S.I. No. 76/1990 - Social Welfare (Pre-Retirement Allowance) Regulations, 1990.


S.I. No. 76 of 1990.

SOCIAL WELFARE (PRE-RETIREMENT ALLOWANCE) REGULATIONS, 1990.

The Minister for Social Welfare, in exercise of the powers conferred on him by section 3 of the Social Welfare (Consolidation) Act, 1981 (No. 1 of 1981) and section 156A (as inserted by section 28 of the Social Welfare Act, 1988 (No. 7 of 1988) and amended by section 24 of the Social Welfare Act, 1989 (No. 4 of 1989)), section 156B (as inserted by section 28 of the Social Welfare Act, 1988 (No. 7 of 1988) and as substituted by section 24 of the Social Welfare Act, 1989 (No. 4 of 1989)) and section 156C of that Act (as inserted by section 28 of the Social Welfare Act, 1988 (No. 7 of 1988)) and in consultation with An Post, hereby makes the following Regulations:—

PART I General.

1 Short title.

1. These Regulations may be cited as the Social Welfare (Pre-Retirement Allowance) Regulations, 1990.

2 Interpretation.

2. In these Regulations:

"the Act" means the Social Welfare (Consolidation) Act, 1981 ;

"allowance" means a pre-retirement allowance under section 156A of the Act (as inserted by section 28 of the Social Welfare Act, 1988 and amended by section 24 of the Social Welfare Act, 1989 );

"beneficiary" means a person entitled to an allowance;

"claimant" means a person who has made a claim for an allowance.

3 Specified age.

3. For the purposes of subsection (a) of section 156A of the Act the specified age shall be 60 years.

4 Periods of Retirement.

4. For the purposes of Chapter 2A of Part III of the Act a period of retirement in relation to a person shall be any period during which he does not engage in insurable employment.

5 Means conditions.

5. The conditions as to means to be satisfied by a claimant for the purposes of paragraph (c) of section 156A of the Act shall be that his weekly means calculated in accordance with section 146 of the Act and having regard to article 6 of these Regulations do not exceed the amount of allowance set out in column (2) at reference 2 in Part I of the Fourth Schedule to the Act, increased by so much of the amount set out at reference 2 of the said Part as would be payable to him if he had an adult dependant or a qualified child.

6 Calculation of means where spouse not an adult dependant.

6. Where the spouse of a claimant for pre-retirement allowance is not his adult dependant the means of the claimant shall be taken to be one-half the means calculated in accordance with section 146 of the Act.

7 Rates of entitlement for those with means.

7. (1) For the purposes of subsection (2) (b) of section 156B of the Act the rate of allowance for a person with means shall be the scheduled rate reduced by £2 for every £2 or part thereof whereby his weekly means exceed £2.

(2) Subject to article 5 of these Regulations, wherever in the calculation of the rate at which pre-retirement allowance is payable to a person, the weekly amount by which the scheduled rate is to be reduced is equal to or exceeds the weekly amount of the said rate increased by £2, no pre-retirement allowance shall be payable to the person.

(3) Subject to sub-article (2) of this article where the weekly rate calculated pursuant to sub-article (1) is less than £1, but greater than 10 pence the amount payable shall be £1.

(4) Subject to sub-article (2) of this article where the weekly rate calculated pursuant to sub-article (1) is less than 10 pence no allowance shall be payable.

8 Half-rate child dependant increases.

8. (1) Any increase of allowance payable in respect of a qualified child who normally resides with both the claimant (or beneficiary) and the spouse of such claimant (or beneficiary) shall be payable at the rate of one half of the appropriate amount in any case where the spouse of the claimant (or beneficiary) is not an adult dependant.

(2) The provision of sub-article (1) of this article shall not apply in any case where a spouse of a claimant (or beneficiary) is living apart from the claimant (or beneficiary) and is not making a financial contribution to the maintenance of the qualified child.

PART II Claims and Payments.

9 Claims to be made to the Minister.

9. Every claim for an allowance shall be made to the Minister in the form for the time being approved by him or in such other manner as the Minister may accept as sufficient in the circumstances.

10 Information to be given when making a claim.

10. Every person who makes a claim for an allowance shall furnish such certificates, documents, information and evidence as may be required by the Minister and, if so required, shall for that purpose attend at such office or place as the Minister may direct.

11 Commencement date of allowance.

11. An allowance shall be payable on and from the first Thursday next occurring after the expiry of the period of 6 weeks commencing on the date on which the claim for such allowance is made.

12 Time and manner of payment of allowance.

12. (1) An allowance shall be paid weekly in advance on the Thursday of each week by means of an order payable to the beneficiary, at such post office as the Minister, after enquiry from him, may determine.

(2) Where an allowance is payable, the Minister shall cause arrangements to be made whereby, on furnishing such evidence as to identity and such other particulars as may be required, a beneficiary may obtain a book of orders.

(3) Where the date from which payment of an allowance or from which a change in the rate of payment of an allowance would take effect is a day of the week other than a Thursday, payment of the allowance or the change in the rate of payment of the allowance shall take effect as from and including the next Thursday.

(4) Where an allowance would cease to be payable as from and including a day of the week other than Thursday, the allowance shall continue to be payable up to but not including the next Thursday.

(5) A book of orders issued to any person shall remain the property of the Minister.

(6) Any person having a book of orders or any unpaid order shall, on the termination of the allowance to which such book or order relates or when requested by the Minister deliver such book or order to the Minister or to such person as the Minister may direct.

(7) Notwithstanding anything contained in this article, the Minister may in any particular case or class of cases or in all cases arrange for the payment of an allowance otherwise than weekly in advance or otherwise than by means of orders payable to the beneficiary or on a day other than Thursday as may appear to him to be appropriate.

13 Extinguishment of right to allowance not obtained within the prescribed time.

13. The right to any sum payable by way of allowance shall be extinguished where payment thereof is not obtained within three months or in any case where the Minister so thinks fit, six months from the date on which that sum is payable under article 12 of these Regulations.

14 Persons unable to act.

14. (1) Where a beneficiary is unable for the time being to act, the Minister may appoint some other person to exercise on behalf of such beneficiary any right or power which the beneficiary may be entitled to exercise in relation to an allowance.

(2) The following provisions shall apply to every appointment made by the Minister under this article:

( a ) the Minister may at any time revoke the appointment,

( b ) the person appointed may resign on giving to the Minister one month's notice of his intention to do so,

( c ) the appointment shall terminate on the day on which the Minister receives notice that a Committee of the estate of the claimant has been appointed.

(3) A person appointed under this article may exercise on behalf of the beneficiary any right or power which such beneficiary may be entitled to exercise in relation to an allowance and may receive and deal with any sum payable by way of an allowance on behalf of such beneficiary.

(4) Anything required to be done to a beneficiary in relation to an allowance may be done as respects a beneficiary who is unable to act to the person appointed under this article to act on his behalf.

(5) The receipt of a person appointed under this article for any amount paid in accordance with this article shall be a good discharge to the Minister for any amount so paid.

15 Payments on death.

15. (1) On the death of a beneficiary, any sum payable in respect of an allowance may be paid or distributed by the Minister without probate or other proof of title of the personal representative of the deceased as follows:—

( a ) where the beneficiary died leaving a will or other testamentary writing, the said sum may be paid or distributed to or among such of the persons appearing to be beneficially entitled thereto under the said will or testamentary writing as the Minister thinks proper and that to the exclusion of all others, without prejudice to any remedy which such others may have for recovery of the sum so paid or distributed as aforesaid against the person or persons receiving that sum,

( b ) where the beneficiary died intestate, the said sum may be paid or distributed to or among such persons as appear to the Minister to be beneficially entitled thereto, whether as next-of-kin or otherwise according to law or as creditors (including any person entitled to be paid or repaid the funeral expenses of the beneficiary) or to or among such of the said persons as the Minister thinks fit and that to the exclusion of all others.

(2) The receipt of any person of the age of sixteen years or upwards for any sum paid in accordance with this article shall be a good discharge to the Minister for the sum so paid.

(3) Where the Minister is satisfied that any sum or part thereof payable under this article is needed for the benefit of any person under the age of sixteen, he may obtain a good discharge therefore by paying the sum or part thereof to a person over that age who satisfies the Minister that he will apply the sum so paid for the benefit of the person under the age of sixteen.

(4) The Minister upon making any payment in accordance with this article shall be discharged from all liability in respect of any sum or sums so paid.

16 Offences.

16. A person who fails to comply with sub-article (6) of article 12 of these Regulations shall be guilty of an offence and shall be liable on a summary conviction thereof to a fine not exceeding £1,000 and, in the case of a continuing offence, to a fine not exceeding £1,000 for each day on which the offence is continued.

PART III Application of Certain Provisions of the Act.

17 Application of the Act.

17. (1) The provisions of the enactments mentioned in the first column of the Schedule hereto shall apply to an allowance and in such application shall be modified so that the said provisions shall read as set out in the second column of the said Schedule.

(2) The procedure to be followed on appeals and references under section 298 of the Act as respects the allowance shall be as set out in articles 11 to 16 and 18 to 22 of the Social Welfare (Assistance Decisions and Appeals) Regulations, 1953 ( S.I. No. 9 of 1953 ).

SCHEDULE

Article 17

Title

(1)

Modification

(2)

Section 2 (1)

Section 2 is hereby amended by the insertion of the following definition after the definition of "prescribed"—

" 'pre-retirement allowance' means a pre-retirement allowance under section 156A of this Act (as inserted by section 28 of the Social Welfare Act, 1988 (No. 7 of 1988) and amended by section 24 of the Social Welfare Act, 1989 (No. 4 of 1989));"

Subsection (1), (2), (3) (a), (b) (i), (c) and 4 of section 112 of the Act.

112. (1) Provision may be made by regulations as to the time and manner of payment of pre-retirement allowance, and as to the information and evidence to be furnished by beneficiaries when applying for payment of pre-retirement allowance and, in consultation with An Post, for payment of a pre-retirement allowance in specified cases through An Post.

(2) Regulations made under this section as to the time of payment of a pre-retirement allowance may—

( a ) provide for enabling a person to whom a pre-retirement allowance is payable to nominate another person to receive the pre-retirement allowance on his behalf,

( b ) provide, notwithstanding anything in Chapter 2A of Part III, for adjusting the commencement and termination of pre-retirement allowance, or for changes in the rate of pre-retirement allowance, so that payments shall not be made in respect of periods of less than a week or at different parts of a week,

( c ) provide for extinguishing the right to any sum payable by way of pre-retirement allowance 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 the regulations.

(3) Regulations may also provide—

( a ) for enabling a person to be appointed to exercise, on behalf of a claimant or beneficiary 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 Chapter 2A of Part III and for authorising a person so appointed to receive and deal with any sum payable by way of pre-retirement allowance on behalf of the claimant or beneficiary,

( b ) 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) so much of the pre-retirement 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 of the pre-retirement allowance payable less the amount set out in column 3 in Part I of the Fourth Schedule.

( c ) in connection with the death of any person, for enabling a claim for pre-retirement allowance to be made or proceeded with in his name.

(4) 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 pre-retirement allowance, 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.

Section 113 of the Act.

113. (1) Regulations may make provision in relation to matters arising—

( a ) pending the decision under Chapter 2A of Part III or Part VIII (whether in the first instance or on an appeal or reference, and whether originally or on revision) of any claim for pre-retirement allowance or of any question affecting any person's right to pre-retirement allowance or to receipt thereof, or

( b ) out of the effect of any appeal or revision of any decision under Chapter 2A of Part III or Part VIII on any such claim or question.

(2) Without prejudice to the generality of sub-section (1), regulations made thereunder may include provision—

( a ) for the suspension of pre-retirement allowance where it appears to the Minister that there is or may be a question whether the conditions for receipt thereof in accordance with a decision are or were fulfilled or whether the decision ought to be revised,

( b ) for treating any pre-retirement allowance paid to any person under a decision or by virtue of any provisions of the regulations, which it is subsequently decided was not payable, as paid on account of any other benefit or assistance which it is decided was payable to him, or, in a case referred to in section 300 (5) (a) for the repayment of any such pre-retirement allowance and the recovery thereof by deduction from any benefit or any assistance (except orphan's (non-contributory) pension, supplementary welfare allowance or child benefit) as may be specified, or otherwise.

Section 125 of the Act.

125. (1) In this section "benefit" means—

( a ) disability benefit (including any amount payable by way of pay-related benefit where appropriate),

( b ) unemployment benefit (including any amount payable by way of pay-related benefit where appropriate),

( c ) injury benefit (including any amount payable by way of pay-related benefit where appropriate),

( d ) old age (contributory) pension,

( e ) retirement pension,

( f ) invalidity pension,

( g ) unemployment assistance under Part III,

( h ) pre-retirement allowance under Chapter 2A of Part III,

( i ) pension under Chapter 3 of Part III.

(2) Notwithstanding any provisions to the contrary in Part II or Part III or regulations made thereunder—

( a ) where a person who is in receipt of benefit which includes an increase in respect of an adult dependant dies, payment of the benefit shall continue to be made for a period of 6 weeks after the date of death and shall during that period be made to such person and subject to such conditions as may be prescribed, and

( b ) in any case where payment is made under this section, entitlement to widow's (contributory) pension, widow's (non-contributory) pension, orphan's (contributory) allowance, orphan's (non-contributory) pension, benefit under section 87 or death benefit under section 50 or 52 shall not commence until after the expiration of the period of 6 weeks mentioned in paragraph (a) except and to the extent that regulations otherwise provide.

Subsection (1) of section 128 of the Act.

128. (1) It shall be a condition of any person's right to pre-retirement allowance that he makes a claim therefor in the manner for the time being approved by the Minister.

Subsection 1 of section 142 of the Act.

142. (1)A person shall be disqualified for receiving pre-retirement allowance—

( a ) while he is resident, whether temporarily or permanently, outside the State, or

( b ) while he is undergoing penal servitude, imprisonment or detention in legal custody, or

( c ) while he is an inmate of an institution maintained wholly or partly out of public moneys or by a local authority, or

( d ) while he is in receipt of or entitled to a blind pension under section 175, or any disability benefit, maternity allowance or unemployment benefit under Part II or unemployment assistance under Part III, or

( e ) while he is employed during any week under a scheme administered by the Department of Labour and known as the Social Employment Scheme.

Section 143A of the Act.

143A. (1) The Minister may, with the sanction of the Minister for Finance, appoint such and so many persons as he thinks proper to be social welfare officers for the purpose of Chapter 2A of this Part.

(2) Every such officer shall investigate into and report to the Minister upon any application for or in respect of pre-retirement allowance and any question arising on or in relation to such a pre-retirement allowance which may be referred to him by the Minister, and may, for the purpose of such investigation and report require an applicant for pre-retirement allowance, or the spouse or any employer of the applicant to furnish him with such information and to produce to him such documents as he may reasonably require.

(3) A social welfare officer shall, for the purposes of Chapter 2A of this Part, have power to do all or any of the following things:

( a ) to enter 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 the purposes of Chapter 2A of this Part,

( 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 Chapter 2A of this Part every person he finds in any such premises or place and to require every such person to sign a declaration of the truth of the matters in respect of which he is so examined.

(4) The occupier of any premises or place liable to inspection under this section, and any other person who is or has been employing any applicant for pre-retirement allowance and the servants and agents of such occupier or other person, and any applicant for pre-retirement allowance shall furnish to a social welfare officer all such information and produce for inspection all such registers, cards, wages sheets, records of wages and other documents as the social welfare officer may reasonably require for the purposes of Chapter 2A of this Part.

(5) If any person—

( a ) wilfully delays or obstructs a social welfare officer 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 officer appointed under this section,

he shall be guilty of an offence under this section and shall be liable—

(i) on summary conviction, to a fine not exceeding £1,000 or, at the discretion of the court, to imprisonment for a term not exceeding one year, or to both such fine and such imprisonment,

(ii) on conviction on indictment, to a fine not exceeding £10,000 or, at the discretion of the court, to imprisonment for a term not exceeding three years, or to both such fine and such imprisonment,

but no one shall be required under this section to answer any question or give any evidence tending to incriminate himself.

(6) Every social welfare officer shall be furnished with a certificate of his appointment, and on applying for admission to any premises or place for the purposes of this section shall, if so requested, produce the said certificate.

(7) The premises or places liable to inspection under this section are any premises or places where a social welfare officer 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 officer has reasonable grounds for believing that any documents relating to persons in employment or self-employed persons are kept.

Section 143B of the Act.

143B. (1) An employer shall furnish to the Minister in writing in respect of any person who is or was in his employment such details, including periods of employment, as are required by the Minister to enable determination or review of a claim to pre-retirement allowance by or in respect of that person.

(2) Regulations may specify the details which an employer shall furnish under subsection (1) and prescribe the manner in which such details shall be so furnished.

(3) A person who fails to comply with this section or regulations made hereunder shall be guilty of an offence and shall be liable:

( a ) on summary conviction, to a fine not exceeding £1,000 or (at the discretion of the court) to imprisonment for a term not exceeding one year, or to both such fine and such imprisonment, or

( b ) on conviction on indictment, to a fine not exceeding £10,000 or (at the discretion of the court) to imprisonment for a term not exceeding 3 years, or to both such fine and such imprisonment.

Subsection (1), (2), (3) (a), (4), (5), (6), (7) of section 144 of the Act.

144. (1) If, for the purpose of obtaining for himself or any other person any payment of pre-retirement allowance or of avoiding the making by himself or any other person of any repayment under Chapter 2A of this Part, any person makes any statement or representation (whether written or verbal) which is to his knowledge false or misleading in any material respect or conceals any material fact, he shall be guilty of an offence under this section and shall be liable:

( a ) on summary conviction, to a fine not exceeding £1,000 or (at the discretion of the court) to imprisonment for a term not exceeding one year, or to both such fine and such imprisonment, or

( b ) on conviction on indictment, to a fine not exceeding £10,000 or (at the discretion of the court) to imprisonment for a term not exceeding 3 years, or to both such fine and such imprisonment.

(2) An employer or 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 under this section and shall be liable—

( a ) on summary conviction, to a fine not exceeding £1,000 or (at the discretion of the court) to imprisonment for a term not exceeding one year, or to both such fine and such imprisonment, or

( b ) on conviction on indictment, to a fine not exceeding £10,000 or (at the discretion of the court) to imprisonment for a term not exceeding three years, or to both such fine and such imprisonment.

(3) A person convicted or an offence under this section shall—

( a ) if the offence is in relation to the payment or repayment or pre-retirement allowance be disqualified for the receipt of pre-retirement allowance for a period of 3 months immediately following the date of the conviction.

(4) Regulations under Chapter 2A may provide for offences consisting of contraventions of or failures to comply with such regulations and for the imposition, at the discretion of the court on summary conviction of such offences, of fines not exceeding specified amounts of not more than £1,000 or of imprisonment for a term not exceeding one year, or of both such fines and such imprisonment.

(5) Where an offence under Chapter 2A or under regulations made under Chapter 2A 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, every person who at the time of the commission of the offence was a director, manager, secretary or other officer of the body corporate or was purporting to act in any such capacity shall also be guilty of that offence.

(6) It shall be a good defence to a prosecution for an offence under subsection (5) 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.

(7) Any summons or other document required to be served for the purpose of proceedings under Chapter 2A 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.

Section 151 of the Act.

151. (1) Every payment of pre-retirement allowance received by any person while he was disqualified for receiving pre-retirement allowance or the statutory conditions were not complied with by him or which he was otherwise disentitled to receive shall be repayable by such person to the Minister on demand made in that behalf by a deciding officer and, if not so repaid, may be recovered by the Minister as a simple contract debt in any court of competent jurisdiction or by deduction from any payment or payments of pre-retirement allowance to which such person subsequently becomes entitled.

(2) Every sum repaid to or recovered by the Minister under this section shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.

Section 152 of the Act.

152. Where—

( a ) in respect of any period a health board has granted supplementary welfare allowance to or on account of a person who, though entitled to pre-retirement allowance, is not at that time receiving payments on account thereof, and

( b ) the supplementary welfare allowance is in excess of the amount which would have been granted to that person if he had been receiving payment on account of pre-retirement allowance, and

( c ) any sum (in this subsection referred to as the arrears) accruing in respect of any part of the said period on account of the pre-retirement allowance subsequently becomes payable to that person, and

( d ) the health board has, before the arrears are paid to that person, certified to the Minister the amount (in this subsection referred to as the excess) so paid by the board in excess for the period in respect of which the arrears accrued,

the Minister may deduct from the arrears an amount not exceeding the amount of the excess and shall, in such case, pay to the health board the amount so deducted.

Section 22 of the Social Welfare Act, 1989 .

22. (1) Where a person is convicted of an offence under subsection (1) or (2) of section 144 of the Principal Act as modified in these regulations and by reason of that offence any pre-retirement allowance 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 pre-retirement allowance 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 simple contract debt in any court of competent jurisdiction.

(2) Notwithstanding the provisions of subsection (1) of this section or any other provisions of the Social Welfare Acts or regulations made under or applying the provisions of those Acts under which amounts of benefit, assistance or supplement may be recovered, the amount recovered by the Minister in any case may not exceed the amount of re-retirement allowance received by the employee which he was not entitled to receive.

GIVEN under the Official Seal of the Minister for Social Welfare this 27th day of March, 1990.

MICHAEL WOODS,

Minister for Social Welfare.

The Minister for Finance hereby sanctions the foregoing regulations.

GIVEN under the Official Seal of the Minister for Finance this 27th day of March, 1990.

ALBERT REYNOLDS,

Minister for Finance.

EXPLANATORY NOTE.

The Social Welfare Act, 1988 provides for the payment, subject to regulations, of a pre-retirement allowance to persons who have attained a specified age, satisfy a means test and have been receiving unemployment payments for at least 390 days.

These regulations prescribe the conditions applying to the allowance, including the age for eligibility which is 60 years; the periods which are to be regarded as periods of retirement for the purposes of the allowance; and the means conditions. They also prescribe the reduced rates of payment for persons with means.

The regulations provide for a number of administrative matters, for example, the making of claims, the method of payment, the appointment of agents for those unable to act, the distribution of outstanding payments after the death of the beneficiary, appeals and offences.

They also extend to the new scheme certain provisions of the Social Welfare (Consolidation) Act, 1981 including those relating to administrative matters, payments after death of the beneficiary, disqualifications and offences, etc.