S.I. No. 227/1996:

SOCIAL WELFARE (CODE OF PRACTICE ON THE RECOVERY OF OVERPAYMENTS) REGULATIONS, 1996

SOCIAL WELFARE (CODE OF PRACTICE ON THE RECOVERY OF OVERPAYMENTS) REGULATIONS, 1996

The Minister for Social Welfare, in exercise of the powers conferred on him by section 4 and 282 of the Social Welfare (Consolidation) Act, 1993 (No. 27 of 1993), hereby makes the following Regulations:

1. These Regulations may be cited as the Social Welfare (Code of Practice on the Recovery of Overpayments) Regulations, 1996.

2. The code of practice prescribed for the purposes of section 282 of the Social Welfare (Consolidation) Act, 1993 shall be that set out in the Schedule to these Regulations.

SCHEDULE

CODE OF PRACTICE ON THE RECOVERY OF OVERPAYMENTS

Introduction

1. This Code of Practice is prescribed under section 282 of the Social Welfare (Consolidation) Act, 1993 which provides that where a person is required to repay an amount of any benefit, assistance, child benefit or family income supplement under the provisions of the Social Welfare Acts, repayment may be deferred, suspended, reduced or cancelled in accordance with a Code of Practice.

Application and Objectives

2. (1) This Code of Practice governs the repayment of all overpayments of social welfare payments (including supplementary welfare allowance) which a person is liable to repay under the Social Welfare Acts.

(2) In applying this Code of Practice, due account shall be taken of the interests of taxpayers and social insurance contributors, including employers, who finance the various social welfare payments as well as the ability of the person concerned to repay.

Information on Overpayments

3. Where an overpayment has been assessed against a person he or she shall be -

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

(b) advised of the amount of overpayment involved,

(c) advised of the proposed method of repayment, and

(d) afforded an opportunity to bring to the notice of the Department or Health Board -

(1) any views he or she wishes to offer on the assessment of the overpayment,

(2) his or her views on the proposed method of repayment, and

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

Methods and Rate of Repayment

4. Every effort shall be made to recover overpayments in full having regard to the provisions of this Code and the following methods of repayments may be used --

(a) a single payment to repay the overpayment,

(b) regular periodic payments,

(c) where the person who is liable to repay the overpayment is entitled to or is receiving a social welfare payment or subsequently becomes entitled to receive such a payment -

(1) witholding arrears of social welfare payments which may be due to that person;

(2) making deductions from ongoing payments having regard to the total amount to be recovered and the person's basic needs,

(d) taking civil proceedings where the person liable to repay the overpayment fails to do so.

5. The Code does not affect the obligations of the personal representative of a deceased person who had been in receipt of social assistance:

(a) to give notice of distribution of assets and to furnish a schedule of assets at least 3 months before commencing to distribute the assets;

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

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

6. When determining the method and rate of repayment of the overpayment consideration shall be given to -

(a) any facts or circumstances relevant to the question of recovery brought to the notice of the Department or Health Board, and

(b) the amount of the overpayment and the circumstances in which it arose.

Ability to Repay

7. The amount of repayment shall not reduce a person's weekly income below that of his or her basic needs and for this purpose, a person's basic needs shall be taken to mean the weekly rate of supplementary welfare allowance appropriate to his or her family circumstances.

Deferral of Repayment

8. (1) Repayment of an overpayment may be deferred where the person liable to repay is unable to do so at the time.

(2) The period of deferral shall have regard to the circumstances which prevent the person concerned making repayment of the overpayment.

(3) The circumstances which gave rise to repayment of an overpayment being deferred shall be reviewed from time to time to ensure that repayment commences as soon as the person concerned is in a position to make the repayment.

Suspension of Repayment

9. (1) Repayment of an overpayment may be suspended where a change in circumstances prevents the person liable to repay from making further repayments for the time being.

(2) The period of suspension shall have regard to the circumstances which prevent the person concerned from continuing to make the repayment.

(3) The circumstances which gave rise to the suspension of repayment of an overpayment shall be reviewed from time to time to ensure that repayment resumes as soon as the person concerned is in a position to resume repayment.

Reduction of Rate of Repayment

10. (1) The rate of repayment of an overpayment may be reduced where the person liable to repay is unable to continue to do so at the rate previously determined.

(2) The amount of reduction shall have regard to the circumstances which prevent the person concerned from continuing to make the repayment at the rate previously determined.

(3) The circumstances which gave rise to the reduction in the rate of repayment of an overpayment shall be reviewed from time to time to ensure that the rate of repayment is increased where the person concerned is in a position to repay at a higher rate.

Reduction or Cancellation of Amount to be Repaid

11. (1) The repayment of an overpayment assessed against a person may be reduced or cancelled where it arose because of -

(a) the failure by the Department or Health Board 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 Board

and the person concerned could not reasonably have been expected to be aware of the failure or error.

(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 overpayment is to be reduced or cancelled, consideration shall be given to 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 cancelled where there is no reasonable prospect of securing repayment in whole or in part.

12. Decisions as to the Application of this Code

All questions which arise in the application of this Code of Practice shall, other than in the case of supplementary welfare allowance, be determined by an officer of the Minister and in the case of supplementary welfare allowance, by an officer of the relevant Health Board, who is authorised by the Minister or the Health Board, as appropriate, for this purpose.

GIVEN under the Official Seal of the Minister for Social Welfare

this 16th day of July, 1996.

Minister for Social Welfare

PROINSIAS DE ROSSA.

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

GIVEN under the Official Seal of the Minister for Finance this

16th day of July, 1996.

Minister for Finance

RUAIRI QUINN.

EXPLANATORY NOTE

These Regulations bring the Code of Practice into operation. The Code of Practice, which is set out in the Schedule to the Regulations, governs the repayment of all overpayments of Social Welfare payments (including supplementary welfare allowance) which a person is liable to repay under the Social Welfare Acts. It specifies the information to be made available to an individual assessed with an overpayment, the need to have regard to his/her ability to repay the overpayment and the various methods of recovery. The Code of Practice also provides for circumstances in which the deferral, suspension or reduction in rate of the repayment of the overpayment may be considered as well as the reduction or cancellation of the recovery of the overpayment in question.