The Gazette 1990

GAZETTE

JANUARY/FEBRUARY 1990

further provides that the investi- gating officer may require a person liable to contribute under s.316(1), or his or her employer, to furnish the officer with such information and to produce for inspection such documents relating to the person as the officer may reasonably require. Failure to comply with this request is an offence punishable, on summary conviction, by a fine not exceeding £1,000, or on con- viction on indictment, by a fine not exceeding £10,000. NOTES 1. Weidenfeld & Nicholson, (1985). 2. See also S.I. No. 277 of 1972. 3. S. 148(4) of the 1981 Act and S.I. No. 143 of 1973. 4. S. 1 70(4) and S.I. of No. 117 of 1975. 5. S.23(3) of the Housing (Private Rented Dwellings) Act 1982 and S.I. No. 220 of 1982. 6. S.219 oif the 1981 Act and S.I. No. 168 of 1977. 7. It will not be surprising if a similar condition is also introduced in relation to the new Deserted Husband's Allowance which has yet to be brought into effect. 8. This follows from the definition of deserted wife in the Social Welfare (Deserted Wife's Allowance) Regulations 1970 - S.I. No. 227 of 1970 as amended by S.I. No. 74 of 1972. 9. See ss.214 and 215 of the 1981 Act, though the roots of this legislation can, in fact, by traced back to the Poor Relief (Ireland) Act 1838 which provided in s.53 that a man was liable to maintain his wife and any children under the age of 15, a widow was liable to maintain her children and a mother was liable to maintain any illegitimate children she had. 10. These provisions will come into effect, and the existing provisions be repealed, on such day or days as the Minister may direct. To date no such Ministerial order has been made. 11. Though ss.214-5 will continue in force until such time as the Minister decides - s. 12(3) of the 1989 Act. 12. In the UK, the High Court ruled that the word "w i f e" in the comparable provision of the old National Assistance Act, 1948, included the wife in a polygamous marriage - Din -v- National Assistance Board [19671 2 Q.B. 213. 1 3. The reason for excluding S.W.A. in this situation stems presumably from the fact that full-time students are not entitled to S.W.A. - see s.201 of the 1981 Act. 14. The immediate legislative predecessor to s.315 - s.214 - was unmistakably sexist in the manner in which it delineated the obligation to maintain - women were obliged to maintain their non-marital children, whereas men had no such obligation - but happily any such sexism is now absent from the current provisions. 1 5. In the case of the children, the welfare might be paid directly, e.g. the payment of S.W.A. to a teenager who has left home, or indirectly as an increase on the

meant that the relative could not be made liable for the cost of the legal proceedings instituted in order to enforce the obligation to contribute, as a liability to pay legal costs would seem to exceed the strict terms of the obligation to con- tribute as provided for in s.316(1). "It is not clear whether the competent authority can recover, pursuent to s.316 [of the 1981 Act] a sum greater in amount than that paid . . . " It is worth commenting briefly on the manner in which claimants of D.W.A., D.W.B. or D.H.A. appear to be affected by this provision. In the case of D.W.A. or D.W.B. 29 a claimant, in order to qualify for such a payment must have attempted and failed to secure maintenance from the deserting spouse. 30 The only exception to this is where the claimant is in receipt of maintenance of incon- siderable extent, 31 which does not affect the claimant's status as a deserted wife. The obligation to secure maintenance from the deserting spouse is a continuing one, so that a woman in receipt of a deserted wife's payment must avail of any reasonable opportunity of obtaining maintenance from her husband. If such maintenance is secured, the claimant ceases to be a deserted wife for the purposes of the Social Welfare code, and con- sequently becomes disentitled for receipt of D.W.A. or D.W.B., unless the maintenance can be deemed to be inconsiderble. In the latter case, it would appear that if such main- tenance is being paid pursuant to a court order, the claimant must transfer it to the Department, whereas if it is being paid pursuant to a maintenance agreement between the parties, no such obli- gation exists. 32 This would appear to be somewhat anomalous and it is not clear that this result was clearly envisaged by the Oir- eachtas. However, s.318 has yet to come into operation and therefore it remains to be seen how the Department will apply this pro- vision in practice. Finally, s.319 confers powers of investigation on the Department and the Health Boards into any question arising on or in relation to any of the four welfare payments affected by these provisions and

welfare paid to the other parent. In either event, the maintaining relative is liable to contribute to any welfare paid to, or in respect of, such children. 16. The Department, in the case of the first three of these payments, and the Health Board, in the case of S.W.A. 1 7. The former provision, s.21 5, appeared, on the face of it, to be somewhat more flexible, in that it referred to the relative's obligation to contribute to the health board "according to his ability" towards any S.W.A. granted to the claimant. As we shall see, however, ability to pay does feature in the new provisions at the enforcement stage of the proceedings. Assistance Board -v- O'Regan 11949) I.R. 415, decided under the comparable pro- visions of the Public Assistance Act, 1939. 19. East Donegal Co-op -v- A.G. 119701 I.R. 317. 20. See the old case of McEvoy-v- Kilkenny Union Guardians (1896) 30 I.L.T.R. 1 56 for a decision to this effect under the comparable provisions of the Poor Relief (Ireland) Act, 1838. Board -v- Parkes [ 1 955) 2 Q.B. 506; Stopher -v- National Assistance Board 119551 1 Q.B. 486; National Assistance Board - v- Prisk [19541 1 All E.R. 443. See Casey, "The Supplementary Benefits Act: Lawyer's Law Aspects" (1968) 19 N.I.L.Q. 1. 22. And also relevant in the case of spouses of a polygamous marriage having to maintain one of their number - see n. 1 2 above. 23. See Casey, loc. cit., p.9. 24. It is worth noting, incidentally, that s.45 of the Status of Children Act, 1987, provides inter alia, that a finding of parentage in proceedings taken under the legislative prede- cessor to s.316-s.21 5 of the 1981 Act - shall be admissible in evidence in any subsequent civil proceedings for the purpose of establishing parentage. 25. Quaere whether there is a lacuna in the law here relating to enforcement of such an order as the 1989 Act does not provide that the references to order in the Enforcement of Court Orders Act, 1940 shall encompasss a District Court order made pursuant to s.316. See, by way of comparison, s.38 of the Family Law (Maintenance of Spouses and Children) Act, 1976. 26. S.31 7. The relevant court orders under the 1976 Act are maintenance orders, lump sum orders, attachment of earnings orders, variation orders or interim orders - s.314(1). 27. S. 13(1 )(d) to (g) of the 1989 Act amends various provisions of the 1976 Act in order to enable such payments to be transferred direct to the Minister or the Health Board, as the case may be. This obligation does not extend to any person who, prior to the com- mencement of this section, is in receipt of one of the specified payments and a maintenance payment made pursuant to a court order under the 1976 Act. However, where such an order is varied by the Courts after this section comes into effect, such a person shall be liable to transfer to the competient authority the amount by which the original payment was varied, assuming the variation was upwards. 18. See South Cork Public 21. See National Assistance

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