to be one-twentieth part of the capital value, and

( b ) the yearly value of so much of the capital value of the property as exceeds £400 shall be taken to be one-tenth part of the capital value.

(2) The yearly value of any advantage mentioned in Rule 1 (3) of Part I of the Third Schedule shall be ascertained by deducting expenses necessarily incurred from the gross income.

(3) The yearly value of any property mentioned in Rule 1 (4) of Part I of the Third Schedule shall be ascertained as follows—

( a ) where the property is of the same nature as the property mentioned in Rule 1 (1) of Part I of the Third Schedule, the yearly value shall be ascertained in the manner prescribed in sub-article (1), and

( b ) where the property is of the same nature as the property mentioned in Rule 1 (3) of Part I of the Third Schedule, the yearly value shall be ascertained in the manner prescribed in sub-article (2).

9 Disregarding of means.

9. (1) Subject to sub-article (2), in the case of a beneficiary who—

( a ) has attained the age of 55 years but has not attained pensionable age, and

( b ) has been in receipt of unemployment assistance, unemployment benefit or unemployment assistance and unemployment benefit for not less than 390 days in any continuous period of unemployment in the immediately preceding period, and

( c ) is in receipt of unemployment assistance at a rate less than the scheduled rate,

unemployment assistance may be payable—

(i) where his weekly means do not exceed £2, at the scheduled rate, and

(ii) where his weekly means do not exceed £2, at the scheduled rate reduced by £2 for each amount (if any) of £2 by which his weekly means exceed £2, any fraction of £2 in those means being treated for this purpose as £2:

Provided that, if the rate calculated pursuant to this sub-paragraph at which, but for this proviso, the unemployment assistance would be payable is—

(i) equal to or greater than 10p but less than £1, the assistance shall be payable at the weekly rate of £1, and

(ii) less than 10p, the assistance shall not be payable.

10 Earnings disregarded.

10. (1) For each week in respect of which a person earns moneys in respect of current personal employment under a contract of service, the amount prescribed for the purposes of paragraph (m) or Rule 1 (2) of Part I of the Third Schedule shall be:

one sixth of the weekly rate appropriate to the case plus £15 in respect of each day in that week (excluding Sunday) in which such moneys are so earned by him and in the case of moneys so earned by him on a Sunday, £15.

(2) For the purposes of sub-article (1) the "weekly rate appropriate to the case" means the rate of unemployment assistance, calculated in accordance with the provisions of Chapter 2 of Part III, which the person would otherwise have received if he did not have income from current personal employment under a contract of service.

11 Night workers.

11. Where a person is employed to work continuously from a time on any day until a time on the next following day, that person shall be regarded, for the purposes of Chapter 2 of Part III, as being employed by virtue of such employment—

( a ) where the first day is a Monday, Tuesday, Wednesday, Thursday or Friday and the employment on the first day is longer than that on the second, or where the first day is a Saturday — he shall be regarded as being employed only on the first day, and that day shall not be treated as a day of unemployment, or

( b ) in any other case — he shall be regarded as being employed only on the second day, and that day shall not be treated as a day of unemployment.

12 Persons deemed to be available for employment.

12. (1) Where by virtue of the provisions of article 11 a person—

( a ) is to be treated as having been employed on one day only of two days, and

( b ) throughout that part of the other of those two days during which that person is not employed,

that person shall, for the purposes of Chapter 2 of Part III, be deemed to be available for employment, throughout that other of those two days.

(2) In the case of a person who is participating in an activity where, in the continuous period of unemployment in which he commences such activity, he has been in receipt of unemployment assistance, unemployment benefit or unemployment assistance and unemployment benefit for a period of not less than 390 days, or in the case of a person to whom paragraph (b) of the definition of "activity" contained in article 2 applies, 312 days, he shall be deemed to be available for employment on any day on which he is participating in an activity:

Provided that he has given prior notification to the Minister of his intention to participate in that activity.

(3) In the case of a person who is undergoing a course of rehabilitation training provided by an organisation (being an organisation approved of by the Minister for Health for the purposes of the provision of such training) he shall be deemed to be available for employment on any day on which he is undergoing such training.

13 Exemption from disqualification.

13. A person shall not be disqualified for receiving unemployment assistance while attending a course of study within the meaning of section 126 where that person is—

( a ) a mature student within the meaning of section 1 of the Local Authorities (Higher Education Grants) Act, 1968 (No. 24 of 1968) (as amended by section 2 of the Local Authorities (Higher Education Grants) Act, 1992 (No. 19 of 1992)), or

( b ) participating in an activity as defined in article 2.

14 Specified age.

14. For the purposes of paragraph (a) of section 127 (1) the age specified shall be 55 years.

15 Periods of retirement.

15. For the purposes of Chapter 3 of Part III any period during which a person does not engage in insurable employment shall be regarded as a period of retirement.

PART III WIDOW'S (NON-CONTRIBUTORY) PENSION, LONE PARENT'S, DESERTED WIFE'S, AND PRISONER'S WIFE'S ALLOWANCES.

16 Circumstance in which a person is to be regarded as being a separated being spouse.

16. (1) A person is to be regarded for the purposes of Chapter 9 of Part III as being a separated spouse if—

( a ) he and their children—

(i) are not being maintained by his spouse, or

(ii) are being maintained by his spouse, but at a rate per week which is less than the rate of lone parent's allowance as set out at reference 5 in Part I of the Fourth Schedule appropriate to his family size, and

( b ) he and his spouse have lived apart from one another for a continuous period of at least three months immediately preceding the date of his claim for a lone parent's allowance and continue to so live apart, and

( c ) he makes and continues to make appropriate efforts in the particular circumstances to obtain maintenance from his spouse for himself and their children.

(2) In this article—

"spouse"—

( a ) in relation to a man who has been married more than once refers to his last wife only, and

( b ) in relation to a woman who has been married more than once refers to her last husband only.

17 Circumstances in which a person is to be regarded as being an unmarried person.

17. (1) A person is to be regarded for the purposes of Chapter 9 of Part III as being an unmarried person if, not being a married person, he is the parent of a qualified child.

(2) For the purposes of this article a "parent" shall include, in the case of a child who has been adopted under the Adoption Acts, 1952 to 1991, or under such other form of adoption as the Minister considers appropriate in the circumstances, the adopter.

18 Prisoner's spouse.

18. (1) A person is to be regarded for the purposes of Chapter 9 of Part III as being a prisoner's spouse if he is the spouse of a person who—

( a ) is in a prison or place of detention, and

( b ) has for a period of not less than 6 months immediately preceding the date of claim been in custody by order of a court or a responsible authority, or is committed in custody by a court or a responsible authority for a period of not less than 6 months.

(2) For the purposes of sub-article (1) a certificate from a responsible authority shall be accepted as evidence of the duration of a period of custody.

19 Normal residence.

19. Subject to article 20, a qualified child shall, for the purposes of lone parent's allowance, be regarded as normally residing with a lone parent where—

( a ) he is resident with that lone parent, and

( b ) that lone parent has the main care and charge of him.

20 Residence in an institution.

20. (1) A qualified child who is resident in an institution shall be regarded as normally residing with a lone parent where that parent contributes towards the cost of the child's maintenance in the institution and with whom the child would, under article 19, be regarded as normally residing if the child were not resident in an institution.

(2) A qualified child may, in such circumstances as the Minister considers appropriate, be regarded as normally residing with a lone parent who is resident in an institution.

(3) In this article "institution" means—

( a ) a hospital, convalescent home or home for persons suffering from physical or mental disability or accommodation ancillary thereto,

( b ) any other similar establishment providing residence, maintenance or care for the persons therein, or

( c ) any prison, place of detention or other establishment to which articles 23 and 24 apply.

21 Definition of desertion.

21. A woman is to be regarded for the purposes of section 153 as having been deserted by her husband if—

( a ) her husband has of his own volition left her, or his conduct has resulted in her leaving him with just cause, and

( b ) she—

(i) is not being maintained by her husband, or

(ii) is being maintained by her husband, but at a rate per week which is less than the rate of deserted wife's allowance as set out at reference 4 in Part I of the Fourth Schedule,

( c ) she and her husband have lived apart from one another for a continuous period of at least three months immediately preceding the date of her claim for deserted wife's allowance and continue to so live apart, and

( d ) she makes and continues to make appropriate efforts, in the particular circumstances, to obtain maintenance from her husband.

22 Definition of prisoner.

22. (1) A man who is in a prison or place of detention shall be regarded as a prisoner for the purposes of Chapter 8 of Part III if he has for a period of not less than 6 months immediately preceding the date of claim been in custody by order of a court or a responsible authority, or is committed in custody by a court or a responsible authority for a period of not less than 6 months.

(2) For the purposes of sub-article (1) a certificate from a responsible authority shall be accepted as evidence of the duration of a period of custody.

23 Exception from disqualification during penal servitude, imprisonment or detention in legal custody.

23. (1) Section 211(10) shall not operate so as to disqualify a person undergoing a period of penal servitude, imprisonment or detention in legal custody for receiving an allowance or widow's (non-contributory) pension if—

( a ) the detention is in respect of him being charged with a criminal offence, and

(i) the charge is subsequently withdrawn, or

(ii) he is acquitted of the offence, or

( b ) in a case of imprisonment, the imprisonment is undergone as the alternative to payment of a fine.

(2) Notwithstanding that a person, by reason of undergoing a period of penal servitude, imprisonment or detention in legal custody is disqualified by virtue of section 211 (10) for receiving lone parent's allowance or for receiving an increase of lone parent's allowance, the increase of the said allowance shall be paid to any person appointed by the Minister to receive and deal with any sums payable on account of such increase of lone parent's allowance for the benefit of the child in respect of whom the increase in the said allowance is payable, and the receipt of any person so appointed shall be a good discharge to the Minister for any sum so paid.

24 Suspension of payment during penal servitude, imprisonment or detention in legal custody.

24. (1) Subject to sub-article (2) of article 23 and sub-article (2), the payment of any allowance or widow's (non-contributory) pension, which is excepted from the operation of section 211 (10) by virtue of the provisions of article 22 (1), shall be suspended while the person is undergoing penal servitude, imprisonment or detention in legal custody.

(2) An allowance or widow's (non-contributory) pension to which the sub-article (1) applies may nevertheless be paid during any such period to any person appointed by the Minister to receive and deal with any sums payable on behalf of the beneficiary.

(3) Where by virtue of sub-article (1) payment of an allowance or widow's (non-contributory) pension is suspended for any period, the period of suspension shall not be taken into account in calculating any period for the purposes of article 15 of the Social Welfare (Claims and Payments) Regulations, 1993 ( S.I. No. 189 of 1993 ).

25 Continuity.

25. (1) Where, immediately before the commencement of Part III of the Act of 1990, a person is in receipt of a specified payment, a lone parent's allowance shall be payable to that person from the day or days so appointed at the same rate as the specified payment which is payable to him immediately before the day or days so appointed.

(2) Any decision made by a deciding officer or by an appeals officer in relation to the award of a specified payment to a person prior to the commencement of Part III of the Act of 1990 shall be treated as if it were a decision to award a lone parent's allowance to such person on and from such appointed day or days.

(3) Where, immediately before the commencement of Part III of the Act of 1990, a person has applied for, but has not been awarded, a specified payment, such application shall from the day or days so appointed be treated for all purposes as if it was an application for a lone parent's allowance.

(4) In this article—

"specified payment" means—

( a ) a widow's (non-contributory) pension which includes an increase for a qualified child or qualified children,

( b ) a deserted wife's allowance which includes an increase for a qualified child or qualified children,

( c ) a prisoner's wife's allowance which includes an increase for a qualified child or qualified children,

( d ) a social assistance allowance,

( e ) a widower's (non-contributory) pension, or

( f ) a deserted husband's allowance;

"commencement of Part III of the Act of 1990" means—

( a ) the 29th day of November, 1990 in the case of deserted wife's allowance, pensioner's wife's allowance, social assistance allowance, deserted husband's allowance and lone parent's allowance, other than the lone parent's allowance payable in respect of a widow or widower, and

( b ) the 30th day of November, 1990 in the case of widow's (non-contributory) pension, widower's (non-contributory) pension and lone parent's allowance payable in respect of a widow or widower.

PART IV CARER'S ALLOWANCE

26 Interpretation.

26. In this Part "institution" means a hospital, convalescent home or home for persons suffering from physical or mental disability or accommodation ancillary thereto and any other similar establishment providing residence, maintenance or care for the persons therein.

27 Conditions to be satisfied by carer.

27. The conditions prescribed for the purposes of section 164 are that the carer, being resident in the State—

( a ) is not engaged in employment or self-employment outside his home,

( b ) has attained the age of 18 years, and

( c ) is not residing in an institution.

28 Circumstances in which carer is to be regarded as providing full-time care and attention.

28. A carer may, for the purposes of Chapter 10 of Part III and these Regulations, continue to be regarded as providing full-time care and attention to a relevant pensioner where he would qualify for payment of an allowance but for the fact that either he or the relevant pensioner is undergoing medical or other treatment of a temporary nature in a hospital or other institution for a period of not longer than 13 weeks.

29 Payment of prescribed relative allowance or increase of pension, benefit, allowance or assistance on account of carer's allowance.

29. (1) Where—

( a ) in respect of any period a prescribed relative allowance or an increase has been paid to or in respect of a person who, though entitled to a carer's allowance, is not at that time receiving payments on account thereof, and

( b ) such prescribed relative allowance or increase, as the case may be, would not have been paid if that person had then been receiving payment on account of a carer's allowance, and

( c ) any sum (in this paragraph referred to as the arrears) accruing in respect of any part of the said period on account of a carer's allowance subsequently becomes payable to that person,

the Minister may reduce the arrears by an amount not exceeding the amount paid by way of such prescribed relative allowance or increase, as the case may be.

(2) In this article "increase" means an increase of any pension, benefit, assistance or allowance other than that allowance payable under Chapter 10 of Part III.

PART V SALE OF PRINCIPAL RESIDENCE.

30 Disregard of proceeds from sale of principal residence.

30. (1) The disregard in the calculation of means provided for in Rule 2 of Part II of the Third Schedule shall only apply where—

( a ) the claimant or beneficiary disposes of his principal residence for the purposes of—

(i) purchasing alternative accommodation which is or will be occupied by him as his only or main residence,

(ii) funding the renting of alternative accommodation which is or will be occupied by him as his only or main residence, or

(iii) funding the payment of fees to a nursing home which has been registered in accordance with section 4 of the Health (Nursing Homes) Act, 1990 ,

( b ) (i) the sale of the principal residence of the claimant or beneficiary takes place on or after the commencement of these Regulations, and

(ii) the claimant or beneficiary has attained pensionable age at the date of sale, and

( c ) the gross proceeds are derived from the sale of a dwelling-house or part of a dwelling-house which is, or has been occupied by the claimant or beneficiary as his principal residence, or land which he has for his own occupation and enjoyment with that residence as its gardens or grounds up to an area not exceeding one acre.

31 Proceeds limit.

31. The limit prescribed for the purposes of Rule 2 of Part II of the Third Schedule shall be £75,000.

SCHEDULE

Article 5

Revocation of Regulations

GIVEN under the Official Seal of the Minister for Social Welfare

this 2nd day of December, 1993.

MICHAEL WOODS,

Minister for Social Welfare.

The Minister for Finance hereby consents to the making of the foregoing Regulations.

GIVEN under the Official Seal of the Minister for Finance this 7th day of December, 1993.

BERTIE AHERN,

Minister for Finance.

EXPLANATORY NOTE.

These Regulations, which are made under the Social Welfare (Consolidation) Act, 1993 , consolidate the regulatory provisions relating to all social assistance schemes other than Supplementary Welfare Allowance.

Part I provides for the definitions necessary for the purposes of the Regulations. It revokes the existing regulatory provisions consolidated in these Regulations and provides that the Regulations will come into force on 10 December, 1993.

Part II deals with Unemployment Assistance and Pre-Retirement Allowance. It includes provisions dealing with—

—the prescribed manner for proving unemployment,

—the earnings disregard applied in the assessment of means for unemployment assistance, and

—the prescribed age and periods of retirement specified for the purposes of the Pre-Retirement Allowance scheme.

Part III deals with Widow's (Non-Contributory) Pension, Lone Parent's, Deserted Wife's and Prisoner's Wife's Allowances. It sets out the circumstances in which a person is to be regarded as a separated spouse or an unmarried person for the purposes of the Lone Parent's Allowance Scheme. It also provides for the circumstance in which a woman will be regarded as deserted for the purposes of the Deserted Wife's Allowance scheme.

Part IV contains provisions relating to Carer's Allowance and provides for the circumstances in which a career is to be regarded as providing full-time care and attention to a relevant pensioner.

Part V sets out the sale of residence provisions which apply in the case of Old Age and Widow's (Non-Contributory) Pensions, and Deserted Wife's, Prisoner's Wife's and Lone Parent's Allowance schemes. Under these provisions, up to £75,000 of the proceeds derived from the sale of a pensioner's principal is exempted from the assessment of means.