The Gazette 1991

GAZETTE

i SEPTEMBER 1991

deceased's assets at the time of his death belonged to him for the entire period during which the pension was paid. Furthermore, s.174 (3B), also inserted by s.33 of the 1991 Act, confers on the Minister a discretion to mitigate amounts determined to be due to him in accordance with sub-s.3A where it appears equitable to him to do so. A most important point to note in this context is that contravention of s.174 (3) leaves the personal representative personally liable, and not just liable in his capacity as personal representative, to repay to the Minister an amount equal to the amount, if any, which was due to the Minister from the estate in respect of overpaid old age pension. Given that in the majority of cases the personal representa- tive will have relied on the advice of a solicitor, if such a contra- vention does occur, one would expect him to be able to seek, in effect, an indemnity against his legal adviser by bringing a claim for professional negligence. Obligation to repay overpaid pension - Sections 169 and 172 In some cases the personal representative will be faced with a demand for repayment of overpaid (non-contributory) old age pension. This can arise under t wo provisions. By virtue of s. 169 (3) of the 1981 Act, a personal representative is liable to repay to the Minister any sums paid to the claimant in respect of non-contributory old age pension while the statutory conditions were not fulfilled or while he was disqualified for receiving the pension. 2 This liability would appear to be absolute in the sense that it does not appear to be necessary for the authorities to establish fraud on the part of the claimant in order to be able to claim back such over- payments. Section 169 (7), as amended by s.24 of the Social Welfare Act, 1984, provides, inter alia, that such sums may be deducted from any monies to which the personal representative becomes entitled, as personal representative, on account of non- contributory old age pension. This presumably refers to any such pension outstanding at the date of the claimant's death, together with any such pension payable, where appropriate, for the period of six

Irish Criminal Law Journal Edited by: Shane Murphy, Barrlster-at-Law With a foreword by: The Hon. Mr Justice Hugh O'Flaherty It is appropriate that legal practitioners and academics specialising in this area should develop a forum for balanced reflection on the operation of our present system of criminal justice. It is envisaged that this journal will provide a forum for both academic analysis and practical reflection on developments in Ireland, north and south. The second issue each year will, in addition to the regular articles, contain law reports and case references to the leading decisions of the courts relating to criminal law. In his Foreword Mr Justice Hugh O'Flaherty comments: I am satisfied that this journal will be a profound source of inspiration both to the practising and academic lawyer and, indeed, the layman who has an interest in the workings of

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weeks after that date. 3 This means of recovery is without prejudice to the general power of the Minister under s.169 (3) to recover the overpaid pension. The decision as to whether the statutory conditions for eligibility were fulfilled or whether the claimant had been disqualified for receipt of the pension has to be made by a deciding officer of the Department of Social Welfare 4 and such a decision is subject to the appellate procedures set out in Part VIII of the 1981 Act as amended by Part V of the Social Welfare Act, 1990. This is in contrast to decisions made pursuant to s.172 of the 1981 Act, to which I now turn. Section 172 deals with recovery of overpaid pension in a very specific situation, viz. where the pensioner failed to notify the Department of an increase in means. Sub-section (1), as amended by s.53 of the Social Welfare Act, 1991, obliges an old age pensioner, or any person who has applied for a non-contributory old age pension, to notify the Minister of any increase in the

means of the person within three months after the end of the month in which such increase occurred. Sub-section 2 provides in relevant part: A person who contravenes subsection 1 or, in case he is dead, his personal representative shall, unless it is shown to the satisfaction of the Minister that the person was not aware of the increase to which the contra- vention related...be liable to repay the Minister on demand any sums received by way of non- contributory old age pension to which he was not entitled. Section 172(3) provides that any such sum payable shall be a debt due by the person to the Minister. There are two statutory defences available to the claimant in this situation. First, sub-section 2 itself provides that if the claimant can establish to the satisfaction of the Minister that he, the claimant, was unaware of the increase in means, no liability to repay will arise. This defende is presumably also avail- able to the personal representative if the latter can establish that the

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