S.I. No. 342/1990:

SOCIAL WELFARE (OVERLAPPING BENEFITS) REGULATIONS, 1990.

SOCIAL WELFARE (OVERLAPPING BENEFITS) REGULATIONS, 1990.

The Minister for Social Welfare, in exercise of the powers conferred on him by sections 3 , 113 , 130 and 219 of the Social Welfare (Consolidation) Act, 1981 (No. 1 of 1981) and by section 19 of the Social Welfare (No. 2) Act, 1985 (No. 14 of 1985), hereby makes the following Regulations:--

PART I General

1. These Regulations may be cited as the Social Welfare (Overlapping Benefits) Regulations, 1990.

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

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

"assistance" means any assistance specified in section 134 (1) of the Act;

"benefit" means any benefit specified in section 17 (1) of the Act.

3. These Regulations shall come into operation--

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

( b ) on the 29th day of November, 1990 in any other case.

4. The Regulations specified in column (2) of the Schedule to these Regulations are hereby revoked to the extent specified in column (3) of that Schedule opposite the mention of those Regulations in column (2).

PART II OVERLAPPING BENEFITS PROVISIONS

CHAPTER 1 Concurrent Payment of More than One Social Welfare Payment not Allowed

5. Subject to the Act and these Regulations, where, but for this article, more than one of the following would be payable to or in respect of a person in respect of the same period only one shall be paid--

( a ) any benefit, other than disablement benefit (exclusive of unemployability supplement), death benefit by way of a grant in respect of funeral expenses or death grant,

( b ) any assistance, other than supplementary welfare allowance,

( c ) any increase in any benefit in respect of an adult dependant,

( d ) any increase in any assistance, other than supplementary welfare allowance, in respect of an adult dependant,

( e ) any increase in old age pension or blind pension in respect of a spouse,

( f ) any increase in any benefit in respect of a qualified child, or

( g ) any increase in any assistance, other than supplementary welfare allowance, in respect of a qualified child.

6. Where, in respect of the death of a person, a death grant and death benefit by way of a grant in respect of funeral expenses would be payable, only one such grant shall be payable.

CHAPTER 2 Overlapping Payments

7. (1) Notwithstanding article 5 of these Regulations, where disablement benefit and any benefit or assistance (including any increase thereof) are payable to or in respect of a person in respect of the same period, both such payments may be paid to or in respect of that person in respect of that period.

(2) For the purposes of sub-article (1) of this article disablement benefit shall not include any increase--

( a ) on account of unemployability by virtue of section 45 of the Act, or

( b ) in respect of an adult dependant or a qualified child by virtue of section 44 (3) of the Act, or

( c ) in respect of constant attendance by virtue of section 46 of the Act.

8. (1) Notwithstanding article 5 of these Regulations, where orphan's (contributory) allowance, orphan's (non-contributory) pension or death benefit by way of orphan's pension and any payment specified in sub-article (3) of this article are payable to or in respect of a person in respect of the same period, both such payments may be paid to or in respect of that person in respect of that period.

(2) Where, in respect of any period, a person who is in receipt of orphan's (contributory) allowance, orphan's (non-contributory) pension or death benefit by way of orphan's pension is also in receipt of blind pension or any payment specified in paragraphs (f) to (j) of sub-article (3) of this article, then disability benefit, maternity allowance, unemployment benefit, injury benefit or unemployability supplement shall not be payable to that person in respect of the same period.

(3) The following payments are hereby specified for the purposes of this article:--

( a ) disability benefit,

( b ) maternity allowance,

( c ) unemployment benefit,

( d ) injury benefit,

( e ) unemployability supplement,

( f ) death benefit by way of widow's pension, widower's pension or parent's pension,

( g ) widow's (contributory) pension,

( h ) deserted wife's benefit,

( i ) widow's (non-contributory) pension,

( j ) lone parent's allowance.

9. (1) Notwithstanding article 5 of these Regulations, where in respect of any period a person is in receipt of a payment specified in sub-article (5) of this article and is also entitled to disability benefit, maternity allowance, unemployment benefit, injury benefit or unemployability supplement in respect of any day in the same period, such disability benefit, maternity allowance, unemployment benefit, injury benefit or unemployability supplement shall, subject to sub-article (2) of this article, be reduced by half:

Provided that no increase shall be paid in such benefit or allowance in respect of a qualified child or in the case of unemployability supplement no increase by virtue of section 44 (3) of the Act shall be payable, and in no case shall disability benefit or unemployability supplement be paid to a person who is in receipt of a payment specified in sub-article (5) of this article for any day in excess of 390 days in any period of interruption of employment.

(2) Where, in respect of any period, a person is in receipt of--

( a ) widow's (contributory) pension or deserted wife's benefit at a rate less than that specified in Part I of the Second Schedule to the Act, or

( b ) any pension or allowance specified in paragraphs (e) to (h) of sub-article (5) of this article at a reduced rate by reason of means,

and he is also entitled to disability benefit, maternity allowance, unemployment benefit, injury benefit or unemployability supplement, the provisions of sub-article (1) of this article shall not apply, but if, in respect of that period, the total amount payable to that person by way of pension, benefit or allowance specified in paragraph (a) or (b) and by way of disability benefit, maternity allowance, unemployment benefit or injury benefit (including any increase in respect of a qualified child) or by way of unemployability supplement (including an increase payable in respect of a qualified child by virtue of section 44 (3) of the Act) exceeds the amount which would be payable if sub-article (1) of this article applied, the disability benefit, maternity allowance, unemployment benefit, injury benefit or unemployability supplement, as the case may be, shall be reduced by the amount of the excess.

(3) Where, in respect of any period, a person who is in receipt of a payment specified in sub-article (5) of this article is also in receipt of a blind pension, then disability benefit, maternity allowance, unemployment benefit, injury benefit or unemployability supplement shall not be payable to that person in respect of the same period.

(4) Where, on the 5th day of April, 1990, a person who was in receipt of a payment specified in sub-article (5) of this article was also in receipt of disability benefit or unemployability supplement by virtue of sub-article (1B) of article 4 of the Social Welfare (Overlapping Benefits) Regulations, 1953 ( S.I. No. 14 of 1953 ) (inserted by the Social Welfare (Overlapping Benefits) (Amendment) Regulations, 1987 ( S.I. No. 344 of 1987 )), that person shall, notwithstanding sub-article (1) of this article, continue to be entitled to such benefit or supplement until the end of the period of incapacity for work.

(5) The following payments are hereby specified for the purposes of this article:--

( a ) death benefit by way of widow's pension, widower's pension or parent's pension,

( b ) widow's (contributory) pension,

( c ) deserted wife's benefit,

( d ) survivor's benefit under section 87 of the Act,

( e ) widow's (non-contributory) pension,

( f ) deserted wife's allowance,

( g ) prisoner's wife's allowance,

( h ) lone parent's allowance.

10. (1) Notwithstanding article 5 of these Regulations, where, in respect of the same period, blind pension under Chapter 3 of Part III of the Act and any of the payments specified in sub-article (2) of this article are payable to or in respect of a person who has not attained pensionable age, both such payments may be paid to or in respect of that person in respect of that period.

(2) The following payments are hereby specified for the purposes of this article:--

( a ) any benefit other than old age (contributory) pension, retirement pension, survivor's benefit under section 87 of the Act or invalidity pension,

( b ) any assistance other than unemployment assistance, pre-retirement allowance, old age pension or carer's allowance.

11. (1) Where in respect of any period a woman who, although entitled to a widow's (contributory) pension or deserted wife's benefit which is payable at a rate less than that specified in Part I of the Second Schedule to the Act, is in receipt of any of the payments specified in sub-article (2) of this article, such payment as is specified may continue, but the amount of any such widow's (contributory) pension or deserted wife's benefit shall--

( a ) not be paid to or in respect of that woman, and

( b ) be paid out of the Social Insurance Fund to the Exchequer.

(2) The following payments are hereby specified for the purposes of this article:--

( a ) widow's (non-contributory) pension,

( b ) deserted wife's allowance,

( c ) prisoner's wife's allowance, or

( d ) lone parent's allowance.

12. (1) Where, but for this article, family income supplement and unemployment benefit or unemployment assistance would be payable to a person in respect of the same period, family income supplement shall not be payable to that person in respect of that period.

(2) Where, but for this article, family income supplement and retirement pension or pre-retirement allowance would be payable in respect of the same period to a person who has not attained pensionable age, family income supplement shall not be payable to that person in respect of that period.

13. Where, but for this article, family income supplement would be payable to a person in a period of incapacity for work in respect of which disability benefit or injury benefit is also payable to that person, family income supplement shall not be payable to that person for that part of the period of incapacity for work which exceeds six weeks.

CHAPTER 3 Payment on Account

14. (1) Where--

( a ) in respect of any period unemployment assistance has been paid to a person who, though entitled to a payment specified in sub-article (2) of this article, is not at that time receiving payments on account thereof, and

( b ) such unemployment assistance would not have been paid if that person had been receiving payment on account of the said specified payment, and

( c ) any sum (in this article referred to as the arrears) accruing in respect of any part of the said period on account of the said specified payment becomes payable to that person,

the Minister may reduce the arrears by an amount not exceeding the amount paid in unemployment assistance to such person and in such case an amount equal to the amount by which the arrears were reduced (the amount so deducted) shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.

(2) The following payments are hereby specified for the purposes of this article--

( a ) death benefit by way of widow's pension, widower's pension or parent's pension,

( b ) widow's (contributory) pension,

( c ) deserted wife's benefit,

( d ) single woman's allowance.

15. (1) Where--

( a ) in respect of any period a health board has granted supplementary welfare allowance to or on account of a person who, though entitled to a payment specified in sub-article (2) of this article, is not at that time receiving payments on account thereof, and

( b ) such supplementary welfare allowance is in excess of the amount which would have been granted to such person if such person had been receiving payment on account of the said specified payment, and

( c ) any sum (in this article referred to as the arrears) accruing in respect of any part of the said period on account of the said specified payment becomes payable to such person, and

( d ) such health board has, before the arrears are paid to such person, certified to the Minister the amount so paid in excess in respect of the said period by such health board, the Minister may pay to the health board out of the arrears an amount not exceeding the amount of such excess.

(2) The following payments are hereby specified for the purposes of this article--

( a ) death benefit by way of widow's pension, widower's pension, parent's pension or orphan's pension or an increase thereof in respect of a qualified child,

( b ) widow's (contributory) pension or an increase thereof in respect of a qualified child,

( c ) orphan's (contributory) allowance,

( d ) deserted wife's benefit or an increase thereof in respect of a qualified child,

( e ) old age (contributory) pension or an increase thereof in respect of an adult dependant or a qualified child,

( f ) retirement pension or an increase thereof in respect of an adult dependant or a qualified child,

( g ) survivor's benefit under section 87 of the Act or an increase thereof in respect of a qualified child,

( h ) invalidity pension or an increase thereof in respect of an adult dependant or a qualified child,

( i ) old age (non-contributory) pension or blind pension or an increase thereof in respect of a spouse or a qualified child,

( j ) single woman's allowance,

( k ) carer's allowance or an increase thereof in respect of a qualified child.

16. (1) Where--

( a ) in respect of any period a health board has granted supplementary welfare allowance to or on account of a person who, though entitled to a payment specified in sub-article (2) of this article, has not at that time received payment on account thereof, and

( b ) such supplementary welfare allowance is in excess of the amount which would have been granted to such person if such person had received such specified payment, and

( c ) such health board had duly certified to the Minister the amount so paid in excess in respect of the said period by such health board,

the Minister may pay to the health board an amount not exceeding the amount of such excess out of any such specified payment which is or may become payable to such person during the relevant continuous period of entitlement to the said specified payment.

(2) The following payments are hereby specified for the purposes of this article--

( a ) disability benefit or an increase thereof in respect of an adult dependant or a qualified child,

( b ) unemployment benefit or an increase thereof in respect of an adult dependant or a qualified child,

( c ) maternity allowance or an increase thereof in respect of a qualified child,

( d ) injury benefit or an increase thereof in respect of an adult dependant or a qualified child,

( e ) pay-related benefit,

( f ) disablement benefit, or where such benefit is a disablement pension, an increase thereof in respect of an adult dependant or a qualified child or by way of unemployability supplement.

17. For the purposes of articles 15 and 16 of these Regulations any payment specified in sub-article (2) of the said article 15 or sub-article (2) of the said article 16 out of which the excess of supplementary welfare allowance may be paid to the health board shall include any such specified payment payable to or on account of the spouse of the person.

18. (1) Where in respect of any period a person is in receipt of any benefit or assistance, which includes an increase in respect of an adult dependant, and in that period that adult dependant becomes entitled in his own right to any benefit or assistance, any such increase shall be regarded as payment on account of the said benefit or assistance payable to that adult dependant in respect of the said period.

(2) Where in respect of any period a person is in receipt of any benefit or assistance, which includes an increase in respect of a qualified child, and in that period that qualified child becomes entitled in his own right to any benefit or assistance, any such increase shall be regarded as payment on account of the said benefit or assistance payable to that qualified child in respect of the said period.

(3) Where in respect of any period a person is in receipt of any benefit or assistance, which includes an increase in respect of a qualified child, and in that period that person's spouse becomes entitled in his own right to any benefit or assistance which also includes an increase in respect of that qualified child, half of any sums paid to that person in that period in respect of that qualified child shall be regarded as payment on account of the said benefit or assistance.

CHAPTER 4 Old Age Pension (Qualified Children)

19. Notwithstanding subsection (1A) of section 161 of the Act, where each of a married couple is entitled to a pension under Chapter 3 of Part III of the Act and, but for this article, they would each be entitled to an increase in such pension in respect of a qualified child or qualified children, only one such pension shall be increased in respect of such qualified child or children.

PART III Miscellaneous Provisions

20. Where, by virtue of these Regulations, the amount of any benefit specified in section 17 (1) of the Act or assistance specified in section 134 (1) of the Act (including any increase thereof) is reduced, the amount so payable shall be rounded up to the nearest 10p where it is a multiple of 5p but not also a multiple of 10p and shall be rounded to the nearest 10p where it is a multiple of 5p.

21. (1) Subject to sub-article (2) of this article, where, immediately before the commencement of these Regulations, more than one of the payments listed in paragraphs (a) to (g) of article 5 of these Regulations is payable to or in respect of a person in respect of the same period, these Regulations shall not operate so as to disentitle such person to any such payments.

(2) Where, on the commencement of these Regulations, more than one of the payments listed in paragraphs (a) to (g) of article 5 of these Regulations continues to be payable to or in respect of a person in respect of the same period by virtue of sub-article (1) of this article, and that person subsequently ceases to be entitled to any such payment for any period, sub-article (1) of this article shall cease to apply to that person from the date that such payment ceases.

SCHEDULE

Article 4

Regulations Revoked

GIVEN under the Official Seal of the Minister for Social Welfare

this 29th day of November, 1990.

MICHAEL WOODS,

Minister for Social Welfare.

EXPLANATORY NOTE

The overlapping benefits provisions of the Social Welfare Code prevent, in general, the concurrent payment of more than one social welfare payment to any person. These Regulations contain amendments to these provisions consequent on the introduction of the lone parent's allowance. The Regulations also consolidate and update all of the existing regulatory provisions concerning overlapping benefits.

The main exceptions to the rule on overlapping benefits are set out in the Regulations, as follows--

( a ) disablement benefit can be paid concurrently with any other social welfare payment;

( b ) blind pensioners who are under 66 years and persons in respect of whom an orphan's pension is payable can concurrently receive disability benefit, unemployment benefit, maternity allowance, injury benefit, widow's and orphan's pensions or lone parent's allowance;

( c ) ½-rate disability benefit, unemployment benefit, maternity allowance, injury benefit or unemployability supplement can be paid concurrently to recipients of widow's and orphan's pensions, deserted wives payments, lone parent's allowance and other analogous payments.

The provisions in relation to family income supplement, whereby a person entitled to unemployment benefit or assistance, retirement pension, pre-retirement allowance may not at the same time be paid family income supplement and that family income supplement may not be paid concurrently with disability benefit or injury benefit for a period of more than six weeks are also provided for in these Regulations.

The Regulations also provide that where certain social welfare payments are paid, these can be treated as paid on account of other payments. The Regulations contain special provisions regarding recoupment to health boards, from specified social welfare payments, of interim payments of supplementary welfare allowance made to such claimants.