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Investigation Report on the non-payment of arrears of contributory pensions.

Legal Background

Legal Background

22. The primary legislative basis for all social welfare payments (including social insurance pensions) is contained in the Social Welfare (Consolidation) Act, 1993. Whereas the decisions in the three cases under investigation may have predated the 1993 Act, the then relevant provisions have been carried forward into the 1993 Act. For ease of reference, the 1993 Consolidation Act may be taken as the relevant Act for the purposes of this report. (Indeed, it is worth noting that the particular provisions of interest here have been on the statute book, virtually unaltered, since 1952). Section 205 of the Social Welfare (Consolidation) Act, 1993 provides as follows:

"(1) It shall be a condition of any person's right to any benefit that he makes a claim therefor in the prescribed manner.

(2) Regulations may provide for disqualifying a person for the receipt of any benefit if he fails to make his claim for such benefit within the prescribed time, but any such regulations may provide for extending, subject to such conditions as may be prescribed, the time within which the claim may be made".

23. Section 205 has two additional sub-sections, but they do not impinge on the issues arising here. It is clear that S. 205 bears on the case of contributory pension applications. It is clear that S.205(1) requires the Minister to prescribe by regulation the manner in which a claim is to be made. And it is clear that a person's right to a benefit (including contributory pension) is dependent upon the person making a "claim therefor in the prescribed manner". Section 205(2), on the other hand, enables (but does not require) the Minister by regulation to disqualify a person from payment where that person's claim is not made "within the

prescribed time". It is perhaps to be inferred from S.205(1) that the "prescribed manner" for the making of a claim will include a "prescribed time". Where the Minister chooses to exercise his power under S.205(2), it is further provided that the prescribed time may be extended subject to such conditions as the Minister may prescribe. There would not appear to be anything in the 1993 Act (or its predecessors) to indicate what specific conditions the Oireachtas envisaged should be met before an extension would be permitted.

24. Since 1952 successive Ministers for Social Welfare have made regulations in relation to the prescribed manner for making a claim and in relation to the prescribed time (including the extension of the prescribed time) for making a claim. The current such provisions are contained at Articles 100 - 107 of the Social Welfare (Consolidated Payments Provisions) Regulations, 1994 (the 1994 Regulation hereafter). As the provisions in the 1994 Regulation are, in all material respects, identical with those in earlier regulations since 1952, it will be taken as the relevant regulation for the purposes of this report. (Indeed, the relevant portions of the 1994 Regulation have themselves been amended twice - in 1995 and in 1996 - but these amendments make no material difference in the present context.) The key provisions in the 1994 Regulation are the following:

100. (1) "Every claim for benefit (including any increase thereof) shall be made in the form for the time being approved by the Minister or in such other manner as the Minister may accept as sufficient in the circumstances".

102. "The prescribed time for making a claim shall be -

(a) in the case of old age (contributory) pension, retirement pension and invalidity pension, the period commencing 3 months before and ending 3 months after the date on which, apart from satisfying the condition of making a claim, the claimant becomes entitled thereto,.."

104. "Subject to articles 105 and 107, where a person fails to make a claim for benefit (other than child benefit or family income supplement) within the prescribed time, he shall be disqualified for receiving payment - (a) in the case of old age (contributory) pension, retirement pension, invalidity pension, survivor's pension and orphan's (contributory) allowance, in respect of any period more than 6 months before the date on which the claim is made,.."

105. "Other than in the case of child benefit or family income supplement, where a claimant proves to the satisfaction of a deciding officer or an appeals officer that -

(a) on a date earlier than the date on which his claim for benefit...was made, apart from satisfying the condition of making a claim, he was entitled thereto, and

(b) throughout the period between the earlier date and the date on which his claim was made there was good cause for the delay in making such a claim, he shall not be disqualified for receiving payment of the amount to which he would have been entitled if the claim had been made on the earlier date:

Provided no sum shall be paid to a claimant on acount of any benefit in respect of any period more than 6 months before the date on which the claim...therefor is made."

The effect of these various provisions would seem to be as set out below.

25. Article 100(1) deals with the prescribed manner for the making of a claim. This is not particularly specific and refers to the "manner for the time being approved by the Minister". In practical terms, this generally means utilising the claim form provided by the Minister for that particular benefit or pension. But is also open to the Minister to accept a claim "in such other manner as the Minister may accept as sufficient in the circumstances." This appears to allow the Minister to accept, for example, a claim made by letter or perhaps by way of a telephone call - subject always to the required information being provided ultimately. Article 100(1) does not deal with the issue of the prescribed time for making a claim.

26. Article 102 deals with the issue of the prescribed time for making a claim. In relation to contributory old age pension and retirement pension, it provides that the prescribed time for such a claim is within the period of three months before and three months after reaching pension age. Different prescribed times are provided for different payments. For example, in the case of survivor's pension the time prescribed is the three month period following widowhood. There are two payments - Child Benefit and Family Income Supplement - for which there is no prescribed time for making a claim.

27. The Department has been unable to shed any light on the reasoning which underpinned its original interpretation of the provisions of Section 205 and which provided the basis on which the subsequent regulations are framed (see a more detailed account of this aspect at Paragraph 52). In my opinion a reasonable interpretation of that section would be that it was designed to allow the Minister, if he/she so wished, to provide a time limit for the receipt of applications, and to disqualify a person from receiving a benefit if

a claim was not made within that time frame. It also allowed the Minister to extend the time limit, subject to specific conditions as he/she might prescribe. The conditions were obviously intended to govern the extension; for example, if the applicant had good cause for not applying in time he would not be disqualified from payment. In Article 104 , however, the Minister provided that a person applying outside the time limit would receive the benefit, but would not be paid more than six months arrears. This is arguably an amelioration of the terms of Section 205 which seems to envisage full disqualification. In Article 105, dealing with the extension of the time limit, the Minister prescribed that applicants must show good cause before an extension be granted, but then proceeded to provide that, even where good cause was shown, arrears could not exceed six months. This is arguably a disimprovement in what was intended in that, while the applicant now qualifies for the benefit, there is a penalty imposed. I find it difficult to accept that the Oireachtas intended that a person whose failure to claim arose from, say, a prolonged period of psychiatric disorder should be disqualified from full payment once the cause of the delay is established. Nowhere in Section 205(2) of the 1993 Act is there any reference, as one might expect, to disqualification for such period of time as the Minister might determine, or to the imposition of penalties as part of the conditions governing the extension of the prescribed time. [ A contrasting example of the imposition of penalties, by way of stated periods of disqualification, would be those contained in the Road Traffic Act, 1961(as amended) in relation to a driving licence.] Normal interpretation of Section 205 would proceed on the basis that the provision of penalties should not be attributed to the Oireachtas unless expressly provided for in the statute.

28. In the case of the three complainants whose cases are the subject of this report, arrears were refused because of the application of Articles 104 and 105.

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