Number 4 of 2005

SOCIAL WELFARE AND PENSIONS ACT 2005

ARRANGEMENT OF SECTIONS

PART 1

Short Title, Construction, Collective Citation and Commencement

PART 2

Amendments to the Social Welfare Acts

PART 3

Amendments to the Pensions Act 1990

SCHEDULE 1

Amendments to Principal Act Consequential on the Health Act 2004

SCHEDULE 2

Third Schedule — Rules as to Calculation of Means

SCHEDULE 3

Amendments Consequential on Substitution of Third Schedule of Principal Act

SCHEDULE 4

Pre-Consolidation Amendments

SCHEDULE 5

Ninth Schedule — Specified Bodies

Number 4 of 2005

SOCIAL WELFARE AND PENSIONS ACT 2005

AN ACT TO AMEND AND EXTEND THE SOCIAL WELFARE ACTS AND, FOR THE PURPOSE OF GIVING EFFECT TO DIRECTIVE 2003/41/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL¹ AND FOR OTHER PURPOSES, TO AMEND AND EXTEND THE PENSIONS ACT 1990. [14th March, 2005]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART 1

Short Title, Construction, Collective Citation and Commencement

Short title, construction, collective citation and commencement.

1.—(1) This Act may be cited as the Social Welfare and Pensions Act 2005 .

(2) The Social Welfare Acts and sections 1 to 26 of this Act shall be read together as one.

(3) Sections 27 to 39 of this Act and the Pensions Acts 1990 to 2004 may be cited together as the Pensions Acts 1990 to 2005.

(4) Sections 7(1), 16 and 24 to 39 of this Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes and different provisions.

(5) An order under subsection (4) may, in respect of the repeals or amendments effected by section 26 of this Act of the provisions specified in Schedule 4 to this Act, appoint different days for the repeal or amendment of different provisions or for the repeal or amendment for different purposes of any provision.

(6) Without prejudice to the generality of the foregoing, different days may be so appointed for the coming into operation of section 37 of this Act as respects different provisions of the Part inserted in the Pensions Act 1990 by that section.

PART 2

Amendments to the Social Welfare Acts

Definitions (Part 2).

2.—In this Part—

“Act of 1996” means the Social Welfare Act 1996 ;

“Act of 1997” means the Social Welfare Act 1997 ;

“Act of 1998” means the Social Welfare Act 1998 ;

“Act of 1999” means the Social Welfare Act 1999 ;

“Act of 2000” means the Social Welfare Act 2000 ;

“Act of 2001” means the Social Welfare Act 2001 ;

“Act of 2002” means the Social Welfare (Miscellaneous Provisions) Act 2002 ;

“Act of 2003” means the Social Welfare (Miscellaneous Provisions) Act 2003 ;

“Act of 2004” means the Social Welfare (Miscellaneous Provisions) Act 2004 ;

“Principal Act” means the Social Welfare (Consolidation) Act 1993 .

Child benefit — new rates.

3.—(1) The Fourth Schedule to the Principal Act is amended by substituting the following for Part III (as amended by section 3 of the Act of 2004):

“PART III

AMOUNTS OF CHILD BENEFIT

(2) This section comes into operation on 1 April 2005.

Disability benefit.

4.—(1) Section 32 (as amended by section 11 of this Act) of the Principal Act is amended by inserting the following after subsection (9):

“(10) In the case of any claim for disability benefit, where, at the time of application for that benefit, the claimant—

(a) is in receipt of or entitled to unemployment assistance under section 121(1)(a), and

(b) has qualifying contributions in respect of not less than 260 weeks,

subsection (1)(b)(i) shall be read as if ‘39 contribution weeks’ were substituted for ‘39 contribution weeks, of which at least 13 must be qualifying contributions’ and subsection (1)(c) shall not apply.

(11) In the case of any claim for disability benefit where, on the date immediately before the claim, a person was in receipt of or entitled to occupational injury benefit, subsection (1)(b)(i) shall be read as if ‘in the second last or third last complete contribution year’ were substituted for ‘in the second last complete contribution year’ ”.

(2) This section comes into operation on 2 May 2005.

Injury benefit — removal of limit.

5.—(1) Section 58 of the Principal Act is amended—

(a) by deleting subsection (1)(a), and

(b) in subsection (2), by substituting “An increase of benefit referred to in subsection (1) is an increase” for “The increases of benefit referred to in subsection (1) are increases”.

(2) This section comes into operation on 2 May 2005.

Carer's benefit — improvement to entitlement conditions.

6.—The Principal Act is amended—

(a) in section 82A (inserted by section 10 of the Act of 2000), in subsection (1), by inserting the following before the definition of “relevant person”:

“ ‘relevant period’ means the period of 26 weeks immediately before the first day in respect of which a claim to carer's benefit is made;”,

(b) in section 82B (as amended by section 15 of the Act of 2002):

(i) by substituting the following for paragraph (a) of subsection (1):

“(a) was engaged in remunerative full-time employment as an employed contributor for not less than 8 weeks, whether consecutive or not, within the relevant period,”,

(ii) by substituting the following for subsection (2):

“(2) Subsection (1)(a) shall not apply in respect of a claimant who was in receipt of carer's benefit within the relevant period.”,

and

(iii) by substituting the following for subsections (5) and (6):

“(5) In this section ‘remunerative full-time employment’ means remunerative employment for not less than 16 hours a week within the 8 weeks referred to in subsection (1)(a) or any period that may be prescribed under subsection (6), provided that where any 2 of those weeks are consecutive, the requirement in relation to those 2 weeks may be satisfied by an aggregate of not less than 32 hours in that fortnight.

(6) Regulations may provide that, subject to the conditions and in the circumstances that may be prescribed, in the case of a person who was absent from his or her employment within the relevant period referred to in subsection (1)(a), by reason of being on any leave from that employment that may be prescribed, the condition specified in subsection (1)(a) shall be regarded as being satisfied in respect of that person if he or she was engaged in remunerative full-time employment as an employed contributor for 8 weeks, whether consecutive or not, within the relevant period (other than the relevant period referred to in that subsection) that may be prescribed (and the period that may be so prescribed may comprise 2 or more periods which, taken together, amount to a period of 26 weeks).”.

Respite care grant — improvements to entitlement conditions.

7.—(1) The Principal Act is amended—

(a) by inserting the following after Part IV:

“PART IVA

RESPITE CARE GRANT

(b) by repealing sections 82F and 168A,

(c) by substituting “IV, IVA,” for “IV,” in each place where it occurs in the following provisions—

(i) subsections (1) and (8) of section 212 (as amended by section 23 of the Act of 1998),

(ii) paragraph (b) of section 265 (as amended by section 7 of the Act of 1996),

(iii) subsection (1) of section 277 (as amended by section 7 of the Act of 1996), and

(iv) Reference 1 in Table 2 to the Third Schedule (as amended by section 24 of this Act),

and

(d) in section 247(2), by inserting the following after paragraph (c):

“(ca) Part IVA (Respite Care Grant),”.

(2) The Principal Act is amended—

(a) by substituting the following for subsection (1) (as amended by section 4 of the Act of 2004) of section 82F:

“(1) Subject to subsection (2), a respite care grant in the amount of €1,000 shall be payable to a carer in respect of each relevant person in his or her care.”,

and

(b) by substituting the following for subsection (2) (as amended by section 4 of the Act of 2004) of section 168A:

“(2) Subject to subsection (3), a respite care grant in the amount of €1,000 shall be payable to a carer in respect of each relevant person in his or her care.”.

Disability allowance — extension of payment.

8.—(1) Section 191B (inserted by section 13 of the Act of 1996) of the Principal Act is amended—

(a) in subsection (3) (as amended by section 20 of the Act of 1999), by substituting “subsections (3A), (3B) and (3C)” for “subsections (3A) and (3B)”, and

(b) by inserting the following after subsection (3B) (inserted by section 20 of the Act of 1999):

“(3C) Subject to subsection (3D), a person who would be entitled to disability allowance but for subsection (3) shall be entitled to a weekly payment of €35 (in this Chapter referred to as the ‘disability allowance personal expenses rate’).

(3D) A payment under subsection (3C) shall be payable—

(a) at the disability allowance personal expenses rate where the rate of disability allowance, calculated in accordance with section 191C, that would be payable but for subsection (3), is greater than or equal to the disability allowance personal expenses rate, or

(b) at a rate equivalent to that rate of disability allowance, calculated in accordance with section 191C, that would be payable but for subsection (3), where that rate is less than the disability allowance personal expenses rate.”.

(2) This section comes into operation on 1 June 2005.

Assessment of capital means for certain assistance payments.

9.—(1) The Third Schedule to the Principal Act is amended—

(a) in Part I, by substituting the following for subparagraph (b) of Rule 1(1) (as amended by section 17(1)(a) of the Act of 2000):

“(b) The weekly value of the property referred to in subparagraph (a) shall be calculated as follows—

(i) the first €20,000 of the capital value of the property shall be excluded,

(ii) the weekly value of so much of the capital value of the property as exceeds €20,000 but does not exceed €30,000 shall be assessed at €1 per each €1,000,

(iii) the weekly value of so much of the capital value of the property as exceeds €30,000 but does not exceed €40,000 shall be assessed at €2 per each €1,000, and

(iv) the weekly value of so much of the capital value of the property as exceeds €40,000 shall be assessed at €4 per each €1,000.”,

(b) in Part II, by substituting the following for subparagraph (b) of Rule 1(1) (as amended by section 17(1)(b) of the Act of 2000):

“(b) The weekly value of the property referred to in subparagraph (a) shall be calculated as follows—

(i) the first €20,000 of the capital value of the property shall be excluded,

(ii) the weekly value of so much of the capital value of the property as exceeds €20,000 but does not exceed €30,000 shall be assessed at €1 per each €1,000,

(iii) the weekly value of so much of the capital value of the property as exceeds €30,000 but does not exceed €40,000 shall be assessed at €2 per each €1,000, and

(iv) the weekly value of so much of the capital value of the property as exceeds €40,000 shall be assessed at €4 per each €1,000,

but no account shall be taken under any other provision of these Rules of any appropriation of the property for the purpose of current expenditure.”,

and

(c) in Part IV, by substituting the following for subparagraph (b) of Rule 1(2) (as amended by section 17(1)(d) of the Act of 2000):

“(b) The weekly value of the property referred to in subparagraph (a) shall be calculated as follows:

(i) the first €20,000 of the capital value of the property shall be excluded,

(ii) the weekly value of so much of the capital value of the property as exceeds €20,000 but does not exceed €30,000 shall be assessed at €1 per each €1,000,

(iii) the weekly value of so much of the capital value of the property as exceeds €30,000 but does not exceed €40,000 shall be assessed at €2 per each €1,000, and

(iv) the weekly value of so much of the capital value of the property as exceeds €40,000 shall be assessed at €4 per each €1,000,

but no account shall be taken under any other provision of these Rules of any appropriation of the property for the purpose of current expenditure.”.

(2) This section comes into operation—

(a) in so far as it relates to carer's allowance, on 7 April 2005,

(b) in so far as it relates to unemployment assistance, disability allowance, pre-retirement allowance and farm assist, on 1 June 2005, and

(c) in so far as it relates to old age (non-contributory) pension, blind pension, widow's or widower's (non-contributory) pension, one-parent family payment, orphan's (non-contributory) pension and a relevant payment by virtue of section 18(1)(b) or (c) of the Act of 1996, on 2 June 2005.

Certain EU payments — entitlement to island allowance.

10.—The Principal Act is amended—

(a) in section 56(1) (as amended by section 17(1)(a) of the Act of 2001), by substituting “, by the amount set out in column (3) of Part IV of the Second Schedule where the beneficiary is living alone and by the amount set out in column (4) of Part IV of the Second Schedule where the beneficiary is ordinarily resident on an island” for “and by the amount set out in column (3) of Part IV of the Second Schedule where the beneficiary is living alone”,

(b) by inserting the following after Part VA (inserted by section 7 of the Act of 1996):

“PART VB

EU PAYMENTS

(c) by substituting “VA, VB,” for “VA,” in each place where it occurs in sections 212(1) and (8), 265(b) and 277(1) (each as amended by section 7 of this Act),

(d) in the Third Schedule, by substituting “,VA or VB,” for “or VA” in each place where it occurs in the following provisions—

(i) Part I, in Rule 1(2)(b),

(ii) Part II, in Rule 1(4)(b), and

(iii) Part IV, in Rule 1(3)(a),

and

(e) in section 247(2) (as amended by section 7 of this Act), by inserting the following after paragraph (e) (as amended by section 24 of the Act of 1998):

“(ea) Part VB (EU payments),”.

Amendments consequential on the alignment of the income tax year with the calendar year.

11.—The Principal Act is amended—

(a) in section 32—

(i) in subsection (1)(b) (as amended by section 20 of the Act of 2001)—

(I) in subparagraph (i), by substituting “second last complete contribution year” for “last complete contribution year”, and

(II) in subparagraph (ii), by substituting “of the second last and third last complete contribution years” for “of the last two complete contribution years”,

and

(ii) in subsection (3) (as amended by section 10 of the Act of 2002), by substituting “second last complete contribution year” for “last complete contribution year”,

(b) in section 38—

(i) in paragraph (a)(i) (as amended by section 20 of the Act of 2001)—

(I) in clause (B)(I), by substituting “second last complete contribution year” for “last complete contribution year”, and

(II) in clause (B)(II), by substituting “of the second last and third last complete contribution years” for “of the last two complete contribution years”,

and

(ii) in subparagraph (i) of paragraph (b) (as amended by section 9 of the Act of 2002), by substituting “in the second last complete contribution year or in the third last complete contribution year” for “in the last complete contribution year or in the second last complete contribution year”,

(c) in section 41B—

(i) in subsection (1)(a)(ii) (as amended by section 20 of the Act of 2001)—

(I) in clause (B)(I), by substituting “second last complete contribution year” for “last complete contribution year”, and

(II) in clause (B)(II), by substituting “of the second last and third last complete contribution years” for “of the last two complete contribution years”,

(d) in section 41H—

(i) in subsection (1)(a)(i) (as amended by section 20 of the Act of 2001)—

(I) in clause (B)(I), by substituting “second last complete contribution year” for “last complete contribution year”, and

(II) in clause (B)(II), by substituting “of the second last and third last complete contribution years” for “of the last two complete contribution years”,

and

(ii) in subparagraph (i) of subsection (1)(b) (as amended by section 9 of the Act of 2002), by substituting “in the second last complete contribution year or in the third last complete contribution year” for “in the last complete contribution year or in the second last complete contribution year”,

(e) in section 43, in subsection (1)(b) (as amended by section 20 of the Act of 2001)—

(i) in subparagraph (i), by substituting “second last complete contribution year” for “last complete contribution year”, and

(ii) in subparagraph (ii), by substituting “of the second last and third last complete contribution years” for “of the last two complete contribution years”,

(f) in section 82C, in subsection (1) (as amended by section 10 of the Act of 2002)—

(i) in paragraph (a), by substituting “second last complete contribution year” for “last complete contribution year”, and

(ii) in paragraph (c), by substituting “of the second last and third last complete contribution years” for “of the last two complete contribution years”,

and

(g) in section 115, in subsection (1)(b)—

(i) in subparagraph (i) (as amended by section 30 of the Act of 2001), by substituting “second last complete contribution year” for “last complete contribution year”, and

(ii) in subparagraph (ii) (as amended by section 10 of the Act of 2002), by substituting “the 3 or 5 complete contribution years immediately before the last complete contribution year” for “the last 3 or 5 complete contribution years”.

Unemployment benefit and unemployment assistance — amendment to entitlement.

12.—The Principal Act is amended—

(a) in section 42(5), by inserting the following after paragraph (a):

“(aa) employment under a scheme administered under the aegis of the Minister for Community, Rural and Gaeltacht Affairs and known as the Rural Social Scheme,”,

and

(b) in section 120(5), by inserting the following after paragraph (a):

“(aa) employment under a scheme administered under the aegis of the Minister for Community, Rural and Gaeltacht Affairs and known as the Rural Social Scheme,”.

Unemployment benefit, unemployment assistance and farm assist — amendment to disqualifications.

13.—The Principal Act is amended—

(a) by inserting the following after section 47(3):

“(3A) A person shall be disqualified for receiving unemployment benefit during any week in which he or she is employed under a scheme administered under the aegis of the Minister for Community, Rural and Gaeltacht Affairs and known as the Rural Social Scheme.”,

(b) by substituting the following for subsection (1) (as amended by section 27 of the Act of 2000) of section 125:

“(1) A person shall be disqualified for receiving unemployment assistance while he or she is—

(a) an inmate of an institution maintained wholly or partly out of public moneys or by a local authority,

(b) employed during any week under a scheme administered by An Foras Áiseanna Saothair and known as Community Employment, or

(c) employed during any week under a scheme administered under the aegis of the Minister for Community, Rural and Gaeltacht Affairs and known as the Rural Social Scheme.”,

and

(c) by inserting the following after section 191Q(1)(a) (inserted by section 15 of the Act of 1999):

“(aa) employed during any week under a scheme administered under the aegis of the Minister for Community, Rural and Gaeltacht Affairs and known as the Rural Social Scheme,”.

Carer's benefit and carer's allowance — amendment.

14.—The Principal Act is amended—

(a) in paragraph (a) of section 82H (inserted by section 10 of the Act of 2000), by inserting “in any week” before “in respect of the full-time care”, and

(b) in paragraph (a) of section 166 (as amended by section 28 of the Act of 2000), by inserting “in any week” before “in respect of the full-time care”.

Personal public service number — extension of provisions.

15.—The Principal Act is amended in section 223(1) (as amended by section 11 of the Act of 2004), in the definition of “specified body”—

(a) in paragraph (y), by deleting “or”, and

(b) by substituting the following for paragraph (z):

“(z) the Mental Health Commission, or

(za) such other persons as may be prescribed;”.

Award of bereavement grant and payments after death in certain cases.

16.—The Principal Act is amended in section 247 (as amended by section 11 of the Act of 2003)—

(a) by inserting the following after subsection (4):

“(4A) Notwithstanding subsections (1) to (3) and subject to subsection (6), the Minister may provide for the award of a bereavement grant or a payment under section 210, in the circumstances and subject to the conditions that may be prescribed, on receipt of information that may be prescribed, verified in the manner that may be prescribed, where the Minister is satisfied that the information is adequate to ensure that the award is made in accordance with this Act.”,

and

(b) by inserting the following after subsection (5):

“(6) In the case of an award made under subsection (4A), any question which arises subsequently in relation to whether a bereavement grant or a payment under section 210 is or is not payable, or in relation to who is entitled to receive a bereavement grant or a payment under section 210, shall be referred to a deciding officer for decision.”.

Provisions relating to prosecutions.

17.—The Principal Act is amended by substituting the following for subsection (3) of section 224:

“(3) Notwithstanding the provisions of subsection (1) or any provision in any enactment specifying the period within which proceedings may be commenced, a prosecution for a summary offence under this Act may be brought at any time within whichever of the following periods later expires—

(a) 2 years commencing on the date on which the offence was committed, or

(b) 18 months commencing on the date on which evidence sufficient to justify the institution of the prosecution came into the possession of the Minister.”.

Amendment of section 2 of Principal Act (interpretation).

18.—Section 2(1) of the Principal Act is amended by substituting the following for the definition of “orphan”:

“ ‘orphan’ means a qualified child—

(a) both of whose parents are dead, or

(b) one of whose parents is dead or unknown or has abandoned and failed to provide for the child, as the case may be, and whose other parent—

(i) is unknown, or

(ii) has abandoned and failed to provide for the child,

where that child is not residing with a parent, adoptive parent or step-parent;”.

Orphan's (contributory) allowance and orphan's (non-contributory) pension — amendments.

19.—The Principal Act is amended—

(a) in section 109—

(i) by inserting the following after subsection (1):

“(1A) In this Chapter ‘guardian’ means the person in whose care an orphan normally resides.”,

and

(ii) by substituting the following for subsection (2):

“(2) The Minister may, where he or she thinks fit, direct that a payment under this Chapter, payable to the guardian of an orphan, be paid to some other person for the benefit of the orphan or, subject to the conditions and in the circumstances that may be prescribed, directly to an orphan who has attained the age of 18 years where that orphan is not normally residing with a guardian.”,

and

(b) in section 151—

(i) by inserting the following after subsection (1):

“(1A) in this Chapter ‘guardian’ means the person in whose care the orphan normally resides.”,

and

(ii) by substituting the following for subsection (2):

“(2) The Minister may, where he or she thinks fit, direct that a payment under this Chapter, payable to the guardian of an orphan, be paid to some other person for the benefit of the orphan or, subject to the conditions and in the circumstances that may be prescribed, directly to an orphan who has attained the age of 18 years where that orphan is not normally residing with a guardian.”.

Assessment of means — amendments.

20.—Part III of the Third Schedule to the Principal Act is amended in Rule 1(1)—

(a) in paragraph (p)(i) (inserted by section 26 of the Act of 2000), by substituting “such employment as may be prescribed” for “employment”, and

(b) by deleting paragraphs (q), (r) and (s) (all inserted by section 24 of the Act of 2001).

Recovery of overpayments.

21.—The Principal Act is amended—

(a) in section 177(1) (as amended by section 37 of the Act of 2001), by substituting “Subject to section 281(6), the amount of supplementary welfare allowance” for “The amount of supplementary welfare allowance”,

(b) by substituting the following for subsection (6) (as amended by section 20 of the Act of 1998) of section 281:

“(6) Any benefit, assistance, supplement or payment repayable in accordance with section 278, 279, 279A or 279B may, without prejudice to any other method of recovery, be recovered by deduction, subject to the conditions and in the circumstances that shall be prescribed, from any benefit, assistance, supplement or payment to which the person concerned is or becomes entitled.”,

and

(c) in section 282 (as amended by section 30 of the Act of 1999)—

(i) by deleting “(other than supplementary welfare allowance determined by a health board)”, and

(ii) by substituting “subject to the conditions and in the circumstances that shall be prescribed” for “in accordance with such code of practice as shall be prescribed”.

Old age (contributory) pension — amendment to definition of “homemaker”.

22.—Section 83 of the Principal Act is amended in subsection (2), in the definition of “homemaker” (inserted by section 24 of the Act of 1996), by substituting the following for subparagraph (ii) of paragraph (c):

“(ii) resides with and provides full-time care and attention to a person who is so incapacitated as to require full-time care and attention within the meaning of section 163(3), or

(iii) subject to the conditions and in the circumstances that may be prescribed, does not reside with but provides full-time care and attention to a person who is so incapacitated as to require full-time care and attention within the meaning of section 163(3),

and,”.

Amendments to Principal Act consequential on Health Act 2004.

23.—The Principal Act is amended as indicated in Schedule 1 to this Act.

Third Schedule to Principal Act (Rules as to calculation of means).

24.—The Principal Act is amended by substituting the Schedule set out in Schedule 2 to this Act for the Third Schedule.

Amendments consequential on section 24 .

25.—The Principal Act is amended as indicated in Schedule 3 to this Act.

Pre-consolidation amendments to Principal Act.

26.—The Principal Act is amended—

(a) as indicated in Schedule 4 to this Act, and

(b) by inserting the Schedule set out in Schedule 5 to this Act after the Eighth Schedule (inserted by the European Communities (Social Welfare) Regulations 1994 ( S.I. No. 312 of 1994 )),

being amendments designed to facilitate, or otherwise desirable in connection with, the consolidation of the Social Welfare Acts.

PART 3

Amendments to the Pensions Act 1990

Definitions (Part 3).

27.—In this Part—

“Act of 1996” means the Pensions (Amendment) Act 1996 ;

“Act of 2002” means the Pensions (Amendment) Act 2002 ;

“Principal Act” means the Pensions Act 1990 .

Amendment of section 2 of Principal Act.

28.—Section 2 of the Principal Act is amended—

(a) by inserting the following after the definition of “defined contribution scheme”:

“ ‘Directive’ means Directive 2003/41/EC of the European Parliament and of the Council² ;”,

(b) in the definition of “employer” (inserted by section 6 of the Act of 2002), by inserting “and subject to section 154” after “Part VII”,

(c) in the definition of “member” (as amended by section 53 of the Social Welfare Act 1992 ), by substituting “sections 62 and 154” for “section 62”,

(d) by substituting the following for the definition of “occupational pension scheme” (as amended by section 42 of the Social Welfare Act 1993 ):

“ ‘occupational pension scheme’, means any scheme or arrangement other than an overseas pension scheme within the meaning of section 770(1) of the Taxes Consolidation Act 1997 —

(a) which is comprised in one or more instruments or agreements, and

(b) subject to section 154, which provides or is capable of providing in relation to employees in any description of employment within the State, benefits, and

(c) (i) which has been approved of by the Revenue Commissioners for the purpose of Chapter 1 of Part 30 of the Taxes Consolidation Act 1997 , or

(ii) the application for approval of which under Chapter 1 of Part 30 of the Taxes Consolidation Act 1997 is being considered, or

(iii) which is a statutory scheme to which section 776 of the Taxes Consolidation Act 1997 applies, or

(iv) which is a scheme to which section 790B of the Taxes Consolidation Act 1997 applies, or

(v) which is a scheme, other than a scheme specified in subparagraph (i), (ii) or (iii), the benefits of which are paid in whole or in part out of moneys provided from the Central Fund or moneys provided by the Oireachtas, or

(vi) which has been approved by the Revenue Commissioners for the purpose of one or more of the following—

(I) section 32 of the Finance Act 1921, or

(II) section 34 of the Finance Act 1958 , or

(III) section 222 or 229 of the Income Tax Act 1967;”,

(e) by inserting the following after the definition of “sectionalised scheme” (inserted by section 6 of the Act of 2002):

“ ‘small scheme’ means a scheme with less than 100 members who are entitled to but are not receiving an immediate retirement benefit under the scheme;”,

and

(f) by inserting the following after subsection (3):

“(4) A word or expression that is used in this Act and is also used in the Directive has, unless the contrary intention appears, the same meaning in this Act as it has in the Directive.”.

Amendment of section 7A of Principal Act.

29.—The Principal Act is amended by substituting the following for section 7A (inserted by section 12 of the Act of 2002):

Amendment of section 18 of Principal Act.

30.—Section 18 of the Principal Act (as amended by section 14 of the Act of 2002) is amended—

(a) in subsection (5)—

(i) in paragraph (b)—

(I) by inserting “or fails” after “refuses”, and

(II) by inserting “or to the Board” after “to such person”,

and

(ii) in paragraph (c)—

(I) by inserting “or fails” after “refuses”, and

(II) by inserting “or by the Board” after “authorised person”,

and

(b) in subsection (6), by inserting “administrators,” after “actuaries,”.

Funding standard.

31.—The Principal Act is amended—

(a) in section 41 (as amended by section 27 of the Act of 2002), by substituting the following for subsection (2):

“(2) Notwithstanding subsection (1)—

(a) this Part shall apply to a defined contribution scheme which is paying benefits to members where those benefits are not secured under a policy or policies of assurance,

(b) subsections (1) and (2) of section 48 shall apply to any scheme other than a defined contribution scheme, and

(c) subsections (3) and (4) of section 48 shall apply to every scheme.”,

(b) in section 43—

(i) in subsection (1) (as amended by section 29 of the Act of 2002):

(I) by substituting “and, subject to subsection (1A), a subsequent” for “and a subsequent”,

(II) in paragraph (b), by inserting “and” after “the scheme,”, and

(III) by inserting the following after paragraph (b):

“(c) in the case of a scheme to which this Part applies by virtue of the amendment effected by section 32 (a) of the Social Welfare and Pensions Act 2005, not later than 1 January 2007.”,

and

(ii) by inserting the following after subsection (1):

“(1A) Where, in accordance with subsection (1), an actuarial funding certificate, having an effective date after 22 September 2005, has been prepared, any subsequent actuarial funding certificate shall have an effective date not later than 3 years after the effective date of the immediately preceding certificate.”,

(c) in section 49—

(i) by inserting the following after subsection (2):

“(2A) Regulations under this section may require the actuary, in certifying a funding proposal under subsection (2) or the failure of the scheme to satisfy the funding standard in accordance with subsection (3), to comply with any applicable professional guidance issued by the Society of Actuaries in Ireland and specified in the regulations or with any other applicable guidance issued by any other person (including the Minister) and specified in the regulations.”,

and

(ii) by substituting the following for subsection (3) (as amended by section 24 of the Social Welfare (Miscellaneous Provisions) Act 2003 ):

“(3) Subject to Regulations under this section, the Board, on application to it in that behalf by the trustees of a scheme, may, in relation to the scheme, in the circumstances and on the terms that it considers appropriate, for the purposes of subsection (2)(a), specify a date later than the effective date of the next actuarial funding certificate where the actuary concerned certifies that the failure of the scheme to satisfy the funding standard relates wholly or mainly to either or both of the following—

(a) the assets of the scheme being less than expected where—

(i) this is due to the performance of relevant markets in relation to investments made with the resources of the scheme and that the performance of those markets in relation to those investments is not inconsistent with the performance generally of relevant markets for investment in the same period, and

(ii) having regard to the performance generally of relevant markets for investment, the Board considers that specifying a later date is necessary or appropriate and not contrary to the interests of the members of the scheme,

or

(b) the liabilities of the scheme being greater than expected where—

(i) this is due to such factors and circumstances as shall be prescribed, and

(ii) the Board considers that specifying a later date is necessary or appropriate and not contrary to the interests of members of the scheme.

(3A) The Board, on application to it in that behalf by the trustees of a scheme, may, in relation to the scheme, in the circumstances and on the terms that it considers appropriate, modify the requirements of paragraphs (b), (c) or (d) of subsection (2) where—

(a) administrative difficulties have arisen from circumstances outside the control of the trustees of the scheme or schemes,

(b) the modification does not materially alter those paragraphs, and

(c) the Board considers the modification necessary or appropriate and that it is not contrary to the interests of the members of the scheme.”,

(d) in section 56, by inserting the following after subsection (2):

“(2A) The trustees of a defined contribution scheme shall cause the liabilities of the scheme to be valued in such manner and at such times as may be prescribed.”,

and

(e) by inserting the following after section 59F (inserted by section 43 of the Act of 2002):

Small scheme exemptions.

32.—The Principal Act is amended—

(a) in section 41 (as amended by section 27 of the Act of 2002), in subsection (1)(b) and (c), by substituting “a small scheme” for “a scheme” in each place where it occurs,

(b) in section 55 (as amended by section 37 of the Act of 2002), in subsection (2)(b) and (c), by substituting “small scheme” for “scheme” in each place where it occurs,

(c) in section 56 (as amended by section 38 of the Act of 2002), in subsection (6)(a)(iii) and (iv), by substituting “a small scheme” for “a scheme” in each place where it occurs, and

(d) in section 57 (as amended by section 40 of the Act of 2002) by substituting “being modifications the making of which are compatible with the Directive and that, in the opinion of the Minister, are reasonable” for “being modifications that, in the opinion of the Minister are reasonable”.

Amendment of section 59 of Principal Act.

33.—Section 59 of the Principal Act (amended by section 42 of the Act of 2002) is amended—

(a) by substituting the following for paragraph (b) of subsection (1):

“(b) to provide for the proper investment of the resources of the scheme in accordance with regulations and, subject to those regulations and subsection (2), in accordance with the rules of the scheme;”,

and

(b) by inserting the following after subsection (1):

“(1A) The regulations referred to in subsection (1)(b) shall prescribe rules which shall be adhered to by the trustees of a scheme in providing for the proper investment of the resources of the scheme, in particular, in accordance with paragraph (1) of Article 18 of the Directive.

(1B) Trustees of a scheme, other than a small scheme, shall, subject to subsection (1C)—

(a) prepare and maintain a written statement of the investment policy principles applied to the resources of the scheme,

(b) review the statement at least every 3 years, and

(c) revise the statement at any time following any change in investment policy which is inconsistent with the statement.

(1C) The statement referred in subsection (1B) shall include the prescribed matters and shall be prepared and maintained in the form and manner that may be prescribed.”.

Qualifications of trustees.

34.—The Principal Act is amended—

(a) in section 26, in subsections (1) and (6), by inserting “,59A” after “58” in each place where it occurs,

(b) by re-numbering section 59A (inserted by section 23 of the Act of 1996) as section 59AA,

(c) by inserting the following after section 59:

(d) in section 62(1) (inserted by section 15 of the Social Welfare (No. 2) Act 1993 ), by inserting “, subject to section 59A,” after “The Minister shall”, and

(e) in section 63B (inserted by section 27 of the Act of 1996) by inserting “prohibited from being a trustee of a scheme under section 59A or” after “while”.

Amendment of section 90 of Principal Act.

35.—Section 90 (inserted by section 39 of the Act of 1996) of the Principal Act is amended by inserting the following after subsection (3):

“(4) (a) If, on application to it by the Board, the Court is satisfied—

(i) that the Board has received a request from the competent authority of another Member State (within the meaning of section 148) for assistance in prohibiting the free disposal of assets of an institution for occupational retirement provision registered or authorised in that Member State and which are held by a custodian or depositary in the State, and

(ii) that the request referred to in subparagraph (i) is appropriate and necessary to prevent or remedy any irregularities prejudicial to the interests of members and beneficiaries,

the Court may grant an injunction restraining any person from disposing of or otherwise dealing with the assets to which the application refers.

(b) If the Court grants an injunction under paragraph (a), it may by order make provision for such ancillary and consequential matters as it considers necessary or expedient to enable the competent authority that made the request to perform any of its functions in relation to the assets to which the injunction applies.”.

Amendment to Part VI of Principal Act.

36.—Part VI of the Principal Act is amended by the insertion after section 61A (inserted by section 25 of the Act of 1996) of the following section:

Cross-border schemes.

37.—The Principal Act is amended by inserting the following after Part XI (inserted by section 5 of the Act of 2002)—

“PART XII

Cross-border Schemes

Amendment of section 111 of Principal Act.

38.—Section 111 (inserted by section 3 of the Act of 2002) of the Principal Act is amended in subsection (3) by substituting “30 days” for “15 days”.

Amendment of section 113 of Principal Act.

39.—Section 113 (inserted by section 3 of the Act of 2002) of the Principal Act is amended in subsection (3) by substituting “€10,000” for “€4,000”.

SCHEDULE 1

Amendments to Principal Act Consequential on the Health Act 2004

Section 23.

SCHEDULE 2

“Third Schedule — Rules as to Calculation of Means

Section 24.

PART 1

Definitions

1. In this Schedule—

‘fisherman’ means a person engaged in seafishing as a selfemployed person—

(a) on a fishing boat entered in the Register of Fishing Boats, or

(b) on a fishing boat and in a place in respect of which a fishing licence (within the meaning of section 3 of the Fisheries (Consolidation) Act 1959 ) for fishing for salmon at sea has been issued;

‘gross proceeds derived from the sale of the principal residence’ means—

(a) the agreed sale price of the residence, or

(b) where the claimant or beneficiary purchases alternative accommodation, the difference between the agreed sale price of the former residence and the agreed purchase price of the replacement residence;

‘housing costs’ means rent or repayment of a loan entered into solely for the purpose of defraying money employed in the purchase, repair or essential improvement of the residence in which the person is, for the time being, residing;

‘maintenance grant’ means a grant issued under—

(a) a scheme administered by the Minister for Education and Science under the Local Authorities (Higher Education Grants) Acts 1968 to 1992, or

(b) a scheme administered under the aegis of the Minister for Education and Science and known as the—

(i) Maintenance Grants Scheme for Students attending Post-Leaving Certificate Courses,

(ii) Vocational Education Committees Scholarship Scheme, or

(iii) Third-Level Maintenance Grants Scheme for Trainees;

‘maintenance payments’ means any payment received under or pursuant to any maintenance arrangement that may be prescribed;

‘spouse’ means—

(a) each person of a married couple who are living together, or

(b) a man and woman who are not married to each other but are cohabiting as husband and wife.

PART 2

Unemployment Assistance, Pre-Retirement Allowance, Disability Allowance and Farm Assist

1. In the calculation of the means of a person for the purposes of Chapters 2, 3, 12 and 14 of Part III, account shall be taken of the following:

(1) other than in the circumstances and subject to the conditions and for the periods that may be prescribed, the weekly value of property belonging to the person or to his or her spouse (not being property personally used or enjoyed by the person or his or her spouse or a farm of land leased either by the person or his or her spouse) which is invested or otherwise put to profitable use or is capable of being, but is not, invested or put to profitable use and the weekly value, calculated in accordance with Table 1 to this Schedule, constitutes the weekly means of a person from that property but, in the case of farm assist, no account shall be taken under any other provision of these Rules of any appropriation of the property for the purpose of current expenditure;

(2) all income in cash and any non-cash benefits that may be prescribed which the person or his or her spouse may reasonably expect to receive during the succeeding year, whether as contributions to the expenses of the household or otherwise, but—

(a) excluding the amounts at references 1 to 19 in Table 2 to this Schedule, and

(b) excluding—

(i) in the cases that may be prescribed, any moneys received by way of a maintenance grant,

(ii) any moneys received by way of maintenance payments (including maintenance payments made to or in respect of a qualified child) in so far as those payments do not exceed the annual housing costs actually incurred by the person subject to the maximum amount that may be prescribed, together with one-half of any amount of maintenance payment in excess of the amount disregarded in respect of housing costs actually incurred (if any),

(iii) in the case of unemployment assistance, any moneys, subject to the limit that may be prescribed, received by way of repayment of expenses necessarily incurred in relation to travel and meals while undergoing a course of education, training or development approved by the Minister,

(iv) in the case of—

(I) unemployment assistance and pre-retirement allowance and subject to paragraph (5) all moneys earned by the person in respect of current personal employment under a contract of service,

(II) farm assist and subject to paragraph (8), all moneys earned by the person or his or her spouse in respect of current personal employment under a contract of service,

(v) in the case of unemployment assistance, pre-retirement allowance and farm assist and subject to paragraphs (6), (7) and (8), any moneys earned by the person or his or her spouse from insurable employment of a seasonal nature,

(vi) the amount that may be prescribed of all moneys earned by the person's spouse from insurable employment,

(vii) any moneys, except in so far as they exceed €134 per year, received by the person or by his or her spouse in respect of work as an outworker under a scheme that is, in the opinion of the Minister, charitable in character and purpose,

(viii) in the case of disability allowance, the amount that may be prescribed of earnings from employment or self-employment of a rehabilitative nature,

(ix) in the case of unemployment assistance, pre-retirement allowance and farm assist, all income received under the following schemes:

(I) the Rural Environment Protection Scheme administered by the Minister for Agriculture and Food;

(II) the Special Areas of Conservation Scheme administered by the Minister for Community, Rural and Gaeltacht Affairs,

except in so far as that income exceeds the sum of—

(A) €2,540, plus

(B) one-half of any amount in excess of €2,540 and

(C) any expenses necessarily incurred,

(x) in the case of unemployment assistance and pre-retirement allowance, and subject to paragraph (9), any income derived by a fisherman from any form of self-employment,

(xi) where the person or his or her spouse is engaged on a seasonal basis in the occupation of fishing, one-half of so much of the income derived from that occupation as does not exceed €153 per year and one-third of so much of the income as exceeds €153 per year but does not exceed €381 per year,

(xii) in the case of farm assist, an amount of €1,270 per annum from the harvesting of seaweed;

(3) the yearly value ascertained in the prescribed manner of any advantage accruing to the person or to his or her spouse from—

(a) 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 the person or by his or her spouse, and

(b) the leasing by the person or by his or her spouse of a farm of land;

(4) all income and the value of all property of which the person or his or her spouse has directly or indirectly deprived himself or herself in order to qualify for the receipt of unemployment assistance, pre-retirement allowance, disability allowance or farm assist, but where the income or the value of the property has reduced since the date of calculation, the calculation may be revised, subject to the conditions and in the circumstances that may be prescribed but any such regulations shall not cause the income or value of the property taken to be part of the means to be increased;

(5) in the case of a person engaged in employment under a contract of service, the value, ascertained in the prescribed manner of any moneys derived from that employment and the value so calculated constitutes the weekly means of that person from that employment for the purposes of Chapter 2 of Part III;

(6) in the case of a person who makes a claim for unemployment assistance during a period in which he or she is engaged in insurable employment of a seasonal nature, the value, ascertained in the prescribed manner, of any moneys derived from that employment and the value so calculated constitutes the weekly means of that person from that employment for the purposes of Chapter 2 of Part III;

(7) in the case of unemployment assistance and pre-retirement allowance, the value of all moneys derived by his or her spouse from insurable employment of a seasonal nature, ascertained in the prescribed manner, during the period in which his or her spouse is engaged in that employment, and the value so calculated constitutes the weekly means of that person from such employment;

(8) in the case of a farmer or his or her spouse engaged in current personal or seasonal employment, the value, ascertained in the prescribed manner, of any moneys derived from that employment and the value so calculated constitutes the weekly means of that person from that employment;

(9) (a) in the case of a fisherman, the gross income derived from any form of self-employment, or

(b) in the case of a farmer entitled to or in receipt of farm assist, the gross yearly income which the farmer or his or her spouse may reasonably be expected to receive from farming or any other form of self-employment,

less—

(i) any expenses necessarily incurred in carrying on any form of self-employment, and

(ii) where the fisherman or farmer has a qualified child, who normally resides with him or her, an amount of—

(I) €254 per annum in respect of each of the first 2 qualified children, and

(II) €381 per annum in respect of each subsequent qualified child,

calculated at the rate of 70 per cent;

(10) in the case of persons entitled to or in receipt of unemployment assistance who have not attained the age that may be prescribed, the yearly value of any benefit or privilege enjoyed by that person by virtue of residing with a parent or step-parent, and the Minister may prescribe by regulations the manner in which the value of the benefit and privilege may be calculated.

2. (1) Notwithstanding this Schedule and subject to paragraph (2), for the purposes of disability allowance, the gross proceeds derived from the sale of the principal residence of the claimant or beneficiary or, in the case of a married couple who are living together, the spouse of the claimant or beneficiary shall not, subject to the limit and under the conditions and circumstances and for the periods as shall be prescribed, be taken into account in calculating the means of the claimant or beneficiary.

(2) Paragraph (1) shall not apply to any sums arising from the investment or profitable use of the gross proceeds derived from the sale of the principal residence.

3. For the purposes of Rule 1(2) and (10), 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 before the date of calculation.

4. The Minister may by regulations vary—

(a) Rule 1(1) and Table 1 to this Schedule in relation to the calculation of the weekly value of property belonging to a person, and

(b) Rule 1(2) to (10), in the case of farm assist.

PART 3

Old Age (Non-Contributory), Blind, Widow's or Widower's (Non-Contributory), and Orphan's (Non-Contributory) Pensions, One-Parent Family Payment and Carer's Allowance

1. Subject to paragraphs (2) and (3), in calculating the means of a person, account shall be taken of the following—

(1) other than in the circumstances and subject to the conditions and for the periods that may be prescribed, the weekly value of property belonging to the person (not being property personally used or enjoyed by the person or a farm of land leased by him or her) which is invested or is otherwise put to profitable use by the person or which, though capable of investment or profitable use is not invested or put to profitable use and the weekly value, calculated in accordance with Table 1 to this Schedule, constitutes the weekly means of a person from that property but, no account shall be taken under any other provision of these Rules of any appropriation of the property for the purpose of current expenditure;

(2) all income in cash (including, in the case of widow's or widower's (non-contributory) pension, orphan's (non-contributory) pension and one-parent family payment, the net cash value of such non-cash benefits as may be prescribed), and the income received by a qualified child or qualified children that may be prescribed which the person may reasonably expect to receive during the year succeeding the date of calculation, but—

(a) excluding the amounts at references 1 to 19 in Table 2 to this Schedule, and

(b) excluding—

(i) in the case of blind pension or one-parent family payment, any moneys received by way of a maintenance grant,

(ii) in the case of old age (non-contributory) pension, blind pension, widow's or widower's (non-contributory) pension and one-parent family payment, any moneys received by way of maintenance payments (including maintenance payments made to or in respect of a qualified child) in so far as they do not exceed the annual housing costs actually incurred by the person subject to the maximum amount that may be prescribed, together with one-half of any amount of maintenance payment in excess of the amount disregarded in respect of housing costs actually incurred (if any),

(iii) in the case of one-parent family payment, any moneys, subject to the limit that may be prescribed, received by way of repayment of expenses necessarily incurred in relation to travel and meals while undergoing a course of education, training or development approved by the Minister,

(iv) in the case of a blind person, any income arising from a grant or allowance in pursuance of a scheme for promoting the welfare of the blind prepared under section 2 of the Blind Persons Act 1920,

(v) in the case of a person who has attained pensionable age, any moneys received under a scheme administered by the Minister for Agriculture and Food and known as the Early Retirement Scheme from Farming operated under Council Regulation (EEC) No. 2079/92 of 30 July 1992³ , or Council Regulation (EC) No. 1257/99 of 17 May 1999⁴ ,

(vi) for the purposes of old age (non-contributory) pension and widow's and widower's (non-contributory) pension, any moneys received in respect of rent from a person who resides with the claimant or beneficiary and but for the residence of the person the claimant or beneficiary would reside alone,

(vii) any sums arising from the investment or profitable use of property (not being property personally used or enjoyed by the person or a farm of land leased by him or her),

(viii) in the case of old age (non-contributory) pension, widow's or widower's (non-contributory) pension, orphan's (non-contributory) pension, one-parent family payment or carer's allowance, any moneys, except in so far as they exceed €67 per year, received by the person in respect of employment as an outworker under a scheme that is, in the opinion of the Minister, charitable in character and purpose,

(ix) in the case of a recipient of one-parent family payment, subject to paragraph (4), any moneys received by way of earnings (including wages and profit from any form of self-employment),

(x) in the case of a blind person, his or her earnings (including wages and profit from any form of self-employment) other than employment of a rehabilitative nature, except and in so far as the annual amount of those earnings is calculated to exceed an amount made up as follows—

€400, plus €265 if the person's spouse is living with or is wholly or mainly maintained by him or her 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 the person, plus €133 for each qualified child normally residing with the person of whom account has not already been taken in accordance with this paragraph in calculating the means of another person,

(xi) in the case of a blind person, the amount that may be prescribed of his or her earnings from employment of a rehabilitative nature,

(xii) in the case of a person who is in receipt of old age (non-contributory) pension, orphan's (non-contributory) pension or carer's allowance and who has a qualified child who normally resides with him or her, his or her earnings (including wages and profit from any form of self-employment), except and in so far as the annual amount of those earnings is calculated to exceed €133 for each such child of whom account has not already been taken in accordance with this paragraph in calculating the means of another person,

(xiii) in the case of old age (non-contributory) pension, an amount of €2,540 together with one-half of any amount in excess of €2,540 received under the following schemes:

(I) the Rural Environment Protection Scheme administered by the Minister for Agriculture and Food;

(II) the Special Areas of Conservation Scheme administered by the Minister for Community, Rural and Gaeltacht Affairs,

and that income shall, in the absence of other means for ascertaining it, be taken to be that actually received during the year immediately before the date of calculation but where that income is attributable to a period before the year immediately preceding the date of calculation but is received in a subsequent year, it shall be regarded for the purposes of this paragraph as having been received in the year to which it is attributable;

(3) the yearly value of any advantage accruing to the person from—

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

(b) a farm of land leased by the person;

(4) (a) subject to subparagraph (b), in the case of a recipient of one-parent family payment who has earnings (including wages and profit from any form of self-employment), the gross weekly earnings, constitutes the weekly means of that parent from earnings for the purposes of Chapter 9 of Part III,

(b) in calculating the gross weekly earnings of a recipient of one-parent family payment, for the purposes of subparagraph (a), an amount of €146.50 together with half the gross weekly earnings in excess of that amount shall be disregarded;

(5) in the case of carer's allowance, in calculating the weekly means of a carer who is not one of a couple (other than means derived from a social security payment payable under the legislation of another state), that amount that may be prescribed shall be disregarded;

(6) in the case of carer's allowance, the amount that the Minister determines that the relevant person (as defined in section 163) could reasonably be expected to contribute to the support of the carer but in determining that amount, no account shall be taken of any sums received by the relevant person under Part II, III or IV.

2. (1) Subject to paragraph (2), if it appears that any person has, whether before or after the commencement of this Act, directly or indirectly deprived himself or herself of any income or property in order to qualify himself or herself for the receipt of the pension or allowance in question, or for the receipt of the pension or allowance at a higher rate than that to which he or she would otherwise be entitled, that income or the value of that property shall for the purposes of these Rules be taken to be part of the means of that person.

(2) Paragraph (1) shall not apply to any assignment—

(a) which is an assignment to a child or children of the assignor, and

(b) which is an assignment of property consisting of a farm of land (together with or without the stock and chattels thereon) and of which the assignor is the owner and the occupier or the occupier only.

(3) In the case of a person to whom paragraph (1) applies, where the income or the value of the property taken to be part of his or her means for the purposes of that paragraph has reduced since the date of calculation, the calculation may be revised, subject to the conditions and in the circumstances that may be prescribed, but regulations made under this paragraph shall not cause the income or the value of the property taken to be part of his or her means to be increased.

(4) For the purposes of this Rule, ‘assignment’ includes any form of conveyance, transfer or other transaction by which a person parts with the ownership or possession of property.

3. (1) Notwithstanding this Schedule and subject to paragraph (2), for the purposes of—

(a) old age (non-contributory) pension or blind pension, or

(b) widow's (non-contributory) pension or widower's (non-contributory) pension, or one-parent family payment, where the claimant or beneficiary has attained pensionable age,

the gross proceeds derived from the sale of the principal residence of the claimant or beneficiary or, in the case of a married couple who are living together, the spouse of the claimant or beneficiary where the spouse has attained pensionable age, shall not, subject to the limit and under the conditions and circumstances and for the periods that shall be prescribed, be taken into account in calculating the means of the claimant, beneficiary or pensioner.

(2) Paragraph (1) shall not apply to any sums arising from the investment or profitable use of the gross proceeds derived from the sale of the principal residence.

4. (1) In the case of an old age (non-contributory) pension, blind pension or a carer's allowance, the following apply when calculating the means of a person who is one of a couple living together:

(a) the means of the person shall be taken to be one-half of the total means of the couple;

(b) the person is deemed to be entitled to one-half of all property to which the person or the other member of the couple is entitled or to which the person and the other member of the couple are jointly entitled;

(c) for the purposes of this Rule, the means of each member of the couple shall first be determined in accordance with these Rules (each being regarded as an applicant for a pension or a pension at a higher rate or carer's allowance, as the case may be) and the total means shall be the sum of the means of each member as so determined;

(d) where one member of the couple dies, nothing which was reckoned for the purposes of pension, or would (if the deceased member had been entitled to receive any pension) have been so reckoned, as means of the deceased member shall be so reckoned as means of the surviving member for the purpose of reducing the pension of the surviving member if any payment in respect of that pension was made before the death of the deceased member or becomes payable in respect of a period before or part of which was before that death.

(2) In the case of carer's allowance, in calculating the means of the other member of the couple for the purposes of paragraph (1) the following shall be disregarded—

(a) an amount, not exceeding the maximum amount set out in column (2), reference 3 of Part I of the Second Schedule, of a social security payment payable under the legislation of another state, and

(b) an amount, not exceeding half the amount set out in column (4), reference 3 of Part I of the Second Schedule, of a social security payment payable under the legislation of another state in respect of each qualified child for which an increase is granted under section 165(1).

(3) In the case of carer's allowance, in calculating the weekly means of the couple (other than means derived from a social security payment payable under the legislation of another state), the amount that may be prescribed shall be disregarded.

(4) In this Rule ‘couple’ means a married couple who are living together or a man and woman who are not married to each other but are cohabiting as husband and wife.

(5) In calculating the means of a person who is one of a married couple living apart from his or her spouse, any sum paid by him or her to his or her spouse under a separation order shall be deducted in calculating his or her means.

5. (1) Notwithstanding these Rules, where—

(a) an old age (non-contributory) pension, blind pension, widow's (non-contributory) pension, widower's (non-contributory) pension, orphan's (non-contributory) pension, one-parent family payment or carer's allowance is in course of payment to or in respect of a person or the spouse of the person or both of them, and

(b) a pension or pensions (in this Rule referred to as ‘the other pension'), not being a pension or pensions mentioned in paragraph (a), is in course of payment to or in respect of the person or the spouse of the person or both of them,

in calculating the means of the person or of the spouse or of both of them for the purposes of old age (non-contributory) pension, blind pension, widow's (non-contributory) pension, widower's (non-contributory) pension, orphan's (non-contributory) pension, one-parent family payment or carer's allowance (as the case may require), any portion of the amount of an increase in the other pension or the aggregate increase, where more than one increase in the other pension has occurred, which, if it were reckoned as means, would result in a reduction in the amount of the pension or combined pensions (as the case may be) which would be greater than the amount by which the other pension has been increased, shall not be reckoned as means.

(2) Any amount excluded from the calculation of means in accordance with reference 16 in Table 2 shall be subject to Rule 5(1).

6. Notwithstanding this Schedule, the amount of any allowance, special allowance, dependent's allowance, disability pension or wound pension under the Army Pensions Acts 1923 to 1980, or pension under the Military Service (Pensions) Acts 1924 to 1964, arising out of service in the period commencing on 23 April 1916 and ending on 30 September 1923, or pension under the Connaught Rangers (Pensions) Acts 1936 to 1964, shall be disregarded in the calculation of means for the purposes of Chapters 4 to 10 of Part III.

7. The Minister may by regulations vary Rule 1(1) and Table 1 to this Schedule in relation to the calculation of the weekly value of property belonging to a person.

PART 4

Supplementary Welfare Allowance

1. In calculating the weekly means of a person for supplementary welfare allowance account shall be taken of the following—

(1) the value of any property belonging to the person (not being property personally used or enjoyed by the person or a farm of land leased by him or her) which is invested or is otherwise put to profitable use or which, though capable of investment or profitable use, is not invested or put to profitable use, the yearly value of the first €520 of the property being taken to be one-twentieth part of the capital value and the yearly value of so much of the capital value of the property as exceeds the sum of €520 being taken to be one-tenth part of the capital value; and the weekly value of the property being calculated as one fifty-second part of the yearly value so calculated;

(2) all income in cash, including the net cash value of any non-cash earnings derived from personal exertions and the noncash benefits that may be prescribed and the actual or estimated amount of any household income, whether as contributions to the expenses of the household or otherwise, but—

(a) excluding the amounts at references 2 to 11 and 19 in Table 2 to this Schedule, and

(b) excluding—

(i) in the cases that may be prescribed, any moneys received by way of a maintenance grant,

(ii) any income arising from a grant or allowance in pursuance of a scheme for promoting the welfare of the blind prepared under section 2 of the Blind Persons Act 1920,

(iii) any sums arising from the investment or profitable use of property (not being property personally used or enjoyed by such person or a farm of land leased by the person),

(iv) the amount that may be prescribed of earnings from employment of a rehabilitative nature,

(v) in the case of a person in receipt of a supplement under section 179 towards the amount of mortgage interest or rent payable by him or her in respect of his or her residence:

(I) €60, or any higher amount that may be prescribed, from the amount of income derived when gross earnings from such employment that may be prescribed, have been reduced by the aggregate of—

(A) any allowable contribution referred to in Regulations 41 and 42 of the Income Tax (Employments) (Consolidated) Regulations 2001 ( S.I. No. 559 of 2001 ),

(B) any amount deducted from reckonable earnings under section 10 and regulations made under section 11,

(C) any amount deducted from reckonable earnings under section 5 of the Health Contributions Act 1979 , and

(D) an amount equal to the amount of reduction, if any, in the rate of unemployment assistance or one-parent family payment under Part III consequent on receipt of those earnings from employment;

(II) the amount by which carer's allowance exceeds the amount of supplementary welfare allowance set out in column (3) at reference 10 of the Fourth Schedule, in the case of a claimant, or his or her spouse, who is in receipt of carer's allowance under Part III,

(III) the amount by which carer's allowance exceeds the amount of supplementary welfare allowance set out in column (2) at reference 10 of the Fourth Schedule, in the case of a claimant who, not being one of a couple, is in receipt of carer's allowance under Part III,

(IV) the amount that may be prescribed from attendance at any training course that may be prescribed;

(3) the value of any advantage accruing to the person from—

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

(b) the leasing by the person of a farm of land;

(4) all income and the value of all property of which the person has directly or indirectly deprived himself or herself in order to qualify himself or herself for the receipt of supplementary welfare allowance;

(5) the value of any benefit or privilege enjoyed by the person.

2. The Minister may by regulations vary—

(a) Rule 1(1) in relation to the calculation of the yearly value of property belonging to a person, and

(b) Rule 1(2), (3), (4) and (5).

Table 1

Table 2

SCHEDULE 3

Amendments Consequential on Substitution of Third Schedule of Principal Act

Section 25.

In the provisions of the Principal Act specified in column (1) of the following Table the words set out in column (3) are substituted for the words set out in the corresponding entry in column (2).

SCHEDULE 4

Pre-Consolidation Amendments

Section 26.

SCHEDULE 5

“Ninth Schedule-Specified Bodies

Section 26.

1.—Each of the following shall be a specified body for the purposes of this Schedule and sections 223 to 223H:

(1) a Minister of the Government,

the Commission for Public Service Appointments,

the Public Appointments Service,

the Revenue Commissioners;

(2) a local authority (for the purposes of the Local Government Act 2001 );

(3) the Health Service Executive;

(4) a body established by the Minister for Education and Science under section 54 of the Education Act 1998 ,

An Foras Áiseanna Saothair,

An Post,

An tArd-ChlÁraitheoir,

an tÚdarÁs um Ard-Oideachas,

Coillte Teoranta,

Enterprise Ireland,

National Educational Welfare Board,

the Central Applications Office,

the Central Statistics Office,

the Companies Registration Office,

the Garda Síochána and the Defence Forces in respect of their own members,

the General Medical Services (Payments) Board,

the Legal Aid Board,

the Mental Health Commission,

the National Breast Screening Board,

the National Cancer Registry Board,

the Pensions Board,

the Personal Injuries Assessment Board,

the Private Residential Tenancies Board;

(5) the following Voluntary Hospitals:

Beaumont Hospital, Dublin,

Cappagh National Orthopaedic Hospital, Dublin,

Coombe Women's Hospital, Dublin,

Dublin Dental Hospital,

Hume Street Hospital, Dublin,

Incorporated Orthopaedic Hospital of Ireland, Clontarf, Dublin,

Leopardstown Park Hospital,

Mater Misericordiae University Hospital, Dublin,

Mercy Hospital, Cork,

National Maternity Hospital, Dublin,

National Rehabilitation Hospital, Dun Laoghaire,

Our Lady's Hospice,

Our Lady's Hospital for Sick Children, Crumlin, Dublin,

Portiuncula Hospital, Ballinasloe, Co. Galway,

Rotunda Hospital, Dublin,

Royal Victoria Eye and Ear Hospital, Dublin,

South Infirmary/Victoria Hospital, Cork,

St. James's Hospital,

St. John's Hospital, Limerick,

St. Luke's Hospital, Dublin,

St. Mary's Hospital and Residential School, Baldoyle, Dublin,

St. Michael's Hospital, Dun Laoghaire,

St. Vincent's University Hospital, Elm Park, Dublin,

St. Vincent's Hospital, Fairview,

The Adelaide and Meath Hospital, Dublin incorporating the National Children's Hospital,

The Children's Hospital, Temple Street, Dublin,

The Royal Hospital, Donnybrook,

University Dental School and Hospital.

2.—Each of the following shall be a specified body for the purposes of this Schedule and section 223D:

a person who provides, organises or procures a programme of education or training,

a recognised school or centre for education (within the meaning of section 2 of the Education Act 1998 ),

a vocational education committee (within the meaning of section 7 of the Vocational Education Act 1930 ),

a university to which the Universities Acts 1997 and 1999 apply,

an educational institution to which the Regional Technical Colleges Acts 1992 to 2001 apply,

the Dublin Institute of Technology,

the Further Education and Training Awards Council,

the Higher Education and Training Awards Council,

the National Qualifications Authority of Ireland.

3.—The Minister may by regulations amend paragraph 1 or 2 by adding a specified body to, deleting a specified body from, or amending a reference to a specified body in, those paragraphs.”.

¹ OJ No. L235 29.9.2003, p. 10

²OJ No. L235 29.9.2003, p.10

³ OJ No. L215, 30.7.92, p.91

⁴ OJ No. L160, 26.6.99, p.80