Theme: Overpayment of social welfare – Estate of a Deceased
Period of Analysis: SWAO Annual Reports 2009-2021
Keywords: Overpayments; Fraud; Appeals; Oral Hearing; Burden of Proof; Cohabitation; Reviews
Casebase No. Case G0137
Summary of the relevant law:
Overpayments of social welfare occur where a person gets a payment of an allowance, pension or any other benefit from the Department of Social Protection (the “Department”) that they are not entitled to. The Social Welfare (Consolidation) Act 2005 sets out the circumstances where an overpayment may arise and the liability of a person to repay an overpayment.
An overpayment can arise where a person has been granted a payment but subsequently a revised decision is made by the Department under Section 302 or 325 of the Social Welfare (Consolidation) Act 2005 (the “Act”) to reduce a person’s entitlement to a social welfare payment retrospectively. In such circumstances, the Department will issue a letter informing the person of the revised decision.
A key question with overpayments is whether the Department allege fraud on the part of the recipient. Fraud occurs where the Department is told or led to believe something that the person receiving the payment knew was false or misleading or a key piece of information is withheld from the Department.
A revised decision that there has been an overpayment based on fraud is made under Section 302(a)/325(a)) of the Act.
If the overpayment arose as a result of fraud, the person may be criminally prosecuted even if the overpayment is repaid.
Where no fraud is alleged by the Department, they have some discretion to take into account the facts and circumstances that gave rise to the overpayment and this will be relevant in an appeal against such an overpayment. It is also possible to appeal the date when the overpayment is deemed to have arisen, which may result in the amount of the overpayment being reduced. A revised decision with no allegation of fraud is made under section 302(b).
It is therefore very important to know if fraud is alleged (ie, the decision was made based on section 302(a)) or no fraud is alleged (ie the decision is based on section 302(b).) A person can appeal the revised decision alleged fraud and if successful, the fact and circumstances that gave rise to the overpayment can also be considered in the appeal.
The other circumstances where an overpayment may arise are covered by sections 336, 336(a) and 336(b) of the Social Welfare Consolidation Act 2005 (as amended).
Examples of this category of overpayment are:
- double cashing, for example a person reports that she or he did not receive a payment due, a duplicate is issued and both payments are cashed by the person;
- impersonation, for example a person makes a claim assuming the identity of another person;
- cashing after death, for example a relative continues to cash a pension or allowance after the death of the person entitled to it.
Finally, the rules relating to the how the Department can recover an overpayment of social welfare are in Statutory Instrument No. 349/2005 Social Welfare (Recovery of Overpayments) Regulations, the Department’s Operational Guidelines on Management of Customer Overpayments and Recovery of Customer Debt. and more information is available through Citizen’s Information.
Observations on appeal outcomes in SWAO Case Studies:
Recovery of Overpayment from the Estate of a Deceased
Overpayments of social welfare can be recovered from the deceased’s estate if not paid prior to their death. A debt may also arise during the settlement of a deceased customer’s estate where it is determined that the customer had not adequately declared their means during the time they received an assistance payment (means tested payment) during their lifetime.
Overpayments discovered after the death of a person receiving social welfare payments can also be appealed. There are a number of appeals by the estate of a deceased in the case studies below. One example shows an appeal that was allowed because there no evidence of any other source of income to the deceased nor of him accessing the joint account which was in his name and his sister’s name. She appealed on the basis that it was her money held in the account for the upkeep on the family home that the deceased had been living in. See G4 2015/24 State Pension Non-contributory. Another successful appeal in seen in I9 2017/318/69 State Pension (Non-Contributory) where there was a failure by the Department to act on recommendations in Department reviews. The overpayment was reduced.
However in most instances, there are have very serious implications where means/assets are not communicated to the Department during one’s life and come to light when assets being dealt with on death.
Relevant Case Studies of the SWAO Annual Reports 2009-2021
G4 2015/24 State Pension Non-contributory
Question at Issue: Claim against deceased pensioner’s estate
Background: The deceased had been awarded pension in 1998 and had been in receipt of Disability Allowance prior to attaining pension age. At the time of the pension claim, he had declared a credit union account with a balance of some €1,900. His entitlement was reviewed in 2011 when he denied having any capital in the bank. Following his death, an investigation by a Social Welfare Inspector indicated undisclosed capital of €59,000 and his means were assessed retrospectively to take account of this. As a consequence of the revised means assessment, an overpayment of some €38,000 was calculated and a demand for payment was made against the estate. His sister, the executrix of the estate, made an appeal against the decision and solicitors acting on her behalf questioned the amount of the overpayment. It was submitted that the deceased never had capital in the [named] bank as his sister had provided this money for the upkeep of his residence.
Oral hearing: The sister of the deceased attended and was represented by her solicitor. The Deciding Officer attended at the request of the Appeals Officer, while the Social Welfare Inspector had moved to other duties and was unable to attend.
The solicitor in the case sought to provide some background, referring to the sister of the deceased, the fact that she had worked for some years in the United Kingdom before returning to the family home. He referred to the capital held at a [named] bank, and said that this had always belonged to his client and submitted that an affidavit from 1996 confirmed this. It was submitted that she had intended that the funds be used for the upkeep and renovation of the family home so that it would remain habitable until she returned to live there. It transpired that her brother had proved unable to maintain the house and evidence was produced showing that expenditure in the order of €230,000 had been incurred in the previous year for extensive renovations.
A copy of the grant of probate was submitted and it was pointed out that the net value of the estate came to just €20,000. It was submitted that the Department had misrepresented the ownership of the funds assessed and that the deceased had no interest in those funds. He had not been able to fulfil the purpose for which the capital had been set aside and he had never accessed the bank account at issue.
The Deciding Officer explained the assessment: the deceased had been assessed with capital held in his own name and a half share of the capital held in a joint account with his sister. She noted that there was evidence of transfers of funds between the accounts which suggested that they had been managed. In response, the deceased’s sister pointed out that her brother had received no State payments until he was aged 49 years and she had enquired about his entitlements. At that stage, he had received a Disabled Person’s Maintenance Allowance (subsequently Disability Allowance). She confirmed that she had managed the accounts and had moved the capital so that the best yield could be achieved. His sister described the deceased as having a learning disability and said that he had not been capable of managing things. They had another brother who died in 1995 and since then she had had to return home every 6 weeks. She recalled that the deceased had been duped by individuals purporting to do maintenance work and, on one occasion, had withdrawn €2,000 from his credit union account to pay them. She said that he had been vulnerable to such approaches and, after that, she had warned the bank and credit union to be aware of him seeking to withdraw funds.
The Deciding Officer conceded that the Department had not implemented its review policy over the years in question but said she believed that a reminder of the qualifying conditions had issued around the year 2000. It was accepted that there was no record of such a reminder on file. The Deciding Officer agreed there could be circumstances when a joint account was assessed in full against one of the named account holders. She went on to say, however, that she believed that the deceased could have accessed the account had he wished to. She noted that the Social Welfare Inspector had reported that there had been no evidence to indicate that the capital in the joint account was not the property of the deceased.
His sister insisted that the deceased did not have access to the [named] bank account and she said she objected to the Department seeking to recover what was, in effect, her savings. In conclusion, her solicitor reiterated the assertion that the deceased had no control over the funds at issue, the capital was the property of the deceased’s sister and he had been a party of convenience only and had never sought to access the account. It was submitted that it was wrong therefore to attribute those funds to him.