Estate Cases


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Internal Guidelines for Officers concerning the assessment and recovery of overpayments from estates of deceased social assistance recipients

Index

1. Background
2. Governing Legislation
3. Obligation of Personal Representative
4. Procedures following receipt of Schedule of Assets
5. Action by Social Welfare Inspector ( SWI)
6. Retrospective decision on entitlement
7. Recovery of overpayment
8. Receipt of payment
9. Civil proceedings to recover overpayment

Appendix


1. Background

Under Section 251(10) of the Social Welfare (Consolidation) Act 2005 as amended, any person who is getting a social assistance payment (i.e. means-tested) payment is obliged by law to notify the Minister for Social Protection in writing of any increases in their means. In general, this notification must be provided within a period of three months of the increase in means occurring (Article 107(2) of SI 417 of 1994 refers).

If, subsequent to the death of such a person, it comes to light that not all of the deceased's means were disclosed, Social Welfare legislation gives the Department the right to recover any moneys overpaid from the estate of the deceased.

2. Governing Legislation

The main legislation governing estate cases is contained in

  • Sections 301, 302, 335, 339, 341 of the Social Welfare (Consolidation) Act, 2005 as amended and
  • Social Welfare (Recovery of Overpayments) Regulations 2005 which took effect from 6 July 2005 - SI 349/2005.

While these provisions apply to all social assistance payments, in practice, they are applied mainly in the case of State Pension (Non-Contributory) and Widow(ers) Non-Contributory pensions, as those are the categories of recipients where most deaths occur.

3. Obligations of Personal Representative

Under Section 339, the personal representative ( PR) of a person who was at any time in receipt of a means-tested payment is obliged to give to the Minister for Social Protection

  1. written notice of his/her intention to distribute the assets of the estate and
  2. a schedule of the assets of the estate.

These documents must be supplied by the PR at least 3 months before s/he intends to distribute the assets of the estate.

If requested in writing by the Minister within 3 months of the PR supplying the documents (a) and (b) above, the latter must ensure that sufficient assets are retained from the estate to repay any overpayment of assistance that might arise.

If the PR fails to comply with any of the above obligations, s/he may be prosecuted and may also be liable to repay any overpayment due to the Department from his/her own assets.

The Department has undertaken extensive briefing of solicitors through the Law Society to ensure that, where solitors are acting in an estate case, they make the PR aware of their personal obligations under Social Welfare law.

4. Procedures following receipt of Schedule of Assets

On receipt of the documents at (a) and (b) above, the Department compares the Schedule of Assets against the last report made by the Social Welfare Inspector ( SWI) of the deceased's means (form 2A (rev)). If there is no discrepancy between the two (i.e. the deceased had made a full report of his means) the PR is advised that it is in order to distribute the assets as there has been no overpayment of assistance.

If, however, there is a discrepancy between the two, (e.g. the Schedule of Assets might indicate the existence of a previously undisclosed bank account or an unreported substantial increase in capital), then there is a possibility that a decision to retrospectively reduce or revoke the assistance may be made. In such case, the PR is notified accordingly (see above) and the file is forwarded to a SWI for investigation.

5. Action by Social Welfare Inspector ( SWI)

On receipt of the deceased person's file, the SWI issues a letter to the PR requesting transcripts of bank statements and any other documentation or information that are necessary to establish whether an overpayment exists. By analysing the bank statements etc. the SWI prepares a report for the DO setting out the revised means of the deceased person retrospectively for the period during which payment was paid.

Under Section 339(2), the means of the deceased person for the period in which the assistance was paid to him/her will, in the absence of evidence to the contrary, be calculated on the basis that his/her assets at the time of death belonged to him/her for the entire period during which s/he was paid the assistance.

During the course of the SWI's enquiries, it sometimes happens that the SWI and the PR can agree upon the facts of the case. For example, the PR may accept that the deceased person understated their means while in receipt of assistance and that it is very likely that an overpayment of assistance has arisen.

In this instance, the PR may make an offer in settlement of the estimated amount of overpayment of assistance that might arise. If so, details of the offer in settlement are included in the SWI's report to the DO.

6. Retrospective decision on entitlement

On receipt of the SWI's report, the DO retrospectively reviews the entitlement to assistance of the deceased person. Arising from this review, the DO may consider that the person was either not entitled to assistance at all or only entitled to it at a lesser rate than that which s/he actually received. In such cases, the DO will write to the PR setting out details of the estimated overpayment that could arise if a revised decision on entitlement is made. The DO gives the PR a period of natural justice of 21 days in which s/he can supply the DO with any new facts or fresh evidence which the latter will take into account before making a decision on the matter.

At the end of the 21 day period, the DO may make a revised decision to retrospectively disallow or reduce the assistance. In making this decision, the DO will take into account the factors outlined in the appendix to this note as well as any other relevant evidence. The DO will also decide the date from which the revised decision takes effect and the circumstances which gave rise to it (e.g. false or misleading information given by the person, new evidence or new facts, the circumstances of the case).

The DO's decision and the amount of the overpayment of assistance that arises as a consequence of it, is notified in writing to the PR. The latter has the right to seek a review of the decision and/or to appeal against it to the Social Welfare Appeals Office. Where this arises, payment of the overpayment is deferred pending the outcome.

Where the PR has made an offer in settlement of the likely overpayment that could arise, the DO will still

  1. make a formal decision on the entitlement to assistance based upon the circumstances of the case and
  2. compute the full amount of any overpayment that arises as a consequence.

The overpayment and the offer in settlement are then referred to an authorised overpayments officer for consideration.

7. Recovery of overpayment

The Department's policy is to seek full recovery of all social welfare overpayments incurred. Authorised overpayments officers are responsibility for such recoveries. Having regard to the facts of the case, the overpayments officer has the power to seek full recovery of the overpayment. Alternatively, s/he may decide to defer, suspend, reduce or cancel repayment of the overpayment.

In seeking to recover an overpayment from the estate of a deceased person, the value of the estate is reduced by the funeral and legal expenses for which the estate is liable. Recovery of the overpayment is then sought from the remaining assets.

The overpayments officer determines how the overpayment will be recovered (lump sum or periodic payments) having regard to any comments received from the PR. The officer also considers any offer that has been made by the PR in settlement of the overpayment. The overpayments officer then advises the PR of his/her determination and requests payment where necessary.

8. Receipt of payment

On receipt of payment, a formal receipt issues to the PR confirming receipt of same and advising that the liability has now been discharged.

9. Civil proceedings to recover overpayment

If payment of the outstanding overpayment is not made, consideration is given to forwarding the file to the Department's Central Prosecution's Section in order to initiate civil proceedings to recover the debt.

Section 339 (4) of the Social Welfare (Consolidation) Act, 2005 provides that the prescribed time period for taking civil proceedings in estate cases is 6 years from the date on which the notice of intention to distribute the estate or the schedule of assets was received, if later.

Appendix

Factors that are taken into account by the DO when making a revised decision on entitlement

  • the fact of the case as reported by the SWI
  • whether the pensioner had means at claim stage which s/he failed to disclose and/ or;
  • whether s/he was subsequently reviewed and failed to disclose his/her full means;
  • whether any undisclosed capital was of a significant amount - such as being more than £5,000 (€6,348.69);
  • whether the bank account was active, with the pensioner making transactions on a regular basis;
  • whether other undisclosed means (if any), was of a significant amount;
  • whether there is evidence that the claimant was incapacitated or in poor mental health;
  • whether the SWI at the time of the earlier means investigation(s) is available and would be in a position to give evidence of having asked the pensioner the relevant questions regarding his/her means and detail the replies given; and the SWI's evidence as to his/her perception of the pensioner's state of mind at that time;
  • whether the original claim form was completed by the pensioner in his/her own hand-writing, rather than the SWI or another person having completed the form, with the pensioner merely signing it.

Last modified:30/05/2010
 

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