Overpayments
SWCA 2005
Part 11
Overpayments, Repayments, Suspension of Payment, etc. (ss. 333A-343)
333A.
Interpretation (Part 11)
(1)In this section ‘relevant sections’ means sections 334(1)(a), 335, 336, 337, 338, 339, 341(9), 341(10) and 342.
(2)For the purposes of this Part –
(a)references in the relevant sections to ‘benefit’ shall be read as including a payment under section 112(1A), 113(6) or 117(1A) as appropriate, and
(b)references in the relevant sections to ‘assistance’ shall be read as including a payment under section 157(3).
334. Interim payments and suspension of payment.
(1)Regulations may make provision in relation to matters arising –
(a)pending the decision or determination under Part 2, 3, 4, 5, 6, 7, 7A, 8, 9 or 10 or this Part (whether in the first instance or on an appeal or reference, and whether originally or on revision) of any claim for benefit, assistance, child benefit, working family payment, continued payment for qualified children or back to work family dividend or of any question affecting any person’s right to any such benefit, assistance, child benefit, working family payment, continued payment for qualified children or back to work family dividend or to receipt thereof or any person’s liability for contributions, or
(b)out of the effect of any appeal or revision of any decision or determination under Part 2, 3, 4, 5, 6, 7, 7A, 8, 9 or 10 or this Part on any such claim or question.
(2)Where it appears to the Minister that a question has arisen or may arise as to whether –
(a)the conditions for the receipt of benefit, assistance, child benefit, working family payment, continued payment for qualified children or back to work family dividend payable under a decision are or were fulfilled, or
(b)a decision that any such benefit, assistance, child benefit, working family payment, continued payment for qualified children or back to work family dividend is payable ought to be revised under this Act,
the Minister may direct that payment of that benefit, assistance, child benefit, working family payment, continued payment for qualified children or back to work family dividend shall be suspended in whole or in part until the question has been decided.
(3)[deleted]
335.
Overpayments.
Where, in accordance with section 302, 319 or 325, a decision or determination is varied or reversed by a deciding officer, an appeals officer or a designated person (as the case may be) so as to disallow or reduce any benefit, assistance, child benefit, working family payment, continued payment for qualified children or back to work family dividend paid or payable to a person –
(a)any benefit paid in pursuance of the original decision shall be repayable to the Social Insurance Fund to the extent to which it would not have been payable if the decision on the appeal or revision had been given in the first instance and the person and any other person to whom the benefit was paid on behalf of that person, or the personal representative of that person, shall be liable to pay to the Fund, on demand made in that behalf by an officer of the Minister, the sum so repayable,
(b)any assistance, child benefit, working family payment, continued payment for qualified children or back to work family dividend paid in pursuance of the original decision shall be repayable to the Minister to the extent to which it would not have been payable if the decision on the appeal or revision had been given in the first instance and the person and any other person to whom that assistance, child benefit, working family payment, continued payment for qualified children or back to work family dividend (as the case may be) was paid on behalf of that person, or the personal representative of that person, shall be liable to pay to the Minister, on demand made in that behalf by an officer of the Minister, the sum so repayable,
(c)[deleted]
(d)any supplementary welfare allowance paid in pursuance of the original determination shall be repayable to the Minister to the extent to which it would not have been payable if the revised decision made in accordance with section 301 (2) had been given in the first instance and the person and any other person to whom the supplementary welfare allowance was paid on behalf of that person, or the personal representative of that person, shall be liable to pay on demand by the Minister the sum so repayable.
336.
Repayment of benefit, assistance, etc., overpaid.
Where, in any case, other than a case involving a revised decision or determination in accordance with section 302, 319 or 325, a person has been –
(a)in receipt of any benefit, assistance, child benefit, working family payment, continued payment for qualified children or back to work family dividend for any period during which that person was not entitled thereto, or
(b)in receipt of that benefit, assistance, child benefit, supplement, payment or dividend at a rate higher than that to which he or she was entitled,
then that person and any other person to whom that benefit, assistance, child benefit, supplement, payment or dividend was paid on behalf of that person, or the personal representative of that person, shall be liable to pay –
(i)to the Social Insurance Fund, in the case of benefit, and
(ii)to the Minister, in the case of assistance, child benefit, early childcare supplement, working family payment, continued payment for qualified children or back to work family dividend,
(iii)[deleted]
on demand, any sums paid to that person in respect of that benefit, assistance, child benefit, supplement, payment or dividend during that period or, as the case may be, a sum representing the difference between that benefit, assistance, child benefit, supplement, payment or dividend at the rate actually paid and benefit, assistance, child benefit, supplement, payment or dividend at the rate to which the person was entitled.
337.
Liability to repay where person convicted of offence.
Where a person is convicted of an offence under section 32 of the Larceny Act 1916 or Part 2 of the Criminal Justice (Theft and Fraud Offences) Act 2001, by virtue of having received any benefit, assistance, child benefit, working family payment, continued payment for qualified children or back to work family dividend, which he or she was not entitled to receive, that person is liable to pay –
(a)to the Social Insurance Fund, in the case of benefit, and
(b)to the Minister, in the case of assistance, child benefit, working family payment, continued payment for qualified children or back to work family dividend
(c)[deleted]
on demand, a sum not exceeding the amount of the benefit, assistance, child benefit, working family payment, continued payment for qualified children or back to work family dividend, to which that conviction applies.
338.
Recovery of debts.
Where a person has received moneys from the Department of Social and Family Affairs, which he or she was not entitled to receive, the person shall be liable to repay –
(a)to the Social Insurance Fund, in the case of benefit, and
(b)to the Minister, in the case of assistance, child benefit, early childcare supplement, working family payment, continued payment for qualified children or back to work family dividend,
(c)[deleted]
on demand a sum not exceeding the amount of the money received.
339.
Distribution of assets.
(1)The personal representative of a person who was at any time in receipt of assistance shall, not less than 3 months before beginning to distribute the assets of that person –
(a)inform the Minister, by written notice delivered to the Minister, of his or her intention to distribute the assets, and provide the Minister with a schedule of the assets of the estate, and
(b)where requested in writing by the Minister within 3 months of giving 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 which may be determined to be due to the Minister or the State (as the case may be) in respect of –
(i)payment of assistance to the person at a time when the person was not entitled to receive assistance, or
(ii)payment of assistance to the person of an amount in excess of the amount which the person was entitled to receive.
(2)Notwithstanding any other provision of this Act, for the purposes of determining the sum which is due to the Minister under subsection (1), the means of the deceased person for the period in respect of which assistance was paid to him or her shall, in the absence of evidence to the contrary, be calculated on the basis that the deceased person’s assets at the time of his or her death belonged to him or her for that entire period.
(3)A personal representative who contravenes subsection (1) and who distributes the assets of the person whose estate he or she represents without payment of any sum which is due to the Minister in respect of –
(a)payments of assistance to the person at a time when the person was not entitled to receive assistance, or
(b)payments of assistance to the person of amounts in excess of the amounts which the person was entitled to receive,
shall be personally liable to repay to the Minister an amount equal to the amount (if any) which the Minister would have received if, in the administration of the estate of the person, that sum had been duly taken into account and repaid to the Minister to the extent (if any) appropriate, having regard to the assets of the person, and that amount shall be a debt due by the personal representative to the Minister.
(4)Any proceedings to recover assistance due to the Minister as a debt due to the State under section 341 (3) shall be maintainable against the estate of a deceased person if brought at any time within the 6 years beginning on the later of the date on which the notice or the date on which the schedule of assets under subsection (1) (a) is received by the Minister.
340.
Recovery of payments from financial institutions.
(1)Notwithstanding any enactment or rule of law, where sums are due to the Minister or the Social Insurance Fund in accordance with section 336 or 338 because benefit, assistance, child benefit, working family payment, continued payment for qualified children or back to work family dividend which was intended for a beneficiary was paid to a financial institution for the credit of an account kept with that institution by the beneficiary and he or she dies before the payment or payments were made, the benefit, assistance, child benefit, working family payment, continued payment for qualified children or back to work family dividend may be recovered from the financial institution in accordance with subsection (2).
(2)The Minister may give written notice to a financial institution requiring the institution to pay to the Minister, within the period specified in the notice, the lesser of the following amounts:
(a)the amount specified in the notice, being the amount of benefit, assistance, child benefit, working family payment, continued payment for qualified children or back to work family dividendrecoverable in accordance with subsection (1); or
(b)the amount standing to the credit of the account when the notice is received by the institution;
and the financial institution shall comply with such a direction.
(3)In this section “financial institution” means –
(a)a bank which is the holder of a licence under section 9 of the Central Bank Act 1971,
(b)a trustee savings bank within the meaning of the Trustee Savings Banks Act 1989,
(c)a building society within the meaning of the Building Societies Act 1989,
(ca)a credit union within the meaning of the Credit Union Act 1997,
(d)a post office savings bank established under the Post Office Savings Bank Acts 1861 to 1958, or
(e)any other body that may be prescribed.
341.
Recovery of sums due by civil proceedings or by deduction from other payments.
(1)Notwithstanding the assignment by –
(a)any regulations under section 17(1) to the Collector-General or any other person of any function referred to in that section in relation to employment contributions,
(b)any regulations under section 23(1) to the Collector-General or any other person of any function referred to in that section in relation to self-employment contributions, or
(c)any regulations under section 30G(1) to the Collector-General or any other person of any function referred to in that section in relation to contributions under Chapter 5B of Part 2,
all sums due to the Social Insurance Fund, other than in accordance with section 336, shall be recoverable as debts due to the State and, without prejudice to any other remedy, may be recovered by the Minister as a debt under statute or simple contract debt in any court of competent jurisdiction.
(2)Notwithstanding section 272, or any provision in any other enactment specifying the period within which proceedings may be commenced to recover a debt under statute or simple contract debt, any proceedings for the recovery of any sums due to the Social Insurance Fund by way of –
(a)employment contributions under section 13(1),
(b)self-employment contributions under section 21(1),
(c)contributions under Chapter 5A of Part 2, or
(d)contributions under Chapter 5B of Part 2,
may be brought and shall be maintainable at any time.
(3)All sums due to the Minister, other than in accordance with section 336, under this Act shall be recoverable as debts due to the State and, without prejudice to any other remedy, may be recovered by the Minister as a debt under statute or simple contract debt in any court of competent jurisdiction.
(4)Section 9 of the Civil Liability Act 1961 shall not apply to an action for the recovery of a debt due to the Minister or to the State under this Act.
(5)Every sum repaid to or recovered by the Minister under this Act shall be paid into or disposed of for the benefit of the Exchequer or the Social Insurance Fund, as appropriate, in the manner that the Minister for Public Expenditure and Reform shall direct.
(6)[deleted]
(7)Subject to subsection (7A), any benefit, assistance, supplement, payment or dividend repayable in accordance with section 335, 336, 337 or 338 may, without prejudice to any other method of recovery, be recovered by deduction, subject to the conditions and in the circumstances that shall be prescribed, from any benefit, assistance, supplement, payment or dividend to which the person concerned is or becomes entitled.
(7A)The weekly amount of any benefit or assistance to be deducted for the purposes of the recovery of any benefit, assistance, supplement, payment or dividend in accordance with subsection (7) shall not, without the prior written consent of the person liable to repay the overpayment, exceed 15 per cent of the weekly rate of benefit or assistance to which the person concerned is or becomes entitled.
(7B)In subsection (7A) ‘weekly rate’ means the appropriate weekly rate of benefit or assistance payable to a person under Part 2 or Part 3, but does not include any increases under Part 2 or Part 3 of such benefit or assistance as the case may be.
(7C)A person who is in receipt of any benefit or assistance, other than supplementary welfare allowance, from which a deduction is being made for the repayment of any benefit, assistance, supplement, payment or dividend in accordance with subsection (7), shall not be entitled to claim for supplementary welfare allowance under section 196.
(8)Any child benefit repayable in accordance with section 335, 336, 337 or 338 may, without prejudice to any other method of recovery, be recovered by deduction from any payment or payments on account of child benefit to which such person then is or becomes entitled.
(9)Any benefit, assistance, supplement, payment or dividend repayable by a person in accordance with section 335, 336, 337 or 338 may, without prejudice to any other method of recovery, be recovered by deduction, subject to the conditions and in the circumstances that shall be prescribed, from –
(a)any payment under section 34A or 36,
(b)any payment made in accordance with regulations made under section 34, 34A, 35 or 37,
(c)any payment under section 32 of the Redundancy Payments Act 1967, and
(d)any payment under section 6 of the Protection of Employees (Employers’ Insolvency) Act 1984,
being or to be made to the person concerned.
(10)The powers conferred on the Minister by this section to deduct any sums repayable in accordance with section 335, 336, 337 or 338 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 acourt requiring the payment by the person of the sums which he or she is liable to pay to the Minister under this section, and any costs required by that order to be paid to the Minister are deemed, for the purposes of this section, to be sums repayable by the person to the Minister in accordance with those sections.
342.
Repayment of amounts due to be deferred, suspended, reduced or cancelled.
Notwithstanding anything to the contrary and subject to section 342A, where a person is required to repay an amount of any –
(a)benefit described in section 39(1),
(b)assistance described in section 139(1),
(c)child benefit,
(d)carer’s support grant,
(e)working family payment,
(f)continued payment for qualified children,
(fa)back to work family dividend, or
(g)payment pursuant to section 239,
in accordance with this Act, an officer of the Minister authorised by him or her for this purpose may, subject to the conditions and in the circumstances that shall be prescribed, defer, suspend, reduce or cancel repayment of any such amount.
342A.
Repayment of amounts due arising from false or misleading statements or wilful concealment of facts.
(1)Where a person is required to repay an amount of any payment referred to in paragraphs (a) to (g) of section 342 by virtue of –
(a)a revised decision given by a deciding officer under section 302(a),
(b)a revised decision given by an appeals officer under section 319(a), or
(c)a revised determination given under section 325(a),
the amount to be repaid in such circumstances shall not be reduced by the amount of any other payment referred to in paragraphs (a) to (g) of section 342 to which the person would otherwise have been entitled in the period to which the overpayment relates had he or she not been in receipt of the payment which gave rise to the overpayment.
(2)Subsection (1) shall apply to amounts required to be repaid by virtue of –
(a)a revised decision referred to in subsection (1)(a) or (1)(b), or
(b)a revised determination referred to in subsection (1)(c),
given on or after 29 June 2011, whether or not the amount so repayable is in respect of a period commencing before, or on or after, that date.
343.
Effect of decision for purposes of proceedings.
In any proceedings for an offence under this Act, or in any proceedings involving any issue related to the payment of contributions, or for the recovery of any sums due to the Minister or the Social Insurance Fund, a decision on any question relevant to the proceedings given in accordance with this Act shall, unless an appeal or reference in respect of the decision is pending or the prescribed time for appealing against the decision has not expired, be admissible as evidence for the purpose of those proceedings and –
(a)if any such decision which might be so given has not been obtained and the decision is necessary for the determination of the proceedings, the question may be submitted for decision in accordance with this Act, and
(b)where any such appeal or reference is pending or the time for so appealing has not expired or any question has been submitted under paragraph (a), the court dealing with the case may adjourn the proceedings until such time as a final decision on the question has been obtained.
Part 11A
Attachment (ss. 343A-343K)
343A.
Interpretation.
In this Part –
“additional debt” in relation to a relevant person who has received a notice of attachment in respect of an overpaid person, means any amount which, at any time after the time of the receipt by the relevant person of the notice of attachment but before the end of the relevant period in relation to the notice, would be a debt due by the relevant person to the overpaid person if a notice of attachment were received by the relevant person at that time;
“debt” in relation to a notice of attachment given to a relevant person in respect of an overpaid person and in relation to that relevant person and overpaid person, means the amount of any money which, at the time the notice of attachment is received by the relevant person, is due by the relevant person (whether on that person’s own account or as an agent or trustee) to the overpaid person, irrespective of whether the overpaid person has applied for the payment (to the overpaid person or any other person) or for the withdrawal of all or part of the money;
“deposit” means an amount of money paid to a financial institution on terms under which it will be repaid with or without interest and either on demand or at a time or in circumstances agreed by or on behalf of the person making the payment and the financial institution to which it is made;
“emoluments” has the same meaning as section 983 of the Act of 1997;
“financial institution” has the same meaning as section 250A and includes a branch of a financial institution which records deposits in its books as liabilities of the branch;
“notice of attachment” means a notice under section 343H;
“notice of revocation” means a notice under section 343I;
“overpaid person” shall be construed in accordance with section 343B;
“public body”
(a)a Department of State,
(b)a local authority, or
(c)a body established by any enactment;
“relevant amount” shall be construed in accordance with section 343B;
“relevant period” in relation to a notice of attachment, means, as respects the relevant person to whom the notice of attachment is given, the period commencing at the time at which the notice is received by the relevant person and ending on the earliest of
(a)the date on which the relevant person completes the payment to the Minister out of the debt, or the aggregate of the debt and any additional debt, due by the relevant person to the overpaid person named in the notice, of an amount equal to the relevant amount in relation to the overpaid person,
(b)the date on which the relevant person receives a notice of revocation of the notice of attachment, and
(c)where the relevant person or the overpaid person named in the notice –
(i)is declared bankrupt, the date on which the relevant person or the overpaid person is so declared, or
(ii)is a company which commences to be wound up, the relevant date within the meaning of section 285 of the Companies Act 1963, in relation to the winding up;
“relevant person” in relation to an overpaid person, means a person in respect of whom the Minister has reason to believe may have, at the time a notice of attachment is received by such person in respect of an overpaid person, a debt due to the overpaid person.
343B.
Person to whom notice of attachment may be given.
(1)For the purposes of this Part, a person who is liable under section 335, 336, 337 or 338 to pay to the Social Insurance Fund or the Minister, on demand, a sum referred to in one or more than one of those sections shall be referred to as the ‘overpaid person’ and the sum which the overpaid person is so liable to pay shall be referred to as the ‘relevant amount’.
(2)Notwithstanding that the Minister may recover the relevant amount by other methods, subject to this Part, the Minister may give a notice of attachment to an overpaid person –
(a)who fails to –
(i)repay the relevant amount, or
(ii)respond, to the satisfaction of the Minister, to a notice under section 343D(1),
and
(b)to whom the Minister has given a notice under section 343D(3).
343C.
Circumstances of overpaid person.
Prior to giving a notice under section 343D(1), the Minister, in determining the circumstances of the overpaid person shall take into account the following matters:
(a)his or her personal and family circumstances;
(b)any statutory deductions that may affect his or her earnings or income;
(c)the amount of the overpayment;
(d)the period of time for which the overpayment is outstanding;
(e)the amount of net income or earnings of the overpaid person;
(f)the employment circumstances of the overpaid person;
(g)the amount of debt due to the overpaid person.
343D.
Proposal to give a notice of attachment.
(1)Before giving a notice of attachment to an overpaid person, the Minister shall give notice in writing to the overpaid person –
(a)requesting him or her to make arrangements to repay the relevant amount,
(b)requesting him or her to respond furnishing any representations that he or she wishes to make in relation to the matter for consideration by the Minister, and
(c)stating that if the overpaid person fails to make arrangements to repay or respond to the satisfaction of the Minister within 14 days of the date of the notice under this subsection, the Minister intends to proceed with a notice of attachment relating to the overpaid person.
(2)The Minister shall give due consideration to any response received from the overpaid person under subsection (1) before he or she decides to give a notice under subsection (3).
(3)Having considered any response under subsection (2) the Minister shall give a notice in writing to the overpaid person (whether or not the document containing the notice also contains other information being communicated by the Minister to the overpaid person), not later than 28 days before the receipt by the relevant person or relevant persons concerned of a notice of attachment, stating that if the relevant amount is not paid it may be specified in a notice of attachment or notices of attachment and recovered under this Part from a relevant person or relevant persons in relation to the overpaid person.
343E.
Attachment of earnings.
(1)A notice of attachment may relate to any amount of money due by the relevant person to the overpaid person as emoluments under a contract of service.
(2)A notice of attachment referred to in subsection (1) may provide, as the Minister considers appropriate, for the payment by the relevant person of an amount out of the emoluments, over a period specified in the notice, by the periodical deductions of such amounts as are specified in the notice.
(3)The Minister, in determining the rate of periodical deductions under subsection (2), and in addition to considering the matters under section 343C shall not –
(a)without the prior written agreement of the overpaid person, determine a rate that exceeds 15 per cent of the net weekly emoluments to which the person concerned is or becomes entitled, or
(b)determine a rate that exceeds an amount that will cause the overpaid person to become entitled to claim for supplementary welfare allowance under section 196.
(4)Where the Minister gives a notice of attachment referred to in subsection (1) to a relevant person –
(a)the relevant person shall not be liable for failure to comply with it before 10 days have elapsed since the giving of the notice,
(b)if the overpaid person to whom it refers is not in the employment of the relevant person or ceases to be in the employment of the relevant person after it is given, that relevant person shall (in either case) within 10 days from the date of receipt of the notice, make a return of that fact to the Minister, and
(c)on any occasion when a relevant person makes, in compliance with a notice of attachment, a deduction from an overpaid person’s earnings, the relevant person shall give, in such manner and form as directed in the notice of attachment, to the overpaid person a written statement of the total amount of the deduction.
(5)Where the Minister gives a notice of attachment referred to in subsection (1) –
(a)the overpaid person shall –
(i)notify the Minister in writing of every occasion on which he or she leaves any employment, or becomes employed or reemployed, not later (in each case) than 10 days from the date on which he or she does so, and
(ii)include in the notice referred to in subparagraph (i) particulars of his or her earnings and expected earnings from the relevant employment,
and
(b)any relevant person who is an employer of the overpaid person and knows that the notice of attachment has been given, within 10 days of the occurrence of a matter referred to in paragraph (a) and in such manner and form as directed in the notice of attachment, shall notify the Minister in writing of any change in earnings paid to the overpaid person.
343F.
Attachment of money in financial institution.
(1)For the purposes of a notice of attachment, where a relevant person is a financial institution, any amount of money, including interest on that money, which at the time the notice of attachment is received by the relevant person is a deposit held by the relevant person –
(a)to the credit of the overpaid person for the overpaid person’s sole benefit, or
(b)to the credit of the overpaid person and any other person or persons for their joint benefit,
shall be regarded as a debt due by the relevant person to the overpaid person at that time.
(2)Subject to subsection (3), where subsection (1) applies, a deposit held by a relevant person which is a financial institution to the credit of the overpaid person and any other person or persons (in this subsection referred to as the ‘other party or parties’) for their joint benefit shall be deemed to be held for the benefit of the overpaid person and the other party or parties to the deposit equally, and accordingly only the portion of the deposit so deemed shall be regarded as a debt due by the relevant person to the overpaid person.
(3)Where evidence of the amount of the deposit referred to in subsection (2) that is held to the benefit of the overpaid person is produced to the satisfaction of the relevant person within 10 days of the giving of the notice under section 343H(5), only so much of the deposit as is shown to be held to the benefit of the overpaid person shall be regarded as a debt due by the relevant person to the overpaid person at that time.
(4)Where a notice of attachment is given to a relevant person which is a financial institution, the Minister, in addition to considering the matters under section 343C, shall not specify an amount in the notice that exceeds an amount that will cause the overpaid person to become entitled to claim for supplementary welfare allowance under section 196.
(5)Where, under section 343H any amount is paid to the Minister by a relevant person which is a financial institution in accordance with a notice of attachment, that relevant person, within 10 days and in such manner and form as directed in the notice of attachment, shall give the overpaid person concerned a notice in writing informing him or her of the payment and its amount.
343FA.
Attachment of money from State
(1)For the purposes of a notice of attachment, where a relevant person is a Minister of the Government (including the Minister) or apublic body, any amount of money, including interest on that money, which at the time the notice of attachment is received by the relevant person is –
(a)to be paid to the overpaid person for the overpaid person’s sole benefit, or
(b)to be paid to the overpaid person and any other person or persons for their joint benefit,
under any enactment that may be prescribed, shall be regarded as a debt due by the relevant person to the overpaid person at that time.
(2)Subject to subsection (3), where subsection (1) applies, the amount due to the overpaid person and any other person or persons (in this subsection referred to as the ‘other party or parties’) for their joint benefit shall be deemed to be due to the overpaid person and the other party or parties in equal shares, and accordingly only the portion of the amount due so deemed shall be regarded as a debt due by the relevant person to the overpaid person.
(3)Where evidence of the amount referred to in subsection (2) that is due to the overpaid person is produced to the satisfaction of the relevant person within 10 days of the giving of the notice under section 343H(5A), only so much of the amount as is shown to be due to the overpaid person shall be regarded as a debt due by the relevant person to the overpaid person at that time.
(4)Where a notice of attachment is given to a relevant person who is a Minister of the Government (including the Minister) or a public body, the Minister, in addition to considering the matters under section 343C, shall not specify an amount in the notice that exceeds an amount that will cause the overpaid person to become entitled to claim for supplementary welfare allowance under section 196.
(5)Where, under section 343H any amount is paid to the Minister by a relevant person who is a Minister of the Government (including the Minister) or a public body in accordance with a notice of attachment, that relevant person, within 10 days and in such manner and form as directed in the notice of attachment, shall give the overpaid person concerned a notice in writing informing him or her of the payment and its amount.
343G.
Dispute.
Where there is a dispute as to an amount of money which is due by the relevant person to the overpaid person, the amount in dispute shall be disregarded by the relevant person for the purposes of determining the amount of the debt and specifying the debt in the reply delivered to the Minister under section 343H(1) (c) (i).
343H.
Notice of attachment.
(1)Where an overpaid person fails to repay the relevant amount, the Minister may give to a relevant person, in relation to the overpaid person, a notice in writing (in this section referred to as the ‘notice of attachment’) in which is entered –
(a)the overpaid person’s name and address,
(b)the relevant amount, or, in a case where a notice of attachment is given to more than one relevant person in respect of an overpaid person, a portion of the relevant amount as determined appropriate by the Minister, and
(c)a direction to the relevant person –
(i)subject to subsections (2) and (3), to deliver to the Minister, within the period of 10 days from the date on which the notice of attachment is received by the relevant person, a reply in writing specifying whether or not any debt is due by the relevant person to the overpaid person on the date that the notice is received by the relevant person and, if any debt is so due, specifying the amount of the debt, and
(ii)if the amount of any debt is so specified, to pay to the Minister within the period referred to in subparagraph (i), an amount equal to the amount of the debt so specified.
(2)Where the amount of the debt due by the relevant person to the overpaid person is equal to or greater than the relevant amount, the amount of the debt specified in the reply shall be an amount equal to the relevant amount.
(3)A relevant person to whom a notice of attachment has been given shall comply with the direction in the notice.
(4)Where the relevant person is a financial institution and the debt due by the relevant person to the overpaid person is part of a deposit held to the credit of the overpaid person and any other person or persons for their joint benefit, a reply shall be made within a period of 10 days from –
(a)the expiry of the period specified in the notice to be given under subsection (5), or
(b)the production of the evidence referred to in subsection (5)(ii).
(5)Where a relevant person which is a financial institution is given a notice of attachment and the debt due by the relevant person to the overpaid person is part of a deposit held by the relevant person to the credit of the overpaid person and any other person or persons (in this subsection referred to as the ‘other party or parties’) for their joint benefit, the relevant person shall on receipt of the notice of attachment give to the overpaid person and the other party or parties to the deposit a notice in writing in which is entered –
(a)the overpaid person’s name and address,
(b)the name and address of the other party or parties to whom a notice under this paragraph is given,
(c)the name and address of the relevant person, and
(d)the specified relevant amount, and which states that –
(i)a notice of attachment under this section has been received in respect of the overpaid person,
(ii)under section 343F(2) a deposit is deemed, subject to section 343F(3), to be held to the benefit of the overpaid person and the other party or parties to the deposit equally, and
(iii)unless such evidence, referred to in section 343F(3) is produced within 10 days of the giving of the notice under this subsection –
(I)an amount equal to the amount of the deposit so deemed to be held to the benefit of the overpaid person (and accordingly regarded as a debt due to the overpaid person by the relevant person) shall be paid to the Minister, where that amount is equal to or less than the relevant amount, and
(II)where the amount of the deposit so deemed to be held to the benefit of the overpaid person (and accordingly regarded as a debt due to the overpaid person by the relevant person) is greater than the relevant amount an amount equal to the relevant amount shall be paid to the Minister.
(5A)Where a relevant person who is a Minister of the Government (including the Minister) or a public body is given a notice of attachment and the debt due by the relevant person to the overpaid person is part of an amount due to the overpaid person and any other person or persons (in this subsection referred to as the ‘other party or parties’) for their joint benefit, the relevant person shall on receipt of the notice of attachment give to the overpaid person and the other party or parties a notice in writing in which is entered –
(a)the overpaid person’s name and address,
(b)the name and address of the other party or parties to whom a notice under this subsection is given,
(c)the name and address of the relevant person, and
(d)the specified relevant amount, and which states that –
(i)a notice of attachment under this section has been received in respect of the overpaid person,
(ii)under section 343FA(2) an amount is deemed, subject to section 343FA(3), to be due to the overpaid person and the other party or parties equally, and
(iii)unless such evidence, referred to in section 343FA(3) is produced within 10 days of the giving of the notice under this subsection –
(I)an amount equal to the amount deemed due to the overpaid person (and accordingly regarded as a debt due to the overpaid person by the relevant person) shall be paid to the Minister, where that amount is equal to or less than the relevant amount, and
(II)where the amount so deemed to be due to the overpaid person (and accordingly regarded as a debt due to the overpaid person by the relevant person) is greater than the relevant amount an amount equal to the relevant amount shall be paid to the Minister.
(6)If, when a relevant person receives a notice of attachment, the amount of the debt due by the relevant person to the overpaid person named in the notice is less than the relevant amount in relation to the overpaid person or no debt is so due and, at any time after the receipt of the notice and before the end of the relevant period in relation to the notice, an additional debt becomes due by the relevant person to the overpaid person, the relevant person shall within 10 days of that time –
(a)if the aggregate of the amount of any debt so due and the additional debt so due is equal to or less than the relevant amount in relation to the overpaid person –
(i)send a further statement to the Minister specifying the additional debt, and
(ii)pay to the Minister the amount of the additional debt,
and so on for each subsequent occasion during the relevant period in relation to the notice of attachment on which an additional debt becomes due by the relevant person to the overpaid person until –
(I)the aggregate amount of the debt and the additional debt or debts so due equals the relevant amount in relation to the overpaid person, or
(II)paragraph (b) applies in relation to an additional debt, and
(b)if the aggregate amount of any debt and the additional debt or debts so due to the overpaid person is greater than the relevant amount in relation to the overpaid person –
(i)send a further statement to the Minister specifying such portion of the latest additional debt as when added to the aggregate of the debt and any earlier additional debts is equal to the relevant amount in relation to the overpaid person, and
(ii)pay to the Minister that portion of the additional debt.
(7)Where a notice of attachment has been given to a relevant person in respect of an overpaid person, the relevant person shall not, during the relevant period in relation to the notice, make any disbursements out of the debt, or out of any additional debt, due by the relevant person to the overpaid person except to the extent that any such disbursement –
(a)will not reduce the debt or the aggregate of the debt and any additional debt so due to an amount that is less than the relevant amount specified in the notice of attachment concerned, or
(b)is made pursuant to an order of a court.
(8)For the purposes of this section, a disbursement made by a relevant person contrary to subsection (7) shall be deemed not to reduce the amount of the debt or any additional debts due by the relevant person to the overpaid person.
(9)Any reply, notice, statement or further statement required to be given by the relevant person to the Minister or the overpaid person under this section shall be in such manner and form as directed in the notice of attachment.
(10)A reference to the relevant amount in this section shall, as appropriate, be construed as including a reference to the relevant amount or the portion of the relevant amount, as the case may be, specified in a notice of attachment.
343I.
Revocation of notice of attachment.
A notice of attachment given to a relevant person in respect of an overpaid person may be revoked by the Minister at any time by notice in writing given to the relevant person and shall be revoked within 10 days if the overpaid person has paid the relevant amount to the Minister.
343J.
Supplemental matters relating to notices of attachment.
(1)Where in pursuance of this Part a relevant person pays any amount to the Minister under a notice of attachment out of a debt or an additional debt due by the relevant person to the overpaid person and, at the time of the receipt by the Minister of that amount, the overpaid person has paid to the Minister the amount or aggregate amount of the overpayments, in respect of which the overpaid person is in default at the time of the giving of the notice or notices of attachment, the firstmentioned amount shall be refunded by the Minister within 10 days to the overpaid person.
(2)On the receipt by the Minister of an amount paid under section 343H in accordance with a notice of attachment, the Minister shall within 10 days notify the overpaid person and the relevant person in writing of such receipt.
(3)Where, under section 343H and in accordance with a notice of attachment, a relevant person pays to the Minister the whole or part of the amount of a debt or an additional debt due by the relevant person to an overpaid person, or any part of such an amount, the overpaid person shall allow such payment and the relevant person shall be acquitted and discharged of the amount of the payment as if it had been paid to the overpaid person.
(4)Where under section 343H a relevant person is prohibited from making any disbursement out of a debt or an additional debt due to an overpaid person, no action shall lie against the relevant person in any court by reason of a failure to make any such disbursement.
(5)Any obligation on the Minister to maintain secrecy or any other restriction on the disclosure of information by the Minister shall not apply in relation to information contained in a notice of attachment.
(6)A notice of attachment in respect of an overpaid person shall not be given to a relevant person at a time when –
(a)the relevant person concerned is an undischarged bankrupt or a company being wound up, or
(b)the overpaid person concerned is an undischarged bankrupt.
(7)The Minister may appoint one or more than one of his or her officers to perform any acts and discharge any functions to be performed or discharged by the Minister under this Part.
(8)Where a relevant person to whom a notice of attachment in respect of an overpaid person has been given –
(a)delivers a reply under subparagraph (i) of section 343H(1) (c) but fails to pay to the Minister, within the period referred to in that subparagraph, the amount specified in the reply or any part of that amount, or
(b)delivers a further statement under subsection (6) of section 343H but fails to pay to the Minister within the time specified in that subsection the amount specified in the further statement or any part of that amount,
the amount specified in the reply or further statement, or the part of that amount, as the case may be, which the relevant person has failed to pay to the Minister, may, if the notice of attachment has not been revoked by a notice of revocation, be sued for and recovered by action or other appropriate proceedings by the Minister in any court of competent jurisdiction.
343K.
Offences.
Where a relevant person fails to comply with a direction under subparagraph (i) or (ii) of section 343H(1) (c) –
(a)within the period specified in subparagraph (i) of section 343H(1) (c), or
(b)if subsection (3) of section 343H applies, within the period referred to in that subsection,
he or she is guilty of an offence.
Part 11B
Recovery of certain benefits and assistance (ss. 343L-343X)
343L.
Interpretation.
(1)In this Part –
“Act of 2003” means the Personal Injuries Assessment Board Act 2003;
“Board” means the Personal Injuries Assessment Board;
“compensation payment” has the meaning assigned to it by section 343M;
“compensator” has the meaning assigned to it by section 343M;
“court” means, in relation to a personal injury action, the court in which that action has been brought, being the High Court, Circuit Court or District Court, as the case may be;
“injured person” has the meaning assigned to it by section 343M and includes any person acting on his or her behalf or his or her personal representative;
“personal injury” includes any disease and any impairment of a person’s physical or mental condition;
“recoverable benefits” has the meaning assigned to it by subsection (2);
“relevant compensation payment” means any part of a compensation payment that is attributable to loss of earnings or profits of an injured person;
“relevant statement of recoverable benefits” means a statement of recoverable benefits or, where a revised statement of recoverable benefits has been issued, the revised statement of recoverable benefits;
“revised statement of recoverable benefits” means a statement issued by the Minister under subsection 343PA(2) specifying the amount of recoverable benefits in respect of an injured person;
“specified benefits” has the meaning assigned to it by section 343O;
“specified period” shall be construed in accordance with section 343N;
“statement of recoverable benefits” means a statement issued by the Minister under section 343P(3) or 343PA(1) specifying the amount of recoverable benefits in respect of an injured person.
(2)In this Part “recoverable benefits” means –
(a)in the case of a statement of recoverable benefits issued under section 343P(3) or 343PA(1) –
(i)the specified benefits paid to an injured person as a result of the personal injury before the date of the issuing of the statement of recoverable benefits, and
(ii)the specified benefits that may be paid to an injured person as a result of the personal injury on or after the date referred to in subparagraph (i) until the end of the specified period,
and
(b)in the case of a revised statement of recoverable benefits issued under section 343PA(2) –
(i)the specified benefits paid to an injured person as a result of the personal injury before the date of the issuing of the revised statement of recoverable benefits, and
(ii)the specified benefits that may be paid to an injured person as a result of the personal injury on or after the date referred to in subparagraph (i) until the end of the specified period.
343M.
Application of Part.
(1)Subject to subsection (2), this Part applies where –
(a)a payment (in this Part referred to as a “compensation payment”) is made by or on behalf of a person (in this Part referred to as the “compensator”) who is, or is alleged to be, liable to any extent in respect of a personal injury, not causing death, suffered by any other person (in this Part referred to as the “injured person”),
(b)the injured person has received, is receiving, or may receive, a specified benefit as a result of that personal injury during the specified period, and
(c)the compensation payment is made on or after the commencement of this Part unless that payment is made pursuant to a court order, an order of the Board in accordance with the Act of 2003 or a settlement and that order or settlement is made before the commencement of this Part.
(2)This Part does not apply where compensation payments are made to an injured person –
(a)by the Hepatitis C and HIV Compensation Tribunal,
(b)by a court of competent jurisdiction to compensate certain persons who have contracted Hepatitis C or Human Immunodeficiency Virus within the State from the use of Human Immunoglobulin Anti-D, whole blood or other blood products,
(c)by the Residential Institutions Redress Board,
(d)by the Residential Institutions Statutory Fund Board,
(e)under the provisions of the Health (Repayment Scheme) Act 2006 to a relevant person within the meaning of that Act,
(f)by the Criminal Injuries Compensation Tribunal,
(g)in relation to disability caused by Thalidomide,
(h)in accordance with the Garda SÃochána (Compensation) Acts 1941 to 2003, or
(i)by a tribunal, redress board or under a scheme of compensation where that tribunal, scheme or redress board is prescribed under subsection (3).
(3)The Minister may prescribe a compensation tribunal, redress board or scheme of compensation for the purposes of subsection (2) where –
(a)compensation payments by the tribunal, redress board or under the scheme are made from moneys provided by the Oireachtas, or
(b)the tribunal or redress board is performing functions conferred on it by or under an enactment, or
(c)the scheme is administered by the Minister or a Minister of the Government other than the Minister,
and the Minister is satisfied that such prescribing will assist in securing beneficial, effective and efficient use of funds available to that tribunal, redress board or scheme.
(4)This Part applies notwithstanding section 2 of the Civil Liability (Amendment) Act 1964.
343N.
Specified period.
The specified period in respect of which specified benefits are recoverable is the period beginning on the date on which the injured person first becomes entitled to a specified benefit as a result of the personal injury and ending on the earliest of the following –
(a)the expiration of the period of 5 years from that date,
(b)the date on which a compensator makes a compensation payment in final discharge of any claim made by or in respect of the injured person as a result of the personal injury, or
(c)the date on which an agreement is made under which agreement an earlier payment is treated as having been made in final discharge of any such claim.
343O.
Specified benefits.
The specified benefits are:
(a)illness benefit under Chapter 8 of Part 2;
(b)partial capacity benefit under Chapter 8A of Part 2;
(c)injury benefit under section 74;
(d)an increase of disablement pension in accordance with section 77 or 77A, where the person is incapable of work and likely to remain permanently so incapable;
(e)invalidity pension under Chapter 17 of Part 2;
(f)disability allowance under Chapter 10 of Part 3;
(g)supplementary welfare allowance paid under Chapter 9 of Part 3.
343P.
Application for statement of recoverable benefits.
(1)Subject to subsection (2), a compensator shall apply to the Minister for a statement of recoverable benefits before making any compensation payment to, or in respect of, an injured person.
(2)The Board shall apply to the Minister for a statement of recoverable benefits before issuing an order to pay under section 38 of the Act of 2003.
(3)The Minister shall, within 25 working days from the date of receipt of an application under subsection (1) or (2), issue a statement of recoverable benefits to the compensator or the Board, as the case may be.
(4)The Minister shall, at the same time as issuing a statement of recoverable benefits to a compensator or the Board under subsection (3), issue a copy of the statement to the injured person.
(5)The Minister may by regulations prescribe –
(a)the information required by him or her relating to the identity of the injured person and benefits received by that person for the purposes of an application for a statement of recoverable benefits, and
(b)the form in which the application shall be made.
343PA.
Issuing of statements and revised statements of recoverable benefits by Minister
(1)The Minister may issue a statement of recoverable benefits to a compensator or the Board, as the case may be, where –
(a)a compensator has made a compensation payment to, or in respect of, an injured person but has not applied for a statement of recoverable benefits under section 343P(1), or
(b)the Board has issued an order to pay under section 38 of the Act of 2003 but has not applied for a statement of recoverable benefits under section 343P(2).
(2)The Minister may issue a revised statement of recoverable benefits to a compensator or the Board, as the case may be, where, subsequent to the issue of a statement of recoverable benefits under subsection (1) or section 343P(3), a decision or a revised decision, within the meaning of section 343Q(4), is given to –
(a)award a specified benefit to an injured person, or
(b)vary a specified benefit payable to an injured person.
(3)The Minister shall, at the same time as issuing a statement of recoverable benefits under subsection (1) or a revised statement of recoverable benefits under subsection (2) to a compensator or the Board, as the case may be, issue a copy of the statement to the injured person.
(4)The Minister may by regulations prescribe the information to be provided by a compensator or an injured person which is required by the Minister in relation to the identity of the injured person and benefits received by that person for the purposes of issuing a statement of recoverable benefits under subsection (1) or a revised statement of recoverable benefits under subsection (2), as the case may be.
343PB.
Transfer of personal data, under Part 11B, to compensator in United Kingdom
(1)Where –
(a)a compensator is subject to the laws, regulations and administrative procedures of the United Kingdom, and
(b)an injured person has received, is receiving, or may receive, a specified benefit,
the Minister shall, for the purposes of this Part and subsection (2), transfer to a compensator referred to in paragraph (a) personal data specified in subsection (3) in respect of an injured person referred to in paragraph (b) in all or any of the following:
(i)a statement of recoverable benefits issued by the Minister under section 343P(3) or section 343PA(1);
(ii)a revised statement of recoverable benefits issued by the Minister under section 343PA(2);
(iii)a refund made by the Minister under section 343U.
(2)The personal data referred to in subsection (1) in respect of an injured person referred to in subsection (1)(b), that are transferred in a statement, or refund, referred to in subsection (1), are necessary for the payment to the Minister, by a compensator referred to in subsection (1)(a), of any specified benefit received by, or which may be received by, an injured person referred to in subsection (1)(b) to whom, or in respect of whom, a compensation payment is made by that compensator.
(3)The personal data referred to in subsection (1) are personal data within the meaning of Article 4 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC that are –
(a)required for the purposes and effective operation of this Part and subsection (2), and
(b)held by the Minister for those purposes and that operation.
343Q.
Period of validity of statements and revised statements of recoverable benefits
(1)A statement of recoverable benefits or a revised statement of recoverable benefits shall be valid –
(a)in a case where, at the time of issuing the statement, no recoverable benefits have been identified –
(i)for 12 months from the date of issue of the statement of recoverable benefits or revised statement of recoverable benefits, as the case may be, or
(ii)until such time as a decision or a revised decision is given to award a specified benefit to an injured person,
whichever is the earlier,
(b)in a case where, at the time of issuing the statement, recoverable benefits have been identified and no specified benefit is being paid –
(i)for 12 months from the date of issue of the statement of recoverable benefits or revised statement of recoverable benefits, as the case may be, or
(ii)until such time as a decision or a revised decision is given to award a specified benefit to an injured person or to vary a specified benefit payable to an injured person,
whichever is the earlier, and
(c)in any other case –
(i)for 3 months from the date of issue of the statement of recoverable benefits or the revised statement of recoverable benefits, as the case may be, or
(ii)until such time as a decision or a revised decision is given to vary a specified benefit payable to an injured person,
whichever is the earlier.
(2)A person to whom a statement of recoverable benefits or a revised statement of recoverable benefits has been issued may request the Minister to furnish particulars of the manner in which the amount of recoverable benefits specified in the statement was calculated.
(3)The Minister shall furnish the particulars requested under subsection (2) within 4 weeks of the receipt of such a request.
(4)In this section –
‘decision’ means –
(a)a decision that is given by a deciding officer under section 300, or
(b)a decision that is given by an appeals officer under section 311;
‘revised decision’ means –
(a)a revised decision that is given by a deciding officer under section 301, or
(b)a revised decision that is given by an appeals officer under section 317.
343R.
Obligation to pay recoverable benefits.
(1)Subject to subsection (2), a compensator shall pay to the Minister the amount of recoverable benefits specified in the relevant statement of recoverable benefits before making any compensation payment to, or in respect of, an injured person.
(2)Where the recoverable benefits specified in the relevant statement of recoverable benefits exceed the amount of the relevant compensation payment and that relevant compensation payment was the subject of an order of a court or assessment by the Board in accordance with the Act of 2003, the compensator is liable only to the extent of that amount so ordered or assessed.
(3)A compensator who fails to comply with subsection (1) or otherwise fails to pay the amount of recoverable benefits due to the Minister is liable to pay on demand to the Minister that amount of recoverable benefits so due.
343S.
Reduction of compensation payment to injured person.
(1)A compensator who pays an amount equal to the total amount of the recoverable benefits to the Minister in accordance with section 343R may reduce the relevant compensation payment payable to the injured person by that amount and shall notify the injured person accordingly.
(2)The compensation payment, other than the relevant compensation payment, payable by a compensator to an injured person shall not be reduced by the compensator where the total amount of the recoverable benefits exceeds the amount of the relevant compensation payment payable to an injured person.
343T.
Discharge of liability to injured person.
Where this Part applies to a claim for a compensation payment by or on behalf of an injured person, that claim, in so far as it relates to a relevant compensation payment, shall be treated as discharged to the extent that the compensator has made a payment to the Minister in respect of that claim in accordance with section 343R.
343U.
Refund to compensator where specified benefit not paid.
(1)Where a compensator has made a payment to the Minister in accordance with section 343R and any part of that payment includes specified benefits referred to in subsection (2), the Minister shall refund to the compensator the amount of that payment which represents those benefits.
(2)The specified benefits referred to in subsection (1) are those benefits, within the meaning of paragraph (a)(ii) or (b)(ii) of the definition of recoverable benefits, not paid by the Minister to the injured person at the end of the specified period.
343V.
Appeal under section 311.
(1)This section applies where an appeal is brought under section 311 (amended by section 13(c) of the Social Welfare and Pensions Act 2013) against a decision given by a deciding officer on a question under paragraph (hh) (inserted by section 13(b) of the Social Welfare and Pensions Act 2013) of section 300(2).
(2)Where on the determination of an appeal referred to in subsection (1) an appeals officer decides that the amount of recoverable benefits specified in the relevant statement of recoverable benefits exceeds the amount of recoverable benefits due to the Minister, the Minister shall refund the amount of that excess to the compensator.
(3)Where on the determination of an appeal referred to in subsection (1) an appeals officer decides that the amount of recoverable benefits specified in the relevant statement of recoverable benefits is less than the amount of recoverable benefits due to the Minister, the compensator is liable to pay the Minister the difference between the amount paid to the Minister in accordance with section 343R and the amount of recoverable benefits due to the Minister as decided by the appeals officer.
343W.
More than one compensator making compensation payment.
Where two or more compensators are liable by virtue of this Part for recoverable benefits for the same personal injury, they shall be liable jointly and severally to the Minister in relation to those benefits and Part III of the Civil Liability Act 1961 shall be read as applying to that liability with all necessary modifications.
343X.
Transitional arrangements
Any statement of recoverable benefits issued prior to the coming into operation of section 12 of the Social Welfare (Miscellaneous Provisions) Act 2015 shall be valid for the period specified in that statement or until a decision or a revised decision, within the meaning of section 343Q(4), is given to award a specified benefit to an injured person or to vary a specified benefit payable to an injured person, whichever is the earlier.