Social Welfare and Pensions Act 2005

PART 1 Short Title, Construction, Collective Citation and Commencement

1. Short title, construction, collective citation and commencement.

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

(2) F1[…]

(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) F1[…]

(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

2. Definitions (Part 2).

2.— F2[…]

3. Child benefit — new rates.

3.— F3[…]

4. Disability benefit.

4.— F4[…]

5. Injury benefit — removal of limit.

5.— F5[…]

6. Carer's benefit — improvement to entitlement conditions.

6.— F6[…]

7. Respite care grant — improvements to entitlement conditions.

7.— F7[…]

8. Disability allowance — extension of payment.

8.— F8[…]

9. Assessment of capital means for certain assistance payments.

9.— F9[…]

10. Certain EU payments — entitlement to island allowance.

10.— F10[…]

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

11.— F11[…]

12. Unemployment benefit and unemployment assistance — amendment to entitlement.

12.— F12[…]

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

13.— F13[…]

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

14.— F14[…]

15. Personal public service number — extension of provisions.

15.— F15[…]

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

16.— F16[…]

17. Provisions relating to prosecutions.

17.— F17[…]

18. Amendment of section 2 of Principal Act (interpretation).

18.— F18[…]

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

19.— F19[…]

20. Assessment of means — amendments.

20.— F20[…]

21. Recovery of overpayments.

21.— F21[…]

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

22.— F22[…]

23. Amendments to Principal Act consequential on Health Act 2004.

23.— F23[…]

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

24.— F24[…]

25. Amendments consequential on section 24.

25.— F25[…]

26. Pre-consolidation amendments to Principal Act.

26.— F26[…]

PART 3 Amendments to the Pensions Act 1990

27. 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.

28. 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 Council^2;”,

(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.”.

29. 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):

30. 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,”.

31. 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):

32. 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”.

33. 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.”.

34. 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”.

35. 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.”.

36. 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:

37. 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

38. 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”.

39. 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”.