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1 1981

SOCIAL WELFARE (CONSOLIDATION) ACT, 1981

CHAPTER 4

Widow's and Orphan's Pensions (Non-Contributory)

Interpretation.

[1935 WOPS, s. 3; 1952, s. 109; 1969 MP, s. 9; 1970, s. 29]

176. —(1) For the purposes of this Chapter—

qualified child” means a qualified child as defined in section 2 (1) and includes a person who is over the age of 18 years and under the age of 21 years, is receiving full-time instruction by day at any university, college, school or other educational establishment and would, if he were under the age of 18 years, be a qualified child as so defined;

husband”, in relation to a woman who has been married more than once, refers only to her last husband;

pension” means a widow's (non-contributory) pension or an orphan's (non-contributory) pension under this Chapter as the case may require;

[1952, s. 105 (2); 1980, s. 11]

means shall be calculated in accordance with the Rules contained in the Third Schedule ;

[1980, ss. 9, 11]

weekly means” shall be the yearly means divided by 52.

[1935 WOPS, s. 2]

(2) Where a widow has remarried she shall not for the purposes of this Chapter be regarded as the widow of her former husband.

Widow's Pension

Right to pension.

[1935 WOPS, s. 19; 1980, s. 10]

177. —(1) Subject to this Act, a widow's (non-contributory) pension shall be payable to a widow.

(2) A woman whose husband dies while she is in receipt of or entitled to deserted wife's allowance shall, subject to the provisions of this Chapter, in lieu of that allowance, be entitled to a widow's (non-contributory) pension at the same rate as that of the deserted wife's allowance payable to her.

[1935 WOPS, s. 22; 1979, s. 7]

(3) A widow's (non-contributory) pension payable to a widow shall, subject to this Chapter, continue to be payable unless she remarries and in such a case the pension shall cease as on and from her remarriage.

Rates of pension and increases for child dependants.

[1935 WOPS, s. 20; 1980, s. 9]

178. —(1) The rate (in this section referred to as the scheduled rate) of widow's (non-contributory) pension shall be the weekly rate set out in column (2) of Part I of the Fourth Schedule increased, where there is a qualified child or there are qualified children, by the amount set out in column (4) or (5) of that Part in respect of each qualified child who normally resides with the widow.

(2) A widow's (non-contributory) pension shall be payable—

(a) where the weekly means of the claimant or pensioner do not exceed £6, at the scheduled rate, and

(b) where the weekly means exceed £6, at the scheduled rate reduced by the amount set out in column (2) of Part II of the Fourth Schedule for each amount (if any) of £1 by which those weekly means exceed £6, any fraction of £1 in those weekly means being treated for this purpose as £1: provided that, if the rate calculated pursuant to this paragraph at which, but for this proviso, the pension would be payable is less than 50p, the pension shall not be payable.

Increases for incapacitated pensioners.

[1980, s. 9]

179. —The weekly rate of pension payable in accordance with section 178 shall be increased—

(a) by the amount set out in column (6) of Part I of the Fourth Schedule for any period during which—

(i) the widow has attained pensionable age and is so incapacitated as to require full-time care and attention,

(ii) there is residing with the widow for the purpose of providing that care and attention a prescribed relative of the widow, and

(iii) such conditions as may be prescribed are fulfilled, and

(b) by the amount set out in column (7) of Part I of the Fourth Schedule where the person entitled to the pension has attained pensionable age and is living alone, and

(c) by the amount set out in column (8) of Part I of the Fourth Schedule where the pensioner has attained the age of 80 years.

Disqualifications.

[1935 WOPS, s. 30; S.I. No. 25 of 1953]

180. —(1) Except where regulations otherwise provide, a widow shall be disqualified for receiving a widow's (non-contributory) pension (including any increase for a qualified child) for any period during which she is undergoing penal servitude, imprisonment or detention in legal custody.

(2) Regulations may provide for the suspension of payment of pension to or in respect of any widow during any such period as is mentioned in subsection (1) which is excepted from the operation of that subsection or which is payable otherwise than in respect of that period.

(3) Notwithstanding a disqualification by virtue of subsection (1) for receiving a pension which includes an increase in respect of a qualified child, such increase shall, in such cases as may be prescribed, be paid to the prescribed person.

(4) A widow shall not, if and so long as she and any person are cohabiting as man and wife, be entitled to and shall be disqualified for receiving payment of a widow's (non-contributory) pension.

Provisions against double pensions.

[1935 WOPS, s. 32; S.I. No. 247 of 1966]

181. —(1) Where, under this Chapter, a widow would, but for this subsection, be entitled to both a widow's (contributory) pension and a widow's (non-contributory) pension, the widow's (non-contributory) pension shall not be payable except insofar as is provided by regulations under section 130 .

(2) Not more than one widow's (contributory) pension or widow's (non-contributory) pension shall be payable to any one widow.

Orphan's Pension

Right to pension.

[1935 WOPS, ss. 24, 32; 1948, s. 52; 1952, s. 114]

182. —(1) Subject to this Act, an orphan's (non-contributory) pension shall be payable in respect of an orphan.

(2) Not more than one pension shall be payable in respect of any one orphan.

(3) A pension shall not be payable in respect of an orphan in respect of whom an increase under section 95 (1) or 178 (1) is claimable.

Rates of pension.

[1980, s. 11]

183. —The weekly rate of orphan's (non-contributory) pension shall be—

(a) where the weekly means of the orphan do not exceed £1, the rate set out in column (2) of Part I of the Fourth Schedule , and

(b) where his weekly means exceed £1, that rate reduced by the amount set out in column (2) of Part II of the Fourth Schedule for each amount (if any) of £1 by which those weekly means exceed £1, any fraction of £1 in those weekly means being treated for this purpose as £1: provided that, if the rate calculated pursuant to this paragraph at which, but for this proviso, the pension would be payable is less than 50p, the pension shall not be payable.

Miscellaneous

Claims.

[1952, s. 29; S.I. No. 25 of 1953]

184. —For the purpose of this Chapter, any claim or notice made or sent by post shall be deemed to have been made or given on the day on which it was posted.

Appointment and duties of social welfare officers.

[1935 WOPS, ss. 47, 48; 1960 MP, s. 24]

185. —(1) The Minister may, with the sanction of the Minister for the Public Service, appoint such and so many persons as he thinks proper to be social welfare officers for the purposes of this Chapter.

(2) Every such officer shall investigate into and report to the Minister upon any claim for or in respect of a pension and any question arising on or in relation to a pension which may be referred to him by the Minister, and may, for the purpose of such investigation and report, require a claimant for a pension or a pensioner or any employer of the claimant or pensioner to furnish him with such information and to produce to him for inspection such documents relative to that claimant or pensioner as he may reasonably require.

(3) If a person, being a claimant for a pension or a pensioner or the employer of a claimant for a pension or a pensioner, fails to furnish to a social welfare officer such information as he is required by this section to furnish to him or to produce to a social welfare officer for inspection such documents as he is required by this section to produce to him, the person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding £5.

Absence from the State.

[1935 WOPS, s. 29; 1937 WOPS, s. 18; 1978, s. 8]

186. —(1) Where during any period a person is resident outside the State, the following provisions shall have effect—

(a) a pension shall not be granted to or in respect of that person,

(b) if a pension has been granted to or in respect of that person, no sum shall be payable during that period on account of that pension.

(2) Nothing contained in subsection (1) shall operate to prevent, in the case of a person resident for any period outside the State—

(a) a pension being granted to or in respect of that person if a claim for that pension was made prior to that person becoming so resident, or

(b) a pension granted by virtue of paragraph (a) being paid for any period prior to (but not after) that person becoming so resident, or

(c) any arrears of a pension granted to or in respect of that person (being arrears due for a period prior to that person becoming so resident) being paid.

Commencement of pensions.

[1935 WOPS, s. 35; 1937 WOPS, s. 19]

187. —(1) Subject to regulations under section 189 (3), where a person becomes entitled to a pension, the following provisions shall have effect—

(a) in case a claim thereto is made before the expiration of three months after the date on which the person becomes entitled thereto, the pension shall commence to accrue on that date,

(b) in any other case, the pension shall commence to accrue on the date on which the claim is made.

(2) Where the date on which a pension would begin to accrue under subsection (1) is a day of the week other than a day prescribed as the day in the week on which the weekly payments on account of pensions of that class are to be made, the pension shall not begin to accrue until such prescribed day in the week occurring next after the first-mentioned day.

Penalty for false statements.

[1935 WOPS, s. 58; 1961 MP, s. 13; 1976 (No. 2), ss. 9, 10]

188. —(1) Every person—

(a) who, for the purpose of obtaining or continuing a pension either for himself or for any other person, or for the purpose of obtaining or continuing a pension for himself or for any other person at a rate higher than that appropriate to the case, knowingly makes any statement or representation (whether written or verbal) which is to his knowledge false or misleading in any material respect or knowingly conceals any material fact, or

(b) who knowingly obtains payment of, or continues to receive, a pension which he is disqualified for receiving or to which he is not entitled or of an amount in excess of the amount to which he is entitled, or

(c) who knowingly obtains or receives any payment on account of a pension which for any reason whatsoever is not payable to him,

shall be guilty of an offence under this section and shall be liable—

(i) on summary conviction, to a fine not exceeding £500 or (at the discretion of the court) to imprisonment for a term not exceeding one year, or to both such fine and such imprisonment, or

(ii) on conviction on indictment, to a fine not exceeding £2,000 or (at the discretion of the court) to imprisonment for a term not exceeding two years, or to both such fine and such imprisonment.

(2) A person convicted of an offence under subsection (1) in relation to a widow's (non-contributory) pension shall be disqualified for receipt of such pension for a period of 6 months immediately following the date of the conviction. This subsection shall not apply to any offence committed prior to 12th July, 1976.

(3) This section shall apply with the necessary modification in the case of a person to whom a pension or an increase in respect of a qualified child is paid under any of the provisions of this Chapter for or for the benefit of any person.

[1976 (No. 2), s. 5]

(4) Notwithstanding any provision in any Act specifying the period within which proceedings may be commenced, a prosecution for an offence under this Chapter, or under regulations made under or applying the provisions of this Chapter, may be brought at any time within whichever of the following periods later expires—

(a) the period of three months commencing on the date on which it is certified in writing sealed with the official seal of the Minister that evidence sufficient to justify the institution of that prosecution came into the procurement or possession of the Minister, or

(b) the period of two years commencing on the date on which the offence was committed.

[1976 (No. 2), s. 11]

(5) Where in a prosecution for an offence under this Chapter, or under regulations made under or applying the provisions of this Chapter, it is shown to the satisfaction of the court—

(a) that an application has been made by a person (in this section referred to as the defendant) for pension, and

(b) that as a result of that application pension has been paid to any person (whether or not such pension was that applied for and whether or not it was paid to the defendant),

the defendant shall be presumed to have given any information contained in the application (or to have caused it to be given on his behalf) and, where such information is false, with full knowledge of such falsity and with intent that it should deceive; but this presumption may be rebutted.

[1960 MP, s. 21]

(6) Where, in any civil proceedings in any court, it is shown to the satisfaction of the court that pursuant to a claim of or on behalf of a person a pension was allowed or awarded or that the amount of a pension payable to or in respect of a person was varied and that the pension as so allowed or awarded or as so varied was at any time in course of payment to the person to whom the pension was payable, that person shall, in each case, be presumed, unless the contrary is shown, to have been in receipt of a pension of the amount so allowed or awarded or as so varied, as the case may be, from the date on which the pension of the amount so allowed or awarded or as so varied, as the case may be, became payable until the date, if any, on which the amount of the pension is varied or further varied, as the case may be, or the date on which the pension ceases to be payable, whether by reason of the death of the person or otherwise, whichever should first occur.

[1976 (No. 2), s. 12]

(7) Regulations under this Chapter may provide for offences consisting of contraventions of or failure to comply with such regulations and for the imposition, at the discretion of the court on summary conviction of such offences, of fines not exceeding specified amounts of not more than £500 or of imprisonment for a term not exceeding one year, or of both such fines and such imprisonment.

Regulations.

[1935 WOPS, s. 65]

189. —(1) The Minister may make regulations—

(a) specifying the manner in which claims to pensions may be made, and the manner in which pensions are to be paid;

(b) specifying the procedure to be followed on references under this Chapter, and for applying for the purposes of any such reference any of the provisions of the Common Law Procedure Amendment Act (Ireland), 1856, and for excluding the application of any of the other provisions of that Act;

(c) authorising in such cases as may be prescribed the payment of any sum by way of pension during any period intervening between the making of any claim or the referring of any question and the final determination of the claim or question;

(d) enabling a person to be appointed to exercise on behalf of any claimant or person entitled to or in receipt of a pension who is, by reason of any mental or other incapacity, unable to act, any right to which that claimant or person may be entitled under this Chapter, and to authorise any person so appointed to receive on behalf and for the benefit of the claimant or person any pension;

(e) providing that, notwithstanding anything contained in section 190 or 191 relating to time limit for obtaining payments on account of pensions, but subject to the regulations—

(i) in the case of the death of a person who was in receipt of a pension, payment may be made of any sum which became payable within three months before the date of his death on account of the pension, but has not been paid; and

(ii) in the case of the death of a person who being entitled to a pension had made a claim thereto, payment may be made of any sum which, if his claim had been allowed immediately before his death, would have become payable on account of the pension up to the date of his death;

(f) providing that, subject to the regulations, probate or other proof of the title of the personal representatives of the deceased person may be dispensed with in the case of any such sum as is mentioned in paragraph (e) and that any such sum may be paid or distributed to or among the persons appearing in the manner provided by the regulations to be entitled to receive the said sum or any part thereof, either as being persons beneficially entitled thereto under any testamentary instrument or as next of kin, or as being creditors of the deceased person, or to or among any one or more of such persons exclusive of the others, or, in the case of any illegitimacy of the deceased person or any child of his, to or among such person or persons as may be directed by the regulations.

(2) Regulations under this section specifying the manner in which pensions are to be paid shall be made with the consent of the Minister for Posts and Telegraphs.

[1952, s. 121]

(3) Regulations may apply any of the provisions of or made under sections 111 , 112 , 113 , 128 , 129 , 295 , 296 , 297 , 298 , 299 and 300 to pensions, and any such application may be either with or without modifications and either in addition to or in substitution for existing provisions of this Chapter or Part VIII .

Payment of widow's pensions.

[1935 WOPS, s. 33; 1952, s. 118]

190. —(1) Subject to subsection (2), a widow's (non-contributory) pension shall be paid to the pensioner.

(2) The Minister may, in his discretion, from time to time, direct either—

(a) that a pension shall, in lieu of being paid to the pensioner, be paid to some other person for the benefit of the pensioner, and that any increase in respect of a qualified child, being part of such pension, shall, in lieu of being paid to the pensioner, be paid to some other person for the benefit of the child in respect of whom that increase is payable, or

(b) that any amount in respect of a qualified child shall, in lieu of being paid to the pensioner, be paid to some other person for the benefit of the child in respect of whom that amount is payable.

[1935 WOPS, s. 37]

(3) A pension shall, subject to any directions of the Minister in special cases, be paid weekly in advance in such manner and subject to such conditions as to identification or otherwise as the Minister may direct.

[1935 WOPS, s. 36; 1979, s. 7]

(4) Where the date on which a pension would cease to be payable is a day of the week other than that immediately preceding the day in the week prescribed as the day in the week on which the weekly payments on account of the pension are to be made, the pension shall continue to be payable in respect of the days in the week up to, but not including, that prescribed day.

[1935 WOPS, s. 31; S.I. No. 25 of 1953]

(5) The right to any sum payable by way of pension shall be extinguished where payment thereof is not obtained within 3 months or, where in any particular case the Minister so approves, 6 months from the date on which that sum is receivable under Article 5 of the Widows' and Orphans' Pensions (Claims and Payments Regulations) Order, 1935 (S.R. & O, No. 678 of 1935).

Payment of orphan's pensions.

[1935 WOPS, s. 34]

191. —(1) Subject to this section, an orphan's (non-contributory) pension shall be paid to the guardian of the orphan in respect of whom such pension is payable.

(2) The Minister may, if he considers it advisable so to do, direct that a pension shall, in lieu of being paid to the guardian of the orphan in respect of whom such pension is payable, be paid to some other person for the benefit of the orphan.

[1935 WOPS, s. 37]

(3) A pension shall, subject to any directions of the Minister in special cases, be paid weekly in advance in such manner and subject to such conditions as to identification or otherwise as the Minister may direct.

[1935 WOPS, s. 36; 1937 WOPS, s. 20]

(4) Where the date on which a pension would cease to be payable is a day of the week other than that immediately preceding the day in the week prescribed as the day in the week on which the weekly payments on account of the pension are to be made, such pension shall continue to be payable in respect of the days in the week up to, but not including, that prescribed day.

[1935 WOPS, s. 31; S.I. No. 25 of 1953]

(5) The right to any sum payable by way of pension shall be extinguished where payment thereof is not obtained within 3 months or, where in any particular case the Minister so approves, 6 months from the date on which that sum is receivable under Article 5 of the Widows' and Orphans' Pensions (Claims and Payments Regulations) Order, 1935 (S.R. & O., No. 678 of 1935).

Repayment of pension overpaid.

[1935 WOPS, s. 57]

192. —(1) If it is found at any time that a person has been in receipt of a pension during any period during which that person was not entitled thereto, or has been in receipt of a pension at a higher rate than that appropriate to the case, then that person or, in case that person is dead, that person's personal representative, shall be liable to pay to the Minister on demand any sums paid to that person in respect of the pension during such period or, as the case may be, a sum representing the difference between a pension at the rate actually paid and a pension at the rate appropriate to the case.

(2) Any sum payable by a person to the Minister under this section shall be a debt due by the person to the Minister and may be recovered by the Minister as a simple contract debt in a court of competent jurisdiction or by deduction from any payment or payments on account of a pension to which the person subsequently becomes entitled.

[1952, s. 61]

(3) Every sum paid to, or recovered by, the Minister under this section shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.

(4) This section shall apply with the necessary modifications in the case of a person to whom a pension is paid under any of the provisions of this Chapter for or for the benefit of any person.

[1961 MP, s. 12]

(5) The power conferred on the Minister by this section to deduct from any payments on account of a pension to which a person becomes entitled any sums payable by the person to the Minister under this section may be exercised notwithstanding that proceedings have been instituted in a court for the recovery of the sums which the person is liable to repay to the Minister as aforesaid or that an order has been made by a court requiring the payment by the person of the sums which he is liable to pay to the Minister under this section, and any costs required by such order to be paid to the Minister shall be deemed, for the purposes of this section, to be sums payable by the person to the Minister under this section.

Pension granted to person in receipt of unemployment assistance.

[1935 WOPS, s. 56; 1952, s. 61]

193. —Where—

(a) in respect of any period unemployment assistance has been paid to a person who, though entitled to a pension, is not at that time receiving payments on account thereof, and

(b) the unemployment assistance would not have been paid if that person had then been receiving payment on account of the pension, and

(c) any sum (in this section referred to as the arrears) accruing in respect of any part of the said period on account of the pension subsequently becomes payable to that person, the Minister may reduce the arrears by an amount not exceeding the amount paid by way of unemployment assistance.

Pension granted to person in receipt of supplementary welfare allowance.

[1935 WOPS, s. 55; 1953 HA, s. 69; S.I. No. 168 of 1977]

194. —(1) Where—

(a) in respect of any period a health board has granted supplementary welfare allowance to or on account of a person who, though entitled to a pension, is not at that time receiving payments on account thereof, and

(b) the said allowance is in excess of the amount which would have been granted to that person if he had been receiving payment on account of a pension, and

(c) any sum (in this subsection referred to as the arrears) accruing in respect of any part of the said period on account of a pension subsequently becomes payable to that person, and

(d) the health board has, before the arrears are paid to that person, certified to the Minister the amount (in this subsection referred (to as the excess) so paid by the board in excess for the period in respect of which the arrears accrued,

[1952, s. 61]

the Minister may reduce the arrears by an amount not exceeding the amount of the excess and shall, in such case, pay to the health board out of moneys provided by the Oireachtas a sum equal to the amount by which the arrears are so reduced.

(2) This section shall extend to a case where any sum becomes subsequently payable on account of an amount payable in respect of a qualified child or qualified children under this Chapter or a pension payable in respect of an orphan on account of whom any such supplementary welfare allowance as is mentioned in subsection (1) has been granted in like manner as to a case where a sum on account of a pension becomes subsequently payable to a person to or on account of whom such supplementary welfare allowance has been granted, and shall apply in such a case subject to the necessary modifications.