S.I. No. 12/1953 - Social Welfare (Widows' and Orphans' (Contributory) Pensions) (Transitional) Regulations, 1953.


S.I. No. 12 of 1953.

SOCIAL WELFARE (WIDOWS' AND ORPHANS' (CONTRIBUTORY) PENSIONS) (TRANSITIONAL) REGULATIONS, 1953.

The Minister for Social Welfare in exercise of the powers conferred on him by sections 3 , 66 and 69 of the Social Welfare Act, 1952 (No. 11 of 1952) and of all other powers enabling him in this behalf, hereby makes the following Regulations with the sanction of the Minister for Finance:—

1 Citation.

1. These Regulations may be cited as the Social Welfare (Widows' and Orphans' (Contributory) Pensions) (Transitional) Regulations, 1953.

2 Commencement

2. These Regulations shall come into operation on the 5th day of January, 1953.

3 Interpretation.

3.—(1) In these Regulations unless the context otherwise requires :

" the Act " means the Social Welfare Act, 1952 ;

" the Minister " means the Minister for Social Welfare ;

" the appointed day " means the 5th day of January, 1953 ;

" the Widows' and Orphans' Pensions Acts " means the Widows' and Orphans' Pensions Acts, 1935 to 1952.

" pension " when used in relation to the Widows' and Orphans' Pensions Acts means a widow's or orphan's (contributory) pension ;

" allowance " when used in relation to the said Acts means a contributory allowance ;

" existing pensions contributor " means any person who was, or was deemed to be or treated as, an insured person under the Widows' and Orphans' Pensions Acts on the day immediately preceding the appointed day ;

" existing pensions beneficiary " means any person to or in respect of whom immediately before the appointed day any pension or allowance is, or would, but for any disqualification be payable under or by virtue of the Widows' and Orphans' Pensions Acts ;

(2) References in these Regulations to any enactment shall include a reference to such enactment as amended or extended by any subsequent enactment, order or regulation.

4 Existing pensions contributors, and existing beneficiaries.

4. The provisions of the Act and the orders and regulations for the time being in force thereunder shall have full force and effect in relation to existing pensions contributors and existing beneficiaries subject to the modifications contained in these Regulations.

PART I. EXISTING PENSIONS CONTRIBUTORS.

5 Conversion of contributions paid under the Widows' and Orphans' Pensions Acts for purposes of the basic test for widow's (contributory) pension.

5. In determining whether the contribution condition for widow's (contributory) pension contained in sub-paragraph (a) of paragraph 4 of the Fourth Schedule to the Act has been satisfied in respect of an existing pensions contributor, every two contributions paid by or in respect of such contributor under the Widows' and Orphans' Pensions Acts since the date of such contributor's last entry into insurance under the said Acts shall be treated as three employment contributions paid under The act, and any odd contribution under the Widows' and Orphans' Pensions Acts shall be treated as two employment contributions paid under the Act.

6 Conversion of contributions paid or excused or treated as paid under the Widows' and Orphans' Pensions Acts for purposes of the average test.

6. For the purposes of sub-paragraph (b) of paragraph 4 of the Fourth Schedule to the Act the following provisions shall have effect in relation to an existing pensions contributor—

(a) in determining whether the contribution condition for widows' (contributory) pension contained in the said sub-paragraph has been satisfied every two contributions paid or excused or deemed to have been or treated as paid by or in respect of such contributor under the Widows' and Orphans' Pensions Acts since the date of such contributor's last entry into insurance under the said Acts shall be treated as three contributions paid or credited under the Act and any odd contribution under the Widows' and Orphans' Pensions Acts shall be treated as two contributions paid or credited under the Act ;

(b) any period which is a period of insurance for the purposes of the said Acts commencing with the date of such contributor's last entry into insurance under the said Acts shall be treated as a period of insurance under the Act and contribution years in any such period shall be treated as contribution years under the Act but in relation to a male existing pensions contributor the period from the 2nd day of July, 1951 to the 4th day of January, 1953, shall be treated as one contribution year ;

(c) where the date of last entry into insurance under the said Acts of a male existing pensions contributor occurred subsequent to the 4th day of July, 1949, a contribution under the said Acts shall for the said purposes and for the purposes of paragraph (a) of this article be deemed to have been paid by him for each week from the week preceding that of his last entry to the commencement of the contribution year in which his said last entry occurred, where such contribution year is the first of the three contribution years over which the average is to be taken, and the date of his said last entry shall be regarded as the date of commencement of the said contribution year ;

(d) where the date of last entry into insurance under the said Acts of a male existing pensions contributor occurred subsequent to the 7th day of July, 1947, a contribution under the said Acts shall for the said purposes and for the purposes of paragraph (a) of this article be deemed to have been paid by him for each week from the week preceding that of his said last entry to the commencement of the contribution year in which his said last entry occurred, where such contribution year is the first of the five contribution years over which the average is to be taken, and the date of his said last entry shall be regarded as the date of commencement of the said contribution year.

7 Conversion of contributions paid under the Widows' and Orphans' Pensions Acts for purposes of entitlement to orphan's (contributory) allowance

7. In determining whether the contribution condition for orphan's (contributory) allowance contained in paragraph 5 of the Fourth Schedule to the Act has been satisfied in respect of an existing pensions contributor, every contribution paid by or in respect of such contributor under the Widows' and Orphans' Pensions Acts since the date of such contributor's last entry into insurance under the said Acts shall be treated as a contribution paid under the Act.

8 Non-application of articles 5 and 6.

8. Articles 5 and 6 of these Regulations shall not apply in relation to a death occurring before the appointed day.

9 Provisions in relation to certain persons absent from the State.

9.—(1) (a) In this article—

(i) the " appointed period " means the period commencing on the appointed day and ending on the date which is fixed, under paragraph (b) of this sub-article as the closing date for the purposes of this article, and

(ii) " war pension " means any pension, award, or allowance granted under any law for the time being in force in any country (other than the State) in respect of any war which commenced on or after the 3rd day of September, 1939, or conditions attributable to any such war.

(b) The Minister with the consent of the Minister for Finance may by order fix a date as the closing date for the purposes of sub-paragraph (i) of the foregoing paragraph.

(2) This article shall apply to a person—

(a) who—

(i) is a male existing pensions contributor to whom section 7 of the Widows' and Orphans' Pensions Act, 1947 , (No. 8 of 1947) applied, or

(ii) being a male existing pensions contributor to whom Section 7 of the Widows' and Orphans' Pensions Act, 1947 applied is outside the State on the appointed day, or

(iii) not being a person to whom article 5 of the Social Welfare (Modifications of Insurance) Regulations, 1953, ( S.I. No. 10 of 1953 ) applies, or a voluntary contributor, leaves the State during the appointed period, and

(b) who dies during the appointed period or returns to the State during the period commencing on the 3rd day of September, 1939, and ending before the expiration of the appointed period.

(3) The following provisions shall have effect in relation to a person to whom this article applies—

(a) the contribution condition for widow's (contributory) pension contained in sub-paragraph (b) of paragraph 4 of the Fourth Schedule to the Act shall be deemed to have been complied with if, during the period of one hundred and fifty-six weeks or the period of two hundred and sixty weeks, as appropriate (excluding, in calculating such period, any week falling within the period from the 3rd day of September, 1939, to the expiration of the appointed period during the whole or any part of which such person was absent from the State) terminating at the end of the contribution year immediately before the relevant time, the number of contributions paid by or in respect of or credited to such person under the Act amounts in the aggregate to not less than one hundred and seventeen or one hundred and ninety-five respectively in respect of the said period of one hundred and fifty-six or two hundred and sixty weeks as the case may be ;

(b) this article shall not operate to make a widow's (contributory) pension payable on account of the insurance of any person in respect of whose death

(i) a pension is granted under any scheme of pensions in force in a country which was an appointed country for the purposes of the Widows' and Orphans' Pensions Acts, or

(ii) a war pension is granted ;

(c) in the application of paragraph (a) of this sub-article to a male existing pensions contributor every two contributions paid or excused or deemed to have been, or treated as, paid under the Widows' and Orphans' Pensions Acts since the date of his last entry into insurance under the said Acts shall be treated as three contributions paid or credited under the Act, and any odd contribution under the Widows' and Orphans' Pensions Acts shall be treated as two contributions paid or credited under the Act.

10 Conversion of contributions paid under Widows' and Orphans' Pensions Acts for purposes of determining title to become a voluntary contributor.

10. In determining for the purpose of subsection (2) of section 4, of the act whether an existing pensions contributor shall be entitled to become a voluntary contributor, every two contributions paid by or in respect of such contributor under the Widows' and Orphans' Pensions Acts since the date of such contributor's last entry into insurance under the said Acts shall be treated as three employment contributions paid under the Act and any odd contribution under the said Acts shall be treated as two employment contributions under the Act.

11 Treatment of contributions under Widow's and Orphans' Pensions Acts paid on or after appointed day.

11. Contributions under the Widows' and Orphans' Pensions Acts which are paid on or after the appointed day shall not be taken into account for the purposes of these Regulations unless they could have been taken into account under the said Acts and then only subject to the same conditions as they would, but for the Act, have been taken into account.

PART II. EXISTING BENEFICIARIES.

12 Description of existing pensions as included in the Act.

12. Subject to the provisions of the Act and the orders and Regulations for the time being in force thereunder, including these Regulations, a widow's (contributory) pension and an orphan's (contributory) pension under the Widows' and Orphans' Pensions Acts in the case of an existing pensions beneficiary shall be treated as a widow's (contributory) pension and an orphan's (contributory) allowance respectively and subject as aforesaid the existing pensions beneficiary concerned shall as from the appointed day be entitled to a widow's (contributory) pension or to an orphan's (contributory) allowance under Part III of the Act at the appropriate rate set out in Part I of the Third Schedule to the Act.

13 Existing beneficiaries under section 75 of the Widows' and Orphans Pensions Acts.

13. Where by virtue of the provisions of section 75 of the Widows' and Orphans' Pensions Act, 1935 (No. 29 of 1935) an existing beneficiary would but for the repeal of that section be entitled to an old age pension under the Old Age Pensions Acts, 1908 to 1952, such beneficiary shall be regarded for the purposes of section 79 of the Act as a woman entitled under Part III of the Act to a widow's (contributory) pension immediately before the date on which she attained the age of seventy years.

14 Modification of the Act in its application to certain existing beneficiaries.

14. The provisions of the Widows' and Orphans' Pensions Acts and regulations made thereunder shall continue in operation to the extent necessary to enable the question of entitlement to a widow's (contributory) pension or an orphan's (contributory) pension to be determined on or after the appointed day in relation to an existing beneficiary (other than an existing pensions beneficiary) but the widow's (contributory) pension or orphan's (contributory) pension (if any) awarded shall be treated as a pension or allowance under the Act, and the recipient of such pension or allowance shall thereupon be treated as an existing pensions beneficiary.

15 Special provision in relation to existing pensions beneficiaries.

15. No qualified child of an existing pensions beneficiary in respect of whom on the 3rd day of July, 1952, an allowance was payable under the Widows' and Orphans' Pensions Acts shall be considered as not satisfying the requirements of the Act as to normal residence.

16 Application of the Widows' and Orphans' Pensions Acts to certain pension saved under subsection (1) of section 119 of the Act.

16.—(1) Where by virtue of the provisions of subsection (1) of section 119 of the Act a pension or allowance is payable on the day before the appointed day the provisions of the Widows' and Orphans' Pensions Acts and regulations made thereunder shall, subject to the provisions of sub-article (4) of article 20 of these Regulations have effect in relation to such pension or allowance while such pension or allowance is payable.

(2) Where by virtue of the provisions of subsection (1) of section 119 of the Act a pension is payable at a rate in excess of thirty-eight shillings a week on the day before the appointed day the provisions of the Widows' and Orphans' Pensions Acts and regulations made thereunder shall, subject to the provisions of sub-article (4) of article 20 of these Regulations have effect in relation to such pension while such pension is payable at a rate in excess of thirty-eight shillings a week.

PART III. MISCELLANEOUS PROVISIONS.

17 Provisions in relation to children ordinarily resident in an appointed country.

17.—(1) Where a child would be a qualified child but for being ordinarily resident in a country which was an appointed country for the purposes of the Widows' and Orphans' Pensions Acts, he shall be treated as if he were a qualified child in determining whether an orphan's (contributory) allowance is payable or whether the weekly rate of widow's (contributory) pension should be increased under subsection (2) of section 27 of the Act and the provisions of section 31 of the Act and any regulations 1 made thereunder so far as they relate to disqualification for receiving benefit during absence from the State shall not apply to such child during the period of such residence.

(2) Sub-article (1) of this article shall not apply to an orphan in respect of whom a guardian's allowance becomes payable on or after the appointed day under any scheme for the payment of such allowances in force in any such country or any payment in substitution therefor.

18 Disqualification

18. Subject to the provisions of articles 14, 15 and 16 of these Regulations nothing in Part II hereof shall be construed as—

(a) making a pension or allowance payable to any person for any period when such person is by reason of any provision of the Act or of the regulations for the time being in force thereunder disqualified for the receipt thereof, or as affecting the operation of the provisions of the regulations 2 for the time being in force under section 32 of the Act ;

1 Social Welfare (Absence from the State) Regulations, 1953 ( S.I. No. 17 of 1953 )

2 Social Welfare, (Overlapping Benefits) Regulations, 1953 ( S.I. No. 14 of 1953 )

(b) making a pension payable to a widow for any period during which it would not be payable by reason of the provisions of subsections (2) and (3) of section 22 of the Act.

19 Expenditure or receipts arising from these Regulations.

19. Expenditure or receipts arising by virtue of the provisions of these Regulations shall be dealt with in accordance with the provisions of the Act.

20 Pending matters under the repealed enactments.

20.—(1) The powers and duties of inspectors, investigation officers, deciding officers and referees appointed under the Widows' and Orphans' Pensions Acts in relation to any matters in connection with those Acts pending on or arising after the appointed day shall be exercised or performed by inspectors, deciding officers and appeals officers respectively appointed under the Act.

(2) A claim for a pension or allowance under the Widows' and Orphans' Pensions Acts may be made at any time after the appointed day notwithstanding the repeal of those Acts.

(3) Every question and appeal falling to be dealt with under the Widows' and Orphans' Pensions Acts which is pending on the appointed day and every question and appeal falling to be dealt with under those Acts arising after that day shall (as the case may be appropriate) be treated as if it were a question or appeal falling to be dealt with under section 42 or section 44 of the Act respectively.

(4) As from the appointed day the provisions of the Social Welfare (Claims and Payments) Regulations 1952, ( S.I. No. 374 of 1952 ) in so far as they relate to payment of pensions shall apply to any pension under the Widows' and Orphans' Pensions Acts.

(5) A reference in any document to any of the provisions of the Widows' and Orphans' Pensions Acts which are repealed by the Act shall, in so far as it continues in force from the appointed day, be construed as referring to the corresponding enactment of the Act.

(6) If it is found on, or at any time after, the appointed day that any person, having been in receipt of a pension or allowance under or by virtue of the Widows' and Orphans' Pensions Acts during any period during which he was not entitled to payment thereof, or of such a pension or allowance at a higher rate than that appropriate to the case, would, but for the Act, have been liable in accordance with subsection (1) of section 57 of the Widows' and Orphans' Pensions Act, 1935 , to repay to the Minister any sums paid to him in respect of that pension during the period aforesaid, any such sums shall be recoverable by deduction from benefit under the Act or otherwise from that person in like manner as if they were sums paid to that person on account of benefit under the Act which it is subsequently decided was not payable, and any amount so recovered shall be paid into the Social Insurance Fund.

21 Proceedings for pension lost by employer's default.

21.—(1) Where an employer has failed or neglected—

(a) to pay any contribution which under the Widows' and Orphans' Pensions Acts he was liable to pay before the appointed day in respect of any person who is an existing pensions contributor, or

(b) to comply, in relation to any such existing pensions contributor, with the requirements of any regulations under the Widows' and Orphans' Pensions Acts relating to the payment and collection of contributions, and by reason thereof any person has lost, in whole or in part, any pension or allowance to which that person would have been entitled under the Act or under the Widows' and Orphans' Pensions Acts such person shall be entitled to recover from the employer as a simple contract debt in any court of competent jurisdiction a sum equal to the amount of pension or allowance so lost.

(2) Where no proceedings are taken under the preceding sub-article the Minister may in the name and on behalf of such person recover such amount from any such employer as a simple contract debt in any court of competent jurisdiction.

(3) Proceedings may be taken under this article notwithstanding that proceedings have been taken under any provision of the Widows' and Orphans' Pensions Acts other than under section 18 of the National Health insurance and Widows' and Orphans' Pensions Act, 1936 , (No. 12 of 1936) in respect of the same failure or neglect.

22 Application in certain cases of the Act and regulations made thereunder.

22. In any case in which it is provided by these Regulations that the provisions of the Widows' and Orphans' Pensions Acts and regulations made thereunder shall apply to an existing beneficiary, the Minister may if he thinks fit apply any of the provisions of the Act or the regulations made thereunder in lieu of the corresponding provis on of the said Acts or regulations, so, however, that payment of a pension shall not commence to accrue from a date earlier than the appointed day in any application of articles 9 and 10 of the Social Welfare (Claims and Payments) Regulations, 1952.

GIVEN under the Official Seal of the Minister for Social Welfare this fifth day of January One Thousand Nine Hundred and Fifty-three:

SÉAMUS Ó RIAIN,

Minister for Social Welfare.