No. 14/1985:

SOCIAL WELFARE (NO. 2) ACT, 1985

ARRANGEMENT OF SECTIONS

Section

1. Interpretation.

2. Increase of social insurance benefits.

3. Amendment of section 2 of Principal Act (interpretation generally).

4. Amount of increases payable in respect of qualified child normally resident with beneficiary in certain cases.

5. Increase of maternity allowance.

6. Amendment of section 34 of Principal Act (duration of payment).

7. Amendment of section 43 of Principal Act (disablement benefit).

8. Amendment of section 87 of Principal Act (title to benefit).

9. Amendment of section 136 of Principal Act (qualification certificates).

10. Amendment of section 139 of Principal Act (rates of assistance).

11. Amount of unemployment assistance in respect of qualified children in certain cases.

12. Unemployment assistance-married couples.

13. Calculation of means.

14. Amendment of section 161 of Principal Act (rates of pension and increases for child dependants).

15. Amendment of section 162 of Principal Act (increases for incapacitated and married pensioners).

16. Amendment of section 199 of Principal Act (interpretation Part III Chapter 6).

17. Amendment of section 210 of Principal Act (calculation of means).

18. Amendment of Rule 1 of Third Schedule to Principal Act (rules as to calculation of means).

19. Payment of increases in respect of qualified children.

20. Regulations securing continuity of Act with provisions repealed, amended, etc.

21. Calculation of benefit, pension or allowance.

22. Removal of difficulties.

23. Repeals.

24. Commencement.

25. Short title, construction and collective citation.

FIRST SCHEDULE

REPEALS

SECOND SCHEDULE

RATES OF BENEFITS

ACTS REFERRED TO

Number 14 of 1985

No. 14/1985: SOCIAL WELFARE (NO. 2) ACT, 1985

AN ACT TO PROVIDE FOR EQUAL TREATMENT FOR MEN AND WOMEN IN MATTERS OF SOCIAL WELFARE AND FOR THAT PURPOSE TO AMEND THE SOCIAL WELFARE ACTS, 1981 TO 1985.

[16th July, 1985]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

1.—In this Act "the Principal Act" means the Social Welfare (Consolidation) Act, 1981 .

2.—The Principal Act is hereby amended by the substitution for Parts I to V of the Second Schedule (inserted by the Social Welfare Act, 1985 ) of the Parts set out in the Second Schedule to this Act.

3.—Section 2 of the Principal Act is hereby amended by the substitution in subsection (1) for the definition of "adult dependant" of the following definition:

"'adult dependant', subject to section 199, means in relation to any person—

( a ) a spouse who is wholly or mainly maintained by that person but does not include—

(i) a spouse in employment (other than employment specified in paragraphs 4, 5 or 10 of Part II of the First Schedule), or

(ii) a spouse who is self-employed,

or

(iii) a spouse who is entitled to, or is in receipt of, any pension, benefit, assistance or allowance (other than supplementary welfare allowance) under Parts II or III of this Act, or disabled person's maintenance allowance under section 69 of the Health Act, 1970 , or

( b ) a person over the age of 16 years being wholly or mainly maintained by that person and having the care of one or more than one qualified child who normally resides with that person where that person is—

(i) a single person, or

(ii) a widow, or

(iii) a widower, or

(iv) a married person who is not living with and is neither wholly or mainly maintaining, nor being wholly or mainly maintained by, such married person's spouse, or

( c ) such person as the Minister, with the consent of the Minister for Finance, may by regulations specify to be an adult dependant for the purposes of this Act;".

4.—(1) Subject to subsection (2), any increase of benefit or pension, as the case may be, payable pursuant to section 21, 32, 44, 55, 81, 86 or 91 of The Principal Act in respect of a qualified child who normally resides with a beneficiary or pensioner and with the spouse of a beneficiary or pensioner shall be payable at the rate of one-half of the appropriate amount in any case where the spouse of the beneficiary or pensioner is not an adult dependant, and the said sections 21, 32, 44, 55, 81, 86 and 91 shall be construed and have effect accordingly.

(2) The provisions of subsection (1) shall not apply in any case where a spouse of a beneficiary or pensioner is living apart from the beneficiary or pensioner, as the case may be, and is not making a financial contribution to the maintenance of the qualified child.

5.—The Principal Act is hereby amended by the insertion after section 26 of the following section:

"Increase of maternity allowance.

26A-(1) Subject to subsection (2), the weekly rate of maternity benefit shall be increased by the appropriate amount set out in column (4), (4a ), (5) or (5a ) of Part I of the Second Schedule in respect of each qualified child who normally resides with the beneficiary.

(2) The increase payable pursuant to subsection (1) in respect of a qualified child who normally resides with the beneficiary and with the spouse of the beneficiary shall be payable at the rate of one-half of the appropriate amount in any case where the spouse of the beneficiary is not an adult dependant.

(3) The provisions of subsection (2) shall not apply in any case where the spouse of the beneficiary is living apart from the beneficiary and is not making a financial contribution to the maintenance of the qualified child.".

6.—Section 34 of the Principal Act is hereby amended by

( a ) the substitution for subsection (1) of the following subsection:—

"(1) A person who, in respect of any period of interruption of employment, has been entitled to unemployment benefit for 156 days shall not thereafter, subject to subsection (3), be entitled to that benefit for any day of unemployment (whether in the same or a subsequent period of interruption of employment) unless before that day he has requalified for benefit or unless, in the case of a person over 65 years of age, he has qualifying contributions in respect of not less than 156 contribution weeks in the period between his entry into insurance and the day for which unemployment benefit is claimed.";

( b ) the substitution for subsection (3) of the following subsection:—

"(3) Subsection (1) shall, in respect of a person who is over the age of 18 years, have effect as if '390 days' were substituted for '156 days'."; and

( c ) the substitution for subsection (6) of the following subsection:—

"(6) Where in a period of interruption of employment a woman who was formerly entitled to 312 days' unemployment benefit has exhausted her right to 312 days' unemployment benefit within the period of 78 days ending on the date on which this subsection comes into operation, she shall be entitled to such benefit in respect of each day, up to a maximum of 78 days, of unemployment after that date, up to the 393rd day of unemployment in that period of interruption of employment.".

7.—Section 43 of the Principal Act is hereby amended by—

( a ) the substitution for paragraph (b) of subsection (7) of the following paragraph:—

"( b ) The scale prescribed for the purposes of paragraph (a)shall be the same for all persons, except that a lower amount may be fixed for cases where, at the beginning of the period taken into account by the assessment, the beneficiary is under the age of 18 years and may be made to depend on the date on which the beneficiary will attain that age:

Provided that—

(i) such lower amount shall not in any case be less than two-thirds of the amount to which the beneficiary would otherwise be entitled, and

(ii) the higher rate shall be payable if the beneficiary would, if he were in receipt of injury benefit rather than disablement gratuity, be entitled to an increase of that benefit for a qualified child or children or for an adult dependant or would be so entitled but for the fact that his spouse is in employment (other than employment specified in paragraphs 4, 5 or 10 of Part II of the First Schedule), is engaged in self-employment, or is entitled to, or in receipt of, any benefit, assistance or allowance (other than supplementary welfare allowance) under Parts 11 or 111 of this Act or disabled person's maintenance allowance under section 69 of the Health Act, 1970 .";

( b ) the substitution for subsection (8) of the following subsection:—

"(8) Where the extent of the disablement is assessed for the period taken into account as amounting to 20 per cent. or more, disablement benefit shall be a pension (in this Chapter referred to as a disablement pension) for that period at the weekly rate set out in column (2) of Part III of the Second Schedule appropriate to the degree of disablement:

Provided that—

( a ) where that period is limited by reference to a definite date, the pension shall cease on the death of the beneficiary before that date, and

( b ) where the beneficiary is under the age of 18 years, the weekly rate for any degree of disablement shall be the rate set out in column (3) of Part III of the Second Schedule appropriate to the degree of disablement unless the beneficiary would, if in receipt of injury benefit rather than disablement pension, be entitled to an increase of that benefit for a qualified child or qualified children or for an adult dependant or would be so entitled but for the fact that his spouse is in employment (other than employment specified in paragraphs 4, 5 or 10 of Part II of the First Schedule), engaged in self-employment or is entitled to, or in receipt of, any benefit, assistance or allowance (other than supplementary welfare allowance) under Parts II or III of this Act, or disabled person's maintenance allowance under section 69 of the Health Act, 1970 ."; and

( c ) the substitution for subsection (9) ( b ) (i) of the following paragraph:—

"(i) the scale shall be the same for all persons, except that a lower amount may be fixed thereby for cases where the beneficiary is under the age of 18 years, unless the beneficiary would, if in receipt of injury benefit rather than disablement pension, be entitled to an increase of that benefit for a qualified child or qualified children or for an adult dependant or would be so entitled but for the fact that his spouse is in employment (other than employment specified in paragraphs 4, 5 or 10 of Part II of the First Schedule), is engaged in self-employment or is entitled to, or in receipt of, any benefit, assistance or allowance (other than supplementary welfare allowance) under Parts II or III of this Act or disabled person's maintenance allowance under section 69 of the Health Act, 1970 ,".

8.—Section 87 of the Principal Act is hereby amended by the insertion in subsection (1) after "husband" of the words ",provided that he is incapable of self-support by reason of some mental or physical infirmity,", and the said subsection, as so amended, is set out in the Table to this section.

TABLE

(1) Subject to this Act, on the death of a woman to whom an old age (contributory) pension or retirement pension was payable at an increased week y rate by virtue of section 81 (1) or 86 (1) in respect of a period ending on such death, her husband, providing that he is incapable of self-support by reason of some mental or physical infirmity, shall be entitled to benefit the weekly rate of which is equal to the rate of widow's (contributory) pension, including increases in respect of qualified children where appropriate, which would be payable to him under the provisions of this Part if he were a widow.

9.—Section 136 of the Principal Act is hereby amended by the substitution for paragraph (c)of subsection (3) of the following paragraph:—

"(c) that his means, calculated in accordance with this Chapter, do not exceed an amount per annum equal to 52 times—

(i) twice the amount of unemployment assistance set out in column (2) at reference 1A (1) (i) in Part I of the Fourth Schedule, and

(ii) in case he has a qualified child or qualified children, so much of the unemployment assistance set out at reference 1 A (1) (i) in Part I of the Fourth Schedule applicable to the person as would be payable in respect of that child or those children, as the case may be; and".

10.—Section 139 of the Principal Act is hereby amended by the insertion after "section 140" of "and to section 12 of the Social Welfare (No. 2) Act, 1985 ", and the said section, as so amended, is set out in the Table to this section.

TABLE

139. Subject to section 140 and to section 12 of the Social Welfare (No. 2) Act, 1985, the rate (in this Chapter referred to as the scheduled rate) of unemployment assistance shall be the weekly rate set out in column (2) of Part I of the Fourth Schedule, increased by—

( a ) the amount set out in column (3) of that Part for any period during which the applicant or recipient has an adult dependant, subject to the restriction that the applicant or recipient shall not be entitled to an increase of assistance under this paragraph in respect of more than one person, and

( b ) the appropriate amount set out in column (4), (4a ), (5) or (5a ) of that Part in respect of each qualified child who normally resides with the applicant or recipient.

11.—(1) Subject to subsection (2), any increase of unemployment assistance payable pursuant to section 139 of the Principal Act in respect of a qualified child who normally resides with the applicant or recipient and with the spouse of the applicant or recipient shall be payable at the rate of one-half of the appropriate amount in any case where the spouse of the applicant or recipient is not an adult dependant, and the said section 139 shall be construed and have effect accordingly.

(2) The provision of subsection (1) shall not apply in any case where a spouse of an applicant or recipient is living apart from the applicant or recipient and is not making a financial contribution to the maintenance of the qualified child.

12.—(1) Where a married couple are living together and both husband and wife are entitled to be paid unemployment assistance, the total amount payable to them pursuant to Chapter 2 of Part III of The Principal Act shall not exceed the amount which would be payable if one only of the married couple had entitlement to unemployment assistance and the other were an adult dependant, and each of them shall be entitled to be paid one-half of the amount which would be payable if the spouse were his adult dependant.

(2) Where the spouse of an applicant for unemployment assistance is not an adult dependant, the unemployment assistance payable to the applicant shall be at a rate equal to the scheduled rate reduced by 5p for every 10p or part of 10p of his means and whenever the rate of unemployment assistance payable as a result of such calculation is not an even multiple of 5p, the amount payable shall be rounded up to the nearest 5p.

(3) Subsection (2) of this section shall not apply in any case where the spouse is living apart from the applicant.

(4) Where one of a married couple who are living together is entitled to disability benefit, unemployment benefit, injury benefit, disablement pension, old age (contributory) pension, old age pension, retirement pension or invalidity pension and the other is entitled to unemployment assistance, the total of the amount payable to them by way of benefit or pension, as the case may be, and unemployment assistance shall not, except where regulations made by the Minister with the consent of the Minister for Finance otherwise provide, exceed the total amount of benefit or pension, as the case may be, that would otherwise be payable to the spouse entitled to benefit or pension if an increase of benefit or pension were payable to that spouse in respect of an adult dependant and if the total amount so payable to the married couple does exceed the amount that would be payable to the spouse entitled to benefit or pension, as the case may be, if he had an adult dependant, the amount of assistance payable to the spouse who is entitled to unemployment assistance shall be reduced accordingly.

13.—The Principal Act is hereby amended by the substitution for section 146 thereof of the following section—

"Calculation of means.

146.—(1) In the calculation of the means of a person for the purposes of this Chapter, the following things and no other things shall be deemed to constitute the means of a person—

( a ) the yearly value ascertained in the prescribed manner of all property belonging to him or to his spouse (not being property personally used or enjoyed by him or by his spouse or a farm of land leased either by him or by his spouse under a lease which has been certified by the Irish Land Commission to be bona fide and in accordance with sound land use practice) which is invested or otherwise put to profitable use or is capable of being, but is not, invested or put to profitable use;

( b ) all income which he or his spouse may reasonably expect to receive during the succeeding year in cash, whether as contributions to the expenses of the household or otherwise, but excluding—

(i) any income or money coming within any other paragraph of this subsection,

(ii) all moneys earned by him or by his spouse in respect of current personal employment under a contract of service,

(iii) any moneys received by way of unemployment assistance under this Chapter,

(iv) any moneys received by way of supplementary welfare allowance,

(v) any moneys received by way of disability benefit, unemployment benefit, maternity benefit, children's allowance or family income supplement,

(vi) any income arising from a bonus under a scheme administered by the Minister for the Gaeltacht for the making of special grants to parents or guardians resident in the Gaeltacht or Breac-Ghaeltacht (as defined in such scheme) of children attending primary schools,

(vii) an amount of an allowance, dependant's allowance (not being a dependant's allowance to which paragraph (viii) relates), disability pension or wound pension under the Army Pensions Acts, 1923 to 1980, or a combination of such allowances and such pensions so far as such amount does not exceed £80 per year,

(viii) a dependant's allowance under the Army Pensions Acts, 1923 to 1980, arising out of service in the period from the 23rd day of April, 1916, to the 30th day of September, 1923,

(ix) any moneys received by way of training allowance from an organisation while undergoing a course of rehabilitation training provided by the organisation (being an organisation approved of by the Minister for Health for the purposes of the provision of such training),

(x) any moneys, except so far as they exceed £104 per year, received by such person or by the spouse of such person in respect of work of the kind referred to in paragraph 7 of Part I of the First Schedule, under a scheme that is, in the opinion of the Minister, charitable in character and purpose,

(xi) where he or his spouse is engaged on a seasonal basis in the occupation of fishing, one-half of so much of the income derived therefrom as does not exceed £120 per year and one-third of so much of such income as exceeds £120 per year but does not exceed £300 per year,

(xii) any moneys received under a statutory scheme administered by the Minister for Labour in respect of redundancy or by way of financial assistance to unemployed persons changing residence;

( c ) the yearly value ascertained in the prescribed manner of any advantage accruing to him or to his spouse from—

(i) the use of property (other than a domestic dwelling or farm building owned and occupied, furniture and personal effects) which is personally used or enjoyed by him or by his spouse, and

(ii) the leasing by him or by his spouse of a farm of land under a lease which has been certified by the Irish Land Commission to be bona fide and in accordance with sound land use practice;

( d ) all income and the yearly value ascertained in the prescribed manner of all property of which he or his spouse have directly or indirectly deprived themselves in order to qualify for the receipt of unemployment assistance;

( e ) the yearly value of any benefit or privilege enjoyed by him or by his spouse, including the estimated value to the household in the succeeding year deriving from all income earned by his spouse in respect of current personal employment under a contract of service.

(2) For the purposes of subsections (1) (b) and (1) (e), the income of a person shall, in the absence of other means of ascertaining it, be taken to be the income actually received during the year immediately preceding the date of calculation.

(3) For the purposes of this section, 'spouse', in relation to a person, means a spouse who is living with, and not apart from, that person.".

14.—Section 161 of the Principal Act is hereby amended by the insertion after subsection (1) (inserted by the Social Welfare Act, 1982 ) of the following subsection:

"(1A) The increase payable pursuant to subsection (1) in respect of a qualified child who normally resides with the pensioner and the spouse of the pensioner shall be payable at the rate of one-half of the appropriate amount in any case where the spouse of the pensioner is entitled to any benefit, assistance, allowance (other than supplementary welfare allowance) or any other pension under this Act or to disabled person's maintenance allowance under section 69 of the Health Act, 1970 .".

15.—Section 162 of the Principal Act is hereby amended by the substitution for paragraph (d)of subsection (1) of the following paragraph:—

"( d ) by the amount calculated in accordance with Part III of the Fourth Schedule where the pensioner is living with, or is wholly or mainly maintaining, his spouse and the spouse is not in receipt of any benefit, pension, assistance or allowance under Part II or this Part.".

16.—Section 199 of the Principal Act is hereby amended by the insertion after the definition of "the Act of 193C of the following definition:

"'adult dependant' means—

( a ) the spouse of the recipient who is being wholly or mainly maintained by him, or

( b ) a person over the age of 16 years being wholly or mainly maintained by the recipient and having the care of one or more than one qualified child who normally resides with the recipient where the recipient is—

(i) a single person, or

(ii) a widow, or

(iii) a widower, or

(iv) a married person who is not living with and is neither wholly nor mainly maintaining, nor being wholly or mainly maintained by, such married person's spouse;".

17.—Section 210 of the Principal Act is hereby amended by the substitution in paragraph (a)of subsection (2) for "income as head of the household" of "household income", and the said paragraph, as so amended, is set out in the Table to this section.

TABLE

( a ) all income in cash, including the net cash value of any non-cash earnings derived from personal exertions and the actual or estimated amount of any household income, whether as contributions to the expenses of the household or otherwise, but excluding—

(i) any sums received by way of children's allowance under Part IV,

(ii) any sums received by way of allowance for domiciliary care of handicapped children under section 61 of the Health Act, 1970 , and

(iii) an, sums arising from the investment or profitable use of property (not being property of personally used or enjoyed by such person or a farm land lease by him under a lease which has been certified by the Irish Land Commission to be bona fide and in accordance with sound land use practice);

18.—Rule 1 (4) of the Third Schedule to the Principal Act is hereby amended by—

( a ) the substitution for subparagraphs (g)(i) and (g)(ii) of the following:—

"£312, plus £208 if his spouse is living with or is wholly or mainly maintained by him or, being a single person, widow or widower, is maintaining wholly or mainly a person over the age of 16 years having the care of one or more than one qualified child who normally resides or reside with him, plus £104 for each qualified child normally residing with him of whom account has not already been taken in accordance with this paragraph in calculating the means of another person,"; and

( b ) the insertion in subparagraph (i) (inserted by the Social Welfare Act, 1982 ) after "each such child" of "of whom account has not already been taken in accordance with this paragraph in calculating the means of another person", and the said subparagraph, as so amended, is set out in the Table to this paragraph.

TABLE

(i) in the case of a person who is not a blind person, and who has a qualified child or qualified children who normally resides or reside with him, all earnings derived by him from his personal exertions except and in so far as the annual amount of such earnings is calculated to exceed £104 (or for the purposes of widow's (non-contributory) pension, £312) for each such child of whom account has not already been taken in accordance with this paragraph in calculating the means of another person,

19.—The Minister may provide by regulations for the payment of increases in respect of qualified children at the full rate to either parent of the children concerned notwithstanding that each parent is entitled to an increase in benefit, pension or assistance, as the case may be, in respect of qualified children.

20.—The Minister may, subject to the consent of the Minister for Finance, make regulations for the purpose of securing the continuity of this Act with any provision repealed or amended by this Act o otherwise for the preservation of rights conferred under or by virtue of any of those provisions.

21.—In calculating the amount of any benefit, allowance or pension which, pursuant to section 4, section 26A of the Principal Act (inserted by this Act), section 11 or section 161 (1A) of The Principal Act (inserted by this Act), is payable at one-half of the appropriate amount, fractions of one penny shall be rounded up to the nearest penny.

22.—(1) If in any respect any difficulty arises in the administration or operation of this Act, the Minister may, subject to the approval o the Minister for Finance, by order do anything further which appear to be necessary or expedient for bringing this Act into operation, and any such order may modify the provisions of this Act so far as may be necessary or expedient for carrying the order into effect.

(2) Every order made by the Minister under this section shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution is passed by either House of the Oireachtas within the next twenty-one days on which that House has sat after the order is laid before it annulling the order, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done under the order.

(3) No order may be made under this section after the expiration of one year after the commencement of this section.

23.—Each provision of The Principal Act mentioned at a particular reference number in column (1) of the First Schedule to this Act is hereby repealed to the extent specified in column (2) of that Schedule.

24.—This Act shall come into operation on such day or days as may be fixed therefor by order or orders of the Minister and different days may be so fixed for different purposes and different provisions of this Act.

25.—(1) This Act may be cited as the Social Welfare (No. 2) Act, 1985 .

(2) The Social Welfare Acts, 1981 to 1985, and this Act shall be construed as one.

(3) The collective citation "the Social Welfare Acts, 1981 to 1985, shall include this Act.

FIRST SCHEDULE

REPEALS OF PRINCIPAL ACT

SECOND SCHEDULE

"SECOND SCHEDULE

RATES OF BENEFITS

PART I

RATES OF PERIODICAL BENEFITS AND INCREASES THEREOF

PART II

OCCUPATIONAL INJURIES BENEFITS-GRATUITIES AND GRANT

PART III

DISABLEMENT PENSION

PART IV

INCREASES OF DISABLEMENT PENSION

PART V

REDUCED PATES OF INJURY BENEFIT AND DISABLEMENT PENSION

".