S.I. No. 696 of 2006

SOCIAL WELFARE (CONSOLIDATED PAYMENTS PROVISIONS) (AMENDMENT) (No. 15) (ABSENCE FROM STATE AND IMPRISONMENT) REGULATIONS 2006

The Minister for Social and Family Affairs, in exercise of the powers conferred on him by sections 4 (as amended by section 17 and Schedule 3 of the Social Welfare Law Reform and Pensions Act 2006 (No. 5 of 2006)) and 249 (as amended by sections 4 and 17 and Schedule 1 and 3 of the Social Welfare Law Reform and Pensions Act 2006 ) of the Social Welfare Consolidation Act 2005 (No. 26 of 2005), hereby makes the following Regulations:

Citation and construction.

1. (1) These Regulations may be cited as the Social Welfare (Consolidated Payments Provisions) (Amendment) (No. 15) (Absence from State and Imprisonment) Regulations 2006.

(2) These Regulations and the Social Welfare (Consolidated Payments Provisions) Regulations 1994 to 2006 shall be construed together as one and may be cited as the Social Welfare (Consolidated Payments Provisions) Regulations 1994 to 2006.

Absence from State.

2. The Social Welfare (Consolidated Payments Provisions) Regulations 1994 ( S.I. No. 417 of 1994 ) are amended by inserting after Chapter 2A (inserted by article 3 of the Social Welfare (Consolidated Payments Provisions) (Amendment) (No. 9) (Loss of Purchasing Power) Regulations 2000 ( S.I. No. 160 of 2000 )) of Part 7 the following Chapter -

-�CHAPTER 2B

Absence from State and Imprisonment

123G. Notwithstanding section 249, a person who is absent from the State shall not be disqualified for receiving -

(a) State pension (contributory), widow's (contributory) pension, widower's (contributory) pension, guardian's payment (contributory) or bereavement grant, (including any increase thereof), by reason only of the person being absent from the State,

(b) illness benefit (including any increase thereof) -

(i) during such period as the Minister may allow, having regard to the circumstances of the case, if the absence is temporary and for the specific purpose of receiving treatment for incapacity which commenced before the person left the State,

(ii) while he or she is a person to whom the provisions of article 98 of the Social Welfare (Consolidated Contributions and Insurability) Regulations 1996 ( S.I. No. 312 of 1996 ) apply,

(c) maternity benefit -

(i) during such period as the Minister may allow, having regard to the circumstances of the case, if the absence is temporary and for the specific purpose of receiving treatment for incapacity which commenced before the person left the State,

(ii) while he or she is a person to whom the provisions of article 98 of the Social Welfare (Consolidated Contributions and Insurability) Regulations 1996 ( S.I. No. 312 of 1996 ) apply,

(d) jobseeker's benefit (including any increase thereof) for any period during which that person, or his or her qualified adult, is absent from the State -

(i) on holiday in respect of the first two weeks of any such absence in a calendar year, or

(ii) while representing Ireland in an amateur capacity at an international sporting event, or

(iii) during such period as the Minister may allow, having regard to the circumstances of the case, if the absence is temporary and due to force majeure,

(e) carer's benefit (including any increase thereof) for any period during which the carer is absent from the State -

(i) on holiday in respect of the first three weeks of any such absence in a calendar year, or

(ii) during such period as the Minister may allow, having regard to the circumstances of the case, if the absence is temporary and for the specific purpose of accompanying a relevant person while that person is receiving treatment for a disability which commenced before the person left the State,

(f) State pension (transition) (including any increase thereof) by reason only of the person being absent from the State provided that during the period of his or her absence from the State the person does not engage in gainful employment of any nature and he or she submits such evidence to that effect as the Minister may require,

(g) invalidity pension (including any increase thereof) by reason only of the person being absent from the State for such period as the Minister may allow, having regard to the circumstances of the case, provided that the person furnishes such medical evidence of incapacity as the Minister may, from time to time, require,

(h) carer's allowance (including any increase thereof) for any period during which the carer is absent from the State -

(i) on holiday in respect of the first three weeks of any such absence in a calendar year, or

(ii) during such period as the Minister may allow, having regard to the circumstances of the case, if the absence is temporary and for the specific purpose of accompanying a relevant person while that person is receiving treatment for a disability which commenced before the person left the State.

Exception from disqualification during penal servitude, imprisonment or detention in legal custody.

123H. (1)(a) Section 249 shall not operate so as to disqualify a person for receiving illness benefit, maternity benefit, jobseeker's benefit, State pension (contributory), State pension (transition), invalidity pension, widow's (contributory) pension, widower's (contributory) pension, bereavement grant or guardian's payment (contributory), (including in each case, subject to paragraph (b), any increase thereof), in respect of any period during which the person is detained (other than in the case of a person found not guilty by reason of insanity under the provisions of the Criminal Law (Insanity) Act 2006 (No. 11 of 2006)) in any institution for the treatment of mental illness or infectious disease.

(b)  No increase in respect of a qualified child under section 43, 66, 112, 117, 122 or 127 shall be payable to a person to whom paragraph (a) applies.

(2) Subject to sub-article (1), section 249 shall not operate so as to disqualify a person undergoing a period of penal servitude, imprisonment or detention in legal custody -

(a) for receiving bereavement grant,

(b) for receiving illness benefit, invalidity pension, State pension (transition), widow's (contributory) pension, widower's (contributory) pension, one-parent family payment, a payment by virtue of section 178, State pension (contributory), widow's (non-contributory) pension or widower's (non-contributory) pension (including, in each case any increase thereof) if -

(i) the detention is in respect of his or her being charged with a criminal offence, and

(ii) the charge is subsequently withdrawn or he or she is acquitted of the offence, and

(iii) in the case of illness benefit, immediately before the detention he or she was entitled to the said benefit or would, but for section 40(2) have been so entitled,

(c) for receiving invalidity pension, State pension (transition), widow's (contributory) pension, widower's (contributory) pension, one-parent family payment, a payment by virtue of section 178, State pension (contributory), widow's (non-contributory) pension or widower's (non-contributory) pension (including, in each case, any increase thereof) if, in a case of imprisonment, the imprisonment is undergone as the alternative to payment of a fine.

(3) Subject to sub-article (1), section 249 shall not operate so as to prohibit payment of an increase in respect of a qualified adult under sections 43, 66, 112, 117 and 122 for any period during which the qualified adult is undergoing detention in legal custody if -

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

(b) the charge is subsequently withdrawn or he or she is acquitted of the offence.

(4)      (a) Subject to paragraph (b) and notwithstanding that a person, by reason of undergoing a period of penal servitude, imprisonment or detention in legal custody is disqualified by virtue of section 249 for receiving illness benefit, invalidity pension, State pension (transition), widow's (contributory) pension, widower's (contributory) pension, one-parent family payment, a payment by virtue of section 178, State pension (contributory), widow's (non-contributory) pension or widower's (non-contributory) pension (including, in each case, any increase in respect of a qualified adult or qualified child), the increase shall be paid to any person appointed by the Minister to receive and deal with any sums payable on account of such increase for the benefit of the person or persons in respect of whom the increase is payable, and the receipt of any person so appointed shall be a good discharge to the Minister and the Social Insurance Fund, where appropriate, for any sum so paid.

(b) In the case of illness benefit, paragraph (a) shall only apply where the said person is a person detained in an institution for the treatment of mental illness or is a person who was entitled to such benefit immediately before the commencement of any such period, or would, but for section 40(2) have been so entitled.

Suspension of payment of benefit during penal servitude, imprisonment or detention in legal custody.

123I. (1) Subject to the provisions of articles 123H(1) and (4) and sub-article (2), the payment to any person of any benefit, grant, pension or payment or increase of that benefit, pension or payment -

(a) which is excepted from the provisions of section 249 by virtue of article 123H, or

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

shall be suspended while that person, or, in the case of an increase, the person in respect of whom the increase is payable, is undergoing penal servitude, imprisonment or detention in legal custody.

(2) Bereavement grant, invalidity pension, State pension (transition), widow's (contributory) pension, widower's (contributory) pension, one-parent family payment, a payment by virtue of section 178, State pension (contributory), guardian's payment (contributory), widow's (non-contributory) pension or widower's (non-contributory) pension to which sub-article (1) applies may be paid during any such period to any person appointed by the Minister to receive and deal with any sums payable on behalf of the beneficiary, and the receipt of any person so appointed shall be a good discharge to the Minister and the Social Insurance Fund, where appropriate, for any sum so paid.

(3) Where by virtue of sub-article (1) payment of invalidity pension, State pension (transition), widow's (contributory) pension, widower's (contributory) pension, one-parent family payment, a payment by virtue of section 178, State pension (contributory), guardian's payment (contributory), widow's (non-contributory) pension or widower's (non-contributory) pension, is suspended for any period, the period of suspension shall not be taken into account in calculating any period under article 113.-�.

Revocations.

3. The Regulations specified in Column (2) of Schedule 1 are revoked to the extent specified in column (3) of that Schedule.

SCHEDULE 1

Revocations

EXPLANATORY NOTE

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

These regulations provide for a number of amendments to the Social Welfare (Consolidated Claims and Payments Provisions) Regulations 1994 (as amended) in advance of further consolidation due shortly.

Article 2 inserts a new Chapter 2B into Part 7 of the consolidated regulations to include provision (currently contained in several regulations dating from 1953 to 1993) for instances where payment under certain schemes may be made while the claimant or beneficiary is absent from the State or detained in legal custody.