No. 28/1976:

SOCIAL WELFARE (NO. 2) ACT, 1976

ARRANGEMENT OF SECTIONS

1 Definitions.

2 Amendment of section 44 of Act of 1952.

3 Amendment section 49 of Act of 1952.

4 Amendment of section 52 of Act of 1952.

5 Extension of period for bringing certain prosecutions.

6 Offences and proceedings relating to bodies corporate.

7 Winding up and bankruptcy.

8 Amendment of section 51 of Act of 1942.

9 Increased penalties for certain offences.

10 Disqualification for certain persons and allowances following certain convictions.

11 Presumption regarding truth of information in applications for certain benefit, allowance, pension or assistance.

12 Power to create offences by regulations under certain Acts.

13 Amendments of Old Age Pensions Act, 1932.

14 Short title, construction and collective citation.

AN ACT TO AMEND AND EXTEND THE OLD AGE PENSIONS ACTS, 1908 TO 1976, THE PENSIONS BOOKS (PROHIBITION OF ALIENATION) ACT, 1932, THE UNEMPLOYMENT ASSISTANCE ACTS, 1933 TO 1976, THE WIDOWS' AND ORPHANS' PENSIONS ACTS, 1935 TO 1976, THE INSURANCE (INTERMITTENT UNEMPLOYMENT) ACTS, 1942 AND 1963, THE SOCIAL WELFARE (CHILDREN'S ALLOWANCES) ACTS, 1944 TO 1975, AND THE SOCIAL WELFARE ACTS, 1952 TO 1976, AND TO PROVIDE FOR OTHER MATTERS CONNECTED THEREWITH.

[12th July, 1976]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

1.—In this Act—

"the Act of 1942" means the Insurance (Intermittent Unemployment) Act, 1942 ;

"the Act of 1952" means the Social Welfare Act, 1952 .

2.—Section 44 of the Act of 1952, which relates to appeals and references to appeals officers under that Act, is hereby amended by the substitution of the following subsection for subsection (9):

"(9) A person to whom a notice under subsection (7) of this section has been given and who refuses or wilfully neglects to attend in accordance with the notice or who, having so attended, refuses to give evidence or refuses or wilfully fails to produce any document to which the notice relates shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £100.".

3.—Section 49 of the Act of 1952 (as amended by the Social Welfare (Pay-Related Benefit) Act, 1973), which relates to the powers of inspectors under that Act, is hereby amended by the substitution of the following subsections for subsections (4) and (6), respectively:

"(4) If any person—

( a ) wilfully delays or obstructs an inspector in the exercise of any power under this section, or

( b ) refuses or neglects to answer any question or to furnish any information or to produce any document when required to do so under this section, or

( c ) conceals or prevents or attempts to conceal or prevent any person from appearing before or being examined by a person appointed under this section,

he 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,

but no one shall be required under this section to answer an question or to give any evidence tending to incriminate himself.

(6) The premises and places liable to inspection under this section are any premises or places where an inspector has reasonable grounds for believing that any persons are or have been employed and any premises or places where an inspector has reasonable grounds for believing that any insurance cards or any other documents relating to persons in employment are kept.".

4.—The following section is hereby substituted for section 52 of the Act of 1952 (as amended by the Social Welfare (Miscellaneous Provisions) Act, 1961 , and the Social Welfare Act, 1971 ), which contains general provisions relating to offences under that Act:

"52.—(1) ( a ) If any person—

(i) buys, sells or offers for sale, takes or gives in exchange, or pawns or takes in pawn any insurance card or any used insurance stamp,

(ii) affixes any used insurance stamp to any insurance card, or

(iii) affixes to any insurance card a forged or counterfeit stamp,

he shall be guilty of an offence.

( b ) If any person, for the purposes of obtaining any benefit or other payment under this Act, whether for himself or some other person, or for any purpose connected with this Act—

(i) knowingly makes any false statement or false representation or knowingly conceals any material fact, or

(ii) produces or furnishes, or causes or knowingly allows to be produced or furnished, any document or information which he knows to be false in a material particular,

he shall be guilty of an offence.

( c ) Where a person aids, abets, counsels or procures an employee of his to commit any offence under paragraph (a) or (b) of this subsection or conspires with the employee for the commission by the employee of any such offence,

such person shall be guilty of an offence.

( d ) A person who is guilty of an offence under this subsection 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.

( e ) In any proceedings under this subsection in respect of used insurance stamps, an insurance stamp shall be deemed to have been used if it has been affixed to an insurance card or cancelled or defaced in any way, and whether or not it has actually been used for the purpose of payment of a contribution.

( f ) (i) A person convicted of an offence under this subsection in relation to a benefit other than orphan's contributory allowance, maternity benefit, death grant, or death benefit under section 21 or 22 of the Social Welfare (Occupational Injuries) Act, 1966 , shall be disqualified for the receipt of that benefit for a period of six months immediately following the date of the conviction.

(ii) Subparagraph (i) of this paragraph shall not have effect in relation to an offence (other than an offence relating to unemployment benefit) committed before, the passing of the Social Welfare (No. 2) Act, 1976 .

(2) ( a ) If any employer fails to pay at or within a prescribed time any employment contribution which he is liable under this Act to pay, he shall be guilty of an offence.

( b ) If any employer deducts or attempts to deduct the whole or any part of any employer's contribution in respect of a person from that person's remuneration, the employer shall be guilty of an offence.

( c ) If any employer makes a deduction from the remuneration of a person in respect of any employment contribution which the employer is liable under this Act to pay and fails to pay at or within a prescribed time the employment contribution in respect of which the deduction was made, the employer shall be guilty of an offence.

( d ) A person who is guilty of an offence under this subsection 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 such amount as is equivalent to twice the amount so unpaid or deducted, whichever is the greater, or (at the discretion of the court) to imprisonment for a term not exceeding two years, or to both such fine and such imprisonment.

(3) Regulations may provide for offences consisting of contraventions of or failures to comply with regulations and for the imposition, at the discretion of the court—

( a ) 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, or

( b ) on conviction on indictment of such offences, of fines not exceeding specified amounts of not more than £2, 000 or of imprisonment for terms not exceeding two years, or of both such fines and such imprisonment, together with, in the case of continuing offences, further such fines in respect of each day on which the offences are continued.

(4) ( a ) Where an employer has been convicted under this section of the offence of failing to pay any employment contributions which he is liable under this Act to pay, he shall be liable to pay to the Fund a sum equal to the amount which he has so failed to pay and, on such a conviction, if notice of the intention to do so has been served with the summons or warrant, evidence may be given of the failure on the part of the employer to pay other employment contributions in respect of the same person during the three years preceding the date when the information was so laid, and on proof of such failure the court may order the employer to pay to the Fund a sum equal to the total of all the employment contributions which he is so proved to have failed to pay, and the employer's right of appeal against the conviction under the section shall include a right to appeal against such an order.

( b ) Any sum paid by an employer under this subsection shall be treated as a payment in satisfaction of the unpaid employment contributions, and the insured person's portion of these employment contributions shall not be recoverable by the employer from the insured person.

(5) Nothing in this section or in regulations under this section shall be construed as preventing the Minister from recovering by means of civil proceedings any sums due to the Fund.".

5.—(1) Notwithstanding any provision in any Act specifying the period within which proceedings may be commenced, a prosecution for an offence under any of the Acts specified in subsection (2) of this section or under regulations made under or applying the provisions of any of those Acts may be brought at any time within whichever of the following periods latest 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 for Social Welfare that evidence sufficient to justify the institution of that prosecution came into the procurement or possession of that Minister, or

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

(2) The specified Acts referred to in subsection (1) of this section are—

( a ) the Old Age Pensions Acts, 1908 to 1976,

( b ) the Unemployment Assistance Acts, 1933 to 1976,

( c ) the Widows' and Orphans' Pensions Acts, 1935 to 1976,

( d ) the Insurance (Intermittent Unemployment) Acts, 1942 and 1963,

( e ) the Social Welfare (Children's Allowances) Acts, 1944 to 1975,

( f ) the Social Welfare Acts, 1952 to 1976.

6.—(1) Where an offence under the Social Welfare Acts, 1952 to 1976, or under the Insurance (Intermittent Unemployment) Acts, 1942 to 1976, or under regulations made under those Acts is committed by a body corporate, every person who at the time of the commission of the offence was a director, manager, secretary or other officer of the body corporate or was purporting to act in any such capacity shall also be guilty of that offence.

(2) It shall be a good defence to a prosecution for an offence under this section for a person to show that the offence was committed without his knowledge and that he exercised all such diligence to prevent the commission of the offence as he ought to have exercised, having regard to the nature of his position as director, manager, secretary or other officer and to all the circumstances.

(3) Any summons or other document required to be served for the purpose of proceedings under the Social Welfare Acts, 1952 to 1976, or under the Insurance (Intermittent Unemployment) Acts, 1942 to 1976, on a body corporate may be served—

( a ) by leaving it at or sending it by post to the registered office of the body corporate,

( b ) by leaving it at or sending it by post to any place in the State at which the body corporate conducts business, or

( c ) by sending it by post to any person who is a director, manager, secretary or other officer of the body corporate or is purporting to act in any such capacity at the place where that person resides.

7.—(1) In this section—

"the Act of 1889" means the Preferential Payments in Bankruptcy (Ireland) Act, 1889;

"employment contribution" has the meaning assigned to it by the Act of 1952.

(2) Any sum—

( a ) deducted by an employer from the remuneration of an employee of his in respect of an employment contribution due by the employer, or

( b ) deducted by an employer from the remuneration of an employee of his and so deducted under section 20 of the Act of 1942 in respect of a weekly contribution under the Act of 1942, and

( c ) unpaid by the employer in respect of either such type of contribution—

shall not form part of the assets of a limited company in a winding up under the Companies Act, 1963 , and in such a winding up a sum equal in amount to the sum so deducted shall, notwithstanding anything in that Act, be paid to the Social Insurance Fund or to the Supplementary Unemployment Fund (as the case may be) in priority to the debts specified in section 285 (2) of that Act.

(3) Any sum—

( a ) deducted by an employer from the remuneration of an employee of his in respect of an employment contribution due by the employer, or

( b ) deducted by an employer from the remuneration of an employee of his and so deducted under section 20 of the Act of 1942 in respect of a weekly contribution under the Act of 1942, and

( c ) unpaid by the employer in respect of either such type of contribution before the date of the order of adjudication or the filing of the petition for arrangement (as the case may be)-

shall not form part of the property of the bankrupt or arranging debtor so as to be included among the debts which under section 4 of the Act of 1889 are in the distribution of such property to be paid in priority to all other debts, but shall, before such distribution and notwithstanding anything in the Act of 1889, be paid to the Social Insurance Fund or the Supplementary Unemployment Fund (as the case way be) in priority to the debts specified in section 4 of the Act of 1889.

(4) Formal proof of a debt to which priority is given by this section shall not be required except where required by or under the Act of 1889 or the Companies Act, 1963 .

8.—The following section is hereby substituted for section 51 of the Act of 1942, which contains general provisions relating to offences under that Act:

"51.—(1) ( a ) If any person—

(i) buys, sells or offers for sale, takes or gives in exchange, or pawns or takes in pawn any supplementary unemployment card, supplementary unemployment book or any used supplementary insurance stamp,

(ii) affixes any used supplementary insurance stamp to any supplementary unemployment card or supplementary unemployment book, or

(iii) affixes to any supplementary unemployment card or supplementary unemployment book a forged or counterfeit supplementary insurance stamp,

he shall be guilty of an offence.

( b ) If any person, for the purposes of obtaining any supplementary benefit or payment or repayment under this Act, whether for himself or some other person, or for any purpose connected with this Act—

(i) knowingly makes any false statement or false representation or knowingly conceals any material fact, or

(ii) produces or furnishes, or causes or knowingly allows to be produced or furnished, any document or information which he knows to be false in a material particular,

he shall be guilty of an offence.

( c ) Where a person aids, abets, counsels or procures an employee of his to commit any offence under paragraph (a) or (b) of this subsection or conspires with the employee for the commission by the employee of any such offence,

such person shall be guilty of an offence.

( d ) A person who is guilty of an offence under this subsection 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.

( e ) In any proceedings under this subsection in respect of used supplementary insurance stamps, a supplementary insurance stamp shall be deemed to have been used if it has been affixed to a supplementary unemployment card or supplementary unemployment book or has been cancelled or defaced in any way, and whether or not it has actually been used for the purpose of payment of a weekly contribution.

(2) ( a ) If any employer fails to pay at or within a prescribed time any weekly contribution which he is liable under this Act to pay, he shall be guilty of an offence.

( b ) If any employer deducts or attempts to deduct the whole or any part of any employer's contribution in respect of a person from that person's remuneration, the employer shall be guilty of an offence.

( c ) If any employer makes a deduction from the remuneration of a person in respect of any weekly contribution which the employer is liable under this Act to pay, and fails to pay at or within a prescribed time the weekly contribution in respect of which the deduction was made, the employer shall be guilty of an offence.

( d ) A person who is guilty of an offence under this subsection 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 such amount as is equivalent to twice the amount so unpaid or deducted, whichever is the greater, or (at the discretion of the court) to imprisonment for a term not exceeding two years or to both such fine and such imprisonment.

(3) Regulations may provide for offences consisting of contraventions of or failures to comply with regulations and for the imposition, at the discretion of the court—

( a ) 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, or

( b ) on conviction on indictment of such offences, of fines not exceeding specified amounts of not more than £2, 000 or of imprisonment for terms not exceeding two years, or of both such fines and such imprisonment, together with, in the case of continuing offences, further such fines in respect of each day on which the offences are continued.

(4) ( a ) Where an employer has been convicted under this section of the offence of failing to pay any weekly contributions which he is liable under this Act to pay, he shall be liable to pay to the Supplementary Unemployment Fund a sum equal to the amount which he has so failed to pay and, on such a conviction, if notice of the intention to do so has been served with the summons or warrant, evidence may be given of the failure on the part of the employer to pay other weekly contributions in respect of the same person during the three years preceding the date when the information was so laid, and on proof of such failure the court may order the employer to pay to the Supplementary Unemployment Fund a sum equal to the total of all the weekly contributions which he is so proved to have failed to pay, and the employer's right of appeal against the conviction under the section shall include a right to appeal against such an order.

( b ) Any sum paid by an employer under this subsection shall be treated as a payment in satisfaction of the unpaid weekly contributions, and the insured person's portion of these weekly contributions shall not be recoverable by the employer from the insured person.

(5) ( a ) In any proceedings under this section or under regulations made under this section or involving any question as to the payment of weekly contributions under this Act or the recovery of any sums due to the Supplementary Unemployment Fund, the provisions of section 57 of the Social Welfare Act, 1952 (which relates to the effect of decisions under that Act) shall apply in like manner, but with the necessary modifications, in relation to a decision under this Act which is relevant to such proceedings.

( b ) The provisions of section 56 of the Social Welfare Act, 1952 (which relates to certificates of decisions under that Act) shall apply in relation to a decision made pursuant to this Act or regulations made thereunder.

(6) Any sum that an employer is liable to pay under subsection (4) of this section or any sum due to the Supplementary Unemployment Fund for which a court has made an order for payment may, without prejudice to other methods of recovery, be deducted by the Minister from any sums payable out of the Supplementary Unemployment Fund to that employer under this Act and any amounts so deducted shall be paid by the Minister into the Supplementary Unemployment Fund.

(7) Nothing in this section or in regulations made under this section shall be construed as preventing the Minister from recovering by means of civil proceedings any sums due to the Supplementary Unemployment Fund and all such sums shall be recoverable as debts due to the State and without prejudice to any other remedy may be recovered by the Minister as a simple contract debt in any court of competent jurisdiction.".

9.—(1) A person who is guilty of an offence under an enactment specified in the Table to this subsection shall, in lieu of being liable to any penalty specified in that enactment, be liable—

( a ) 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

( b ) 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.

TABLE

(2) A person who is guilty of an offence under subsection (1) of section 7 of the Unemployment Assistance (Amendment) Act, 1935 (which relates to the revocation and amendment of qualification certificates under Part II of the Unemployment Assistance Act, 1933 ) shall, in lieu of being liable to any fine specified in that subsection, be liable on summary conviction to a fine not exceeding £100.

(3) A person who is guilty of an offence under subsection (4) of section 7 of the Unemployment Assistance (Amendment) Act, 1935 shall, in lieu of being liable to a fine not exceeding the amount specified in that subsection, be liable on summary conviction to a fine not exceeding £100.

10.—(1) A person convicted of an offence under section 9 (1) (inserted by section 22 of the Social Welfare (Miscellaneous Provisions) Act, 1960 ) of the Old Age Pensions Act, 1908, shall be disqualified for the receipt of old age pension for a period of six months immediately following the date of the conviction.

(2) A person convicted of an offence under section 58 (1) of the Widows' and Orphans' Pensions Act, 1935 , in relation to widows' (non-contributory) pension shall be disqualified for the receipt of such pension for a period of six months immediately following the date of the conviction.

(3) A person convicted of an offence under section 12 (1) of the Children's Allowances Act, 1944 , shall be disqualified for the receipt of the children's allowance in respect of which the offence was committed for a period of six months immediately following the date of the conviction.

(4) Subsections (1), (2) and (3) of this section shall not have effect in relation to offences committed before the passing of this Act.

11.—(1) This section applies to the following Acts—

( a ) the Old Age Pensions Acts, 1908 to 1976,

( b ) the Unemployment Assistance Acts, 1933 to 1976,

( c ) the Widows' and Orphans' Pensions Acts, 1935 to 1976,

( d ) the Insurance (Intermittent Unemployment) Acts, 1942 to 1976,

( e ) the Social Welfare (Children's Allowances) Acts, 1944 to 1975,

( f ) the Social Welfare Acts, 1952 to 1976.

(2) Where in a prosecution for an offence under any of the Acts to which this section applies, or under regulations made under or applying the provisions of any of those Acts, 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 benefit, allowance, pension or assistance under any of the Acts to which this section applies, and

( b ) that as a result of that application benefit, allowance, pension or assistance under any of the Acts to which this section applies has been paid to any person (whether or not such benefit, allowance, pension or assistance 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.

12.—(1) This section applies to the following Acts—

( a ) the Old Age Pensions Acts, 1908 to 1976,

( b ) the Unemployment Assistance Acts, 1933 to 1976,

( c ) the Widows' and Orphans' Pensions Acts, 1935 to 1976,

( d ) the Social Welfare (Children's Allowances) Acts, 1944 to 1975.

(2) Regulations under any of the Acts to which this section applies may provide for offences consisting of contraventions of or failures 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.

13.—(1) Section 2 of the Old Age Pensions Act, 1932 (as amended by the Act of 1952) is hereby amended by the substitution of the following subsection for subsection (1):

"(1) In lieu of the second statutory condition contained in paragraph (2) (repealed by this Act) of section 2 of the Act of 1908, it is hereby enacted that it shall be a condition for the receipt of an old age pension by any person that he shall satisfy the pension authorities that he has had his residence in the State for an aggregate period of not less than 15 years and that not less than 5 years of that period were subsequent to his attaining the age of 50 years.".

(2) The Old Age Pensions Act, 1932 , is hereby amended by the substitution of the following section for section 6:

"6. In lieu of section 1 (repealed by this Act) of the Blind Persons Act, 1920, it is hereby enacted that every blind person who has attained the age of 21 years shall be entitled to receive and to continue to receive such pension as, under the Old Age Pensions Acts, 1908 to 1976 (as amended) he would be entitled to receive if he had attained the age of 67 years, and the provisions of those Acts (as amended), including the provisions as to expenses, shall apply in all respects to such person subject to the following modifications—

( a ) for the first statutory condition contained in section 2 of the Act of 1908 there shall be substituted the condition that the person must be a person who has attained the age of 21 years and satisfies the pension authorities that he is so blind that either he cannot perform any work for which eyesight is essential or that he cannot continue his ordinary occupation; and

( b ) for the statutory condition substituted by this Act for the second statutory condition contained in section 2 of the Act of 1908 there shall be substituted the condition that the person shall satisfy the pension authorities that, since reaching the age of 10 years, he has had his residence in the State for an aggregate period of 5 years and the provisions of this Act in relation to the interpretation of the first-mentioned statutory condition contained in that section shall apply to the interpretation of the condition imposed by this paragraph."

14.—(1) This Act may be cited as the Social Welfare (No. 2) Act, 1976 .

(2) This Act—

( a ) in so far as it amends and extends the Old Age Pensions Acts, 1908 to 1976, shall be construed as one with those Acts and shall be included in the collective citation, the Old Age Pensions Acts, 1908 to 1976,

( b ) in so far as it amends and extends the Pensions Books (Prohibition of Alienation) Act, 1932, shall be construed as one with that Act and may be cited together with it as the Pensions Books (Prohibition of Alienation) Acts, 1932 and 1976,

( c ) in so far as it amends and extends the Unemployment Assistance Acts, 1933 to 1976, shall be construed as one with those Acts and shall be included in the collective citation, the Unemployment Assistance Acts, 1933 to 1976,

( d ) in so far as it amends and extends the Widows' and Orphans' Pensions Acts, 1935 to 1976, shall be construed as one with those Acts and shall be included in the collective citation, the Widows' and Orphans' Pensions Acts, 1935 to 1976,

( e ) in so far as it amends and extends the Insurance (Intermittent Unemployment) Acts, 1942 and 1963, shall be construed as one with those Acts and may be cited together with them as the Insurance (Intermittent Unemployment) Acts, 1942 to 1976,

( f ) in so far as it amends and extends the Social Welfare (Children's Allowances) Acts, 1944 to 1975, shall be construed as one with those Acts and may be cited together with them as the Social Welfare (Children's Allowances) Acts, 1944 to 1976,

( g ) in so far as it amends and extends the Social Welfare Acts, 1952 to 1976, shall be construed as one with those Acts and shall be included in the collective citation, the Social Welfare Acts, 1952 to 1976.