Social Welfare (Miscellaneous Provisions) Act 2010

PART 1 Preliminary and General

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

1.— (1) This Act may be cited as the Social Welfare (Miscellaneous Provisions) Act 2010.

(2) The Social Welfare Acts andParts 1and2 shall be read together as one.

(3) The Labour Services Acts 1987 to 2009 and Part 3 and section 34, insofar as it relates to Part 3, may be cited together as the Labour Services Acts 1987 to 2010.

(4) Sections 3, 6, 14, 18, 19,20and25 and Parts 3, 4and 5 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 or different provisions.

2.. Definitions.

2.— In this Act—

“Act of 2006” means the Social Welfare Law Reform and Pensions Act 2006;

“Act of 2007” means the Social Welfare and Pensions Act 2007;

“Act of 2008” means the Social Welfare and Pensions Act 2008;

“Act of 2009” means the Social Welfare and Pensions (No. 2) Act 2009;

“Minister” means the Minister for Social Protection;

“Principal Act” means the Social Welfare Consolidation Act 2005.

PART 2 Amendments to Social Welfare Acts

3.. Normal residence of qualified child — amendments.

3.— (1) Section 3 (as amended by section 37 of and Schedule 7 to the Act of 2006) of the Principal Act is amended by substituting the following subsection for subsection (5):

“(5) For the purposes of determining the person with whom a qualified child normally resides—

(a) such determination, other than such determination for the purposes of Part 4, shall be made in accordance with section 296A and regulations made under that section, and

(b) such determination for the purposes of Part 4, shall be made in accordance with section 220 and regulations made under that section.”.

(2) The Principal Act is amended by inserting the following section after section 296:

“Normal residence of qualified child.

296A.— (1) For the purposes of this Act, other than Part 4, a qualified child may be regarded as normally residing with more than one person.

(2) The Minister may make regulations for determining the person or persons, referred to in subsection (3), with whom a qualified child shall be regarded as normally residing.

(3) For the purposes of subsection (2) a qualified child may be regarded as normally residing with—

(a) both of his or her parents in the same household,

(b) one of his or her parents in separate households, or

(c) a step-parent.

(4) Notwithstanding subsection (3), where the parent with whom the child is regarded as normally residing is a member of a household and that parent so consents, the child shall be treated as normally residing with another member of that household.

(5) Notwithstanding that a qualified child does not reside with one of his or her parents, the qualified child may be regarded as normally residing with the parent who—

(a) has custody of the qualified child, and

(b) is contributing substantially to the maintenance of the qualified child.

(6) Notwithstanding that a qualified childresides with one parent who is—

(a) living apart from the other parent, and

(b) not claiming or in receipt of benefit or assistance,

the qualified child shall be treated as residing with the other parent if that other parent is contributing substantially to the maintenance of the child.

(7) Where the normal residence of a qualified child does not fall to be determined under subsection (3), (4), (5) or (6), he or she shall be regarded as normally residing with the head of the household of which he or she is normally a member and with no other person.

(8) Where a person who is, in accordance with this section and regulations made under it, determined to be a person with whom a qualified child normally resides—

(a) abandons or deserts the child, or

(b) fails to contribute substantially to the maintenance of the child,

the qualified child shall cease to be regarded as normally residing with that person.

(9) Where a qualified child ceases, in accordance with subsection (8), to be regarded as normally residing with a person, regulations under this section shall provide for determining the person with whom, subsequent to such cessation, the child is regarded as normally residing.

(10) Where a qualified child is resident in an institution and contributions are made towards the cost of his or her maintenance in that institution, the child shall be regarded as normally residing with the person who makes those contributions towards the cost of the maintenance of the child in the institution, and with whom the child would be regarded as normally residing, if the child were not resident in an institution.

(11) Where the normal residence of a qualified child referred to in subsection (10) has been determined in accordance with that subsection and subsequent to that determination the person with whom the qualified child would be regarded as normally residing has abandoned or deserted the child, the qualified child shall cease to be regarded as normally residing with that person.

(12) Regulations under this section may provide for determining the normal residence of a qualified child—

(a) where a person with whom the qualified child normally resides dies, and

(b) where the parents of the qualified child are separated or living apart.

(13) Where a qualified child in respect of whom a declaration within the meaning of section 17 of the Refugee Act 1996 is in force, the qualified child shall be regarded as normally residing with the head of the household of which the child is for the time being a member and with no other person.”.

4.. Amendment to section 3 of Principal Act.

4.— Section 3 of the Principal Act is amended in subsection (10) (as amended by section 37 of and Schedule 7 to the Act of 2006) by inserting—

(a) “149(4),” after “149(2),”, and

(b) “214(2),” after “211(3),”.

5.. Limitation on the return of contributions — amendment.

5.— Section 38A (inserted by section 8 of the Act of 2009) of the Principal Act is amended in subsection (5) by substituting the following for the definition of “contributions”:

“ ‘contributions’ means—

(a) employment contributions,

(b) self-employment contributions,

(c) voluntary contributions,

(d) optional contributions, or

(e) health contributions within the meaning of the Health Contributions Act 1979.”.

6.. Amendment to section 40 of Principal Act.

6.— Section 40 (as amended by section 5 of the Act of 2007) of the Principal Act is amended by inserting the following subsections after subsection (6):

“(7) For the purposes of establishing that an insured person is incapable of work on a specified day or days of incapacity for work—

(a) a document shall be provided in respect of that person, in such form as may be prescribed, in which it is certified by a registered medical practitioner, or other person as may be prescribed, that the insured person is, was or will be incapable of work on a specified day or days of incapacity for work, and

(b) the document shall be provided to an officer of the Minister in such manner as may be prescribed, by the insured person, a registered medical practitioner or other person as may be prescribed.

(8) Without prejudice to subsection (7), the Minister may make regulations for the purposes of that subsection and without prejudice to section 4, regulations under subsection (7) may—

(a) make different provision in relation to the different persons or classes of persons who may certify that an insured person is, was or will be incapable of work, and

(b) make different provision in relation to the different circumstances or classes of circumstances in respect of the persons referred to in paragraph (a) who may certify that an insured person is, was or will beincapable of work.”.

7.. Jobseeker’s benefit — disqualification for course of study.

7.— The Principal Act is amended by inserting the following section after section 68:

“Jobseeker’s benefit — disqualification for course of study.

68A.— (1) A person shall not be entitled toreceive jobseeker’s benefit while attending acourse of study, other than in the circumstances and subject to the conditions and for the periods that may be prescribed.

(2) In this section—

‘academic year’ has the meaning assigned to it by section 148;

‘a course of study’ has the meaning assigned to it by section 148;

‘institution of education’ has the meaning assigned to it by section 148.

(3) For the purposes of this section, a person shall be regarded, subject to regulations made under subsection (1), as attending a course of study—

(a) for 3 months immediately following the completion or the leaving by that person of second level education or the completion by him or her of the leaving certificate examination of theDepartment of Education and Skills, whichever is the later,

(b) for the duration of an academic year, or

(c) for the period immediately following the completion of one academic year, other than the final academic year of a course of study, up to the beginning of the following year.”.

8.. Incapacity supplement — amendment.

8.— (1) Section 76 (as amended by section 4 of and Schedule 1 to the Act of 2006) of the Principal Act is amended by deleting subsection (5).

(2) Section 77 (as amended by section 4 of and Schedule 1 to the Act of 2006) of the Principal Act is amended by substituting the following subsections for subsection (1):

“(1) Subject to this Act, the weekly rate of disablement pension shall be increased—

(a) by the amount set out in column (2) of Part 4 of Schedule 2 where, as a result of the relevant loss of faculty, the beneficiary is incapable of work and likely to remain permanently so incapable,

(b) by the amount set out in column (3) of Part 4 of Schedule 2 for any period during which the beneficiary has a qualified adult, subject to the restriction that a beneficiary shall not be entitled for the same period to an increase of disablement pension under this subsection in respect of more than one person,

(c) by the amount set out in column (4) of Part 4 of Schedule 2 in respect of each qualified child who normally resides with the beneficiary,

(d) by the amount set out in column (5) of Part 4 of Schedule 2 where the beneficiary is living alone, and

(e) by the amount set out in column (6) of Part 4 of Schedule 2 where the beneficiary is ordinarily resident on an island.

(1A) Any increase of disablement pension payable under section 77(1)(c) in respect of a qualified child who normallyresides with the beneficiary and with the spouse of the beneficiary shall be payable at the rate of one-half of the appropriate amount in any case where the spouse of the beneficiary is not a qualified adult and section 77(1)(c) shall be read and haveeffect accordingly.”.

(3) Schedule 2 (as amended by section 3 of and Schedule 1 to the Act of 2009) to the Principal Act is amended by substituting the following Part for Part 4:

“PART 4

Increases of Disablement Pension

”.

9.. Jobseeker’s allowance — assessment of means.

9.— Section 141(2) (as amended by section 9 of the Act of 2007) of the Principal Act is amended by inserting the following paragraph after paragraph (c):

“(ca) Where the spouse of a claimant for jobseeker’s allowance is a spouse referred to in Part 6, and is in receipt of a payment under Part 6, the means of the claimant shall be taken to be one-half the means.”.

10.. Jobseeker’s allowance — amendment.

10.— (1) Section 142(1) (as amended by section 6 of the Act of 2009) of the Principal Act is amended in paragraph (a) by inserting “increased by the amount set out in column (3) of that Part opposite that reference for any period during which the claimant or beneficiary has a qualified adult, subject to the restriction that the claimant or beneficiary shall not be entitled for the same period to an increase of allowance under this paragraph in respect of more than one person, and increased by the appropriate amount set out in column (4) of that Part opposite that reference in respect of each qualified child who normally resides with the claimant or beneficiary, or” after “Part 1 of Schedule 4,”.

(2) Section 142(3) (as amended by section 4 of and Schedule 1 to the Act of 2006) of the Principal Act is amended—

(a) by inserting “section 142A(2)(a)(iii) and section 142B(2)(a)(iii),” after “Notwithstanding subsection (2)(a)(iii),”, and

(b) by inserting “section 142A(2)(a)(iii) or section 142B(2)(a)(iii)” after “as calculated in accordance with subsection (2)(a)(iii),”.

(3) Section 142 of the Principal Act is amended—

(a) in subsection (4) by deleting paragraph (b), and

(b) by deleting subsections (5), (6) and (7).

11.. Pre-retirement allowance — assessment of means.

11.— Section 149 (as amended by section 9 of the Act of 2007) of the Principal Act is amended by inserting the following subsection after subsection (3):

“(3A) Where the spouse of a claimant for pre-retirement allowance is a spouse referred to in Part 6, and is in receipt of a payment under Part 6, the means of the claimant shall be taken to be one-half the means.”.

12.. Disability allowance — amendment.

12.— Section 211(2) of the Principal Act is amended by deleting paragraph (b).

13.. Farm assist — assessment of means.

13.— Section 214 of the Principal Act is amended by inserting the following subsection after subsection (5) (as amended by section 9 of the Act of 2007):

“(6) Where the spouse of a claimant for farm assist is a spouse referred to in Part 6, and is in receipt of a payment under Part 6, the means of the claimant shall be taken to be one-half the means.”.

14.. Qualified person — amendment.

14.— Section 220 (as amended by section 27 of the Act of 2007) of the Principal Act is amended—

(a) in subsection (2) by deleting paragraph (a), and

(b) by inserting the following subsections after subsection (3):

“(3A) The Minister may make regulations fordetermining which of the following persons is the person with whom a qualified child normally resides for the purposes of this Part—

(a) one of his or her parents whether they are living in one household or in separate households,

(b) one of his or her step-parents whether they are living in one household or in separate households,

(c) a relative of the qualified child, including a relative with whom the child has, under section 36 of the Child Care Act 1991, been placed by the Executive,

(d) a person who has care and charge of the qualified child in the household of that person, or

(e) a foster parent.

(3B) Regulations under this section may provide that where the qualified child does not reside with either of his or her parents, one of his or her parents may, for the purposes of this Part, be determined as the person with whom that child normally resides if—

(a) in the case of the mother of the qualified child, the mother is not dead or missing and isentitled to the custody of the child whether solely or jointly with any other person, or

(b) in the case of the father of the qualified child, the father is not dead or missing and is entitled to the custody of the child whether solely or jointly with any person other than the mother of the qualified child,

and the mother or, as the case may be, the father has not abandoned or deserted the qualified child and is contributing to the support of the child.

(3C) Where a qualified child does not normally reside with one of his or her parents or the spouse of one of his or her parents and the child resides in the household of a person referred to in paragraph (c), (d) or (e) of subsection (3A), for the purposes of subsection (1) regulations under this section may provide that the relative, person or foster parent shall be regarded as the person with whom the qualified child normally resides.

(3D) Without prejudice to subsection (3C), the regulations may specify a period for which the qualified child is required to be resident in the household concerned for the purpose of determining that the relative, person orfoster parent shall be regarded as being the person with whom the qualified child normally resides and such period shall not be less than 6 months.

(3E) Where a person who has been determined, inaccordance with this section and regulations made under it, to be a qualified person—

(a) abandons or deserts the qualified child concerned, or

(b) fails to contribute to the maintenance of the qualified child concerned,

the qualified person shall cease to be a qualified person for the purposes of this Part.

(3F) Where a person ceases, in accordance with subsection (3E), to be a qualified person, regulations under this section may provide for determining the person with whom, subsequent to such cessation, the child is regarded as normally residing.

(3G) Regulations under this section may provide for determining the normal residence of a qualified child—

(a) where a person with whom the qualified child normally resides dies, and

(b) where the parents of the qualified child are separated or living apart.”.

15.. Amendment to section 320 of Principal Act.

15.— The Principal Act is amended by substituting the following section for section 320 (as amended by section 29 of and Schedule 6 to the Act of 2006):

“320.— The decision of an appeals officer on any question shall, subject to sections 301(1)(b), 317, 318, 324(1)(c), and 327, be final and conclusive.”.

16.. Appeals to High Court — amendment.

16.— (1) Section 327 of the Principal Act is amended by deleting “on any question, other than a question to which section 320 applies,”.

(2) The Principal Act is amended by inserting the following section after section 327:

“Appeal to High Court by Minister.

327A.— (1) Where pursuant to section 318 the Chief Appeals Officer—