S.I. No. 237/1994:

DISABLED PERSONS MAINTENANCE ALLOWANCES REGULATIONS, 1994.

DISABLED PERSONS MAINTENANCE ALLOWANCES REGULATIONS, 1994.

The Minister for Health, in exercise of the powers conferred on him by section 5 of the Health Act, 1947 (No. 28 of 1947), section 72 of the Health Act, 1970 (No. 1 of 1970 ) and section 69 of that Act (as amended by section 46 of the Social Welfare Act, 1991 (No. 7 of 1991)) hereby makes the following Regulations:--

1. These Regulations may be cited as the Disabled Persons Maintenance Allowances Regulations, 1994.

2. These Regulations shall come into operation on the 25th day of July, 1994.

3. In these Regulations--

"the Act" means the Health Act, 1970 ;

"adult dependant", in relation to a recipient, means any person who normally resides with, and is being wholly or mainly maintained by, the recipient and who is--

(a) a spouse of the recipient other than a spouse who is entitled to, or is in receipt of, a Social Welfare payment, or

(b) a person over the age of sixteen years having the care of one or more than one dependent child who normally resides with the recipient 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;

"approved course" for the purpose of a higher education grant means a full-time undergraduate course of not less than two years' duration or a full-time postgraduate course approved by the Minister for Education;

"child dependant" means a person under the age of eighteen years or, in the case of a person receiving full-time instruction by day at any university, college, school or other educational establishment, under the age of twenty one years who normally resides with, and is being wholly or mainly maintained by the recipient;

"health facility" means a hospital, convalescent home or home for people suffering from physical or mental disability or ancillary accommodation, nursing home for the care and maintenance of dependent elderly people and any other similar establishment providing residence, maintenance or care where the cost of a person's maintenance therein is being met in whole or in part by or on behalf of a health board;

"maintenance allowance" means an allowance payable by a health board under subsection (1) of section 69 of the Act;

"the Minister" means the Minister for Health;

"recipient" means a person who is in receipt of a maintenance allowance;

"social welfare payment" means any of the following benefits, pensions, assistance or allowances payable under the Social Welfare Acts--

(a) disability benefit,

(b) maternity allowance,

(c) unemployment benefit,

(d) occupational injuries benefit, which shall comprise injury benefit, disablement benefit and death benefit,

(e) old age (contributory) pension,

(f) retirement pension,

(g) invalidity pension,

(h) widow's (contributory) pension,

(i) orphan's (contributory) allowance,

(j) deserted wife's benefit,

(k) unemployment assistance,

(l) old age (non-contributory) pension,

(m) blind pension,

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

(o) orphan's (non-contributory) pension,

(p) deserted wife's allowance,

(q) prisoner's wife's allowance,

(r) lone parent's allowance,

(s) pre-retirement allowance, and

(t) single women's allowance;

"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 man and wife.

4. (1) A health board, on application being made to it and subject to the provisions of these regulations, shall pay a maintenance allowance to a person between the ages of sixteen and sixty six years who is ordinarily resident in the functional area of the board and who, in the opinion of a medical officer of the health board authorised by that board to examine or to have examined persons applying for or in receipt of a maintenance allowance, is by reason of a specified disability substantially handicapped in undertaking work of a kind which if he/she were not suffering from that disability, would be suited to his/her age, experience and qualifications.

(2) An application for the payment of a maintenance allowance shall be made on an application form as set out in the Third Schedule to these Regulations or in a form substantially to the like effect.

(3) An application for the payment of a maintenance allowance shall be accompanied by a certificate of a registered medical practitioner in the form set out in the First Schedule to these Regulations or in a form substantially to the like effect.

(4) A maintenance allowance shall not be payable to a person to whom an allowance is payable in accordance with the Disabled Persons (Rehabilitation) Regulations 1973 ( S.I. No. 186 of 1973 ).

(5) In this article "specified disability" means an injury, disease, congenital deformity or physical or mental illness or defect which, in the opinion of a medical officer of the health board authorised by that board to examine or to have examined persons applying for or in receipt of a maintenance allowance, has continued or may reasonably be expected to continue for at least one year.

5. With effect from the 25th day of July, 1994, a maintenance allowance shall be a weekly allowance not exceeding the personal rate specified in the Second Schedule to these Regulations, and increases not exceeding the amounts specified in the said Schedule shall be payable in respect of each adult dependant and each child dependant.

6. Where a person is granted a maintenance allowance, payment of the allowance shall be back dated to commence from the date he/she submitted an application for payment of a maintenance allowance on an approved application form to his/her local health board.

7. (1) Where one spouse is entitled to a maintenance allowance and the other is entitled to a Social Welfare payment, the total of the amount payable to them by way of such maintenance allowance and such payment (hereinafter called 'the relevant amount') shall not exceed the total amount of maintenance allowance or of such payment as the case may be, whichever is the greater (in this Article referred to as 'the greater amount'), that would be payable if only one of them were in receipt of a maintenance allowance or Social Welfare payment, and the maintenance allowance or Social Welfare payment included an increase in respect of the other as an adult dependant; and if the relevant amount would but for this Article exceed the greater amount, the amount of the maintenance allowance payable to the spouse who is entitled to such allowance shall be reduced by the amount of the excess.

(2) In the case of spouses, both of whom are entitled to be paid a maintenance allowance, the total payable to them shall not exceed the amount which would be payable if only one of them were entitled to be paid a maintenance allowance and the other were an adult dependant, and each of them shall be entitled to be paid one-half of the total amount.

(3) In the case of spouses, both of whom are entitled to be paid a maintenance allowance, any increase payable to each spouse in respect of a child dependant shall be limited to one-half of the appropriate rate.

(4) Where one spouse is entitled to a maintenance allowance and the other is entitled to a Social Welfare payment, any increase payable to the recipient in respect of a child dependant shall be limited to one-half of the appropriate rate.

8. (1) Subject to the provisions of this Article, a maintenance allowance shall not be payable to a person who resides in a health facility.

(2) Where a recipient is admitted to a health facility, the payment of a maintenance allowance shall be continued by the health board for the period during which he/she is so maintained subject to a maximum of eight weeks in any calendar year.

(3) Where an adult dependant or a child dependant in respect of whom an increase is payable is admitted to a health facility, the payment of such an increase shall be continued by the health board for the period during which he/she is so maintained subject to a maximum of eight weeks in any calendar year.

9. (1) In determining the amount of a maintenance allowance payable to a particular person, a health board shall have regard to the income of that person, the spouse of that person, and of all persons in respect of whom that person claims or is in receipt of an increase in respect of an adult dependant or child dependant. In this regard, full account shall be taken of all income arising by way of Social Welfare payment to or in respect of the applicant or in respect of each adult or each child dependant of the applicant.

(2) In determining a person's income for the purposes of this Article, a health board shall disregard the following sums payable to the applicant and his/her spouse:--

(a) any monies received from a charitable organisation being a body whose activities are carried on otherwise than for profit (but excluding any public or local authority) and one of whose functions is to assist persons in need by making grants of money to them;

(b) the maintenance element of any higher education grant payable in respect of the applicant, an adult dependant or a child dependant for an approved course;

(c) income not exceeding £33.30 per week which the recipient receives in respect of employment or training which in the opinion of the health board is in the nature of rehabilitative employment or training;

(d) domiciliary care allowance payable by a health board to a recipient or his/her spouse in respect of any child dependant;

(e) any sums received under the Social Welfare Acts by way of:--

(i) carer's allowance,

(ii) supplementary welfare allowance and

(iii) child benefit; or

(f) mobility allowance payable by a health board.

10. Where a person who was in receipt of a maintenance allowance immediately prior to a period of employment or training ceases to be engaged in employment or training, payment of the allowance shall recommence with effect from the date of such cessation, subject to the health board being satisfied that he/she remains eligible under Articles 4 and 9.

11. (1) Where, in respect of any period between the 11th day of March 1988 and the 20th day of July 1991, a person was paid a maintenance allowance at a rate by virtue of his/her spouse being in receipt of a maintenance allowance or a Social Welfare payment, he/she shall, subject to the provisions of Article 5, be entitled to payment of an amount or amounts which will bring the total payments to the couple to the equivalent of either, as may be appropriate, two personal rates of a maintenance allowance or the sum of one personal rate of a maintenance allowance and the relevant Social Welfare payment but excluding any increase in respect of dependants, calculated by reference to the rates applicable at the appropriate time or times.

(2) Where, before the 21st day of July 1991, a person had made application in writing for a maintenance allowance and, whether before or after that date, his/her application was refused by virtue of his/her spouse being in receipt of a maintenance allowance or a social welfare payment which included an increase in respect of him/her, he/she shall, if he/she was otherwise entitled to a maintenance allowance and subject to the provisions of Article 5, be entitled to payment of an amount or amounts which will bring the total payments to the couple from the 11th day of March, 1988 or from the date of that application, whichever is the later, to the equivalent of either, as may be appropriate, two personal rates of a maintenance allowance or the sum of one personal rate of a maintenance allowance and the relevant Social Welfare payment but excluding any increase in respect of dependants, calculated by reference to the rates applicable at the appropriate time or times.

(3) Where an application from a person to whom the provisions of paragraph (2) apply was not referred to a medical officer for his/her opinion in accordance with Article 4 (1), the health board may arrange for a medical officer to give his/her opinion, based on the person's medical history, as to whether it is reasonable to conclude that the person was substantially handicapped within the meaning of the said Article 4 at the time of the application and, notwithstanding the provisions of that Article, the health board shall have regard to that opinion in determining whether he/she was entitled to a maintenance allowance at that time.

(4) A person who was on the 20th day of July, 1991, in receipt of or, in accordance with this Article, entitled to a maintenance allowance and who by virtue of Article 7 was, with effect from the 21st day of July, 1991 entitled to a lesser amount, shall for as long as he/she remains continuously entitled to a maintenance allowance be entitled to such sum in addition to the amount payable in accordance with Article 5 as will make the total amount payable to that person and his/her spouse equivalent to the amount they were entitled to on the 20th day of July, 1991.

(5) An amount properly paid to any person before the 20th day of July, 1991 by way of a maintenance allowance which as a result of this Article would be recoverable by a health board shall not be so recoverable.

12. Any payment of a maintenance allowance received by a person while he/she was not entitled to receive a maintenance allowance or any amount of a maintenance allowance received by a person which was in excess of the amount to which he/she was entitled shall be repayable by such person to the health board on demand made in that behalf by the health board and, if not so repaid, may be recovered by the health board as a simple contract debt in any court of competent jurisdiction or by deduction from any payment or payments of a maintenance allowance to which such person is entitled or subsequently becomes entitled.

13. Where a maintenance allowance is being paid--

(1) a health board may, from time to time, require the recipient to furnish to it a certificate of a registered medical practitioner in relation to his/her disability in such form as the health board think fit,

(2) a health board may, from time to time, make such enquiries concerning the eligibility of a person under Articles 4 and 9 of these Regulations as it thinks fit to ascertain whether the recipient remains a person who is specified in subsection (1) of section 69 of the Act, and

(3) the recipient shall notify the health board of any change in his/her medical condition or any other circumstances, or those of his/her spouse or other dependants, material to his/her entitlement to the allowance.

14. (1) Where a person who is in receipt of a maintenance allowance which includes an increase in respect of an adult dependant, or which would include such an increase but for the receipt by the adult dependant of a maintenance allowance or Social Welfare payment in his/her own right, dies, payment of the maintenance allowance shall continue to be made for a period of six weeks after the date of death and shall during that period, be made to the adult dependant.

(2) Where a person who is in receipt of a maintenance allowance which includes an increase in respect of a child dependant, dies, payment of the maintenance allowance shall continue to be made for a period of six weeks and shall, during that period, be made to the person having care of the child dependant.

(3) Where an adult dependant, in respect of whom an increase of a maintenance allowance is being paid, dies, payment of such increase shall continue to be made for a period of six weeks after the date of death.

(4) Where a child dependant, in respect of whom an increase of a maintenance allowance is being paid, dies, payment of such increase shall continue to be made for a period of six weeks after the date of death.

15. Where a health board reaches a decision that an applicant for a maintenance allowance is not entitled to such an allowance or that a recipient of a maintenance allowance is no longer entitled to such an allowance or that the amount of his/her allowance is to be reduced, the health board shall notify that person in writing of the reason or reasons for that decision and shall advise that person that the board will consider any representations he/she may wish to make with regard to that decision.

16. The following Regulations are hereby repealed:--

(a) The Disabled Persons (Maintenance Allowances) Regulations 1991 ( S.I. No. 200 of 1991 ).

(b) The Disabled Persons [Maintenance Allowances] Regulations 1992 ( S.I. No. 212 of 1992 ).

(c) The Disabled Persons (Maintenance Allowances) Regulations 1993 ( S.I. No. 211 of 1993 ).

FIRST SCHEDULE

FORM OF CERTIFICATE RELATING TO DISABILITY

I have on........................... examined ............................. ..........................................

of ............................................................ ................................................. in the county/county borough

of. ........................ he/she is suffering from . ............................................................ ..........

I expect this disability to last for at least one year. I certify that, by reason of this disability, he/she is substantially handicapped in undertaking work of a kind which, if he/she were not suffering from that disability, would be suited to his/her age, experience and qualifications.

___________________________________________

Signature of Registered

Medical Practitioner

NOTE: The nature of the condition and the extent of the disability should be described fully.

SECOND SCHEDULE.

THIRD SCHEDULE.

HEALTH BOARD

APPLICATION FOR DISABLED PERSONS (MAINTENANCE) ALLOWANCE.

Particulars of other members of household.

DETAILS OF INCOME.

(Certificate of Earnings to be submitted with this Form.)

2. LAND TRANSFER AGREEMENT:

3. ALLOWANCE AND PENSIONS

4. INCOME FROM FARMING

5. INCOME FROM OTHER SOURCES:

i.e. Savings in Post Office, Banks, Building Societies, Investments in Stocks, Shares, Bonds, Capital Investments, Land of other Property Let, Funds invested or on deposit or otherwise under the control of other persons on your behalf, any other type of investments.

(CERTIFICATES OF THE ABOVE TO BE SUBMITTED)

MEDICAL ASSESSMENT FORM

(To accompany application form for D.P.M.A).

GIVEN under the Official Seal of the Minister for Health, this 25th day of July, 1994.

BRENDAN HOWLIN,

Minister for Health.

The Minister for Finance consents to these Regulations.

GIVEN under the Official Seal of the Minister for Finance, this 25th day of July, 1994.

BERTIE AHERN,

Minister for Finance.

EXPLANATORY NOTE.

The purpose of the Regulations is to consolidate the provisions governing the payment of Disabled Persons Maintenance Allowance under Section 69 of the Health Act, 1970 and provide for increases in the rates of allowances payable with effect from 25th day of July, 1994, as announced in the Budget 1994.