The Gazette 1990

GAZETTE

JANUARY/FEBRUARY 1990

Enforcing Maintenance Obligations through the Welfare System

One of the interesting aspects of social welfare law is the extent to wh i ch the State uses it as a means of social control. Among the examples of this phenomenon listed by Cranston in his book. Legal Foundations of the Welfare State 1 is the policy of enabling social welfare administrations to recoup some of the expenditure on social welfare benefits from those who have a legal obligation to maintain claimants. Recent legislation extends the powers of the Department of Soc i al Welfare in this respect and is likely to have an impact on many cases of marital breakdown.

maintain a family member who is in receipt of specified welfare pay- ments. Heretofore, such a liability only existed under the S.W.A. scheme. 9 Section 12 of the 1989 Act now inserts seven new sect- ions into the 1981 Act which extend this liability to cover both deserted wives' payments and deserted husband's allowance [D.H.A.], in addition to S.W.A. ". . . the Soc i al Welfare Act 1989 effects significant changes in respect of an individual's liability to main- tain a family member . . The new statutory provisions are ss.314 to 320 of the 1981 Act 10 and s.13 of the Social Welfare Act, 1989. 11 Section 315 lists the following categories of person who can be obliged to contribute to the support of claimants of D.W.B., D.W.A., D.H.A. and S.W.A. (a) A man can be obliged to main- tain his wife 12 and any child of his under the age of 18 or, (except in the case of S.W.A.), 21 where, in the latter case, the child is receiving full-time education or instruction by day at any university, college, school or other educational establish- ment. 13 The father's obligation to maintain in this context now extends to his non-marital children, though there is still no obligation to maintain a com- mon law spouse. (b) A woman has similar obliga- tions to maintain her husband and children. 14 Where either D.W.A., D.W.B., D.H.A. or S.W.A. is paid to a per- son's spouse or children 15 as defined above, that person is liable to contribute to the appropriate "competent authority" 16 such amount as that authority may de- termine to be appropriate towards such benefit or allowance. 17

supplementary welfare allow- ance [S.W.A.] - to require a claimant to apply for such supplementary or other benefits to which he may be entitled before granting the allowance, and this presumably embraces applications for maintenance under the Family Law (Mainten- ance of Spouses and Children) By Ge r ry Why te L e c t u r e r - i n - L aw Trinity Co l l ege, Dub l in Act 1976 and the Judicial Separtion and Family Law Re- form Act 1989. (c) Various Departmental means tests provide for the aggrega- tion of resources in the case of married claimants and the net effect of such provisions is to compel the claimant to look to his or her spouse as the primary source of maintenance. (d) Finally, the Department may recover welfare already paid to a claimant from that claimant's relatives in certain specified situations. It is this power which has recently been extended by Part III of the Social Welfare Act 1989 and which forms the subject matter of this note. Part III of the Soc i al Welfare Act 1989 Part III of the Social Welfare Act 1989 effects significant changes in respect of an individual's liability to

At present, the Department may compel a person to maintain his or her dependants in four different situations: (a) Where a person is in receipt of one of a number of specified welfare payments as his or her sole or main source of income, the Department may directly enforce his or her maintenance obligations by paying some of the welfare directly to the claimant's dependants. This is done through the exercise of the general power to pay welfare to an "appointed person", rather than to the claimant himself or herself, and this power is conferred by s.112(3) (b) of the Social Welfare (Consolidation Act 1981, (hereafter "the 1981 Act") as amended by s.16 of the Social Welfare Act 1989 in relation to insurance schemes 2 The power to make payments to appointed persons has also been extended to a number of means-tested schemes, such as unemployment assistance, 3 old age (non-contributory) pension and blind pension, 4 rent allow- ance, 5 and supplementary wel- fare allowance. 6 (b) In relation to two specific welfare schemes, 7 deserted wife's benefit [D.W.B.] and deserted wife's allowance [D.W.A.], an applicant must have made reasonable efforts to secure maintenance from her spouse before she can be eligible for payment. 8 The authorities are also empowered, in relation to a third scheme -

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