S.I. No. 272/1990:

SOCIAL WELFARE (LONE PARENT'S ALLOWANCE AND OTHER ANALOGOUS PAYMENTS) REGULATIONS, 1990.

SOCIAL WELFARE (LONE PARENT'S ALLOWANCE AND OTHER ANALOGOUS PAYMENTS) REGULATIONS, 1990.

The Minister for Social Welfare, in exercise of the powers conferred on him by sections 2 , 3 , 180 , 188 , 189 , 195 and 196 of the Social Welfare (Consolidation) Act, 1981 (No. 1 of 1981) and by section 198F of that Act (inserted by section 12 of the Social Welfare Act, 1990 (No. 5 of 1990)), and after consultation with An Post, hereby makes the following Regulations:--

PART I General

1. These Regulations may be cited as the Social Welfare (Lone Parent's Allowance and Other Analogous Payments) Regulations, 1990.

2. In these Regulations, unless the context otherwise requires--

"the Act" means the Social Welfare (Consolidation) Act, 1981 ;

"the Act of 1990" means the Social Welfare Act, 1990 ;

"allowance" means a lone parent's allowance, deserted wife's allowance or a pensioner's wife's allowance, as the case may be;

"allowance order" means an order for the payment through the post office of a weekly sum on account of a pension or an allowance;

"beneficiary" means a person entitled to a pension or an allowance, as the case may be;

"Chapter 5A of Part III of the Act" means Chapter 5A of Part III of the Act (inserted by section 12 of the Act of 1990);

"claimant" means a person who has made a claim for a pension or an allowance, as the case may be, or who could properly make such a claim if he were able to act;

"court" means a court to which either the Courts of Justice Acts, 1924 to 1961, or the Courts (Supplemental Provisions) Acts, 1961 to 1988 apply;

"pension" means a widow's (non-contributory) pension or an orphan's (non-contributory) pension, as the case may be;

"prison" or "place of detention" means a place to which either the Prisons Acts, 1826 to 1977, or the Criminal Justice Act, 1960 (No. 27 of 1960) applies or, in relation to another State, any analogous place in which a person is detained by order of a responsible authority in that State;

"responsible authority" means any court, Commission or Tribunal properly constituted according to the laws of a State in which a person has been commited to a prison or to a place of detention;

"section 198C of the Act" and "section 198D of the Act" means section 198C and 198D respectively of the Act (inserted by section 12 of the Act of 1990).

3. These Regulations shall come into operation--

( a ) on the 29th day of November, 1990 in the case of deserted wife's allowance, prisoner's wife's allowance and lone parent's allowance, other than lone parent's allowance payable in respect of a widow or a widower, and

( b ) on the 30th day of November, 1990 in the case of widow's (non-contributory) pension, orphan's (non-contributory) pension and lone parent's allowance payable in respect of a widow or a widower.

4. The Regulations specified in Schedule B to these Regulations are hereby revoked to the extent specified in column 3 of that Schedule.

PART II Lone Parent's Allowance

CHAPTER 1 Separated Spouse

5. (1) A person is to be regarded for the purposes of Chapter 5A of Part III of the Act as being separated from his spouse if--

( a ) he and their children--

(i) are not being maintained by his spouse, or

(ii) are being maintained by his spouse, but at a rate per week which is less than the maximum scheduled rate of a lone parent's allowance appropriate to his family size, and

( b ) he and his spouse have lived apart from one another for a continuous period of at least three months immediately preceding the date of his claim for a lone parent's allowance.

(2) A separated spouse shall make and continue to make appropriate efforts, to the satisfaction of the Minister in the particular circumstances, to obtain maintenance from his spouse for himself and their children.

(3) In this article--

"spouse"--

( a ) in relation to a man who has been married more than once refers to his last wife only, and

( b ) in relation to a woman who has been married more than once refers to her last husband only;

"scheduled rate" means the rate of lone parent's allowance as set out at reference 5 in Part I of the Fourth Schedule to the Act (inserted by section 14 of the Act of 1990).

CHAPTER 2 Unmarried Person

6. (1) A person is to be regarded for the purposes of Chapter 5A of Part III of the Act as being an unmarried person if, not being a married person, he is the parent of a qualified child.

(2) For the purposes of this article a "parent" shall include, in the case of a child who has been adopted under the Adoption Acts, 1952 to 1988, or under any other form of adoption as the Minister considers appropriate in the circumstances, the adopter.

CHAPTER 3 Prisoner's Spouse

7. (1) A person is to be regarded for the purposes of Chapter 5A of Part III of the Act as being a prisoner's spouse if he is the spouse of a person who--

( a ) is in prison or place of detention, and

( b ) has for a period of not less than 6 calendar months immediately preceding the date of claim been in custody by order of court or a responsible authority, or is committed in custody by a court or a responsible authority for a period of not less than 6 calendar months.

(2) For the purposes of sub-article (1) of this article a certificate from a responsible authority shall be accepted as evidence of the duration of a period of custody.

8. (1) A person who qualified for a lone parent's allowance by virtue of being a prisoner's spouse shall, subject to section 198E of the Act, be disqualified for receiving such an allowance if and so long as his spouse is released from custody.

(2) For the purposes of this article release from custody shall not include temporary release from custody on compassionate grounds.

CHAPTER 4 Normal Residence

9. Subject to article 10 of these Regulations, a qualified child shall, for the purposes of the lone parent's allowance, be regarded as normally residing with a lone parent where--

( a ) he is resident with that lone parent, and

( b ) that lone parent has the main care and charge of him.

10. (1) A qualified child who is resident in an institution shall be regarded as normally residing with a lone parent where that parent contributes towards the cost of the child's maintenance in the institution and with whom the child would, under this Chapter, be regarded as normally residing if the child were not resident in an institution.

(2) A qualified child may, in such circumstances as the Minister considers appropriate, be regarded as normally residing with a lone parent who is resident in an institution.

11. In this Chapter "institution" means--

( a ) a hospital, convalescent home or home for persons suffering from physical or mental disability or accommodation ancillary thereto,

( b ) any other establishment providing residence, maintenance or care for the persons therein, or

( c ) any prison, place of detention or other establishment to which articles 28 and 29 of these Regulations applies.

PART III Analogous Payments

CHAPTER 1 Deserted Wife's Allowance

12. (1) A woman is to be regarded for the purposes of section 195 of the Act as having been deserted by her husband if--

( a ) her husband has of his own volition left her, and

( b ) she--

(i) is not being maintained by her husband, or

(ii) is being maintained by her husband, but at a rate per week which is less than the rate of deserted wife's allowance set out in column (2) of Part I of the Fourth Schedule to the Act, and

( c ) she and her husband have lived apart from one another for a continuous period of at least three months immediately preceding the date of her claim for deserted wife's allowance.

(2) A woman who has been deserted by her husband shall, for the purposes of section 195 of the Act, make and continue to make appropriate efforts, to the satisfaction of the Minister in the particular circumstances, to obtain maintenance from her husband.

13. (1) The means of a claimant for or beneficiary of deserted wife's allowance shall be calculated in accordance with the rules for the time being contained in the Third Schedule to the Act as if her husband were dead and she were an applicant for a widow's (non-contributory) pension.

(2) The means of a claimant for or beneficiary of deserted wife's allowance shall not exceed the means which would entitle her, if her husband were dead, to a widow's (non-contributory) pension.

CHAPTER 2 Prisoner's Wife's Allowance

14. (1) A man who is in a prison or place of detention shall be regarded as a prisoner for the purposes of section 196 of the Act if he has for a period of not less than 6 calendar months immediately preceding the date of claim been in custody by order of a court or a responsible authority, or is committed in custody by a court or a responsible authority for a period of not less than 6 calendar months.

(2) For the purposes of sub-article (1) of this article a certificate from a responsible authority shall be accepted as evidence of the duration of a period of custody.

15. (1) The means of a claimant for or beneficiary of prisoner's wife's allowance shall be calculated in accordance with the rules for the time being contained in the Third Schedule to the Act as if her husband were dead and she were an applicant for a widow's (non-contributory) pension.

(2) The means of a claimant for or beneficiary of prisoner's wife's allowance shall not exceed the means which would entitle her, if her husband were dead, to a widow's (non-contributory) pension.

16. (1) A woman shall, subject to section 196 (3) of the Act, be disqualified for receiving a prisoner's wife's allowance if and so long as her husband is released from custody.

(2) For the purposes of this article release from custody shall not include temporary release from custody on compassionate grounds.

PART IV Administration

CHAPTER 1 Claims and Payments

17. Every claim for a pension or an allowance (including an increase of allowance, where payable) shall be made to the Minister in the form for the time being approved by him or in such other manner as the Minister may accept as sufficient in the circumstances.

18. (1) Every person who makes a claim for a pension or an allowance shall furnish such certificates, documents, information and evidence for the purpose of deciding the claim as may be required by the Minister and, if so required, shall for that purpose attend as such office or place as the Minister may direct.

(2) Every beneficiary and every person by whom or on whose behalf a pension or an allowance is receivable shall--

( a ) furnish in such manner and at such times as the Minister may determine such certificates, documents and information affecting the right to pension or allowance or to the receipt thereof as the Minister may require, and

( b ) notify the Minister of any change of circumstances which affects the right to a pension or an allowance, or to the receipt thereof, as soon as is reasonably practicable after the occurrence thereof.

19. (1) An allowance, other than a lone parent's allowance payable in respect of a widow or a widower shall be paid weekly in advance on the Thursday of each week.

(2) A pension or a lone parent's allowance payable in respect of a widow or a widower shall be paid weekly in advance on the Friday of each week.

(3) Where the day from which payment or a change in the rate of payment of--

( a ) an allowance, other than a lone parent's allowance payable in respect of a widow or a widower takes effect is a day of the week other than a Thursday, payment or the change in the rate of payment of the said allowance shall take effect as from and including the next Thursday,

( b ) a pension or a lone parent's allowance payable in respect of a widow or a widower takes effect is a of the week other than a Friday, payment or the change in the rate of payment of the pension or said allowance shall take effect as from and including the next Friday.

(4) Where--

( a ) an allowance, other than a lone parent's allowance payable in respect of a widow or a widower, ceases to be payable as from and including a day of the week other than Thursday, the said allowance shall continue to be payable in respect of the days of the week up to but not including the next Thursday,

( b ) a pension or a lone parent's allowance payable in respect of a widow or a widower, ceases to be payable as from and including a day of the week other than Friday, the pension or said allowance shall continue to be payable in respect of the days of the week up to but not including the next Friday.

20. (1) A pension or an allowance shall be paid by means of an allowance order payable to the beneficiary, at such post office as the Minister, after enquiry from him, may determine.

(2) Where a pension or an allowance is payable the Minister shall cause arrangements to be made whereby, on furnishing evidence as to identity and such other particulars as may be required, a beneficiary may obtain a book of allowance orders.

(3) The Minister shall arrange for the issue to every beneficiary of a fresh book of allowance orders on the expiration of the previous book.

(4) A book of allowance orders issued to any person shall remain the property of the Minister.

(5) Any person having a book of allowance orders or any unpaid allowance order shall, on the termination of the pension or allowance to which such book or order relates or when requested by the Minister, deliver such book or order to such person as the Minister may direct.

21. Notwithstanding anything contained in articles 19 and 20 of these Regulations, the Minister may in any particular case or class of case or in all cases arrange for the payment of a pension or an allowance otherwise than weekly in advance or otherwise than by means of allowance orders payable to the beneficiary.

22. (1) The prescribed time for making a claim for a pension or an allowance shall be the period of three months from the day on which, apart from satisfying the condition of making a claim, the claimant would become entitled to the pension or allowance.

(2) Where a person fails to make a claim for a pension or an allowance within the time prescribed in sub-article (1) of this article, he shall be disqualified for receiving payment in respect of any period before the date on which the claim is made.

(3) Where a claimant proves that there was good cause for his failure to make a claim for pension or allowance before the date on which it was made, the Minister may extend the time within which the claim may be made to the date of the making of the claim.

(4) Where a claimant proves that--

( a ) on a date earlier than the date on which his claim was made, apart from satisfying the condition of making a claim, he was entitled to the pension or allowance claimed, and

( b ) throughout the period between the earlier date and the date on which the claim was made there was good cause for delay in making the claim,

he shall not be disqualified under this article for receiving the pension or allowance to which he would have been entitled if the claim had been made on the said earlier date.

(5) No sum shall be paid to any person on account of a pension or an allowance in respect of any period more than six months before the date on which the claim therefor is made in accordance with these Regulations.

23. Where a pension or an allowance has been duly awarded to a claimant and is being paid to that claimant, the right to any sum payable by way of such pension or allowance shall be extinguished where payment thereof is not obtained within three months or, where in any particular case the Minister so approves, six months from the date on which that sum is receivable under article 19 or 21 of these Regulations.

24. A person who fails to comply with sub-article (2) of article 18 or sub-article (5) of article 20 of these Regulations shall be guilty of an offence and shall be liable on summary conviction thereof to a fine not exceeding £1,000 and, in the case of a continuing offence, to a fine not exceeding £1,000 for each day on which the offence is continued.

CHAPTER 2 Payment to Persons other than the Claimant

25. (1) Where a claimant or beneficiary is unable for the time being to act, the Minister may appoint some other person to exercise on behalf of such claimant or beneficiary any right or power which the claimant or beneficiary may be entitled to exercise in relation to a pension or an allowance.

(2) The Minister may at any time revoke an appointment made under this article and a person appointed may resign on giving to the Minister one month's notice of his intention to do so.

(3) An appointment made under this article shall terminate on the day on which the Minister receives notice that a Committee of the estate of the claimant or beneficiary has been appointed.

(4) A person appointed under this article may exercise on behalf of the claimant or beneficiary any right or power which such claimant or beneficiary may be entitled to exercise in relation to a pension or an allowance and may receive and deal with any sum payable by way of a pension or an allowance on behalf of such claimant or beneficiary.

(5) Anything required to be done to a claimant or beneficiary in relation to a pension or an allowance may be done as respects a claimant or beneficiary who is unable to act to the person appointed under this article to act on his behalf.

(6) The receipt of a person appointed under this article for any amount paid in accordance with this article shall be a good discharge to the Minister for any amount so paid.

26. (1) The Minister may, where it appears to him that the circumstances so warrant, appoint a person to receive and deal with, on behalf of a claimant for or beneficiary of lone parent's allowance, so much of that allowance as is payable to the beneficiary or claimant in respect of a qualified child or qualified children by virtue of section 198C (1) of the Act.

(2) The Minister may at any time revoke an appointment made under this article and the person appointed may resign on giving to the Minister one month's notice of his intention to do so.

(3) The receipt of a person appointed under sub-article (1) of this article shall be a good discharge to the Minister for any sums paid to such person on behalf of the applicant.

27. (1) On the death of a claimant or beneficiary the Minister may allow such person as he may think fit to proceed with or to make a claim for a pension or an allowance in the name of such claimant or beneficiary.

(2) On the death of a beneficiary, any sum payable in respect of a pension or an allowance may be paid or distributed by the Minister without probate or other proof of title of the personal representative of the deceased as follows:--

( a ) where the beneficiary died leaving a will or other testamentary writing, the said sum may be paid or distributed to or among such of the persons appearing to be beneficially entitled thereto under the said will or testamentary writing as the Minister thinks proper and that to the exclusion of all others, without prejudice to any remedy which such others may have for recovery of the sum so paid or distributed as aforesaid against the person or persons receiving that sum,

( b ) where the beneficiary died intestate, the said sum may be paid or distributed to or among such persons as appear to the Minister to be beneficially entitled thereto, whether as next-of-kin or otherwise according to law or as creditors (including any person entitled to be paid or repaid the funeral expenses of the beneficiary) or to or among such of the said persons as the Minister thinks fit and that to the exclusion of all others.

(3) The receipt of any person of the age of sixteen years or upwards for any sum paid in accordance with this article shall be a good discharge to the Minister for the sum so paid.

(4) Where the Minister is satisfied that any sum or part thereof payable under this article is needed for the benefit of any person under the age of sixteen, he may obtain a good discharge therefor by paying the sum or part thereof to a person over that age who satisfies the Minister that he will apply the sum so paid for the benefit of the person under the age of sixteen.

(5) The Minister upon making any payment in accordance with this article shall be discharged from all liability in respect of any sum or sums so paid.

CHAPTER 3 Disqualification and Suspension.

28. (1) The disqualification imposed on a person by--

( a ) subsection (1) of section 180 of the Act for receiving a widow's (non-contributory) pension, or

( b ) subsection (1) of section 198D of the Act for receiving a lone parent's allowance, or

( c ) subsection (1) of section 180 of the Act, as applied and modified by article 30 of these Regulations for receiving deserted wife's allowance or prisoner's wife's allowance,

for any period during which he is undergoing detention in legal custody shall not apply, subject to the provisions of sub-article (2) of this article, in respect of any period during which he (not being a criminal lunatic) is detained in any institution for the treatment of mental or infectious disease.

(2) Notwithstanding sub-article (1) of this article, subsection (1) of section 198D of the Act shall operate to disqualify for receiving an increase of lone parent's allowance a lone parent who is detained in an institution for the treatment of mental disease.

(3) Subject to the provisions of sub-articles (1) and (2) of this article, the said section 180 (1) or 198D (1) or section 180 (1), as applied and modified by article 30 of these Regulations, shall not operate so as to disqualify a person undergoing a period of penal servitude, imprisonment or detention in legal custody for receiving a widow's (non-contributory) pension or an allowance if--

( a ) the detention is in respect of him being charged with a criminal offence, and

(i) the charge is subsequently withdrawn, or

(ii) he is acquitted of the offence, or

( b ) in a case of imprisonment, the imprisonment is undergone as the alternative to payment of a fine.

(4) Notwithstanding that a person, by reason of undergoing a period of penal servitude, imprisonment or detention in legal custody is disqualified by virtue of subsection (1) of the said section 198D for receiving a lone parent's allowance or for receiving an increase of lone parent's allowance, the increase of the said allowance shall be paid to any person appointed for the purpose by the Minister to receive and deal with any sums payable on account of such increase of lone parent's allowance for the benefit of the child in respect of whom the increase in the said lone parent's allowance is payable, and the receipt of any person so appointed shall be a good discharge to the Minister for any sum so paid.

(5) In this article "criminal lunatic" means a person who, in pursuance of an Order of the Minister for Justice, is removed to and detained in a district or auxiliary mental hospital within the meaning of the Mental Treatment Act, 1945 (No. 19 of 1945), or the Central Mental Hospital, Dundrum.

29. (1) Subject to the provisions of sub-articles (1) and (4) of article 28 and of sub-article (2) of this article, the payment of any widow's (non-contributory) pension or allowance--

( a ) which is expected from the operation of section 180(1) or 198D (1) of the Act or section 180 (1) of the Act, as applied and modified by article 30 of these Regulations, by virtue of the provisions of the said article 28, or

( b ) which is payable otherwise than in respect of a period during which the person is undergoing penal servitude, imprisonment or detention in legal custody,

shall be suspended while the person is undergoing penal servitude, imprisonment or detention in legal custody.

(2) A widow's (non-contributory) pension or an allowance to which the foregoing sub-article applies may nevertheless be paid during any such period to any person appointed for the purpose by the Minister to receive and deal with any sums payable on behalf of the beneficiary.

(3) Where by virtue of sub-article (1) of this article payment of a widow's (non-contributory) pension or an allowance is suspended for any period, the period of suspension shall not be taken into account in calculating any period under article 23.

PART V Miscellaneous Provisions

30. (1) The provisions of the enactments mentioned in the first column of Schedule A hereto shall apply to an allowance and in such application shall be modified so that the said provisions shall read as set out in the second column of the said Schedule.

(2) In Schedule A a reference to "Chapter 5A of Part III" means Chapter 5A of Part III (inserted by section 12 of the Act of 1990).

31. (1) Where, immediately before the day or days appointed for the commencement of Part III of the Act of 1990, a person is in receipt of a specified payment, a lone parent's allowance shall be payable to that person from the day or days so appointed at the same rate as the specified payment which is payable to him immediately before the day or days so appointed.

(2) Any decision made by a deciding officer or by an appeals officer in relation to the award of a specified payment to a person prior to the day or days appointed for the commencement of Part III of the Act of 1990 shall be treated as if it were a decision to award a lone parent's allowance to such person on and from such appointed day or days.

(3) Where, immediately before the day or days appointed for the commencement of Part III of the Act of 1990, a person has applied for, but has not been awarded, a specified payment, such application shall from the day or days so appointed be treated for all purposes as if it was an application for a lone parent's allowance.

(4) Where, on the commencement of Part III of the Act of 1990, a person who was in receipt of a widow's (non-contributory) pension, deserted wife's allowance or a social assistance allowance, and was--

( a ) paying an employment contribution at the rate specified in--

(i) paragraph (a) of subsection (3) of section 36 of the Act of 1990, or

(ii) paragraph (a) of article 3 or paragraph (a) of article 4 of the Social Welfare (Modifications of Insurance) (Amendment) Regulations, 1990 ( S.I. No. 89 of 1990 ), or

( b ) paying a self-employment contribution at the rate specified in paragraph (a) of subsection (4) of section 36 of the Act of 1990,

becomes entitled to a lone parent's allowance by virtue of sub-article (1) of this article, the provisions of subsections (3) and (4) of section 36 of the Act of 1990 shall continue to apply to such person.

(5) In this article "specified payment" means--

( a ) a widow's (non-contributory) pension which includes an increase for a qualified child or qualified children,

( b ) a deserted wife's allowance which includes an increase for a qualified child or qualified children,

( c ) a prisoner's wife's allowance which includes an increase for a qualified child or qualified children,

( d ) a social assistance allowance,

( e ) a widower's (non-contributory) pension, or

( f ) a deserted husband's allowance.

SCHEDULE A

Article 30

SCHEDULE B

Article 4

Regulations Revoked

GIVEN under the Official Seal of the Minister for Social Welfare

this 20th day of November, 1990.

MICHAEL WOODS,

Minister for Social Welfare

EXPLANATORY NOTE.

Part III of the Social Welfare Act, 1990 provides for the introduction of a new lone parent's allowance scheme, which incorporates the existing unmarried mother's allowance, widower's (non-contributory) pension and deserted husband's allowance schemes and also the widow's (non-contributory) pension, deserted wife's allowance and prisoner's allowance scheme, in so far as they apply to women with child dependants. This new allowance also extends to separated spouses who do not qualify for deserted wife's or deserted husband's allowance under existing arrangements.

These Regulations, which come into effect on 30th November, 1990, in the case of lone parents who are widowed persons and from 29th November, 1990 in the case of all other lone parents, specify the circumstances which a person is to be regarded as being a separated spouse, an unmarried person or a prisoner's spouse for the purposes of the lone parent's allowance scheme. The Regulations also prescribed the circumstances in which child is to be regarded as normally residing with a lone parent

In addition, these Regulations consolidate and update the existing regulatory provisions relating to the widow's (non-contributory pension, orphan's (non-contributory) pension, deserted wife's allowance and prisoner's wife's allowance schemes. The Regulations also deal with a number of administrative matters relating to the making of claims, the method of payments, decisions, offences, disqualifications, continuity etc.