PRSI INSPECTION GUIDELINES
- ROLE OF SOCIAL WELFARE INSPECTORS IN RELATION TO PRSI, BENEFIT AND RELATED MATTERS.
- POWERS AND DUTIES OF SOCIAL WELFARE INSPECTORS
- OBLIGATIONS AND LIABILITIES OF EMPLOYERS
- NON NATIONAL EMPLOYEES
- REPORTING PROCEDURES (INCLUDING FORMS) & COLLECTION OF PRSI
- EMPLOYER IRREGULARITIES AND ACTION TO BE TAKEN
- EMPLOYEE IRREGULARITIES AND ACTION TO BE TAKEN
- DEALING WITH AN EMPLOYER WHERE COLLUSION IS SUSPECTED
- RECOVERY OF BENEFITS FROM EMPLOYERS
- OFFENCES,IRREGULARITIES,EVIDENCE,PROOFS AND LEGAL PROCEEDINGS
- COURT PROCEEDINGS
Role of Social Welfare Inspectors in Relation to PRSI, Social Insurance Benefit and Related Matters
1.1 Social Welfare law governing the operation of the PRSI scheme is contained in the Social Welfare (Consolidation) Act, 2005, in the Regulations made under that Act, and in force immediately before it came into operation, and in any Acts or Regulations subsequently made which amend or extend the provisions of these Acts and Regulations.
1.2 The role of Social Welfare Inspectors in relation to the PRSI scheme is to ensure compliance by employers, employees and other persons with the provisions of that scheme in matters connected with
- the payment of contributions,
- the maintenance of records as prescribed, and
- the furnishing of information and data which is essential for the smooth and proper administration of the Social Welfare Schemes and the prevention of abuse and fraud.
1.3 This role is achieved by PRSI inspections of employers, by the examination of records relating to the employment of employees and by direct interview of employers, employees and other persons. Visits to employers' premises may be by way of routine inspection or in relation to any case where enquiry, investigation or inspection is necessary.
1.4 Where outdoor investigation is necessary in cases involving non compliance within the provision of the Acts and Regulations, in matters related to Social Insurance, it is a function of inspectors to carry out that investigation, to report non payment of PRSI contributions to the Revenue Commissioners or in certain instances to collect the payment of contributions themselves and to process appropriate cases for legal proceedings. In the preparation and submission of cases for prosecution, an orderly and well structured approach is necessary and account should be taken of the Legal Guidelines which can be found in the Control Shared Drawer (Control).
1.5 Inspectors have defined duties and powers in relation to Pay Related Social Insurance. These powers are set out in the Social Welfare (Consolidation) Act, 2005.
1.6 The purpose of these instructions is
- (i) to inform inspectors of the procedures to be adopted in
- (a) carrying out inspections and
- (b) preparing cases for legal proceedings,
- (ii) to make inspectors more aware of their powers, as inspectors, under the Acts and Regulations.
APPOINTMENT, POWERS AND DUTIES OF SOCIAL WELFARE INSPECTORS
IN GENERAL, THE APPOINTMENT, POWERS AND DUTIES OF SOCIAL WELFARE INSPECTORS IS DEALT WITH IN SECTION 250 OF THE SOCIAL WELFARE (CONSOLIDATION) ACT 2005. THIS CHAPTER SETS OUT THE EXTENT TO WHICH THESE DUTIES AND POWERS MAY BE USED.
2.1 APPOINTMENT OF SOCIAL WELFARE INSPECTORS
2.1(1) Section 250(1)
"The Minister, or an officer authorised in that behalf by special or general directions of the Minister, may appoint such and so many officers as is appropriate to be social welfare inspectors for the purposes of those provisions [of the Act]...as he or she may determine in the case of those appointments."
2.1(2) Section 250(7)
"Every social welfare inspector shall be given a certificate of his or her appointment, and on entering any premises or place for the purposes [of this Act]....shall, if so requested, produce that certificate."
Certificates of appointment carry the photograph and signature of the holder and certifies that such person is authorised to make such
as may be necessary within the provisions of the Act. An inspector must produce a certificate of appointment on request when entering a premises for the purpose of carrying out these duties. However good practice suggests that it be produced as a matter of course for identification purposes.
2.2 DUTIES OF SOCIAL WELFARE INSPECTORS
Before examining the statutory powers of a Social Welfare Inspector, it is necessary to consider the context of these powers. There is a link between the duties an inspector is required to undertake and the power s/he is given to enable him/her to carry out these duties.
2.2(1) Section 250(2)
The duties of inspectors is laid down in Section 250(2) of the Act which states:
Every social welfare inspector shall investigate and report to the Minister on any claim for or in respect of benefit and any question arising on or in relation to that benefit which may be referred to him or her by the Minister, and may, for the purpose of the investigation and report require -
- a claimant or a beneficiary
- the spouse or any employer of the claimant or beneficiary
- in the case of Child Benefit, any person in charge of a child in respect of whom the claim is made
- a person liable to contribute under Section 346(1) or any employer of that person, and
- the personal representative of a person who was at any time in receipt of any benefit
- a person who has sought the allocation of a personal public service number within the meaning of section 262 or a person to whom such a number has been allocated.
to give to the social welfare inspector the information and to produce to him or her the documents, within the period that may be prescribed, as he or she may reasonably require."
(The words "shall" and "require" in a statute makes the action mandatory, i.e. it creates a power).
2.3 POWERS OF SOCIAL WELFARE INSPECTORS
The following paragraphs examine the various powers given to inspectors. These include powers to enter premises, to stop vehicles when accompanied by a Garda in uniform, and to examine documents or persons.
2.3(1) Section 250(3)(a) Powers to Enter premises
"A social welfare inspector shall [for the purposes of this Act or section 121(1)(a) of the Pensions Act 1990,] have power ... to enter, without prior notification, at all reasonable times any premises or place liable to inspection under this section,"
2.3(2) Places and Premises liable to inspection
Section 250(8) states: -
"The premises or places liable to inspection under this section [250 of the Act] are any premises or places where a social welfare inspector has reasonable ground for believing that -
- persons are, or have been employed, or
- there are, or have been, self employed persons,
and any premises or place where a social welfare inspector has reasonable grounds for believing that any documents relating to persons in employment or to self-employed persons are kept."
This subsection defines the jurisdiction of the inspector in relation to the liability of premises or places to inspection and includes self employed persons (contract for services) as well as persons employed under a contract of service.
A question often asked by inspectors is whether their powers of entry extend to private dwellings where there are reasonable grounds to believe that employment is taking place or records relevant to such an employment are kept. In simple terms, if an inspector has not been invited by the owner occupier he or she does not have the power to enter a dwelling under the Constitution unless s/he has "lawful authority". Social Welfare legislation might be interpreted as lawful authority but inspectors, under any circumstances, must not attempt to enforce this interpretation. An inspector must not insist on entering a person's dwelling place without permission being freely given.
In cases where the inspector requires to inspect records normally held in a person's dwelling house and the occupier refuses permission to enter the house, Sections 250(11) & (12) should be invoked (by issue of Form IN32) to have the records produced at the registered address or principal place of the business.
"Where a person is required .......to produce records ....... he or she shall, on the request of a social welfare inspector, produce those records at his or her registered address or his or her principal place of business."
"A person who fails to comply with a request to produce records under subsection (11) within 21 days following the issue of that written request sent by registered post to the person at his or her registered address or his or her principal place of business is guilty of an offence."
2.3(3) Powers of examination and enquiry
An inspector's powers of examination and enquiry are contained in Sections 250(3)(b), 250(3)(c), 250(3)(d), 250(16)(a) and 250(16)(b) which state as follows:
(b) "[A social welfare inspector shall, have power ... in that premises or place...]
- to make such examination or enquiry
- to inspect and take copies of or extracts from any records (including in the case of information in a non legible form, a copy of or extract from that information in permanent legible form), found there, and
- to remove and retain those records for such period as may be reasonable for further examination
as may be necessary to ascertain whether this Act is being complied with......
(c) to secure for later inspection any such records,
(d) to examine either alone or in the presence of any other person, as the social welfare inspector thinks fit in relation to any matters on which he or she may reasonably require information for the purposes of this Act, every person whom he or she finds in that premises or place or whom he or she has reasonable cause to believe to be or to have been an insured person, and to require every such person to be so examined and to sign a declaration of the truth of the matters in respect of which the person is so examined; and
(e) for the purposes of answering or clarifying any questions that the social welfare inspector may have consequent on the inspection of the premises or place, to summon the occupier of the premises or place, any person who is or has been employing persons there or such person as may be designated by the occupier or employer as competent to answer or clarify any such questions, to attend at that premises or place (or at an office of the Minister), at any reasonable time specified, by written notice given to him or her at the premises or place or sent there to him or her by registered post.
"A social welfare inspector may, for the purposes of ensuring compliance with this Act, if accompanied by a member of the Garda Sochna in uniform -
- stop any vehicle which he or she reasonably suspects is used in the course of employment or self employment, and
- on production of his or her certificate of appointment, where so requested, question and make enquiries of any person in the vehicle or require that person to give to the social welfare inspector any record relating to his or her employment or self employment which the person has possession of in the vehicle and examine it."
2.3(4) Obligations of employers
The Social Welfare Acts, in addition to giving inspectors powers to enter premises or stop vehicles when accompanied by a Garda in uniform and examine and enquire as they deem appropriate, also lays down obligations on employers with regard to what they are required to do to assist in these inspections. These obligations are as follows: -
"The occupier of any premises or place liable to inspection under this section, and any other person who -
- (a) is or has been employing
- (i) any person in insurable employment or insurable(occupational injuries) employment, o
- (ii) any claimant or beneficiary
- (b) engages or has engaged a person under a contract for service to perform a service,
and the employees of, or any other person providing bookkeeping, clerical or other administrative services to, any such occupier or other person and any insured person, claimant or beneficiary or any person in respect of whom such a benefit is claimed, shall give to a social welfare inspector all such information and produce for inspection all such registers, cards, wages sheets, records of wages and other documents as the social welfare inspector may reasonably require for the purposes of ascertaining whether contributions are or have been payable, or have been duly paid in respect of any person, or whether any benefit is or was payable to or in respect of any person or whether section 121(1)(a) of the Pensions Act 1990 is being complied with"
"Any person who holds a certificate of authorisation under Chapter 2 of Part 18 of the Act of 1997 shall, on the request of a social welfare inspector, furnish that certificate for inspection by him or her."
2.3(5) The above sections empower an inspector to enter any place where a business is being carried out or to stop a vehicle when accompanied by a Garda in uniform to check if: -
- that business has employed persons
- these persons are recorded as employed persons
- the employer is complying with the Social Welfare Acts.
In relation to the employed persons themselves, an inspector is empowered to seek to establish if they are in receipt of Social Welfare Benefits unlawfully while employed.
For inspection purposes an inspector can, within the law: -
- enter any place where there is reason to believe employment is taking place
- when accompanied by a Garda in uniform stop any vehicle which he or she reasonably suspects is being used in the course of employment or self-employment
- require the employer to produce employment records
- examine, take extracts from or remove from the premises such records for such period as may be reasonable for further examination
- require the attendance of the employer or any member of the employer's staff, competent to answer or clarify any question the inspector may have in relation to an inspection
- interview persons on the premises as to their employment status
- require persons interviewed to sign a statement as to the veracity of the information they give.
(The word "persons" is used deliberately in this context as not everyone who is on a premises is, necessarily, an employee of the employer. For example, in a supermarket the bread deliveries person will stack the shelves with the bread he is delivering and he may seem to be an employee of the employer).
2.4 FAILURE TO COMPLY
2.4(1) Section 250(6)
Section 250(6) creates offences in relation to the obstruction or delaying of an inspector in the exercise of his/her powers.
The section reads: -
"A person who-
- (a) wilfully delays or obstructs a social welfare inspector in the exercise of any duty or power under this section, or
- (b) refuses or neglects to answer any question or to give any information or to produce any record when required to do so under this section, or
- (c) conceals or prevents or attempts to conceal or prevent any person from appearing before or being examined by a social welfare inspector or any other person appointed under this section is guilty of an offence"
2.4(2) Obstruction/Wilful delay
Obstruction or wilful delay, in the context of the Social Welfare Act, is any act carried out by an occupier or any person liable to be examined which has the intention of and results in, an Inspector being obliged to withdraw from any inspection without being able to complete that inspection. Such an obstruction can be caused by a person refusing to allow an inspector to enter a premises liable to inspection, refusing to answer questions, the giving of false information e.g. false names/addresses etc.
An inspector, on entering a premises or a place liable to inspection under the Acts or approaching a person in a vehicle which has been legally stopped should identify him/herself by name and, as a Social Welfare Inspector under the Social Welfare Acts, proffer his/her certificate of appointment for inspection and state the purpose of the visit i.e. to carry out an inspection to check if the employer and his employees are in compliance with Social Welfare legislation.
If permission to enter the premises or to allow an examination or enquiry is refused, without good reason, the powers of an inspector under Section 250 i.e. right of entry and enquiry, should be explained. The person should also be informed that the delay or obstruction of an inspector in the course of these enquiries constitutes an offence which carries severe penalties, as decided by the courts. If permission is still refused and no good reason for doing so is offered then the inspector should withdraw and submit a full report to the Area Manager setting out all the relevant facts for consideration of legal proceedings. It is good practice to note at the time or as close as possible to the time, what occurred, as these notes will be useful and important if legal proceedings are initiated.
In some cases the obstruction or wilful delay may be of such a nature, e.g. "a try on", that an inspector may be able to persuade the obstructor to comply with his/her requests and, thereby, complete the inspection. However, in more serious cases, where the above course of action fails and the offence of obstruction is committed, common sense should prevail and the inspector should leave the premises or residence and pursue the action as outlined above.
If dangerous or threatening behaviour occurs in an office of the Department or a signing centre the offender should be requested to desist from such behaviour. If it persists they should be requested to leave and the Gardai alerted if necessary.
If, in any instance, an inspector is assaulted then the Gardai should be notified immediately.
2.5 AUTHORITY TO OBTAIN INFORMATION FROM OTHER GOVERNMENT AGENCIES/DEPARTMENTS
2.5(1) Section 261
Section 261 provides for the transfer of information held by this Department to other government departments/agencies (including Local Authorities, Health Boards and the Garda Sochna). Information may also be transferred by such agencies to the Minister for Social Protection.
2.5(2) Section 265(2)
Section 265(2) provides that, for the purposes of determining entitlement to or control of benefit,
"a specified body holding information may share that information with another specified body who has a transaction with a natural person relating to a relevant purpose, where the specified body seeking the information provides the personal public service number (PPS No.) of the person who is the subject of the transaction and satisfies the data controller of the specified body holding the information that the information requested is relevant to the transaction for that purpose between the person and the specified body seeking the information".
A specified body for this section is defined as the following: -
- a Minister of the Government
- a local authority (for the purposes of the Local Government Act, 1941)
- a health board
- the Revenue Commissioners
- An Foras iseanna Saothair (FS)
- An Post
- An tArd Chlraitheoir (Registrar)
- the Legal Aid Board
- the Garda Sochna and the Defence Forces in respect of their own members or
- such other person as may be prescribed.
2.5(3) Section 265(5)
This section provides that any person seeking such information by the use of a person's PPS No. other than for a relevant purpose as laid down in the Act, shall be guilty of an offence.
Obligations and Liabilities of Employers
3.1 The obligations on employers, in relation to the PRSI scheme are: -
- registration with the Revenue Commissioners
- the maintenance of complete and accurate records in relation to all employees
- the production of records on request to Social Welfare inspectors
- the deduction, remission and timely payment of PRSI contributions
- the furnishing of information including the notification of commencement of employment inspecified employments
- the furnishing of End of Year Returns (Form P 35).
3.1(1) The Acts and Regulations, which set out the obligations of an employer, are as follows: -
- payment of contributions and keeping of records (Section 17 of the Social Welfare (Consolidation) Act 2005 and the Social Welfare (Consolidated Contributions and Insurability) Regulations 1996 SI 312/1996 refer)
- requirement to record details of earnings etc. at or before the time of payment of wages (Section 252(3) of the Act)
- admission of inspector to premises (Section 250(3)of the Act)
- submission to examination and enquiry (Section 250(3) of the Act)
- production of records for inspection, as specified (Section 250(4) of the Act)
- production of records as requested at registered office or principal place of business (Section 250(11) of the Act)
- furnishing of information (Section 250(4) of the Act), and
- responding to a request for information (Article 20 of the Social Welfare (Consolidated Contributions and Insurability) Regulations, 1996 SI 312/1996)
- notification of commencement of employment in specified employments (Section 253 of the Social Welfare (Consolidation) Act, 2005).
3.1(2) Inspectors should be aware of the obligations governing these requirements so that insurance related work is performed effectively. The following paragraphs give a brief outline of these obligations.
3.2 Obligation to Maintain Records
3.2(1) ARTICLE 17 (Employers records) of SI 312/1996
(1) Employers shall record the following particulars in respect of each contributor to whom payments or emoluments has been made in the contribution year: -
- (a) the amount of each payment of earnings or emoluments
- (b) the employment contribution payable by the contributor in respect of each payment of earnings or emoluments
- (c) the total contributions which the employer is liable to remit in respect of each payment of earnings or emoluments
- (d) the dates of commencement and cessation of employment or insurable self employment occurring within the contribution year
- (e) each contribution week of insurable employment or insurable self employment
- (f) in the case of an employee, particulars relating to -
- (i) the rate of contribution applicable to the employee at the commencement of the contribution year, or at the date of commencement of the employment (if later) and
- (ii) where any change in his rate of contribution occurred during the year, the date on which such change occurred, the rate of contribution applicable to the employee at the end of the contribution year or at the date of cessation of employment (if earlier) and the number of contribution weeks during the year in which the employee was in insurable employment to which that rate of contribution refers.
(2) The records specified in sub article (1) of this article shall be in the form approved by the Revenue Commissioners and shall be retained by employers for a period of six years after the end of the contribution year to which they refer.
3.2(2) Article 17 requires an employer to maintain, in respect of each of his employees, records, in respect of each contribution year. Section 17 of the Act requires an employer to make the necessary entries in these records at or before the time of payment of earnings.
These records must be kept in a form approved by the Revenue Commissioners and must be retained by the employer for a period of six years after the end of the contribution year to which they refer.
Official tax deduction cards (forms P9/P11) are issued to an employer in respect of each of his employees. However nowadays many employers operate computerised payroll systems and so do not complete Tax Deduction Cards. All the information contained on the P9/P11 is held on the computerised format.
3.2(3) SOCIAL WELFARE (MAINTENANCE OF RECORDS) REGULATIONS 1994
(S.I. No. 24 of 1994).
Under the above Regulations employers in the construction industry are obliged to keep records "on site" in relation to all employees and subcontractors engaged by them. The record must contain the name and address, the Personal Public Service (PPS) Number and the date of commencement of employment of all such persons and must be maintained on site for the duration of the employment. This legislation has been in operation since 1 March 1994.
3.3 Obligation to admit Inspectors to Premises
3.3(1) Under subsection 250(3)(a) of the Act an inspector is authorised to enter, at reasonable times, any premises or place where there is reason to believe that persons are employed/self-employed or have been employed/self employed or where wages records etc. in relation to employed or self employed persons are kept. Therefore an employer is obliged to afford entry to such premises or place to an inspector. Should the employer refuse entry or delay or obstruct an inspector in entering the premises, s/he is liable to prosecution.
3.4 Obligation to Permit Examination and Enquiry
3.4(1) Subsection 250(3)(d) of the Act obliges an employer to permit an inspector to make such examination and enquiry of persons, found on the employer's premises or place liable for inspection.
3.5 Obligation on Employers to Produce Records
3.5(1) Section 250(4), of the Act provides that the occupier of a premises or place liable to inspection, an employer or an employer's agent is obliged to furnish all such information and to produce for inspection all such registers, cards, wages sheets, or other documents, including work authorisations/visas or employment permits (where required) and computer printouts as an inspector may reasonably require. The employer's agent or representative could be a manager, wages clerk or any such designated person.
3.5(2) Section 250(11) of the Act requires an employer to produce such records as an inspector may reasonably require at his or her registered address or principal place of business. This section facilitates the completion of inspections at the principal place of business and should minimise the necessity to transfer papers to other inspectors particularly for the inspection of records at the offices of accountants.
Form IN 32 is for this purpose and it should be sent to the employer by registered post.
This is a statutory form and should only be used where an employer has proved un-cooperative.
3.6 Obligation to Respond to Written Requests for Information
3.6(1) Article 20 of the Social Welfare (Consolidated Contributions and Insurability) Regulations, 1996 (SI 312/96) requires an employer, on receipt by him from an inspector of a notice in writing addressed to him at the address at which he resides or carries on business, to furnish such information as is requested in respect of any employed contributor who is or has been in his employment.
The form used for this purpose is Form IN 28 which is a statutory form. This form includes a declaration which the employer is obliged to sign. The employer is also obliged to deliver this form by hand, or by registered post, to the inspector within the time specified.
3.7. Failure to Comply with Obligations
3.7(1) The action to be taken in any particular situation where an employer has failed to comply with his obligations is set out in Chapters 6 and 7.
3.8 Liability to Repay Benefit
3.8(1) Under Section 258 of the Act an employer who has not complied with his/her obligation to maintain prescribed records or to notify the taking on of employees or sub contractors in prescribed industries, may be liable to repay to the Minister certain benefits which that employee or subcontractor has obtained illegally while working for the employer. The benefits in question are Illness Benefit, Jobseeker's Benefit, State Pension (Transition), Invalidity Pension, Jobseeker's Allowance, Pre Retirement Allowance and Family Income Supplement.
3.8(2) Under Section 259 of the Act an employer, who has not complied with his obligations to remit PRSI may be liable for any benefit lost, by an employed contributor. S/he may also be liable for repayment to the Minister any assistance paid to an employed contributor in lieu of lost benefit.
4.1(1) The primary aim of inspection work is to ensure that employers are operating the PRSI scheme correctly, the detection of non compliance and the control of fraud and abuse.
4.2 Inspection Objectives
4.2(1) The objectives of inspections are to ensure: -
- That employers are registered with the Revenue Commissioners
- That prescribed records are held for all employees
- That PRSI at the appropriate rate is paid for all eligible employees
- That end of year data is furnished accurately and on time
- That instances of non compliance are ascertained, arrears of PRSI collected or reported
- That fraud and abuse by employers and or employees is uncovered and reported where it arises
- That matters connected with the proper administration of Social Welfare Schemes are investigated and reported
- The integrity of the data held on Central Records (CRS)
- The provision of information as appropriate to employers
4.3 Preparation and Planning Inspections
4.3(1) Employers for inspection can be selected using various criteria.
- Social Insurance enquiries, e.g. IA49 and P60 cases
- Scope and F.I.S files
- The category of business or industry
- Inspector generated: (Reports/Local Knowledge/Revenue Liaison, CRS data).
Inspectors should take cognizance of situations where employee earnings are identical for consecutivec years or there are irregularities with regard to PRSI classes and amounts.
- Employers returning employees without PPS numbers or on emergency tax for lengthy periods
- Revenue Employer lists of P35 non returners.
4.3(2) When an employer has been selected for inspection the compliance position should first be established by reference to INFOSYS/ERIN. Care should be taken to ensure that enquiries have not been initiated by another inspector in order to avoid a situation where several Departmental personnel simultaneously contact an employer in relation to the same matter.
4.3(3) If necessary relevant details should be requested beforehand from the Companies Registration Office.
4.4 What to bring with you on Inspection
- Certificate of Appointment
- Copy of laminated Powers and Duties of Inspectors
- Easy Reference Guide to Computerised Payroll Systems
- All relevant Insurance papers and files, including where relevant, statements from employees or ex- employees
- Central Records Section/Companies Registration Office printouts
- Appropriate reporting forms e.g.; IN17, IN12, INS1, EE52/SE52
- Employers Guide to PRSI (SW 3)
- Guide to Social Welfare Information (SW 4).
- SW Rates of Payment (SW 19) includes PRSI rates and Ready Reckoner
4.4(1) Inspectors should ensure they are also familiar with the guidelines pertaining to the allocation of PPS numbers, the Non National Customers: Guidelines for Staff, the factors used in determining insurability, and what constitutes reckonable earnings/reckonable emoluments and weeks of insurable employment.
4.5 Notification of Inspections
4.5(1) Inspectors should use their own judgement whether to notify. Where notification is decided upon, an appropriate form such as IN6 or its equivalent, should be used giving the employer adequate notice. Form IN32 is not to be used at this stage. ( See Chapter 6)
In the case of a limited company, the notification should be sent to the company secretary, at either the registered address or the principal place of business. In the case of a sole trader the full title of the individual should be used.
(For descriptions of different types of business entities consult Chapter 4 of the Legal Guidelines).
When dealing with employers, courtesy, discretion and consideration should be exercised at all times.
The inspector should ensure that: -
- (a) Any visit to an employer or his premises is at a reasonable time i.e. by reference to an employers hours of business
- (b) All requests made of the employer are reasonable and relate to matters arising out of the inspection
- (c) As little disruption as possible is caused to the operation of the employers business.
4.6 The Inspection
4.6(1) On entering an employers premises the inspector should introduce himself/herself by name and ask to speak to the employer or a responsible person acting in the employer's absence. In all cases the inspector should offer their Certificate of Appointment for examination.
4.6(2) The powers of inspectors in relation to inspections are contained in Section 250 of the SW (Consolidation) Act, 2005. All inspectors should be familiar with these and it is advisable to always carry the laminated extracts provided. The purpose of the inspection should be given, particularly in the case of an un notified visit.
On an inspection report form (IN17) the following should be noted: -
- the full name of the employer
- the PAYE registered number
- the legal entity; sole trader, Limited Company, partnership etc.
- in the case of a business name, the ownership should be established
- in the case of a partnership, the full names and addresses of each partner should be given
- in the case of a limited company the names of directors and their shareholding (if relevant).
- the registered address of the business and the number and addresses of any other premises in which the business operates
- the nature of the business and the hours of opening
- whether records are held and in what format
- the number of employees
It is advisable, depending on the size of the business, to ask the employer for an account of the names, commencement dates, occupations and earnings of current employees before examination of the wages records and to note as many of these details as is feasible on the IN17. This should always be done if an inspector is referred to an accountant or payroll bureau.
- the names of any subcontractors, consultants or individuals paid but classed as self employed
- the position regarding the remittance of PRSI and the method of payment
- the date of the last P35 lodged.
4.7 Examination of Wages Records
4.7(1) The examination of wages records is obviously dependant on the type of records held, whether manual or computerised. In the case of computerised records, the type of reports available will be a factor, inspectors may refer to their guide on Computerised Payroll Systems.
An inspector should ensure that a person who is competent with the operation of payroll system is present.
Inspectors should never interface with an employers PC. If there is a problem in obtaining the requested information, the payroll administrator should be asked to contact their software supplier.
4.7(2) Inspectors should examine some or all of the following records: -
- Tax Deduction Cards/ Earnings/Tax/PRSI reports
- wages summary
- gross to nett reports
- work rosters/clock cards
- Form P35
- Form CC124 (record of PAYE and PRSI remittances)
- cheque payments journal
- sales and purchases ledger
- petty cash books
- employment permits or work authorisations/visas (if required)
- and any other documents as may be required to determine the scale of business, and the number of employees and their earnings.
4.7(3) It may be appropriate to get printouts of various reports from computerised payrolls and to examine them in detail upon return to the office. All systems should be able to produce identical paper reports of electronically stored data. The same statutory obligation to maintain records for the prescribed period applies, whether a computerised system is used or not.
Section 250 confers on inspectors the powers to impound wage records. While this is not normal practice, should it arise a receipt should issue to the employer.
A spot check of PRSI deductions will ensure that the correct rate is being applied. If it is not the Inspector will need to advise the employer accordingly and complete a demand for underpayment if necessary.
4.7(4) All employees recorded on the wages records during the year should appear on the P35 or the P35LT and the last P35 should be inspected.
4.7(5) The number of employees shown on the records inspected should reflect the number of employees on the premises or what the inspector believes to be the normal manning level for the type of business. Where there is reason to doubt the accuracy of the records, the inspector may ask to examine other books and documents such as the cheque payments journal or the sales and purchase ledger. When an inspector wishes to examine documents belonging to an employer, s/he should be able to state the reason.
4.7(6) Inspectors have the powers to take statements from any or all persons found on the premises. An inspector when interviewing employees should establish the periods of the employment, earnings and details of any Social Welfare payments. Forms IN12 or IN12A are to be used. If there is any likelihood of legal proceedings then Form IN12 should be used.
It is an offence to use another person's PPS number. If an inspector has grounds for suspicion of irregularities with regards to the identity of the person being interviewed, the interview of employees should also focus on personal details, i.e. D.O.B., age, mother's maiden name etc. Questions should be reasonable and recorded within the confines of the Form IN 12. Client Identity Services should be notified of any concerns an inspector may have in this regard.
4.8(1) In cases of certain directors, sub contractors, consultants and others who the employer regards as self employed, it may be necessary to examine the insurability of the employment. This can also arise where the employer is incorrectly treating the individual as an employee. Forms INS1 should be completed by both parties and submitted to Scope Section, with a report from the inspector, for decision.
NOTE: Inspectors are advised to refer to SCOPE SECTION GUIDELINES in the shared drawer.
4.9 Non National Employees
4.9(1) Chapter 5 of this manual offers detailed guidance and instruction to inspectors on PRSI related matters with regard to Non Nationals.
4.10 Employee Records
4.10(1) Whereas the protection of the Social Insurance Fund is of vital importance, hence the need to determine and collect arrears of PRSI and combat fraud, the smooth operation of Social Welfare Services is dependant on each individual having one PPS number and ensuring that all contributions due under that number are properly recorded.
Inspectors should ensure that employers are familiar with the procedure for allocating PPS numbers; that all employees have valid numbers and that all contributions are recorded. It is vital that employers return form P35LT with their P35 each year. This form sets out the employees with no PPS numbers. The address, date of birth and mothers birth surname of each individual should be shown.
4.10(2) The updating and amending of employee records is a vital part of any inspection. Inspectors should ensure that any employee record which is incomplete is updated promptly with the correct PPS number and contribution details. Inspectors should also ensure that any incorrect information held on our CRS is amended.
Inspectors should be aware that the term non compliant covers a broad range of irregularities and is not solely confined to the reporting and collection of monies due.
4.11(1) All employer inspections should be recorded on ERIN. An outcome, or outcomes, should be entered in accordance with ERIN instructions. The accurate recording of inspection details on ERIN is very important as all inspectors use ERIN and it acts as a referencing system for planning inspections and to obtain information on completed inspections.
ERIN instructions are available in the shared drawer as follows:
4.12 Benefits in Kind
4.12(1) NOTE : Inspectors should be mindful that from 1st January 2004, most Benefits in Kind are assessable for PRSI/PAYE purposes. Inspectors should refer to Office Notices 65/03 and 03/05 in the RDO shared drawer.
Non National Employees
5.1 (1) Inspectors should make themselves aware of the contents of Non National Customers: Guidelines for staff, which are available in the RDO Shared Drawer (SHR_RDOTR), under "Non National Guidelines", and updated as changes occur. In addition, each Inspector should have a copy of the guidelines to the identification of fraudulent work permits,which includes sample documents, which issued from Control Division, via the RDO. Copies are available upon request from the RDO.
5.1 (2) The following section outlines recent developments on the employment of Non Nationals as background information for Inspectors. It is highly recommended that they familiarise themselves with same in advance of conducting PRSI inspections. Inspectors will be advised of any future developments in Departmental operations in this area as they arise by way of supplementary guidelines.
5.1 (3) Inspectors should note that all European Economic Area (EEA) nationals can work in any EU country without requiring Work Permits. [The EEA comprises of Member States of the European Union, together with Norway, Iceland and Liechtenstein].
Non EEA nationals will require differing types of permission depending on their circumstances.
These generally fall within the categories of Work Authorisations/Work Visas and Employment Permits.
5.2 Categories of permission to work for Non Nationals
5.2 (1) Work Authorisations are issued to persons who hold a passport of a country whose nationals are not required to have a visa to travel to Ireland (including USA, Canada, New Zealand, South Africa, Japan). A complete list is set out at Appendix 1. In order to qualify for a work authorisation the person must have an offer and contract from an employer in Ireland in one of the defined highly specialised areas of the economy requiring a high level of skill education achievement for instance the high tech, medical and engineering sectors.
5.2 (2) Working Visas are issued to the holder of the passport of a country whose passport holders are required to possess a visa in order to travel to Ireland and must have an offer and contract of employment from an employer in one of the designated sectors as outlined above.
Both work authorisations and working visa are granted initially for a period of two years and may be renewed. They normally take the form of a stamp on the holder's passport.
5.2 (3) Employment Permits are issued by the Department of Enterprise, Trade and Employment. They are issued in advance of the employment commencing to employers as permission to employ non EEA nationals, and as such they are non transferable. Employers are obliged to have demonstrated that they have made every effort to employ an EEA national before an Employment Permit will be issued. Employees are advised an Employment Permit entitles them to work for the named employer only for the duration of the permit. They are not permitted under any circumstances to work for another employer unless the new employer has obtained an employment permit in respect of the person, prior to them entering the new employment. When the permit expires their permission to work in Ireland also expires.
5.2 (4) Employment permits are only granted in respect of employment in excess of 20 hours per week and are not required by students who are allowed to work up to 20 hours per week. Where it is detected by an Inspector that non EEA students in full time education are employed for in excess of 20 hours each week this should be notified to CIS Control, Shannon Lodge, Carrick on Shannon, Co Leitrim.
5.3 Employment Permits Act, 2003
5.3 (1) Inspectors should be aware that the Department of Enterprise, Trade and Employment en acted the Employment Permits Act, 2003 in April 2003 which now makes it an offence for an employer to employ a non EEA national in the State unless in accordance with an employment permit or in those cases where permission is not required. An employer found guilty of such an offence on indictment would be liable to a fine of not exceeding 250,000 or imprisonment for a term of not exceeding ten years or both.
Note: Bulgarian/Romanian Nationals need a valid permit for 12 consecutive months.
5.3 (2) This Act also provides for the freedom of access to the Irish labour market of the the ten accession states after 1st May 2004. This means that from this date employers will no longer require employment permits to employ nationals of these states. The ten states are:
- Czech Republic
- Cyprus (already provided for in Treaty of Accession)
- Malta (already provided for in Treaty of Accession)
5.3 (3) Until May 2004 nationals from these states will continue to apply for permits but their applications will be given preferential treatment over applications from other non EU countries. Provision is also made in this Act for the re imposition of permits after 2004 in the seven year transition period to 2011 if labour market conditions so require.
5.4 Employment Permits are not required by the following:-
*(See paragraph K)
(a) A citizen of a Member State of the European Economic Area (EEA) who is pursuing an activity as an employed or self employed person within the State, his or her spouse and any of their children who are under the age of 21 years or are dependent on the citizen
(b) Persons who are recognised as refugees by the Minister for Justice, Equality and Law Reform
(c) Asylum seekers who have made an application for refugee status before 26 June 1999. Asylum seekers who have arrived in Ireland since that date are not permitted to work
(d) Post graduate students when the work is part of the course being undertaken. In such cases, a letter must be obtained from the college where the applicant is a student. This includes post graduate doctors who are temporarily registered with the Irish Medical Council and dentists who are temporarily registered
(e) Persons who are granted permission to remain as the spouse of an EEA national. Such persons must be granted leave to remain before taking up employment
(f) Persons who are granted permission to remain as the parent of an Irish citizen. Leave to remain on such grounds should be granted before taking up employment. Inspectors are advised that in light of Supreme Court judgement in January 2003 this may change in the future
(g) Persons whose application for refugee status has been refused but who are given temporary leave to remain. Such persons must be granted leave to remain before taking up employment
(h) Non EEA national spouses and children of EEA and Swiss national in employment or self employment in Ireland
(i) Persons to whom the EU directive on posting of workers in the framework of the provision of services applies. In this context a "posted" worker means "a worker who, for a limited period, carries out his work in the territory of a Member State other than the State where he normally works"
(j) Swiss Nationals the European Communities and Swiss Confederation Act, 2001, which came into operation on 1st June, 2002, provides for the free movement of workers between Switzerland and Ireland without the need for employment permits.
(k) Bulgarian/Romanians who do not need an Employment Permit
- A Bulgarian/Romanian national who has been resident in the State as the holder of an employment permit, expiring on or after the 31st December 2006, for an uninterrupted period of 12 months or longer.
- A Bulgarian/Romanian national who was resident in the State prior to 1st January 2007 and is the spouse/dependant of an EU national who does not require an employment permit. (This includes the spouse/dependant of a Bulgarian/Romanian national who does not require an employment permit.)
- A Bulgarian/Romanian national who entered the State on or after 1st January 2007 and is the spouse/dependant of an EU national**, other than a Bulgarian/Romanian or Bulgarian/Romanian national.
Please note: A Bulgarian/Romanian national who is the spouse/dependant of a Bulgarian or Romanian national, and who enters the state on or after 1st January 2007, will require an employment permit for 12 months.
- A Bulgarian/Romanian national resident in the state who is self employed. A Bulgarian/Romanian national registered as a student and working less than 20 hours per week (on completion of studies, an employment permit will be required for 12 months).
- A Bulgarian/Romanian national who has obtained prior explicit permission from the Department of Justice, Equality and Law Reform to remain resident and employed in the State without an employment permit.
**Please note that both the Bulgarian/Romanian national and their spouse must be resident in the State as a family unit.
Persons who are posted in an intra corporate transfer/secondment for a maximum period of four years to an establishment or undertaking in Ireland which is owned by a company group which has operations in more than one State (Immigration Office will seek appropriate evidence in terms of letters from the company concerned)
Persons coming to Ireland from an over seas company for a maximum of three years training, whether it entails remunerated work, at an Irish based company.
5.5 Ineligible Occupational Sectors
5.5 (1) Inspectors should be aware that following consultations with FAS, the Department of Enterprise, Trade and Employment will identify on a quarterly basis, those occupational sectors which are ineligible for employment permits at that time. All staff required for these sectors must be sourced from the EEA labour force exclusively. The following listing currently applies and may be reviewed periodically after that date by D/ET&E. The RDO will advise of future amendments to this list of occupational sectors.
- Clerical and Administrative
- General Labourers and Builders
- Operator and Production Staff
- Sales Staff including retail sales, sales representatives and Management/Supervisory/Specialist Sales
- Transport Staff including Drivers : Bus, Coach, Car, Taxi, Fork Lift, etc. (excluding HGV and Articulated vehicle driver International)
- Childcare Workers including Nursery /Creche Workers, Child Minder/ Nanny
- Hotel Tourism and Catering all staff except chefs
- Reception staff and Barpersons
- Craft Workers and Apprentice / Trainee Craft Workers including Bookbinder, Bricklayer, Cabinet Maker, Carpenter/Joiner, Carton Maker, Fitter Construction Plant, Electrician, Instrumentation Craftsperson, Fitter, Tiler Floor/Wall, Mechanic Heavy Vehicles, Instrumentation Craftsperson, Metal Fabricator, Mechanic Motor, Originator, Painter and Decorator, Plumber, Printer, Engineer Refrigeration, Sheet Metal Worker, Tool Maker, Vehicle Body Repairer, Machinist Wood, Plasterers and Welders
(Excluding Aircraft Mechanic/Engineer)
Employment Permits will only be granted in respect of those employees for whom it can be proven that they have been in employment with the family abroad for at least one year prior to date of applying for a work permit.
Ethnic Restaurant Staff:
Restaurants which serve speciality ethnic food may be granted some permits per branch in respect of qualified chefs/catering staff. The number of permits granted depends on the type of restaurant and the number of EEA nationals employed there. In the medium to long term such restaurants are obliged to effectively demonstrate that they are endeavouring to train Irish or EEA employees as and when replacement staff are required.
5.6 Action during Inspection
5.6 (1) Following the examination of a number of test cases, Scope Section has determined that the employment of persons for whom an appropriate authorisation to work (where required) has not issued, is not insurable under the Social Welfare (Consolidation) Act, 2005, on the grounds that neither the employer nor the employed person is free to enter into a contract of employment. Consequently, the employment is not legal and therefore is ruled not to be insurable. In such instances, the social insurance record should be amended to reflect the position and any social insurance contributions paid are due to be refunded.
Accordingly, during the course of an Employer PRSI Inspection, an Inspector should request the relevant documentation demonstrating the permission to work of all non EEA Nationals included in wages records for examination in order to establish their employment status.
5.6 (2) When an inspector has fully investigated the matter and has satisfied him/herself in a particular case that a person cannot properly be regarded as an employed contributor in the absence of a valid employment permit or other appropriate documentation, in the first instance they will advise CIS Control of details of employer, individual involved, specific circumstances of case, etc. A sample of the form (IN127) to be used for this purpose is at Appendix 2. This form is available in the RDO shared drawer SHR_RDO_DOCS.
5.6 (3) The Inspector will also notify Client Eligibility Services (CES), McCarter's Road, Ardarvan, Buncrana, Co. Donegal, by IN27, which has been revised to facilitate the reporting that no contract of service exists of the period with current employer for which no valid employment permit is held. Upon receipt of IN 27, CES will take its own appropriate action which includes notifying Refunds Section of position.
5.6 (4) In the event of being queried by employer with regard to the future employment status of an individual for whom no current permission to work is held, an Inspector should refrain from offering advice or an opinion and refer employer to D/ET and E.
Reporting Procedures & Forms/Collection of PRSI
6.1All activity pertaining to an inspection should be fully recorded on ERIN and also in a paper format. The use of IE files is advised, especially in cases involving non-compliance and fraud.
Note: IE files are paper files which are sequentially numbered. They are used to record all activities pertaining to a particular employer. Inspectors can request the RDO to register and open IE files as appropriate. The RDO maintain a file tracking system of all IE files. When action on the file has been completed, it should be returned to the RDO. Files relating to a particular employer can be requested by any Inspector.
To enable reports to be completed accurately, easily and quickly a series of forms has been devised and structured to meet reporting requirements, particulars of some of these forms and their relevance is given underneath.
NOTE: Most forms are available in SHR_RDO_DOCS, all other forms are available from CENTRAL STORES SANTRY DUBLIN 9.
6.1(1) Form IN6
The standard form used to notify an employer of an intended inspection.
6.1(2) Form IN9
This form is a statutory demand issued to an employer for PRSI undercharges. It is only to be issued failing a satisfactory response to form IN18.
It should be issued by registered post and the employer given 14 days to respond. If the employer does not respond the case should be prepared for consideration of legal proceedings without further recourse to the employer.
6.1(3) Form IN 12
An employee statement on form IN12 is evidence of employment and of payment of earnings. Form IN12 should always be used in cases where there is a possibility of prosecution.
Care should be taken in the completion of IN12 so that: -
- a) The names, titles and addresses of the employer and employee are accurate
- b) The full name of employer should be given and the trading business title, if appropriate. If the employer is a limited company, the title as registered should be given. If the employee is not aware that they are employed by a limited company they should give the name of the party they understand to be their employer
- c) The full period of employment and any absences should be recorded
- d) Gross earnings/emoluments should be stated, but if the employee gives the figures in nett earnings this should be noted
- e) It is important for the employee to state that he received payment, and whether the payment of reckonable earnings was daily, weekly, or monthly
- f) Any amendments made to the form should be initialled by the employee before they sign the statement
- g) The name of the inspector who takes and witnesses the statement should be clear and s/he should express an opinion in any accompanying report as to the credibility of the employed contributor
- h) No abbreviations should be used when taking IN12.
An IN 12 statement represents the nature and substance of the testimony which an employed contributor can give in court. Where the direct testimony of an employed contributor conflicts with his written statement, the statement itself may be produced in court and the employed contributor may be cross examined as to the detail given in the statement.
NOTE: It is important in cases where prosecutions arise that a number of dates on which wages are paid are given.
6.1(4) Form IN17
This form is used to record the details of an inspection. It is an important paper record of the visit and should be filed in a safe place in an inspectors office. All relevant details should be entered on it, including date of visit and any subsequent visit to the employer. Employee details should be recorded, either full or taking a sample depending on the size of the business. Information as to accuracy of employer records and the compliance position should be noted. All follow up action such as an IN18 demand, Insurability query or IN27 amendment should be noted.
Form IN 17 when properly completed should provide a full picture of the inspection and will be important as a historical reference if the employer is to be revisited at a future date. It is important to update filed inspection reports, for example when a scope decision issues or when an employer remits payment on foot of a demand.
6.1(5) Form IN18
Forms IN 18 are used for setting out arrears/underpayments of PRSI. They can be issued as a demand for payment to employers or their representatives either directly by inspectors or through their local regional office.
NOTE: It is advisable in all cases where an underpayment is determined that P35 Amendments Section, Sarsfield House, Francis Street, Limerick, is simultaneously notified to enable them to increase the Employer's liability accordingly.
When an inspector makes out an IN 18, they should ensure that all details are set out clearly, legibly and correctly. Care should be taken that the amounts shown are accurate and that the employer and employee details are correct and up to date. A separate IN 18 should be completed for each tax year.
When the Regional Office issues the IN 18 the inspector should advise them whether Central Records Section are also to be notified. This is important as the regional office will automatically advise Central Records Section to update employee records per IN 18, though this may not always be appropriate or intended.
6.1(6) Forms IN 19 and IN 19A
Forms IN 19 and IN 19A have been devised and structured for easy preparation of reports in prosecution cases. These forms are fact sheets for the information of Central Prosecutions Services to assist them in preparing a brief for the Chief State Solicitor's Office.
Broadly they indicate:
- (a) the name and address of the proposed defendant
- (b) the name and address of the employed contributor in respect of whom offences are alleged
- (c) the nature of the proofs available to support the prosecution
- (d) the nature of the alleged offences
- (e) the date of the alleged offence
- (f) the relevant sections of the Act or Regulations under which the prosecution is being brought
- (g) the names of the Officers concerned in the case who will testify in court as to the facts in each particular prosecution.
Form IN 19 is intended for use in cases where an employer refuses or fails to produce prescribed records in response to either a verbal or written demand or fails to respond to a demand for relevant information concerning a current or former employee, or fails to keep the prescribed records.
Form IN 19A is designed for use in obstruction type cases and where employers aid and abet an employee(s) in the commission of any offence.
6.1(7) Form IN 20
Form IN 20 must be completed in cases submitted for either Summary or Civil Proceedings.
The purpose of form IN 20 is to enable each inspector to set out, in summary form, the pertinent facts and background relating to the events which give rise to the proposed proceedings. Each inspector will provide a concise historic account of the events and facts in each particular case and reference will be made to the proofs available relating to the matters which will be the subject of proceedings. The report should be written in the third person so that the identity of all inspectors involved in the case is clear.
Provision has been made in the form for information as to the financial and domestic circumstances of any employer, who is a sole trader, and the assets, the financial and trading position of any employer which is a company.
Reports on this aspect should not confuse independent traders with companies. The financial standing and domestic circumstances of the principals of a limited company are irrelevant and immaterial where proceedings are being taken against the company only. However if proceedings are being taken against the directors/secretary and the company simultaneously, the position of the directors etc. should be set out separately.
A short report should be provided of any previous history, if any previous proceedings were taken or where previous arrears of Pay Related Social Insurance were determined.
Finally, the report should include a view as to the general attitude and credibility of the employer and as to the credibility and reliability of the employed contributor in the event of proceedings.
6.1(8) Form IN23
This form is used to treat as paid, contributions which have not been paid. It is important to complete all columns of this form, including the dates of employment, PRSI details and name and address of the inspector. In cases of multiple employees, each employee and their contribution years should be recorded in year sequence.
It should be sent to Records Update Section, Gandon House and a copy sent to the relevant LO/Section where a benefit claim is involved. Where JB is concerned the form should go directly to UB Queries Section, Gandon House. When the record has been updated the IN23 will be returned to the inspector for consideration of proceedings under Section 259 ( Loss of benefit because of employers default).
6.1(9) Form IN27
This form is used to amend an employee's record, e.g. when the information on the P35 is incorrect or if it is established that a contract of service does not exist. The accuracy and integrity of an individual's record is vital. Failure to amend an incorrect record when detected can lead to difficulties later on. The form should be fully completed and sent to Records Update Section. When Records Update Section have amended the record they will return it to the inspector for information.
6.1(10) Form IN28
When an employer fails to provide information on the earnings and employment details of employees Form IN12 statements should be taken from the employees and an IN28 requesting details of each employee for whom the information has not been provided should be issued by registered post to the employer. The employer must sign and return the declaration to the inspector within the time specified. Failure to do so is an offence under Article 55 of the Social Welfare (Consolidated Contributions and Insurability) Regulations SI 312/1996. It is important to obtain proof of delivery of the demand from the Post Office.
6.1(11) Form IN32
Form IN32 is a formal notice of inspection and should only issue when efforts, to meet an employer have not been successful, or where an employer is un cooperative.
The notice must issue to an employer at his registered address or principal place of business. It should be noted that, under Section 250(11) of the Social Welfare (Consolidation) Act, 2005, a person is only required to produce records for inspection at their registered address or place of business. In issuing form IN32 employers should not be asked to bring/produce records at the inspectors office or any other office, other than the two specified in Legislation. At least 14 days notice should be given. The date and time of the visit must be reasonable and no person should be required to produce records at an unreasonable hour or on days other than ordinary working days. The period of records that the inspector wishes to examine should be inserted on the form (an employer is obliged to maintain, keep and produce for inspection prescribed records for a period of six years). Form IN32 should issue by registered post or be delivered by hand by the inspector. Where an IN32 issues by registered post the postal registration receipt should be retained, and a certificate of delivery obtained.
Care should be taken in completing the notification. The full and correct name or title and full address of the addressee should appear on the notice and on the covering envelope.
Failure to produce records in response to a demand issued by registered post constitutes an offence under Section 250(12) of the Social Welfare Consolidation Act. When a demand is handed to a person or made verbally and that person fails to comply he/she is liable for prosecution under Section 250(12) of the Social Welfare (Consolidation) Act, 2005.
6.2 Collection of PRSI Contributions
6.2(1) When issuing a demand to an employer for PRSI arrears a reasonable amount of time should be given for payment to be remitted. Collection should be by way of a cheque made payable to the Collector General or the Minister of this Department. Inspectors should never accept cash or seek payment for PAYE.
6.2(2) On receipt of a cheque the inspector should ensure that the details are correct - date, payees name, employers signature, correct amount, and issue a temporary acknowledgement to the employer immediately. A copy of this form should be attached to the file or papers and the remaining copy should be retained in the temporary acknowledgement book.
6.3 Disposal of cheques
6.3(1) All cheques received are for transmission to the Collector General. Procedures to be adopted by all inspectors are outlined in Paragraphs 6.3(2) to 6.3(7) below.
6.3(2) GIRO System
Cheques must be lodged on the date of receipt, or, at the very latest, on the following morning. All business should be transacted through the local branch of the Bank of Ireland. Where there is no local branch of that bank, Allied Irish Bank may be used. If there is no branch of either bank locally, any bank in the vicinity may be used.
6.3(3) Preprinted GIRO Forms must be used. These contain details of the Collector General's bank account into which the monies are to be paid.
NOTE: If asked to pay bank charges, inspectors should advise the bank that arrangements have been made to have any fees charged directly to the PRSI Account detailed on the preprinted GIRO Form accompanying the cheque/bank draft.
6.3(4) Inspectors should complete and sign Form MT SW, ensure that all cheques received are detailed, and that the form reflects the information contained in the Temporary Acknowledgement Book. A copy of the completed form should be retained.
6.3(5) Inspectors should complete the Bank Giro Transfer Docket, ensuring that the sum total of the cheques to be lodged matches the figures detailed in the Forms MT SW. The transaction should be completed in the normal way, ensuring to obtain a Giro stub stamped by the Bank. It is VITALLY IMPORTANT that the stub is retained in a safe place in the inspectors office.
6.3(6) Forms MT SW and an IN18, (separate IN18 in respect of each tax year) should be stapled together, and, on the date the cheques are lodged, be forwarded to:
Money Transmission Section
Collector General's Office
6.4 Post dated Cheques
6.4(1) If offered, post dated cheques may be accepted by inspectors. All such cheques, together with an IN18 (separate IN18 for each tax year) should be forwarded to the relevant Regional Office.
The Regional Office should forward the cheque and appropriate documentation to:
Collector General's Office
Post Dated Area
Payment Accounting Section
A copy of the cheque and other documents should be retained by the Regional Office and the inspector.
If the Regional Office requires confirmation that cheques have cleared they should request same from Post Dated Area at the time of posting the cheques.
6.4(2) Inspectors are requested to bear the following in mind:-
- The primary aim should be to obtain full payment by single valid cheque
- Where this is not feasible, try to arrange to have the debt cleared over the shortest possible period
- In any event, the maximum period allowable is two years
- A minimum of EUR317 per cheque applies. For example, where an employer offers payment of EUR1270 over twelve months, four quarterly cheques of EUR317 each should be obtained rather than monthly equivalents.
NOTE: Under no circumstances is an employer to be permitted a period in excess of two years to clear any debt.
6.5 Foreign Currency Cheques
6.5(1) From time to time, particularly in border areas, inspectors may be tendered foreign currency cheques. These may be accepted.
6.5(2) The rate of exchange should be obtained from the Bank and the relevant amount converted to EURO and lodged on the same day that the exchange rate is obtained. The foreign currency amount and the converted amount should both be entered on form MT SW. Post dated cheques in foreign currency should not be accepted.
Irregularities and actions to be taken - Employers
7.1 In the course of inspections certain irregularities may be discovered in respect of which inspectors will have to decide on the appropriate action to be taken. The main irregularities will include: -
- non registration with Revenue
- failure to maintain complete and accurate prescribed records in respect of each and every employee employed particularly in relation to names, PPS numbers, reckonable earnings/emoluments and class of contribution
- failure to remit contributions to Revenue
- failure to make end of year returns on Form P35
- failure to notify commencement of employment in prescribed industries.
7.2 Employer not Registered
7.2(1) Where an employer is not registered with the Revenue Commissioners, it is unlikely that s/he is remitting PRSI contributions for his/her employees or that s/he is keeping prescribed records. In any such case, found on inspection, the employer should be advised to contact the appropriate Tax Office and s/he should be informed of his/her obligations in relation to PRSI compliance in respect of his/her employees. S/he should also be advised of possible liabilities under Section 259 where PRSI contributions are in arrears.
7.2(2) Where an unregistered employer has been in business for more than three months, particulars of all employees should be recorded on form IN 17 names, PPS numbers (or in the absences of PPS No. full address and date of birth), occupation, period of employment and reckonable earnings/emoluments. These details are required for the purpose of computing any PRSI non compliance. Statements on forms IN 12 should be obtained from up to a maximum of five employees and the case reported for possible legal proceedings for failure to comply with Article 17 of SI 312/96 and Section 17 of the Act. Supporting evidence will be required.
7.2(3) All arrears due should be assessed on form IN 18, care being taken that the employer's full name, address and business are accurately and clearly recorded as well as full particulars of all employees. In cases where there is more than one employee a separate form IN 18 should be completed in respect of each contribution year for which arrears are due.
7.3 Employer Registered but not complying for some or all Employees
7.3(1) Where the employer, is registered with the Revenue Commissioners, but is not complying, or recording prescribed information, for all or some employees the following action should be taken.
7.3(2) Where records are not maintained for any of the employees on the first visit, and there is no evidence of concurrent working and claiming, the employer should be advised of his obligations, instructed to bring his records up to date and a re visit arranged within a specified time to confirm that he has done so. If an employer persists in failing to comply the case should be submitted for consideration of legal proceedings for failure to comply with Article 17 of the Regulations and Sections 17 and 252 of the Act. Action as set out in paragraph 7.2(1) of this chapter in respect of all employees should be taken.
7.4 Incorrect Information Recorded
7.4(1) Cases arise where an employer, with or without the knowledge of the employees, understates the amount of reckonable earnings or inserts incorrect date of commencement or termination of employment. In such cases the inspector should take all the necessary steps to establish the full facts. Statements on forms IN 12 should be obtained from a sample of employees and the employer requested to produce all wages records and petty cash and cheque payments records if deemed necessary. Local Office records and INFOSYS should be examined to assist with the establishment of dates of commencement and termination of employment.
7.4(2) Where it is established that records kept by the employer are inaccurate and that details regarding reckonable earnings have been understated or dates of commencement or termination of employment have been recorded incorrectly it is likely that an offence has been committed. In such cases the employer should be cautioned and a written statement under caution invited. The type of caution to be issued and the procedure to be followed is set out in the "Interviewing under Caution" Guidelines.
7.4(3) A full report, together with an assessment of any arrears due should be completed and submitted through the Area Manager for consideration of legal proceedings. Supporting evidence by way of IN 12 statements and details of salary/wages paid should also be attached. The report should contain details of the data recorded by the employer in his records as well as comments made by him about any of the discrepancies detected.
7.4(4) Where recorded (i.e. understated) wages would confer entitlement to Family Income Supplement or other Social Welfare payment on an employee or other person, the relevant claim should be reviewed immediately.
7.5 Employer and Employee(s) Uncooperative
7.5(1) Where the inspector has reason to believe that an employer is not complying and where the actual position cannot be ascertained and any arrears due cannot be assessed because of lack of co operation of the employer or the employees, the best effort possible should be made to estimate the earnings in question taking all relevant factors into account. A request for payment of the PRSI should then be made on form IN 9.
Irregularities and action to be taken - Employees
8.1 All prosecutions taken by the Department in relation to the fraudulent receipt of social welfare payments are taken under either Section 251 of the Social Welfare (Consolidation) Act, 2005 for the making of false statements, declarations or representations or for the wilful concealment of means for the purpose of obtaining benefit for themselves or any other person to which they are not entitled or under Article 122 of the Social Welfare (Consolidated Payments Provisions) Regulations, 1994, S.I.417 of 1994 for failure to comply with the provisions of Article 106(1)(b) of the same regulations, which require Social Welfare recipients to notify the Department of any material changes in their circumstances as soon as practicable after these changes occur.
If the alleged offence was committed after 29th March 2007, the provisions of S.I. 142 of 2007 will apply:- under Article 209 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations, 2007, S.I. 142 of 2007 for failure to comply with the provisions of Article 188 of the same Regulations, which require Social Welfare recipients to notify the department of any material changes in their circumstances as soon as practicable after these changes occur.
8.2 Types of Abuse and Irregularities
8.2(1) The types of abuse or irregularity likely to be encountered are:-
- concurrent working and claiming, or the receipt of, Jobseeker's Benefit/Allowance
- concurrent working and claiming, or the receipt of, Illness Benefit
- benefit, including an increase for qualified adult, being paid where qualified adult is in employment and earning in excess of the existing statutory limit
- income, which has not been fully disclosed or assessed, of those customers engaged under a contract or service, who are in receipt of non-contributory or means tested schemes, e.g. Jobseeker's Allowance
- earnings, which have not been fully disclosed or assessed, of employees in receipt of non contributory or means tested schemes, and exempt from paying their share of PRSI contribution and engaged under a contract of service.
- earnings, which have been understated or which have not been fully disclosed, of employees in receipt of Family Income Supplement Allowance or spouse in receipt of an increase for a qualified adult.
Employees not recorded in the wages records are those most likely to be abusing the schemes.
8.3 Claiming Jobseeker's Benefit/Allowance and concurrent working
8.3(1) Where, in the course of an inspection it comes to the knowledge of an inspector that any employee is, or was, concurrently claiming, or in receipt of, JA/JB while working, form EE 52/SE 52 should be completed at the time of visit. This form should be signed by the employer, managing director, company secretary or a person holding a position of responsibility within the firm. Where regular employment is involved it should be established whether a five day or six day week is worked and any days absence should, where possible, be identified and recorded. Persons nominated on form EE 52/SE 52 as persons who can identify the employee should be asked to place their initials against their name at the appropriate space on the form. The employee should not be interviewed.
8.3(2) The completed form together with a full report confirming whether or not the wages records were inspected and setting out the information extracted from the wage records, should be forwarded without delay to the Special Investigation Unit for continued action.
8.3(3) Where the employment is continuing the Local Office manager, where a claim/application is current should be advised forthwith, in writing, as to the employment, as to the duration of the employment, the employer's name and that a form EE 52/SE 52 statement or confirmation through inspection of wages records has been obtained. No instruction as to suspension of payment of JA/JB is to be given.
8.4 Claiming Jobseeker's Allowance and Employment under Contract for Service
8.4(1) Where it comes to the knowledge of an inspector that any person who is claiming Jobseeker's Allowance is engaged in employment (usually part time) or self employment which was not included in the assessment of that person's means, immediate steps should be taken to have the means of the applicant reassessed.
Cases involving only means from employment or self-employment are not proper to the Special Investigation Unit but to the appropriate general inspector.
8.5 Claiming Illness Benefit and concurrent working.
8.5(1) Where, in the course of an inspection it comes to the knowledge of an inspector that any employee is, or was, concurrently working while in receipt of, or claiming, Illness Benefit, similar action in relation to form EE 52/SE 52 and extracting details from wages records as set out at paragraph 8.3(1) of this chapter should be taken.
8.5(2) The person suspected should be interviewed after formal caution see separate guidelines on "Interviewing under caution".
8.5(3) Where specific information indicating concurrent working and receipt of, or claiming, Illness Benefit is received, an inspection should be made without delay and action taken as outlined in paragraphs 8.3(1) and 8.3(2) of this chapter.
8.5(4) Inspectors are reminded, however, that, in many employments, wages may continue to be paid to employees while absent through illness for periods during which such employees have entitlement to, and may be in receipt of, Illness Benefit.
There are also categories of work in which recipients of Illness Benefit may engage, with prior permission from the Department, without infringing the conditions for the receipt of such benefit. Full details are given in Rule 5 of the "Rules of Behaviour for a person claiming or in receipt of Illness Benefit" which are set out at the end of this chapter. These rules are advised to all claimants to Illness Benefit by way of a tear out page in the claim form.
8.6 Other Departmental Schemes
8.6(1) On an employer visit, an inspector may discover that there are irregularities in relation to other Departmental schemes. All necessary steps must be taken to rectify these. The most common examples are:-
- employee's spouse/partner may be in receipt of benefit including an increase for a qualified adult in respect of the employee, and the earnings discovered, which are in excess of the current statutory limit per week, will affect such entitlement
- the earnings of employees, in receipt of non contributory or means tested pensions or allowances have not been fully disclosed or assessed or
- the earnings discovered have not been fully disclosed where Family Income Supplement Allowance is in payment.
8.7 Legal Caution
8.7(1) Where there is evidence that any person has committed an offence under the Acts or the Regulations in respect of which s/he is liable to have summary proceedings taken against him/her, s/he must be given a legal caution before s/he is requested to make any statement in regard to the offence as otherwise any such statement or admission made while being interviewed will be inadmissible as evidence. The procedure to be adopted is set out in separate guidelines entitled "Interviewing under caution" on the Control Shared Drawer.
8.7(2) An inspector should avoid the mistake of cautioning persons unnecessarily. A caution should only be administered when it is reasonable to believe on the evidence available that a particular person has committed, and is likely to be charged with, an offence. This stage may be reached either before the suspected person is interviewed (in which case a thorough preparation for the interview should be made and the caution should be administered before any questions are asked or explanations invited) or in the course of interview. In an interview with several persons the stage may be reached at which it is necessary to caution one of them. A caution at an earlier stage is not only unnecessary but may render it more difficult to obtain information.
8.7(3) A distinction should also be drawn between obtaining a cautioned statement, and requiring a person to give a statement under Section 250. In the former instance the statement is purely voluntary and the person taking the statement need not necessarily be an inspector (though in practice it usually is). It should also be remembered that a person being invited to attend for interview under which it is proposed to issue a caution, should only receive such an invitation once. If the person fails to respond to the invitation, this should be noted in the file. There should be no further effort to ask the person to attend for interview, otherwise, a Defendant might plead that he/she was pressurised into making a cautioned statement. Such statements might subsequently be ruled inadmissible by a court.
8.8 Rules of Behaviour for a Person Claiming or in receipt of Illness Benefit
8.8(1) A person claiming or receiving Illness Benefit must observe certain rules. These are that you:-
- Obey the instructions of your doctor
- Do not behave in a way that is likely to delay your recovery
- If you are away from home leave word where you may be found/contacted
- Do not refuse unreasonably to see the Department's officials or answer enquiries concerning your claim
- Do not do any work unless it is work which you are permitted to do under the Department's regulations:
The type of work you are allowed to do under the Regulations:
- work for which no payment is, or would ordinarily be, payable
- work which is done as part of treatment while a patient of a hospital or other similar place
- or work done as an outworker under a charitable scheme, provided that the weekly earnings are within a prescribed limit
- work which is not full time and is part of a rehabilitation or occupational therapy programme
- an approved training course to fit yourself for another job if you are unable to do your usual work.
Application for an exemption from Rule 5 must be made before you intend taking up work or training and you may not begin work or training before you get written permission from Illness Benefit Section.
NOTE: BEFORE UNDERTAKING WORK OF ANY KIND, HOWEVER, PERMISSION FROM THE DEPARTMENT IS REQUIRED.
A person may be exempted from the operation of Rule 5 above for such period as the Minister thinks fit, where the work is part time and is by way of rehabilitation or occupational therapy, or where the person has become incapable of following their usual occupation and is undergoing a course of training with a view to fitting her/himself for some other occupation.
APPLICATION FOR SUCH EXEMPTION MUST BE MADE TO THE DEPARTMENT BEFORE SUCH WORK IS STARTED.
Dealing with an Employer where Collusion is Suspected
9.1 GENERAL: For social welfare purposes collusion exists in a legal sense only in the context of Section 251 (1) (c) (i) and (ii) of the Act. The most common forms of collusion encountered on outdoor investigations, which are dealt with in the course of this section, are
- when an employer knowingly denies that a benefit or assistance recipient had been employed by him on particular dates, and
- where an employer, his servant or agent aids, abets, counsels, or procures an employee of that employer to commit an offence under the social welfare acts.
9.1(1) Where employment is denied evidence can be established in most cases where the inspector prepares the ground carefully and follows the interview procedure as described in paragraphs 9.2(1) to 9.3(14) of this chapter.
9.1(2) The procedure followed in dealing with a case where aiding, abetting, etc. arises can be relatively straightforward but the establishment of evidence sufficient on which to base proceedings is not always possible. The factors involved in such an investigation are described in paragraphs 9.8(1) to 9.8(7) of this chapter.
9.2 Denial of Employment
9.2(1) The basic approach in these cases is:-
- to accumulate evidence by observation of the benefit or assistance recipient engaged in work for the employer on a number of occasions
- then to approach the employer and follow a set interview pattern. In this context 'knowingly' will involve the inspector giving the employer, in the course of the interview, the relevant information whereby the employer either acknowledges the employment and completes a form EE 52/SE 52 statement or persists in denying any employment.
9.2(2) Where it is anticipated that an employer will deny the employment or conceal material facts in relation to the employment, observations should be made, as opportunity offers, of the recipient carrying out work for the employer. The initial observation should be of at least a half hour to one hour duration. The actual times of the observations and the precise work carried out by the recipient should be logged at the time or immediately afterwards, on a file action sheet (Form I.U.15). A minimum of 3 other observations should be made on different week days and, preferably, at different times of the day. The specific times, the dates observations were made and the specific work seen performed on each occasion should be recorded at, or immediately after, the actual observation.
This record should be legibly and neatly written as the document may have to be produced as evidence in court. Negative observations made on other occasions should likewise be recorded on the same sheet as they arise. The observations should be made over a reasonably short span of weeks and the employer then visited as soon as possible. It is essential that the identification by the inspector of the employee is positive.
9.2(3) Before the date of the visit to the employer, the file action sheet should be examined, all relevant dates and facts identified and questions suitable to the factors involved in the case prepared. The interview itself should be approached with an open mind and without any preconceived idea that the employer is guilty of an offence. It is not an offence to provide work for a recipient even though the employer knows he/she is receiving benefit or assistance. The offence lies in the denial that the recipient worked.
9.2(4) The employer may also be guilty of an offence where the requirements relating to the recording of prescribed data and the payment of PRSI contributions are not fulfilled. Paragraph 9.7(1) of this Chapter deals with certain considerations arising in such circumstances.
9.3 Interview of Employer - Form I.U. 9
9.3(1) Form I.U.9 has been prepared to guide the interviewer where collusion, as described at paragraph 9.1(a) of this chapter, is regarded as a possibility. The procedure to be followed in the course of the interview is set out in chronological order on the form. If possible the interviewer should be accompanied by another official who would act as a witness.
9.3(2) Where the recipient's employment has been properly recorded in the employer's records, or where the employer admits that the recipient has worked for him on the date(s) in question (paragraphs 2 and 6 of form I.U.9), the form EE 52/SE 52 statement should be completed. Such an employer should not be cautioned.
9.3(3) Where the recipient's name does not appear on the employer's records, or where the employer denies any employment, the employer should be taken through the various stages as set out in form I.U.9. Where questions are put, specific answers should be obtained. Further questions to clear ambiguities should be put. Where the employer gives evasive answers further questions should be asked until a definite answer is obtained. All the questions put and the replies given should be recorded on form I.U.9. Questions will need to be varied according to the type of case at issue. The queries to the employer arising at stages 2 to 7 of form I.U.9 are of a set pattern and the limited variations that may arise are covered in sub paragraphs 9.11 to 9.15.
9.3(4) At the stage involving paragraph 3 of form I.U.9 the interviewing officer should state clearly and precisely the location at which the recipient was observed working and/or the nature of the work involved.
9.3(5) In cases involving a recipient who was observed driving a taxi, hackney, lorry or private bus, it is important that the question arising at paragraph 3 of form I.U.9, should be put to the employer in the following terms:
"Are you responsible for the engagement of staff in connection with the operation of a taxi/hackney/lorry/private bus registration number __________ (or as appropriate)"?
9.3(6) Paragraph 4 of form I.U.9 is intended to cover the type of case where a contractor may have arranged to build a house and one or more sub contractors may be responsible for some of the work (e.g. the plastering), or a foreman/relative/partner may have authority to engage labour. If more than one person is responsible for the engagement of labour at the site or place of work, sufficient details should be obtained to establish who was responsible for the particular work performed by the claimant. The interview may be suspended/terminated and the appropriate person should be interviewed.
9.3(7) The exact dates on which the recipient was observed working should not be put to the employer when paragraph 6 stage of form I.U.9 is reached as the employer may be prepared to admit only the days on which recipient was observed working. If at any time prior to the giving of the caution at stage 8 of I.U.9, the employer admits that the recipient worked for him (to pay off a debt; in return for the loan of a car/van etc.) full details should be obtained in statement form, on EE 52/SE 52, if appropriate, including details of all other occasions on which recipient did similar work.
9.3(8) At stage 7 (form I.U.9) the employer is made fully aware of the fact that the recipient is/was in receipt of jobseeker's benefit/allowance. In putting the ensuing question the nature of the work should be specified briefly, e.g. "driving your private bus registration number____________; serving customers in your shop at__________". If the employer then denies that the recipient worked for him/her on the day(s) in question there is now reasonable grounds for believing s/he has committed an offence and s/he should be cautioned in the terms set out at paragraph 8 (form I.U.9) before any further questioning takes place. The time the caution is given should be noted and the questioning should then proceed.
9.3(9) One question which will be normally relevant in most cases is whether someone could work on employer's, premises or drive employer's lorry without his/her employer's knowledge. Depending on the circumstances of the particular case other questions will be relevant but a few examples are as follows:-
- Under what circumstances did (name) carry out the work of (e.g. attending customers in your shop, driving your minibus, registration no. ___________, mixing cement at your building site, etc.)?
- Who made the arrangements that s/he should do so?
- What arrangements were made for payment for the work?
- Did the insurance on the vehicle cover only persons driving it on your orders or with your permission? If so, how do you explain the circumstances under which the recipient was driving your vehicle?
- Whether there was employment by employer of recipient on the specific dates on which observations were made of recipient engaged in work on employer's premises, driving employer's vehicle, etc., and
- Whether or what payments, in cash or in kind, were made by or on behalf of employer to recipient for work carried out on the specified dates.
9.3(10) Even if the employer exercises his/her right to refuse to answer a question put to him/her after the caution has been given, the interviewing officer should nevertheless put all the appropriate and relevant questions and should record them and note down the facts that the employer refused to answer.
9.3(11) If at any time during the questioning at stage 8 (I.U.9) the employer indicates that some other person may have engaged the recipient it is in order to withdraw from/suspend the interview and to go and see the named party. The times of any such breaks should be noted. If it is necessary to resume questioning of the employer s/he should be reminded of the terms of the caution before questioning is resumed.
9.3(12) If the employer persists in his/her denial of employing recipients and when the inspector is satisfied that all the essential facts have been established the suspected employer should be informed (stage 9 - I.U.9)
- Where a social welfare payment is involved, - "that it is an offence for any person to make a false statement, or false representation or to knowingly conceal a material fact for the purpose of obtaining or establishing entitlement to any benefit or other payment for any person, or
- where PRSI is involved, "that it is an offence for any person to make a false statement - or false representation or to knowingly conceal a material fact for the purpose of evading or reducing the amount of his liability in respect of employment contributions due by him/her". The allegation should then be put to recipient using the exact words of his/her employer's denial that the recipient worked for him/her on the specific day(s) about which s/he was questioned see paragraph 9.16, sub paragraphs (e) and (f).
The allegation might read accordingly "You have stated to me that John Smith of Newtown, Thurles, was not employed by you in your shop at no. 5 Main Street, Thurles, at any time in the period 1st September 2007 to 31st December 2007 thereby representing that John Smith did no work (paid or unpaid) for you on September 10th, 13th, or 17th 2007 days in respect of which he claimed Jobseeker's Benefit".
9.3(13) The employer should be immediately cautioned in the terms set out at stage 10 of form I.U.9 and the procedures detailed at stages 11, 12, 13, 14, and 15 of form I.U.9 followed as appropriate.
9.3(14) The report on form I.U.9 should be completed, signed and dated by the interviewing Officer. Where another inspector was present s/he should countersign the report form I.U.9 and date same in the spaces provided.
9.4 Interview of Recipient of Jobseeker's Benefit/Allowance in cases of Collusion
9.4(1) At this juncture it will be essential to arrange for an early interview of the recipient to Jobseeker's Benefit or Allowance by an S.I.U. inspector.
9.5 Disallowance and Legal Proceedings
9.5(1) When all parties have been interviewed the appropriate inspectors should make separate reports for consideration of
- legal proceedings against the employer under section 252
- disallowance and legal proceedings, where feasible, against the JB/JA recipient.
Reports at (a) should be forwarded under cover of an I.E. file to the Area Manager for submission to Central Prosecutions Section (CPS), Shannon Lodge, Carrick-on-Shannon, Co Leitrim. Reports under (b) should also be forwarded through the Area Manager for Central Prosecutions Section.
9.5(2) Once it is determined that proceedings against an employer are feasible, it will be necessary to alert the local office to the likelihood of such proceedings and to request evidence in writing that the claimant was a JA/JB recipient on the relevant dates.
9.6 Interview of Recipient of Illness Benefit in Collusion Cases
9.6(1) The procedure set out in paragraphs 2 to 5 of this chapter is also appropriate where the recipient/employee is an Illness Benefit recipient. The wording on the Form I.U.9 can be amended as necessary where this is the case.
9.7 Records of Reckonable Earnings
9.7(1) Where an employer has no records of reckonable earnings proceedings under Section 254 of the Social Welfare (Consolidation) Act 2005, might also be considered. However in such proceedings evidence of payment of reckonable earnings must be available. Such evidence is unlikely to be available from a concurrent working and signing employee. Where an employee admits to concurrent working and claiming or to concurrent working and the receipt of benefit/assistance s/he would have to be charged in court first with the offence of C.W.& S. before his/her evidence would be freely available against the employer. If other employees, who are not engaged in any other Social Welfare irregularity, are identified on the occasion of the visit to the employer, form IN 12 statements should be obtained from such employees as witnesses. IN 12 statements will be needed in the absence of records of reckonable earnings to prepare a statement of PRSI non-compliance.
9.8 Aiding, Abetting, Counselling or Procuring.
9.8(1) The actual terms used in defining the offence involved here are most important. The terms of Section 251(2) are "an employer or any servant or agent of an employer who aids, abets, counsels, or procures an employee in the employment of that employer to commit any offence is guilty of an offence".
A company or business may not, as an entity, be prosecuted for these types of offences. A prosecution must be taken against the individual responsible. If the employer who commits the offence is a sole trader then that person may be prosecuted. If the employer is a company, limited or otherwise, then the person against whom proceedings may be taken will be the actual individual agent, servant or principal of the company who committed the offence.
9.8(2) Enquires in this respect arise generally from a complaint by a third party, a statement made by an employee in the course of interview relating to concurrent working and signing or from an inspector's own action. There are some basic factors which should be understood before tackling any complaints in this context.
- Employing a person who is claiming or receiving benefit or assistance is not an offence
- It is not enough to establish that the employer knew his/her employee was committing an offence and that s/he condoned it. It must be proven that the employer, or his/her agent, knew an offence was being committed by his/her employee and that s/he gave positive assistance to the employee in the commission by the employee of the offence.
9.8(3) It will also be extremely difficult to obtain conclusive independent evidence of aiding and abetting so any prosecution is likely to rest on an admission by the aider. If a prosecution is to be based on a admission, it is essential that this admission is unambiguous, clear cut and consistent with the known facts and must be obtained following the issue of a formal legal caution.
9.8(4) The initial step in an enquiry in this context is to establish the facts and to identify the employer involved. When that person is identified, some preparation, if time allows, should be given to preparing appropriate questions to establish if all the factors consistent with an offence under Section 251 of the Act are present. If the inspector in the case is not conversant with the technique of an interview under caution s/he should consult with or preferably involve the local S.I.U. inspector in the interview of the suspect employer or consult CPS Memo 2/00 in the Control Shared Drawer under Prosecutions.
9.8(5) The questioning of the employer should be prefaced by a caution and all questions put, and answers given, should be recorded. As soon as the inspector is satisfied that there is adequate evidence to support a charge the allegation, i.e. the information held which constitutes an offence, should be put to the employer and s/he should be cautioned again in due form (see separate guidelines on "Interviewing under caution"). If s/he agrees to make a statement it should be recorded. Form I.U.4 is available for such a statement.
9.8(6) Where the employee in question has supplied information it is essential that all legal proceedings in relation to that employee's own offence should be completed before the employer is brought to court. The employee is not an "available" witness until the proceedings against him/her are concluded. Otherwise the court will have to advise the employee witness at the hearing that s/he is not obliged to say anything that might incriminate him/herself. Accordingly in reporting on the employee case to the appropriate Section, - D.B. Control in the case of Illness Benefit or the relevant local office in a Jobseeker's Allowance or Jobseeker's Benefit case it is essential to alert that Section to the possibility of legal proceedings against the employer.
Also the Section must be asked to ensure that any proceedings against the employee should get top priority and that essential certificates and evidence, as required, of the fraudulent receipt by the employee of the Social Welfare payments, and of the outcome of any legal proceedings taken, be advised to the inspector.
9.8(7) All such cases should be investigated and reported on with minimum delay.
Recovery of Benefit from Employers
10.1 Section 258 of the Social Welfare (Consolidation) Act 2005
10.1(1) Section 258 of the Social Welfare (Consolidation) Act 2005, provides that where an employer has failed to keep prescribed records or to make notifications of the commencement of employment and where by reason of this failure any employee receives Illness Benefit, Jobseeker's Benefit, State Pension (Transition), Invalidity Pension, Jobseeker's Allowance, Pre-Retirement and Family Income Supplement to which s/he was not entitled, that employer is liable to repay to the Minister the amount of benefit improperly received if it has not been paid back by the employee.
10.1(2) Subsection(3) of Section 258 provides that where there is a material difference between a document given to an employee and any other document issued to the Collector General or the Minister, which results in the employee (or a member of his/her family) getting benefit/assistance to which s/he is not entitled, that employer shall be liable to repay the amount of benefit wrongly obtained to the Minister, if it has not been repaid by the employee. The documents referred to here could be a P.45 or P.60.
10.2 Application of the Legislation
10.2(1) Where an employer fails to keep prescribed records or fails to notify the commencement of employment of an employee or sub contractor and that person draws a Social Welfare payment listed at 10.1(1) above to which s/he is not entitled, the employer is liable to pay back the benefit to the Minister.
Similarly in relation to Section 258(3), if an employer gives a P.60 to an employee which shows a lower earnings figure than that which the employer returned on the P.35 and that P.60 is used to obtain, for instance, Jobseeker's Allowance in respect of the spouse/partner of the employee at a higher rate than the correct entitlement, the employer is liable to pay back the excess amount to the Minister.
10.2(2) The Department's debt management policy is strongly focused on the recovery of overpayments. The effective interpretation and operation of Section 258 by inspectors will serve to enhance this policy.
10.2(3) It should be noted that employers are advised of the existence and application of Section 258 in all employer packs issued.
10.3 Procedural Arrangements
10.3(1) The current practice in Section 258 cases has been that where employers fail to keep any or incomplete records, and by such failure facilitate individuals drawing benefits to which they would otherwise not be entitled, they are deemed liable under Section 258 to repay the benefit paid. The steps taken should follow those set out in the current code of practice which applies in relation to the recovery of overpayments from both employers and employees and is available in the Guidelines Shared Drawer under Overpayment Recovery. All efforts should be made to recover the overpayment before recourse to legal proceedings.
10.4(1) For proceedings under Section 258(1) i.e. failure to keep prescribed records, it will be necessary to establish that:-
- The employee was employed by the employer in a given period. This can be done by observation of employers premises, by obtaining a statement on form IN12 from the employee or from records other than prescribed records held by employer
- prescribed records were not held, end of year (EOY) returns were not submitted, recipients name was not in EOY returns etc.
- that the employee was in receipt of any of the social welfare payments referred to in paragraph 10.1(1) above.
10.4(2) For proceedings against an employer in relation to his/her failure to notify the commencement of employment of an employee in a specified industry, the evidence necessary will be that
- there was employment as in 10.4(1) (a) above and that such employment had existed for more than a month (i.e. the time in which the employer must notify the commencement of same)
- that the employer failed to notify the commencement of the employment in a notifiable employment.
- that a social welfare payment as in paragraph 10.1(1) above was in payment.
NOTE: The legislation requires that notification be made to the local office nearest the employer. Therefore the evidence must be obtained from the local office in question and manager/staff member may be required to go to court to prove this.
10.5 The Legal Provisions and Procedural arrangements for recovery, from employers, of benefit lost by employed contributors or other persons
Section 259 of the Social Welfare (Consolidation) Act, 2005 provides for the recovery, from an employer, of benefit lost by an employed contributor, or other person, by reason of that employer's failure to comply with prescribed requirements, under the Social Welfare (Consolidation) Act, 2005, and Regulations, which relate to the payment or collection of employment contributions.
10.5(2) Sub section 2 of Section 259 enables the Minister to recover from an employer a sum equal to the amount of benefit lost on behalf of a person where such contributor or person has not personally taken proceedings for recovery of the benefit lost.
10.5(3) Sub section 3 of Section 259 provides that:-
- where employment contributions which have not been paid have been treated as paid,
- where employment contributions have been paid late but have been treated as paid on the due dates and by reason thereof, benefit which would otherwise have been lost was paid, there shall be due to the Social Insurance Fund by the employer the amount of the benefit which would have been so lost.
10.5(4) Sub section 6 of Section 259 provides also for the recovery of the amount of assistance paid to an employed contributor or other person during a period when benefit was lost which would otherwise have been payable but for the employer's failure to pay contributions when due.
10.6 Application of the Legislation
10.6(1) Where an employer has failed to pay any employment contribution, which he is liable to pay in respect of an employed contributor or where an employer fails to comply with any requirement relating to the payment and collection of employment contributions, any benefit lost by an employed contributor or by any other person arising out of such failure, is recoverable from that employer. The Minister for Social Protection may proceed against an employer, for recovery of lost benefit, in the name and on behalf of an employed contributor or other person.
10.6(2) Benefit paid to an employed contributor or other person by virtue of (1) unpaid contributions having been treated as paid, or (2) contributions paid late having been treated as paid on the due dates, is recoverable from that employer.
10.6(3) Assistance paid to an employed contributor or other person during any period in which the contributor or other person has lost or is losing benefit by reason of any employer's failure or neglect is also recoverable from that employer.
10.6(4) Assistance for the purpose of Paragraph 10.5(4) of this Chapter is Jobseeker's Allowance, State Pension (Non-Con) or Blind Pension, Widow/er's (Non-Con) Pension or Guardian's Payment (Non-Contributory), Pre Retirement Allowance, Deserted Wife's Allowance, Prisoner's Wife's Allowance, One Parent Family Payment, Carers Allowance, Supplementary Welfare Allowance, Disability Allowance, Farm Assist.
10.7 Procedural Arrangements
10.7(1) Cases of lost benefit will come to the attention of inspectors in the course of investigation work, on receipt of specific complaints, on receipt of forms I.A.49 from local offices or other enquiries from head office sections and when dealing generally with P.R.S.I. non compliance issues.
10.7(2) In the course of investigations, employers normally will be inspected, the facts as to any alleged employment will be established and any P.R.S.I. arrears assessed and collected or advised to the Revenue Commissioners.
10.7(3) To facilitate these proceedings care should be taken that supporting evidence is provided when reports are prepared and submitted.
10.8(1) The outcome of any proceedings will depend largely on the evidence available.
It will be necessary to establish:-
- that the employed contributor was employed by the employer in insurable employment in a given period
- that P.R.S.I. contributions were not paid in respect of that period or that payment of the contributions due in respect of that period was delayed
- that the employed contributor made a claim to benefit and that s/he lost benefit or would have lost benefit but for the fact that the contributions due were treated as paid, or was paid assistance only when benefit would otherwise have been payable
- that the loss of the particular benefit resulted from the non payment or the late payment of contributions due in respect of the particular period of employment.
10.9(1) The role of inspectorate staff in assembling evidence will be confined to providing proofs of evidence relating to the employment.
10.9(2) A statement on form IN12 should be taken from the employed contributor as to the details of the employment but in the body of that statement the employed contributor should indicate the nature of the benefit claim affected, the date of claim, the office at which claim was made, or to which addressed, and the outcome of such claim.
10.9(3) Where wages or other payments records have been inspected, the inspector should furnish a declaration that in his/her capacity as a duly appointed inspector under Section 250 of the Social Welfare (Consolidation) Act, 2005, s/he inspected the records of the particular employer and that, according to those records, the employed contributor was employed by the said employer during the relevant periods and that specified Pay-Related Insurance Contributions were due to be paid in respect of the employed contributor and for the period given.
10.9(4) The relevant payments section will prove loss of benefit or amount of assistance paid and governing conditions.
10.10(1) Reports should be submitted to the Central Prosecutions Section through the Area Manager.
A summary of the facts of each case should be incorporated in form IN 20.
Offences, Irregularities, Evidence, Proofs, and Legal Proceedings
11.1 The Social Welfare (Consolidation) Act, 2005 provides for certain offences.
The Sections of the Act and the Articles of the Regulations under which inspectors are likely to seek authorisation for proceedings are set out thereunder and guidelines as to the type of evidence required for such proceedings, are outlined.
11.2 General observations in regard to proceedings for offences
11.2(1) The following general observations in regard to proceedings for offences should be noted:-
- Criminal proceedings for offences and civil proceedings are distinct and separate and where they are taken simultaneously against the same employer they need not necessarily be heard at the same Court or on the same day
- proceedings for offences may be taken against an employer for one or more offences in relation to the same employee if the evidence is satisfactory
- the evidence necessary to prove an offence must fall into one or more of the following three classes:
- there must be direct evidence of a fact which in itself is proof of the offence. For example, in the case of a request to an employer for information (Article 20) the fact that the request was not complied with in the time specified is proof of the offence, or
- there must be direct evidence based exclusively on the personal knowledge of the witness as to the commission of the offence, or
- there must be an admission after legal caution as to the commission of the offence by the person who committed it
- the date on which the offence was committed and the place at which it was committed must be shown as these particulars must be recorded in every summons issued
- there must be an IN 12 statement from every employee in respect of whom a summons is issued. While these statements are not normally put in evidence they are required by Central Prosecution Services (CPS) in order to determine whether proceedings for offences should be taken and on what grounds, and also by the State Solicitor as a guide to his/her examination of the witness. Where, therefore, a number of employees are involved at least five IN 12 statements should be obtained in order to provide some latitude in the selection of summonses.
11.2(2) Proceedings may be brought within either:
- the period of eighteen months commencing on the date certified in writing sealed with the official seal of the Minister to be the date on which evidence sufficient to justify the institution of that prosecution came into his possession, or
- the period of two years commencing on the date on which the offence was committed.
11.3 Failure to Maintain Records as Required by Article 17 of the Regulations
11.3(1) Article 17 of SI 312/96 requires an employer to maintain prescribed records and Section 252 of the Act requires that these records, in so far as they relate to the recording of the payment of earnings and the period of employment to which these earnings refer, are to be made at or before the time of payment of such earnings.
Failure to comply with these provisions renders an employer liable to prosecution. The evidence necessary to support proceedings is:
- a statement from employee(s) on form IN 12, in which specific dates of receipt of payment of reckonable earnings are recorded. These dates should, if possible, be a series of consecutive pay days and the most recent dates available. Where Public holidays, e.g. Good Friday, intervene in such a series resulting in the pattern of payment days being broken care should be taken to ensure that the change of pay is specifically identified. If the dates are not readily available e.g. a period of time has elapsed since the event, and where the payment pattern is regular, e.g. a person is paid each Friday, a statement to this affect will be sufficient. If there is more than one employee, statements on form IN 12 should be taken from all employees up to five statements or as many as the inspector thinks fit. Names, PPS numbers, or in the absence of same, address and date of birth, periods of employment and gross reckonable earnings of all staff must be noted for assessment and report to Revenue of PRSI non-compliance involved, and
- a report by the inspector that a request for the production of the specified records was made to the employer and that the employer admitted verbally, or in writing, that s/he did not keep records.
Both the inspector and the employee may be called to give evidence in Court in the event of proceedings.
11.4 Failure to Furnish Information as Required by Article 20 of the Regulations (SI 312/1996)
11.4(1) Despite the powers conferred by the provisions of Section 250 there are still circumstances in which Article 20 demands may be issued to good effect. While it is difficult to anticipate all the circumstances some of them will be:-
- where the issue of a demand for the production of records under Section 250 is not appropriate
- where the registered address or the principal place of business of the employer cannot be identified but his home address is known
- where specific data in relation to an employee/claimant is required and
- where it has been established that the employer does not maintain prescribed records and specific information in relation to employee(s) is required.
11.4(2) The issue of a demand under Article 20:-
- is restricted to an employer - a servant (agent) or occupier is not covered
- must be in writing - form IN 28 has been devised for this purpose, and
- should be used when the information is required in relation to a benefit claim of the employee (see Section 255)
- may be issued to an employer at the address at which s/he resides or carries on business.
11.4(3) The demand should be delivered by hand or by registered post. If sent by post it is deemed to have been received by the person to whom it is addressed on the date on which it would have been received in the ordinary course of post unless the contrary is proved. A copy of the demand, endorsed with the method of delivery, should be annexed to the file. If sent by registered post, the registration receipt and certificate of delivery should be attached.
11.4(4) The notice in writing should be specific and relate to only one employee. This demand can relate to and be enforced in respect of known employees only. More than one demand can issue in the same envelope. A separate offence relates to each individual notice issued where the employer fails to comply with the requirements of the notice.
11.4(5) The demand, on form IN 28, is intended to facilitate inspectors in dealing with employers who are evading interview and it should be issued only in such cases where the information required is necessary for the completion of the enquiry and cannot be obtained in any other way.
11.4(6) The employer must deliver the completed declaration to the officer by hand or registered post within the time specified not being less than six days.
11.5 Proofs required for legal proceedings:
11.5(1) The proofs necessary for proceedings under Article 20 are:-
- a statement from the employee as proof of insurable employment in respect of which reckonable earnings were received
- a copy of notice issued to the employer
- where notice issued by post, the postal registration receipt which will prove posting of notice. To satisfy the requirements of Article 20(2), the officer who prepares the notice should personally place the notice in an envelope, seal the envelope and take it to the Post Office for dispatch by registered post and obtain the registration receipt
- the postal delivery certificate which will prove delivery of the notice.
11.5(2) These proofs together with a full summary of the facts should be forwarded for consideration of legal proceedings under Section 255.
11.6 Failure to Respond to a Statutory Demand for the Payment of PRSI Contributions in Accordance with ARTICLE 12 of the Social Welfare(Consolidated Contributions and Insurability Regulations 1996) (S.I. 312/96).
11.6(1) S.I. 312/96 allows an inspector to calculate or estimate the reckonable earnings of any person for any contribution year having regard to such information or facts which appear to him/her to be reasonable or adequate for the purpose. Based on this estimate the inspector can determine the PRSI contributions due and may require an employer to remit these contributions.
11.6(2) This procedure can be used in various circumstances for example:-
- an employer is not keeping records and not making remittances
- the employer has not responded to informal requests for the payment of PRSI
- the employer has had work done by employees who remain unidentified.
11.6(3) A form IN 9 has been devised for the purpose of issuing a statutory demand. It should be sent by registered post (even though the legislation permits ordinary post) to the employers address allowing 14 days for a reply. A copy of the demand endorsed with the method of delivery should be attached to the file. If sent by registered post the registration receipt and certificate of delivery should be attached. Care should be taken to ensure that IN 9 demands are properly addressed. If sent to a limited company they should be addressed to "The Secretary" of the company at the registered office of the company. If addressed to an individual that persons full name should be used (e.g. Mr Thomas Murphy rather than Mr T. Murphy). If sent to a partnership a form should be addressed to each partner.
11.6(4) An inspector may revise his/her estimate of PRSI contributions due by an employer if that employer produces satisfactory documentary evidence to show that the estimate was inaccurate. The type of documentary evidence required here would normally be wages records which the inspector considered to be genuine.
11.6(5) Having revised his/her estimate of PRSI due, the inspector may issue a revised request for payment if the employer does not now discharge the debt voluntarily. A form IN 9A has been devised for this purpose and the procedure in sending it to an employer is the same as in the case of form IN 9.
11.6(6) The employer must deliver payment of the amount requested by the inspector within the specified time (14 days).
11.7 Proofs required for legal proceedings
11.7(1) The proofs necessary for proceedings under Article 12 of S.I. 312/96 are:-
- a copy of notice issued to the employer
- proof of registration. The inspector who prepares the notice should personally place the notice in the envelope, seal the envelope and take it to the post office for dispatch by registered post and obtain a registration receipt
- a statement from the employee(s) as proof of insurable employment in respect of which reckonable earnings were estimated or
- a statement from the inspector that s/he examined the employer's records and used this as the basis for the estimate or
- a statement from the inspector that no records were held and that the earnings were estimated.
11.7(2) These proofs with a full summary of the facts should be forwarded for consideration of legal proceedings under Article 19. If there is no IN 12 statement for whatever reason such as non co operation of the employees, full particulars in relation to this must be included in the summary and a reasonable account of how the estimate was arrived at should be given.
11.8 Refusal to admit Social Welfare Inspector to Premises
11.8(1) It is an offence under Section 250(6)(a) of the Social Welfare (Consolidation) Act 2005 to wilfully delay or obstruct an inspector in the exercise of any power under Section 250. Obstruction includes preventing the inspector from entering the premises, ordering an inspector to leave the premises or refusing an inspector permission to interview persons found on the premises.
11.8(2) However to be guilty of wilfully delaying or obstructing an inspector, a person must be made aware of the powers vested in the inspector by statute. A person must also be given reasonable opportunity to co operate before forwarding the case for consideration of legal proceedings. The fair and reasonable exercise of these powers must be observed and must be seen to be observed.
11.8(3) An inspector on entering a premises or place liable to inspection under the Acts should identify him/herself by name and as a Social Welfare Inspector under the Social Welfare acts, proffer his/her Certificate of Appointment for inspection and state the purpose of the visit i.e. to carry out a PRSI inspection. S/he should endeavour to seek out the employer or a representative who has authority to act on behalf of the employer.
If permission to enter the premises is refused, without good reason, the powers of an inspector under Section 250, i.e. a right of entry and enquiry, should be explained. The person should also be informed that the delay or obstruction of an inspector in the course of these enquiries constitutes an offence which carries severe penalties. If permission is again refused and no reason for doing so is offered then the inspector should withdraw and submit a full report to the Area Manager setting out all the relevant facts for consideration of legal proceedings. The full name, address and position in the firm of the person who obstructed the inspector should be ascertained so that proceedings can be taken against that person.
11.8(4) In submitting a case for consideration of proceedings for obstruction of an inspector, the following evidence is essential:-
- a report by the inspector as to the facts of what transpired on which s/he can give evidence in Court
- an inspector should be able to say that s/he identified him/herself clearly as a Social Welfare Inspector, stated the purpose of his/her visit, made a request provided for under Section 250 and that such a request was refused
- an inspector should be clear in his/her evidence as to the time, date and location at which the offence took place
- the name, address and position in the company of the person who refused the inspector's request or obstructed the inspector should be clearly established and
- an inspector will need to be clear in the identification of the person who obstructed him/her.
11.9 Refusal or Neglect to Furnish Information, to Answer any Questions or to Produce Any Documents Relating to Earnings, Periods of Employment, Conditions of Employment of Current or Former Employees.
11.9(1) Subsection 250(6)(b) of the Social Welfare (Consolidation) Act, 2005 provides that if any person refuses or neglects to answer any question or to furnish any information or to produce any document when required to do so under the section or answers a question by deliberately giving false information or produces documents which s/he knows to be false s/he shall be guilty of an offence and shall be liable to a fine and/or imprisonment.
11.9(2) To be guilty of such an offence the person concerned must be made aware of the powers vested in an inspector under the statute. Every opportunity should be afforded to this person to comply with the request for information but if there is a refusal, without good reason, then the case should be prepared for legal proceedings. An initial delay or refusal which is made good before the inspector withdraws from the premises might constitute a technical offence but unless particular circumstances apply legal proceedings will normally not be considered.
11.9(3) The full name of the person and his/her position or title within the business such as secretary, accountant, wages clerk, etc., should be ascertained. A person guilty of this offence could be the occupier, the employer, the employer's agent, an employee or any other person found on the premises. An inspector has the power to question any or all of these persons and failure on their part to answer such questions would render them liable to prosecution.
11.9(4) The following evidence is required in these cases:-
- a report by the inspector as to the facts of what transpired on which s/he can give evidence in Court. This report will set out details of the precise information sought, the questions asked, the answers or refusal made and the reaction of the person to whom the request was addressed
- an inspector should be able to say that s/he identified him/herself clearly as an inspector, made a request provided for under this section and that such a request was refused or that false information/documents were produced
- an inspector should be clear in his/her evidence as to the time, date and location at which the offence took place
- the name, address and position in the company of the person who refused the inspector's request should be clearly established
- an inspector will need to be clear in the identification of the person who refused to comply with the request.
11.10 Failure to Produce Records During an Inspection
11.10(1) If during the course of an inspection or other investigation, an employer or his agent refuses to produce wages records, the inspector should inform him that he is obliged to do so under Section 250(4) of the Act. If records are held on the premises but the employer, or his agent, refuses to furnish them, the inspector's powers under the Act should be made known to the employer, or his agent, and production of the records for inspection should again be requested. If the employer, or his agent, persists with his refusal Form IN 12 statements should be obtained from as many employees as may be possible in the circumstances, five such statements is sufficient and the case should be reported on form IN 20 for consideration of legal proceedings. Such cases, though rare, do occur from time to time and are usually accompanied by a refusal to allow the inspector to interview the employees. The obstruction is therefore compounded and should be submitted for legal proceedings.
11.10(2) If the records are not available on the premises then a specified time and venue should be agreed with the employer, or his agent, at which an inspection of the records can take place. If the employer/agent fails to keep the appointment, IN32 action should be taken (see 11.10(3) below). Repeated failure to keep appointments without good reason, by the employer/agent should be regarded as obstruction and should be reported on form IN 20 for consideration of legal proceedings.
11.10(3) Where the employer was not seen, recourse should be had to the provisions of Section 250(12) of the Act and a written demand on Form IN 32. The form should be issued by registered post to the employer's registered office or principal place of business. The address of the inspectors office and the name of the issuing inspector should be clearly legible on the original and carbon copy of the form. The demand requests the employer to produce records for named employees and all employees in a given period at a specified date and time. The choice between registered office and principal place of business is a matter for the inspector to decide. If records as required are not produced at the venue and time specified, then the inspector should submit the case for consideration of legal proceedings.
11.10(4) When submitting such a case the following evidence is essential:-
- a copy of demand issued on form IN 32
- proof of posting and proof of delivery of demand certificate of registration and certificate of delivery of demand
- proof of employment - form IN 12 from current or former employees up to a maximum of five such statements is sufficient
- a report as to the facts and events which transpired at the inspection including date of issue of demand, time and venue specified and a statement that the employer did not comply with the demand.
11.11 Concealment of or Prevention of any Person Appearing Before or Being Examined by an Inspector
11.11(1) Subsection 250(6)(c) of the Social Welfare (Consolidation) Act, 2005 provides that if any person conceals or prevents or attempts to conceal or prevent any person from appearing before or being examined by an inspector, s/he shall be guilty of an offence and liable to a fine and/or imprisonment.
11.11(2) There may be an occasion when an employer objects to an inspector making enquiries of an employee or to an employee making him/herself available or offers good reasons for doing so e.g. that the staff are at their busiest time or that the person concerned is in fact a customer. Inspectors remembering that they must exercise their powers in a reasonable manner, may, on occasions be obliged to accede to a request for deferment of visit. On the other hand, this may in fact be a ploy by an employer to prevent an inspector from detecting instances of non compliance or abuses of the system. The fact that staff are busy should not necessarily prevent an inspector from putting pertinent questions to the employer and completing an inspection as far as possible. It is important that inspectors, in situations where they may be obliged to withdraw, endeavour to ascertain as much information as possible regarding employees and staffing levels and obtain the names, occupations, PPS numbers and periods of employment of all employees or self employed persons found on the premises or employed at the date of visit.
11.11(3) To enable proceedings to be considered under Section 250(6)(c) it would be necessary:-
- where employment was concealed, to prove that there was employment in the first instance. A statement on Form IN 12 from the particular employee is necessary
- where any person is prevented from appearing or being examined, a statement should be obtained from that person at a later date at that person's home or elsewhere.
In both of these situations and where an inspector is prevented from examining any person, a full written report should be provided setting out the relevant facts, circumstances and events on which evidence can, subsequently, be given in Court. This report should always include details of the location and date where the obstruction took place.
11.11(4) There is a need for common sense and restraint in carrying out the duties of inspectors and an employer or any other person should be afforded every opportunity, within reason, to comply with requests under the Act.
11.12(1) An assault, whether verbal or physical, on any person is an offence. Assault as such is not however an offence under the Social Welfare Acts and it is a matter for the Gardai through the Director of Public Prosecutions to institute proceedings in suitable cases. Where an assault is committed for the purpose of wilfully delaying or obstructing an inspector in the exercise of his/her powers then it may constitute an offence under the Social Welfare Acts of wilful delay of obstruction. Proceedings may be considered in suitable cases under the provisions of Section 250. This course of action may be taken by the Department in addition to, and independent of, any action which might be pursued by the Director of Public Prosecutions.
11.12(2)Action to be taken following an assault.
If an inspector is assaulted in the course of his/her official duties s/he should report the incident at the earliest opportunity to the local Gardai and give whatever statements or details they may require. Where the matter has been reported to the Gardai, the H&S Unit Facilities Management via local management should be informed accordingly. The results of the Garda investigation and any resultant Court action should likewise be reported without delay.
If the assault was committed for the purpose of obstructing or of delaying an inspector then the circumstances should also be reported, in full, through the Area Manager for consideration of legal proceedings.
A written statement by the inspector concerned, setting out the circumstances, facts, events and nature of any assault should be provided in any case submitted for proceedings.
12.1 Court Proceedings
12.1(1) Social Welfare Inspectors may have to attend Court and give evidence, in cases instituted by the Department.
12.1(2) A Social Welfare Inspector, called to give evidence in these circumstances, is a witness on behalf of the Minister and as such, s/he should be familiar with the procedures to be followed and of the evidence required.
12.1(3) Legal proceedings taken fall into two categories civil proceedings for the recovery of sums due (e.g. arrears of contributions due, or pension or benefit moneys overpaid etc.), or criminal proceedings for breaches of the Acts and/or Regulations (e.g. failure to produce records, false or misleading statements or obstruction or delay of an inspector, etc.).
12.2 Civil Proceedings
12.2(1) Civil legal proceedings are taken to facilitate the recovery of scheme overpayment's and the collection of PRSI arrears and the enforcement of Maintenance Recovery orders against Liable Relatives of Social Welfare recipients. A focused approach to debt recovery is regarded as a key deterrent. It is now departmental policy to pursue all debts resulting from fraud or failure by employers to pay PRSI, irrespective of the amount, provided the debtor has sufficient means. Civil proceedings are also taken for the recovery of arrears of contributions or for the recovery of benefit paid on foot of unpaid contributions, treated as paid, and Social Welfare inspectors may be called as witnesses in such cases.
12.2(2) Where, following civil proceedings, a Judgement Decree in favour of the Minister is obtained and the amount specified in the decree is not paid further action by way of Examination and Committal proceedings may be instituted. An inspector may be called, as a witness, at each or all of these stages i.e. at the original hearing and at the subsequent examination and committal stages.
12.3 Judgement Decree
12.3(1) Where a defendant disputes the amount due and/or liability for payment the inspector may be called to give evidence of the position. This will usually consist of evidence of
- having taken IN 12 statements from the employees
- having obtained admission from the employer
- having inspected and extracted the relevant data from the wages records of the employer and
- if none of the above is present, made an estimate under his powers from Article 12. In short, the inspector will have to give evidence that the debt assessed is correct and that the defendant is properly liable for same.
An employee, who has completed an IN 12 statement, may contradict this statement in court when giving evidence. In these cases the State Solicitor may seek to have the employee treated as a hostile witness by the court and in such circumstances the inspector will be called to give evidence as to the circumstances in which the IN 12 statement as taken and to identify the employee as the person who made and signed the statement.
12.4 Examination Order
12.4(1) Where the amount due on foot of a Judgement Decree has not been paid the Minister as creditor can obtain an Examination Order on production to the court of prima facie evidence that:-
- there is a Judgement Decree in his favour
- that the defendant resides within the court district and
- that the defendant has no goods which could be taken in execution of the decree, i.e. the sheriff has returned the Judgement Decree marked "nulla bona".
12.4(2) An application for an Examination Order may be made at any time within six years of the date of the judgement for which enforcement is sought. The Examination Order is served on the defendant and it requires him/her to attend court to be examined as to his/her means and furthermore to lodge in court within one week a statement of means setting forth his/her assets and liabilities. This statement of means is received in evidence and the defendant may be cross examined on the statement and on any evidence s/he may give.
12.4(3) If the Department's evidence of means is at variance with the defendant's statement of means the inspector may be called to give evidence. For example:-
- the inspector may be in a position to say from his/her own knowledge that the defendant was in receipt of an income or means which the defendant was failing to acknowledge
- the inspector may have evidence that the defendant was the registered owner of occupier of property which the defendant was failing to acknowledge.
The inspector's evidence in such cases could arise from:-
- his/her personal knowledge and
- his/her inspection of the Land Registry Deeds or the Company's Office records.
12.4(4) Before a case is submitted for an Examination Order the file is returned to the inspector for an update of the employer's financial and domestic circumstances. An inspector should fully investigate such circumstances bearing in mind that s/he may be called as a witness as outlined in the preceding paragraph. The facts as ascertained are conveyed to the State Solicitor so that s/he will be in possession of the full facts on the day of the court hearing. Between the date of submission of this report and the date of the hearing, the inspector should keep him/herself informed on the employer's circumstances so that on the day of the court hearing s/he, in making his/her presence in court known to the State Solicitor, will be able to make him aware of any change in circumstances since the report was submitted.
12.4(5) If the defendant fails to satisfy the Court that s/he is not able to pay the debt then the Judge may order the defendant to pay the debt, together with the costs, either in one payment or by such instalments as the Judge decides. A copy of the Order is served on the defendant, who is obliged to make payment thereunder on the fourteenth day after service and in the manner specified. An Instalment Order remains in force for six years from the date on which it is made.
12.5 Committal Order
12.5(1) Where the defendant fails to comply with the terms of the Instalment Order, the Minister may apply to the court for a Committal Order i.e. the arrest and imprisonment of the defendant. On the hearing of such application the Judge will require evidence of the defendant's failure to comply with the terms of the Order. This evidence is normally given by an official from Accounts' Branch, or can be given by the inspector.
12.5(2) At a committal order hearing, the social welfare inspector will be required to give evidence of the following:
- the terms of the original order and its date of service, (there should normally be a copy of the order and a note of its date of service on the file)
- the total debt, the number of instalments, any amounts paid and the number and amounts outstanding at the date of hearing. It will be necessary for the inspector to phone cashiers section, on the morning of the hearing, to confirm the up to date position regarding payments or non payments. The inspector should also consult with the State Solicitor as to the legal costs which have been added to the overall debt.
As in the case of examination order hearing where the inspector has information, from his/her own knowledge, of a change in the circumstances of the defendant, (e.g. employer may have ceased business, or his financial circumstances may have improved since last report) s/he should acquaint the state solicitor with the new facts, as such information may have a bearing on the court's attitude to the case.
12.5(3) Committal proceedings may be brought at different stages. Where an Instalment Order is in force these proceedings may be brought after some of the instalments remain unpaid. Alternatively they may be instituted only when the full period covered by the Instalment Order has elapsed and then, in respect of the total amount due.
The inspector, attending court to give evidence in these proceedings, should acquaint him/herself fully, by examining the relevant file, with the factual position in relation to:-
- the total amount of the debt
- the terms of any Instalment Order made
- any amounts paid on foot of such order, and
- the number and amounts of instalments outstanding at the date of the hearing.
12.6 Execution of Committal Order:
12.6(1) Where a Committal Order is made and payment of the amounts due are not made, the State Solicitor will ask for instructions from this Department before requesting the Gardai to have the defendant lodged in prison. A decision has to be taken by the Department (or the Minister) as to whether the Chief State Solicitor should be instructed to proceed to execute the Order. This is based on all the facts surrounding the case and on an up to to date report as to the defendant's domestic, financial and general circumstances. Such a report is always required at this stage and should be furnished as a matter of urgency.
12.7 Criminal Proceedings
12.7(1) The most common cases for summary proceedings will arise under Section 17, 250, 251, 252 and 253 of the Social Welfare (Consolidation) Act, 2005 as amended and under Articles 12, 17, 20 and 55 of the Social Welfare (Consolidated Contributions and Insurability) Regulations, 1996 (SI 312/96).
12.8 Preparing a Case for Prosecution
12.8(1) Criteria for initiating prosecution procedures
In general, the inspectorate's role in the preparation of cases for prosecution is the investigation of alleged wrongdoing and the collection of evidence. To assist the inspectorate in this task, a comprehensive set of guidelines were drawn up by a consultative group examining all aspects of prosecution criteria and procedures and issued as CPS Memo 1/00. This memo can be accessed through the shared drawer titled "Control" and also the SHR_RDOTR Drawer in the Control folder. However it is emphasised that, whereas the guidelines lay down certain standards which will be followed in the majority of cases, each case should be considered on its own merits and, if a strong case for prosecution can be made, in their entirety irrespective of whether or not the guidelines are met in their entirety, such cases should be forwarded to Central Prosecutions Section (CPS) with a statement outlining the reasons for seeking a prosecution.
12.8(2) Evidence required to prosecute a case
The evidence necessary to prove an offence must fall into one or more of the following:-
- there must be direct evidence
- this direct evidence must be based exclusively on the personal knowledge of the witness as to the commission of the offence
- if the Department is relying on an admission or confession by the accused, this admission/confession will only be admissible if obtained voluntarily from a suspect after a legal caution.
In all proceedings the best evidence possible must be produced. The quality of the inspectors evidence will depend mainly on the quality of the investigation. Written evidence is generally better than verbal evidence.
In the absence of documentary evidence (e.g. a suspect declines to make a written statement after a legal caution is administered), a factual recording of verbal admissions and/or events in themselves can in some cases be sufficient to secure a conviction.
NOTE: Inspectors are advised to study CPS Memo 2/2000 on "Interviewing under Caution" which has been distributed to all inspectors and others likely to be involved in the interviewing of persons suspected of a criminal offence. This circular can be accessed in the shared drawer titled "Control" and also the SHR_RDOTR Drawer in the folder Control.
12.8(3) Investigation and Preparation of cases for prosecution
It is vitally important that in investigating cases for the purpose of prosecution, inspectors should always bear in mind, that the Department, in prosecuting cases in court, must prove the allegations made beyond a reasonable doubt. It is equally important to remember that the defence does not have to prove anything. In fact, the accused does not have to give any evidence or make any statement whatsoever in court. Therefore, the evidence amassed during an investigation must be capable, on its own, of fulfilling the onus of proof placed on the Department as the prosecutor. The prosecution is responsible for producing in court all evidence, documents and witnesses, necessary to prove the case.
In collecting the evidence and reporting on cases, great attention must be placed on accuracy and detail. For example, in prosecuting an employer, the correct status of the employer must be established Limited Company, individual or partnership. In completing Form EE52/SE52 for the purpose of establishing concurrent working and claiming, care is necessary in ensuring that the form is filled correctly and completely. Whereas this form in itself is inadmissible as evidence, it is a guide to the State Solicitor prosecuting the case. Again, it is necessary to include correct details about the potential employer witnesses as these may and, most probably will be called by the Chief States Solicitor's Office (CSSO) to prove the case.
12.9 Giving of evidence
12.9(1) Court Attendance
It is important for inspectors and other Departmental witnesses to keep in contact with CPS and the local State Solicitor in relation to the hearing dates of their cases. Even if the accused is pleading guilty (called "pleading" in the legal profession) it is important that the inspector attend court for the following reasons:-
- The accused may change his mind
- The Judge may wish to hear the evidence before pronouncing sentence.
It is extremely important to always remember that the inspector is a witness and not a prosecutor.
12.9(2) Important Points to remember
- Identify State Solicitor
Inspectors are urged to try and meet the State Solicitor beforehand to discuss the case and to bring to the attention of the solicitor any pertinent facts which s/he feels should be emphasised in court
- An inspector giving evidence in court should understand clearly the precise nature of the alleged offence committed by the defendant
- Understand the difference between evidence and opinion
- Be able to produce his/her Certificate of Appointment to the court.
The way the Department's witnesses present themselves in court is very important. Inspectors should dress appropriately, adopt a positive manner and speak directly to the judge.
- Mode of address
In the District Court the judge should be addressed as "Judge" and in the Circuit/High Court as "My Lord".
- Tell facts in sequence
If an inspector feels the need to refer to a file or notes s/he must ask the judge's permission and should tell the judge what s/he is referring to.
12.9(3) Cross Examination
In court, in general, the evidence of a witness is obtained by oral examination. The witness is then examined by the opposite party in order to diminish the effect of his/her evidence. This is called cross examination. The witness may be examined again by the party calling him/her (the re examination) in order to give the opportunity of explaining or contradicting any false impression produced by cross examination.
During examination and cross examination inspectors should:-
- confine their answers to questions asked
- keep their answers brief, short and to the point; and
- in cases where they do not know the answer, say so or say "I don't recall that fact/incident".
The State Solicitor or Barrister, prosecuting the case on behalf of the Department, will not, as a rule, tell the inspector/witness what to say in court. Their questions in examination of the Inspector will be for the purpose of eliciting information needed to win the case. As stated in preceding paragraph, inspectors should endeavour to meet the State Solicitor beforehand and discuss the case.
Passport holders of the following countries do not need to have a visa to travel to Ireland: (see note1)
|Antigua and Barbuda
||Hong Kong (SAR) (see note2)
||St Kitts and Nevis|
||St Vincent & the Grenadines|
||Korea (Republic of South)
||Macau (SAR) (see note2)
||Trinidad and Tobago|
||UK and Colonies|
Note 1: Available from the Department of Foreign Affairs
Note 2: SAR - Special Administrative Region