The Gazette 1991

i SEPTEMBER 1991

GAZETTE

any other period fixed in any other enactment, whichever is the longer. The breadth of the second limb of this provision is quite extraordinary and raises the possibility that this time limit may be amended by legislation which has little obvious connection with the Social Welfare Acts. It should be noted that s.169 (11) deals 'only with proceedings taken against the estate of a deceased pensioner and therefore one presumes that .claims taken ". . . proceedings [under s.169 (3) or s.172 (2)] must be brought within the period of two yesrs [from submission of the notice end schedule of sssets] or within any other period fixed in any other enactment, whichever is the longer". directly against a pensioner are subject to the normal limitation period of six years from the date on wh i ch the cause of action accrued. 10 Miscellaneous Other aspects of the welfare code may be of interest to practitioners in this context. By virtue of s.120 of the 1981 Act, unpaid social insurance contributions form part of the preferential debts which rank after funeral, testamentary and administration expenses in the

officers, provides in relevant part: "A revised decision . . . shall take effect as follows - (a) where any benefit . . . (or) assistance . . . will, by virtue of the revised decision, be disallowed or reduced . . . and the revised decision is given owing to the original decision having been given . . . by reason of any statement or repre- sentation (whether written or verbal) wh i ch was to the knowledge of the person making it false or misleading in a material respect or by reason of the wilful concealment of any material fact, [the revised decision] shall take effect as from the date on which the original decision took effect The significant point to note here is that the revised decision reducing or disallowing a social welfare entitlement can only have retrospective effect where the original decision resulted from a fraudulent misrepresentation on the part of the claimant. 7 In The State (Hoo/ahan) -v- Minister for Social Welfare 8 Barron J. held that before s.300 (5) (a) could be invoked, the claimant must be given an opportunity to present his side of the case in relation to the allegation of fraud. This contrasts with s.169 (3) and to the extent that there is any inconsistency between these two provisions in relation to the non-contributory old age pension, it is submitted that it should be resolved in favour of the application of s.169 (3) by virtue of the presumption of statutory interpretation, generalia special/bus non derogant, i.e. general provisions do not amend or alter specific ones. 9 Time limits for the making of claims under ss.169 and 172 A new provision inserted by s.34 of the Social Welfare Act, 1991 - s.169 (11) - provides for the time limit within which proceedings may be brought against the estate of a deceased person of the recovery of overpaid non-contributory old age pension under either s.169 (3) or s.172 (2). Such proceedings must be brought within the period of two years commencing on the date on which the notice and schedule of assets referred to in s.174 (3) is received by the Minister or within

deceased had been unaware of any increase in means. If this defence is made out, then it would appear that the claimant, or his estate, can retain any overpaid pension, not- withstanding that there might be adequate monies available to satisfy any demand for repayment. Second, s.172(4) provides that [w]here a person has contra- vened subsection (1) and the Minister is satisfied that there was, in relation to the contraven- tion, no fraudulent intent on the part of the person and that there are no significant resources available to the person, sub- sections (2) and (3) shall not apply in relation to the increase referred to in subsection (1). This presumably covers a situ- ation in which the person was aware of the increase in means but was not aware of the obligation to report such increases to the Minister. Given that, the likely pur- pose of s.172(4) is to avoid pushing a pensioner w i th inadequate resources further into poverty, it may be that this defence would not be relevant after his demise and that, therefore, it may not be available to his personal repre- sentative. The position here is unclear. By way of contrast with s.169(3), s.172 clearly envisages that all decisions under that section are to be made by the Minister (in reality the executive officers acting on his behalf) rather than by the deciding officers of the Department. It follows that there is no right of appeal from any decision made under this section. A further difference between these two provisions is that if the claimant can show that he had not acted with fraudulent intent, he had gone a considerable way towards establishing a statutory defence to a claim under s.172. 5 However no comparable defence is available to a claim under s.169 (3), where liability to repay overpaid pension would appear to be strict. This strict liability may be com- pared with the general obligation to repay overpaid social welfare payments. By virtue of s.113 (2) of the 1981 Act, regulations may provide, inter alia, for the repay- ment of social welfare in cases referred to in s.300 (5) (a) of the Act. 6 Section 300 (5) (a), which deals with the revision of decisions by deciding officers or appeals

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