S.I. No. 349 of 2005.

SOCIAL WELFARE (RECOVERY OF OVERPAYMENTS) REGULATIONS 2005.

The Minister for Social and Family Affairs, in exercise of the powers conferred on him by sections 4 (as amended by section 26 of the Social Welfare and Pensions Act 2005 (No. 4 of 2005)), 281(6) and 282 (both as amended by section 21 of the Social Welfare and Pensions Act 2005) of the Social Welfare (Consolidation) Act 1993 (No. 27 of 1993), hereby makes the following regulations:

Citation.

1. These regulations may be cited as the Social Welfare (Recovery of Overpayments) Regulations 2005.

Definitions.

2. In these regulations--

“Department” means the Department of Social and Family Affairs;

“Minister” means the Minister for Social and Family Affairs;

Provision of information on overpayments.

3. Where an overpayment has been assessed against a person, in accordance with Part VIII of the Social Welfare (Consolidation) Act 1993, that person shall be--

(a) informed of the factors which gave rise to the overpayment,

(b) informed of the amount of overpayment,

(c) informed of the proposed method of recovery, and

(d) afforded an opportunity to bring to the notice of the Department or Health Service Executive as appropriate--

(i) any view he or she may wish to offer on the assessment of the overpayment,

(ii) any view he or she may wish to offer on the proposed method of recovery of the overpayment, and

(iii) any facts or circumstances which he or she considers relevant to the recovery of the overpayment.

before any decision is made regarding the recovery of the overpayment.

Means of recovery of overpayment.

4. The Minister or the Health Service Executive, as appropriate, shall make every effort to recover overpayments in full having regard to the provisions of these regulations and shall, subject to these regulations, determine the method and rate of repayment and such repayment may take the form of lump sum payment or periodic payments.

Determining the means of recovery.

5. When determining the method and rate of repaymentof an overpayment, the Minister or the Health Service Executive shall take account of--

(a) the amount of the overpayment and the circumstances in which it arose, and

(b) any facts or circumstances relevant to the recovery that have come to the notice of the Department or Health Service Executive.

Recovery of overpayment by means of deduction from social welfare payment.

6. Where the person liable to repay an overpayment isentitled to or in receipt of, or subsequently becomes entitled to

(a) any benefit specified in section 30(1), or

(b) any assistance specified in section 118(1)

recovery of an overpayment may take the form of

(i) withholding all or part of arrears of social welfare payments due to that person, or

(ii) making deductions from ongoing payments having regard to the total amount to be recovered and the person’s ability to repay,

provided that recovery of the overpayment shall not cause, without the prior written agreement of the person liable to repay the overpayment, that person’s weekly payment of benefit or assistance, as the case may be, to fall below the weekly rate of supplementary welfare allowance appropriate to his or her family circumstances that would be payable if the person were not in receipt of any benefit or assistance.

Reduction or cancellation of sum to be repaid.

7. (1) The amount of an overpayment to be repaid maybe reduced where the overpayment arose because of--

(a) a failure by the Department or Health Service Executive to act within a reasonable period on information which was provided by or on behalf of the person concerned, or

(b) an error by the Department or Health Service Executive and the person concerned could not reasonably have been expected to be aware that a failure or error had occurred.

(2) The amount to be repaid shall, where the facts or circumstances warrant, be reduced to the amount accepted in settlement.

(3) The amount of an overpayment to be repaid may be reduced by the amount of any other social welfare payment 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.

(4) In determining whether repayment of an overpaymentis to be reduced or cancelled, account shall be taken of any omission made by or on behalf of the person concerned, which contributed in whole or in part to the overpayment being made.

(5) The repayment of an overpayment may be cancelledwhere there is no reasonable prospect of securing repayment in whole or in part.

Proceedings for recovery of overpayment.

8. These regulations are without prejudice to any right ofthe Minister or Health Service Executive, as the case may be, to recover overpayments by proceedings taken under statute or simple contract debt in any court of competent jurisdiction.

Obligations of personal representatives.

9. These regulations do not affect the obligation of the personal representative of a deceased person who was at any time in receipt of a social assistance payment, to:

(a) give notice of their intention to distribute the assets of that person and to furnish a schedule of such assets at least 3 months before commencing to distribute the assets.

(b) ensure that sufficient assets are retained to repay any assistance overpaid, and

(c) be personally liable to repay the amount of an overpayment outstanding as a result of failure to meet these obligations.

Decisions as to the Application of these Regulations.

10. All questions which arise in the application of these regulations shall, other than in the case of supplementary welfare allowance, be determined by an officer of the Minister or in the case of supplementary welfare allowance, by an employee of the Health Service Executive, as appropriate, for this purpose.

Revocation.

11. The Social Welfare (Code of Practice on the Recovery of Overpayments) Regulations 1996 (S.I. No. 227 of 1996) are revoked.

The Minister for Finance hereby consents to the making of the foregoing regulations.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

These regulations set out the conditions and the circumstances governing the recovery of all overpayments in respect of Social Welfare schemes, including supplementary welfare allowance, which a person is liable to repay under the Social Welfare Acts.

The regulations specify the information to be made available to an individual assessed with an overpayment, the various methods of recovery and the requirements to have regard to the person’s ability to repay the overpayment. Provision is also made in these regulations to seek the agreement of the customer in instances where the amount to be repaid would bring the customer’s weekly payment rate below the supplementary welfare allowance rate appropriate to the person’s family circumstances.

The regulations also provide for circumstances in which the reduction or cancellation of the recovery of the overpayment in question may be considered.