Written Answers. - Social Welfare Pensions.
Nora Owen
Question:
195
Mrs. Owen
asked the
Minister for Social, Community and Family Affairs
if he will make a statement on the report by the Ombudsman, Lost Pensions Arrears, with particular reference to one of the conclusions that the regulations on arrears penalty would have been struck down if they had been challenged in the High Court; the changes, if any, he proposes in law or regulation arising out of this report; and if he will make a statement on the matter.
[15869/99]
The report of the Ombudsman concerns the application of the law in relation to the time limits for claiming social welfare pensions. The regulations in question, which were in existence for many years, required that people with pension entitlements make their claims within a specified period, normally three months but extended in 1994 to six months. Arrears in the case of late claims were also as a general rule limited to three or six months.
The Ombudsman in his report raises questions about the use of secondary legislation, i.e. regulations in general and in particular in relation to setting time limits on pension claims. He does not, as stated in the question, conclude that the Regulations in question are invalid but considers that there is "more than a reasonable possibility" that, if they had been challenged, they would have been struck down.
I do not think any useful purpose is to be gained by taking issue with the Ombudsman on what is a question of legal interpretation to be decided ultimately by the courts. The regulations in question were made with the benefit of legal advice and in compliance with the provisions set out in the primary legislation.
These regulations were in force for over 60 years in the case of widow's pensions, 36 years in the case of old age contributory pensions and 27 years in the case of retirement pensions and throughout this extended period no legal challenge was ever made to them. Regulations under the Social Welfare Acts in most cases, as in the present case, require to be counter-signed by the Minister for Finance. Furthermore it is a requirement under the Acts that all regulations are laid before both Houses of the Oireachtas and some in fact require that an affirmative resolution is passed before they can become applicable. Where regulations are laid before the Houses, they may be annulled if a resolution to that effect is passed by either House within 21 sitting days. No such resolution was adopted by either House in relation to these regulations.
To put the matter of the validity of the regulations in question here beyond doubt, the provisions were incorporated into primary legislation in section 32 of the Social Welfare Act 1997 which was enacted by the Oireachtas. That Act also extended the limit on backdating of payments in contributory pension claims from six to 12 months.
As a further measure, I made regulations in February 1998 under the 1997 Act under which claims made after 1 January 1997, a proportion of arrears due in respect of the period beyond 12 months may also be paid. These regulations also provided for the possibility of full arrears, in cases where claims are delayed due to force majeure, proven incapacity on the part of the applicant or to Departmental error, and also to alleviate current financial hardship.
On reviewing the situation further, the Government was concerned that pensioners who had applied for pension prior to 1 January 1997 did not benefit from these improvements. I am happy to say, therefore, that provision was made in this year's budget, with an additional provision of £10 million, for the payment of proportionate arrears of pension in the case of late claims made prior to 1 January 1997 in respect of retirement, old age, contributory, widow's and widower's, contributory, pensions and orphan's, contributory, allowance.
Payment of proportionate arrears of pension due under these new arrangements is continuing. The Department is identifying the pensioners affected by this latest development and arrears are being issued automatically to those concerned.
The measures which have been taken strike a reasonable balance between the need for effective management of the system and for appropriate recognition to be given to cases of genuine hardship or difficulty. The Ombudsman in his covering letter enclosing the report has acknowledged the steps taken to alleviate this problem. He also stated that the issue dealt with in this report represents an historical problem which, in the light of developments in 1997 and 1998, has now been significantly ameliorated.
