The Gazette 1992

GAZETTE

DECEMBER 1992

Liability to Maintain

It seems likely that, if the Department is to enforce seriously the liability to maintain provisions, considerable litigation will ensue. This article looks at the legal and administrative rules which apply in this area and considers some of the issues which may arise. Briefly, section 314 of the Social Welfare (Consolidation) Act, 1981 (the Act) 4 provides that every person is liable to maintain his or her spouse and any child under the age of 18 years or (except in the case of supplementary welfare allowance) between the age of 18 and 21 while the child is in full-time education. These provisions apply to deserted wife's allowance and benefit, lone parent's allowance and supplementary welfare allowance. Where a claimant receives such a payment, every person who is liable to maintain that claimant is liable to repay to the Department of Social Welfare or the Health Board (as the case may be) such amount of the payment as that body may determine to be appropriate. The maximum amount which may be deducted cannot exceed the total social welfare payment being paid to the claimant. The initial determination that a person "is liable to contribute and the amount of that contribution is made by an officer of the Department of Social Welfare. 5 However, such decisions are not made by "deciding officers" and there is therefore no statutory right of appeal to the Social Welfare Appeals Office. No guidance is given in the Act as to how the amount of the contribution is to be assessed and no regulations have been drawn up. However, the Department has established internal administrative guidelines to guide 387 The Legislation The Initial Determination

by Mel Cousins BL

This article examines the liability to maintain provisions in the Social Welfare code in the light of recent amendments in the Social Welfare Act, 1992. 1 Introduction The introduction by the Minister for Social Welfare in November, 1990 of the lone parent's allowance and of the liability to maintain provisions has led to an important shift in the balance between public and private support for lone parents. Support can come either from the public authorities by way of social welfare payments or privately by way of maintenance from (ordinarily) the father/husband. Prior to November, 1990, the primary onus was on private support and it was only where efforts to enforce the maintenance obligation failed that the Department of Social Welfare would step in to provide public support. Following the recent changes, the primary responsibility remains, in theory, on private support. However, the Department will now step in much more quickly to provide public support without insisting on prolonged efforts to enforce the maintenance obligation. The Department now has the power to recover some or all of the lone parent's payment from the other spouse or parent. Such legislation has existed since the time of the Poor Law and existed in relation to Supplementary Welfare Allowance (which is administered by the regional health boards) prior to 1989. However, it appears to have largely fallen into disuse and did not, in any case, apply to any payments administered directly by the Department of Social Welfare. The legislation extending the liability to mairitain provisions to Departmental payments was contained in the Social Welfare Act,

Mel Cousins

1989. However, it did not come into force until November, 1990. Even then, it required considerable administrative work to bring the provisions into operation and it is only now that the Department has begun to attempt to enforce this obligation. The Minister for Social Welfare, speaking in the Dail on 26 March, 1992, 2 stated that almost 6,000 cases had been examined to determine liability on the part of a spouse. 3 The cases fell into three categories. Sixteen per cent were employed or self-employed. 47% were social welfare recipients; and 37% could not be traced. Maintenance recovery is being pursued only in the case of employed or self-employed persons i.e. just over 1,000 persons (including 83 living in the UK). At that time 32 determinations had been issued directing that weekly payments be made to the Department. However, the Minister stated that recovery had "not been very successful" and payments had been received in six cases only. Nine cases had been prepared for civil debt proceedings for non-compliance with the determinations.