Table of Contents:
- In General
- Requirement to Notify the Department
◊ SOCIAL INSURANCE PAYMENTS
- Schemes wholly exempt
- Other Exemptions from disqualification
- Payment of Increases
- Guardian's Payment (Contributory)
- Disablement Benefit
◊ SOCIAL ASSISTANCE PAYMENTS
- State Pension (Non-Contributory) Scheme or Blind Pension
- Other Assistance payments
- Guardian's Payment (Non-Contributory)
- One-Parent Family Payment
The legislation refers to:
2. Detention in legal custody which includes
- Being detained for questioning by the Gardai,
- Being remanded in custody,
- Detention in an institution for juvenile offenders,
- Detention (as a criminal lunatic) in the Central Mental Hospital, Dundrum,
- Detention in a mental hospital under the Mental Health Acts for the treatment of mental illness
- and detention under the Infectious Diseases Acts.
For simplicity in this Guideline, "detained" and "detention" is used to cover all the above except (v) and (vi). Detention in a mental hospital in most cases does not introduce a disqualification (see Exemption 3 in Insurance Payments). Detention because of an infectious disease is now rare, and is also usually covered by the same exemption.
Where prisoners are on compassionate release, on parole or temporary release, the circumstances of the particular case will need to be examined. For instance where compassionate release is allowed for attendance at the funeral of a close relative, the prisoner would be considered as technically in custody still. Early release on parole however may be under conditions which would allow the person to seek and take up employment, in which case these conditions for an unemployment payment would be fulfilled.
Where it is necessary to distinguish between different forms of detention, the specific type of detention is mentioned.
3. Unlawfully at large.
The legislation precludes people who are sentenced to imprisonment from receiving benefits i.e. a person who is sentenced to imprisonment and complies with that order, is disqualified. As the legislation precludes people who are sentenced to imprisonment from receiving benefits, it can therefore be deduced that a person who is deemed to be unlawfully at large by the Department of Justice & Equality (DJE) i.e. a person sentenced to imprisonment who fails to comply with the order for imprisonment, should also be disqualified from receiving benefits. Appropraite checks should be undertaken with the DJE.
- A detained person is normally disqualified for payment throughout the period of detention (but see Exemptions).
- An Increase for a Qualified Adult is normally not payable for a spouse or partner who is detained (but see Exemptions).
- An Increase for a Qualified Child is not payable for a child who is resident in an institution, unless the claimant is contributing towards the cost of the child's maintenance, and the child would be regarded as normally resident with that person if the child was not in the institution.
- Where a person who is detained was claiming for a qualified adult or qualified child, arrangements may be made for payment of the qualified increases (See Payment of Increases). However where imprisonment is for a term exceeding 6 months, there may be a greater entitlement under the One-parent Family Payment scheme.
- Where a person is excepted from the disqualification the payment is suspended during the detention and paid at the end of the period of detention. Alternatively payment may be made during the detention to a person appointed by the Minister to receive such payments.
Requirement to Notify the Department
The Department should be notified as soon as detention has taken place in order that an overpayment will not arise.
Upon release, the person should make a fresh application for personal payment or for an increase in respect of the spouse, partner or child as appropriate. This will be processed in the normal manner.
- Section 249 of the Social Welfare (Consolidation) Act, 2005 as amended by the Social Welfare and Pensions Act 2008 and the Social Welfare and Pensions Act 2010
- SI 16 of 1953 (as amended) regarding social insurance benefits
- Arts 23 and 24 of SI 364 of 1993 regarding widow's non-contributory pensions and allied payments
- Arts 12 and 13 of SI 77 of 1967 (re Occupational Injury Benefit claims).
- Art 13(11) of SI 142 of 2007 (re qualified children)
SOCIAL INSURANCE PAYMENTS
Schemes wholly exempt
Payments under the following schemes (only) are wholly exempt from the detention disqualification:
- death benefit for widows, widowers or orphan's pension, or funeral expenses, under the Occupational Injuries scheme,
- death grant,
- disablement gratuity,
Other Exemptions from disqualification (Claimants and qualified adults)
For Disability Allowance, a person is not regarded as undergoing detention in legal custody while detained for treatment under an order made under the Mental Health Act 2001, section 38 of the Health Act 1947, section 4 or section 5 of the Criminal Law (Insanity) Act 2006, section 17 of the Lunacy (Ireland) Act 1821, or section 2 of the Trial of Lunatics Act 1883.
Exemptions from disqualification also apply in respect of the person claiming or the person for whom an increase is claimed in the following cases -
- Where the detention is in respect of a criminal offence and the charge is subsequently dropped or the person is acquitted, the disqualification is lifted, and payment will then be made for the relevant period in the following schemes (only):
- all contributory pensions,
- death benefit,
- Illness benefit,
- disablement pension
- injury benefit.
- Where imprisonment is undergone in lieu of paying a fine, no disqualification is imposed in the following schemes (only):
- all contributory pensions,
- death benefit,
- disablement benefit
- injury benefit.
- Where the beneficiary or the dependent for whom an increase is claimed is in an institution for the treatment of mental or infectious disease, no disqualification is imposed in most insurance schemes. However in the case of an Increase for a Qualified Child for illness benefit and jobseeker's benefit, a disqualification is imposed.
Payment of Increases
Where the beneficiary is disqualified, any increase which would be payable for a qualified adult or qualified child shall be paid to an appointed person.
Note: In the case of illness benefit this provision is restricted to where the beneficiary is detained in hospital for treatment of a mental disease, or was entitled to the increase before being imprisoned.
Guardian's Payment (Contributory)
A Guardian's Payment (Contributory) is not payable in respect of a child who is undergoing penal servitude, imprisonment, or detention in legal custody, including detention in a Young Offenders Centre.
Payment of the Allowance may resume when the child is released, provided s/he continues to satisfy the qualifying conditions.
Where the guardian or other person with responsibility for the care of a child is disqualified from receipt of Guardian's Payment (Contributory) by virtue of penal servitude, imprisonment, or detention in legal custody, payment of the Allowance may be made to some other person for the benefit of the child.
A person is disqualified from receiving Disablement Benefit for any period during which that person is undergoing penal servitude, imprisonment or detention in legal custody subject to the following exceptions contained in Chapter 9, Art 71 of S.I. 102 of 2007:
- where disablement benefit is payable by way of gratuity payment
- where the person is detained on charge of a criminal offence and the charge is subsequently withdrawn or the person is acquitted and immediately before the detention, s/he was entitled to disablement benefit
- where imprisonment is undergone as an alternative to the payment of a fine
- where the person is detained in a mental hospital (except as a criminal lunatic). Personal rate disablement pension is not payable in the case of a criminal lunatic, but is payable for a maximum of 1 year or €3,000 (whichever is the less) where a person is in prison.
Increases for qualified adults and dependent children are payable in the following circumstances:
- Increases for qualified adultsand dependent children are payable to an appointed person
- where the detention of the claimant is in an institution for the treatment of mental and infectious diseases
-if the claimant was in receipt of disablement benefit immediately before being detained;
- increase for a qualified adult is payable if s/he is detained on charge of a criminal offence and the charge is subsequently withdrawn or the qualified adult is acquitted of the offence;
- increase for a qualified child is not payable where the child is detained in a mental hospital.
Where a payment is due to a person who is in prison or legal custody, the payment may be made to a person appointed by the Minister to receive it on behalf of the claimant or payment may be suspended until the claimant’s release. If the latter, the provision regarding payment having to be obtained within 6 months of the due date will not apply.
SOCIAL ASSISTANCE PAYMENTS
State Pension (Non-Contributory) or Blind pension
A person who is convicted of an offence and ordered to be imprisoned without the option of a fine, is disqualified from receiving State Pension (Non-Contributory) or Blind pension while imprisoned. No disqualification is imposed for other forms of detention.
Other Assistance payments
A detained person is disqualified for receiving any of the following payments unless an exemption applies:
- Deserted Wife's Allowance
- Family Income Supplement
- One-Parent Family payment
- Pre-Retirement Allowance
- Prisoner's Wife's Allowance
- Supplementary Welfare Allowance
- Jobseeker's Allowance
- Widow's or Widower's or Surviving Civil Partner's (Non-Contributory) pension.
Guardian's Payment (Non-Contributory)
A Guardian's Payment (Non-Contributory) is not payable in respect of a child who is undergoing penal servitude, imprisonment, or detention in legal custody, including detention in a Young Offenders Centre.
Payment of the Pension may resume when the child is released, provided s/he continues to satisfy the qualifying conditions.
Where the guardian or other person with responsibility for the care of a child is disqualified from receipt of Guardian's Payment (Non-Contributory) by virtue of penal servitude, imprisonment, or detention in legal custody, payment of the pension may be made to some other person for the benefit of the child.
- the detention is in respect of a criminal offence and the charge is subsequently dropped or the person is acquitted of the charge,
- the imprisonment is undergone in lieu of paying a fine
the disqualification does not apply in relation to the following schemes (only):
- Deserted Wife's Allowance,
- One-Parent Family payment,
- Prisoner's Wife's Allowance
- Widow's and Widower's or Surviving Civil Partner's (Non-Contributory) Pension.
One-Parent Family Payment
In the case of a One-parent Family payment, an increase in respect of a child may continue to be paid where the recipient is detained in an institution. An increase in respect of a qualified child may also be paid where the qualified child is resident in an institution and the parent is contributing towards the cost of the child's maintenance.