The Gazette 1991

i SEPTEMBER 1991

GAZETTE

Recent changes in the liabilities of personal representatives under the Social Welfare Code

Legal practitioners may be interested to note recent changes, effected by the Social Welfare Act, 1991, to the statutory obligations placed on personal representatives administering an estate where the deceased had been in receipt of a non-contributory (i.e. means-tested) old age pension. 1 Such pensions would often be paid to self-employed persons who, because they did not pay PRSI, would not qualify for the contributory old age pension and thus the contents of this article should be of particular, though not exclusive, interest to practitioners with a rural clientele.

livered to the Minister, of his intention to distribute the assets, and (ii) provide the Minister with a schedule of the assets of the estate, not less than three months before the distribution com- mences and (b) if requested in writing by the Minister, within eight weeks of the furnishing of the notice and schedule of assets referred to in paragraph (a), ensure that sufficient assets are retained, to the extent (if any) appropriate, to repay any sum wh i ch is determined to be due to the Minister or the State (as the case may be) in respect of - (i) payment of pension to the person at a time when the person was not entitled to receive the pension, or (ii)payment of pension to the person of an amount in excess of the amount which the person was entitled to receive." So where one is dealing with the estate of a non-contributory old age pensioner, the personal representa- tive must always prepare a written notice of his intention to distribute the assets and submit such notice, together with a schedule of assets of the estate, to the Minister at least three months before distri- bution begins. The purpose of this provision is to afford the Depart- ment the opportunity to see whether any overpayment of pension took place. Then, in those cases in which a written communi- cation is received from the Minister within the succeeding eight weeks, sufficient assets must be retained in order to meet any possible claim from the Minister arising out of overpaid pension. In this context it should be noted that s.174(3A), inserted by s.33 of the 1991 Act, provides for a presumption, which can be rebutted by the personal representative, that all of the 287

General provision for the non- contributory old age pension is to be found in Sections 157 to 174 of the Social Welfare (Consolidation) Act, 1981 (hereinafter referred to as " t he 1981 Ac t ") as amended. Sections 169, 172 and 174 are especially relevant to personal representatives. Obligation to provide informa- tion to the Department of Social Welfare - s.174 Perhaps the most significant provision in the 1981 Act referring to personal representatives is s.174, as amended by s.33 of the Social Welfare Act, 1991. Sub-section (1) provides: "The personal representative of a person who at any time was in receipt of [non-contributory] old age pension, shall, at the request of a social welfare officer made for the purposes of an inquiry and report in relation to the pension, and within such period (not being less than 30 days) as may be specified in the request - a) furnish to the officer such information, books and docu- ments relating to the affairs of the person which are in the power, possession or procure- ment of the personal re- presentative as he may reasonably require and permit the officer to take extracts from the books and docu- ments and furnish to him such information as he may reasonably require in relation to such extracts and b) authorise the o f f i cer to inspect any entries relating to

the affairs of the person in the books of any bank (including

by Gerry F. Whyte F.T.C.D.

any savings bank) and to take copies of such entries and furnish to the officer such information which is within the power, possession or pro- curement of the personal re- presentative as he may reasonably require in relation to such entries." Failure to comply wi th this provision is an offence punishable, on summary conviction, to a fine not exceeding £ 5 00 or imprisonment for a term not exceeding 1 year, or to both such fine and imprisonment, or on conviction on indictment to a fine not exceeding £ 2 , 0 00 or imprisonment for a term not exceeding 2 years or to both such fine and imprisonment. Sub-section 3 imposes certain conditions which must be satisfied before the assets of the deceased can be distributed. This provision, as amended by s.33 of the 1991 Act, now provides: "The personal representative of a person who was at any time in receipt of a pension shall before distributing the assets of the person - a) (i) inform the Minister, by notice, in writing de-