The Gazette 1987

SEPTEMBER 1987

GAZETTE

1. Ss. 130(3), 1 52 and 194 allow the Health Boards to recover S.W.A. out of arrears of benefit or assistance payable to a claimant by the Depart- ment of Social Welfare. 2. S.213(2) permits the Boards to recover S.W.A. paid in cases of urgency to persons in remunerative full-time work. 3. S.21 5 empowers the Boards to recover S.W.A. paid to a clai- mant from any person liable to maintain such claimant. 4. S.216(4) empowers the Boards to recover expenses incurred in providing for the burial of specified persons. 5. Art. 10(1) of the Social Welfare (General Benefit) Regulations 1953, (S.I. No. 16/1953) authorises the Boards to recover S.W.A. erroneously paid to a claimant as a result of the latter knowingly making a false or misleading statement or misrepresenting or wilfully concealing a material fact. However, none of the foregoing covers the situation of the claimant with the potentially successful per- sonal injuries action. Consequently one is led to conclude that, at pre- sent, there is no statutory basis for seeking to recover S.W.A. paid to such a person. No doubt this is a lacuna in the law which deserves attention and a reform giving the Health Boards the powers which they believe they currently enjoy does not ap- pear unreasonable. At the same time it should be pointed out that at present the defendant can benefit from the payment of S.W.A. to the plaintiff, as s.50 of the Civil Liabili- ty Act, 1961, as amended by s.2 of the Civil Liability (Amendment) Act, 1964, which instructs the courts to disregard certain welfare payments in computing damages in personal injuries cases, does not in- clude means-tested payments in that list. 3 Consequently any reform should take into account the overall position of the parties to the litigation. Pending such reforms, however, solicitors would do well to pause before parting with their client's money to the Health Boards, lest that should result in more pro- fessional negligence actions. •

Social Welfare Payments and the Assessments of Damages in Civil Actions One of the areas in which social welfare law most often features in a solicitor's practice relates to the interaction bet- ween social welfare payments and the award of damages in a civil action. The best account of this area of the law is by Dr. Robert Clark in an article entitled "Damages and the Social Welfare 'Overlap'", (1984) 19 /r. Jur. (n.s.) 40. It is not intended in this brief note to cover ground already dealt with by Dr. Clark, but rather to focus attention on the dif- ficulties inherent in a not uncommon practice among solicitors in this area. I refer to the practice of reimbursing Health Boards for Supplementary Welfare Allowance (S.W.A.) paid to successful plaintiffs in personal injuries cases. The S.W.A. scheme is a means- Consequently it is arguable that the tested scheme, provided for in Health Boards are acting ultra vires

ss. 199 to 222 of the Social Welfare (Consolidation) Act, 1981 and administered by the country's Health Boards, which is meant to ensure that every resident in the State has a certain minimum in- come. Many people rely on S.W.A. while awaiting a decision of the Department of Social Welfare as to their entitlement to other pay- ments, or in order to top up such payments. For approximately 50,000 people, however, S.W.A. is their primary source of income, usually because they have ex- hausted their entitlement to social insurance, or had inadequate social insurance records to begin with, and are ineligible for unemploy- ment assistance because they are incapable of work. Where such a person applies for S.W.A. and is the plaintiff in a pending personal injuries claim, the general practice of the Health Boards would appear to be to grant the allowance on condition that the claimant give an undertaking in writing to reimburse the authorities out of any damages subsequently awarded or agreed. Is such an undertaking legally ef- fective, or can a solicitor advise the claimant to retain both the damages and the S.W.A.? Surprising as it may seem, the validity of the under- taking would appear to be doubtful. In the first place, the Health Boards are not given any express or implied powers to distribute S.W.A. by way of loan, yet that is surely what is attempted in deman- ding that the claimant undertake to repay any S.W.A. granted to him.

by Ger ry Wh y te BCL., L.L.M., M.A., B.L. Lecturer in Law, Trinity College. in insisting on such an arrange- ment. Furthermore it is significant that s.206 of the 1981 Act does empower the authorities to impose certain conditions on the granting of S.W.A. — the claimant may be asked to register for employment or to apply for such other benefits or assistance as he might be entitl- ed to — but makes no provision for the type of arrangement currently under consideration. Can the Health Boards invoke the doctrine of estoppel against the claimant? Generally speaking a statutory authority cannot extend its powers by creating an estoppel — Re Green Dale Building Co. 1 This principle is usually applied in a situation in which the other party seeks to rely on a representation or promise made by the authority — see e.g. Power -v- Minister for Social Welfare. 2 But can the authority itself rely on a promise made by the other party? Where the effect of that reliance would be to allow the authority to engage in activity which would otherwise be ultra vires it would seem that the answer in principle should be no. Finally, it should be noted that the 1981 Act authorises the Health Boards to recover S.W.A., initially intended as an outright grant, in five specific situations. These are as follows:

F o o t n o t e s 1. [1977] I.R.256. 2.

Unreported, High Court, 9 July 1987.

See Clark, toe. cit. pp. 41-42.

3.

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