CHAPTER 4

Offences, Miscellaneous Control Provisions and Proceedings

Offences

[1993, s. 27]

213.—(1) If, for the purpose of—

(a) obtaining or establishing entitlement to payment of any benefit for himself or for any other person, or

(b) obtaining or establishing entitlement to payment of any benefit for himself or for any other person which is in excess of that which he was entitled to, or

(c) avoiding the making by himself or any other person of any repayment under this Act,

or for any other purpose connected with this Act, any person—

(i) knowingly makes any statement or representation (whether written or verbal) which is to his knowledge false or misleading in any material respect, or knowingly conceals any material fact, or

(ii) produces or furnishes, or causes or knowingly allows to be produced or furnished, any document or information which he knows to be false in a material particular,

he shall be guilty of an offence.

[1993, s. 27]

(2) 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 under subsection (1) shall be guilty of an offence.

[1993, s. 27]

(3) A person convicted of an offence under this section in relation to child benefit shall be disqualified for the receipt of child benefit for the period of 3 months immediately following the date of the conviction.

[1993, s. 27]

(4) Where a person is convicted of an offence under subsection (1) or (2) and by reason of that offence any benefit (other than child benefit) was received by an employee of his which he was not entitled to receive, such person shall be liable to pay to the Minister on demand a sum not exceeding the amount of such benefit which by reason of the said offence was paid to that employee while in his employment and that sum, if not so repaid, may be recovered by the Minister as a debt under statute in any court of competent jurisdiction.

[1993, s. 27]

(5) Notwithstanding the provisions of subsection (5) or any other provisions of this Act under which amounts of benefit (other than child benefit) may be recovered, the amount recovered by the Minister, in any case may not exceed the amount of benefit received by the employee which he was not entitled to receive.

[1993, s. 27]

(6) Regulations under this Act may provide for offences consisting of contraventions of or failures to comply with such regulations and, where such offences are provided for, a person guilty of any such offence shall be liable on summary conviction to the penalties provided for in section 218(1)(a).

[1993, s. 27]

(7) Where an offence under this Act is committed by a body corporate and, in the case of an offence under subsection (1), where the offence is committed by an employee or officer of the body corporate, and is proved to have been so committed with the consent, connivance or approval of or to have been attributable to any wilful neglect on the part of any person, being a director, manager, secretary or any other officer of the body corporate or a person who was purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of an offence and shall be liable to be proceeded against and punished as if he were guilty of the first-mentioned offence.

[1993, s. 27]

(8) It shall be a defence to a prosecution for an offence under subsection (7) for a person to show that the offence was committed without his knowledge and that he exercised all such diligence to prevent the commission of the offence as he ought to have exercised, having regard to the nature of his position as director, manager, secretary or other officer and to all the circumstances.

[1993, s. 27]

(9) Any summons or other document required to be served for the purpose of proceedings under this Act on a body corporate may be served—

(a) by leaving it at or sending it by post to the registered office of the body corporate,

(b) by leaving it at or sending it by post to any place in the State at which the body corporate conducts business, or

(c) by sending it by post to any person who is a director, manager, secretary or other officer of the body corporate or is purporting to act in any such capacity at the place where that person resides.

[1993, s. 33(1)]

(10) Where a person is in receipt of assistance or has made a claim for assistance which has not been finally determined, and his means have increased since the date of latest investigation thereof, or, if no such investigation has taken place, since the date of making the claim, the person shall, within such period as may be prescribed, give or cause to be given to the Minister notification in writing of the increase.

[1993, s. 33(2)]

(11) A person who fails or neglects to comply with the provisions of subsection (10) shall be guilty of an offence.

[1993, s. 27]

214.—(1) If an employer—

(a) fails to pay at or within a prescribed time any employment contribution which he is liable under Part II to pay,

(b) deducts or attempts to deduct the whole or any part of any employer's contribution in respect of a person from that person's remuneration,

(c) makes a deduction from the remuneration of a person in respect of any employment contribution which the employer is liable under Part II to pay and fails to pay at or within a prescribed time the employment contribution in respect of which the deduction was made, or

[1990, s. 9]

(d) adjusts the method of payment of reckonable earnings to an employed contributor who was employed in consecutive weeks in order to ensure that the employed contributor is exempted in any week from the employment contribution payable under section 10(1) (b)(i) by virtue of section 10(7)(a) and regulations made thereunder,

the employer shall be guilty of an offence.

[1993, s. 27]

(2) An employer, or a servant or agent acting on behalf of such employer, who, for the purpose of evading or reducing the amount of his liability in respect of employment contributions which he is liable to pay under Part II and which he has not paid—

(a) knowingly makes any statement or representation (whether written or verbal) which is to his knowledge false or misleading in any material respect, or knowingly conceals any material fact, or

(b) produces or furnishes, or causes or knowingly allows to be produced or furnished, any document or information which he knows to be false in a material particular,

shall be guilty of an offence.

[1987 (No. 2), s. 6]

(3) Where records are required to be kept by employers under, regulations made under section 14(5) in so far as they relate to the recording of payment of earnings and the periods to which such earnings refer such records shall be recorded at or before the time of payment of such earnings.

[1993, s. 28(2)]

(4) A person who fails to comply with subsection (3) shall be guilty of an offence.

[1993, s. 27]

(5) A person who is guilty of an offence under this section (other than an offence under subsection (1)(d)) shall be liable—

(a) on summary conviction, to the penalties provided in section 218(1)(a), or

(b) on conviction on indictment, to a fine not exceeding £10,000 or such amount as is equivalent to twice the amount so unpaid or deducted, whichever is the greater, or to imprisonment for a term not exceeding 3 years, or to both.

[1990, s. 9]

(6) A person who is guilty of an offence under subsection (1)(d) shall be liable on summary conviction to a fine not exceeding £1,000 or on conviction on indictment to a fine not exceeding £10,000.

[1993, s. 27]

(7) (a) Where an employer has been convicted under this section of the offence of failing to pay any employment contributions which he is liable under Part II to pay, he shall be liable to pay to the Social Insurance Fund a sum equal to the amount which he has failed to pay and, on such conviction, if notice of the intention to do so has been served with the summons or warrant, evidence may be given of the failure on the part of the employer to pay other employment contributions in respect of the same person during the 3 years preceding the date when the notice was so served, and on proof of such failure the court may order the employer to pay to the Social Insurance Fund a sum equal to the total of all the employment contributions which he is so proved to have failed to pay, and the employer's right of appeal against the conviction under the section shall include a right to appeal against such an order.

(b) Any sum paid by an employer under this subsection shall be treated as a payment in satisfaction of the unpaid employment contributions, and the insured person's portion of those employment contributions shall not be recoverable by the employer from the insured person.

[1993, s. 27]

(8) Nothing in this section or in regulations under this section shall be construed as preventing the Minister from recovering by means of civil proceedings any sums due to the Social Insurance Fund.

[1989, s. 19]

215.—(1) The Minister may require—

(a) an employer or any other person to notify him of the date of the commencement of the employment of—

(i) any person in his employment,

(ii) any person engaged by him under a contract for service to perform a service, or

(b) a person engaged under a contract for service to perform a service to notify him of the date on which any person was engaged to perform that service either with him or on his behalf whether under a contract for service or under any other arrangements made or to be made by him.

[1987 (No. 2), s. 2]

(2) The circumstances in which notification may be required under subsection (1) and the manner of that notification shall be prescribed in regulations.

[1993, s. 28(3)]

(3) A person who fails to comply with this section or regulations made hereunder shall be guilty of an offence.

[1993, s. 27]

216.—(1) An employer shall furnish to the Minister in writing in respect of any person who is or was in his employment such particulars, including particulars as to periods of employment, as are required by the Minister to enable determination or review of a claim to any benefit by or in respect of that person.

[1993, s. 27]

(2) Regulations may specify the particulars which an employer shall furnish under subsection (1) and prescribe the manner in which such particulars shall be so furnished.

[1993, s. 27]

(3) A person who fails to comply with this section or regulations made under subsection (2) shall be guilty of an offence.

[1993, s. 27]

217.—Where—

(a) (i) the employer of an employed contributor is charged with an offence in relation to payment of employment contributions in respect of that contributor, or

(ii) a person is charged under this Act with an offence in relation to the receipt of any benefit,

and

(b) the court proposes to make an order under section 1(1) of the Probation of Offenders Act, 1907,

the court shall not make such order until it is satisfied that all arrears in respect of such contributions have been paid by such employer or any amounts due to be repaid in respect of such benefit have been repaid.

Penalties.

[1993, s. 28(1)]

218.—(1) Except where otherwise provided for, a person guilty of an offence under this Act shall be liable—

(a) on summary conviction, to a fine not exceeding £1,000 or imprisonment for a term not exceeding 12 months, or to both, or

(b) on conviction on indictment, to a fine not exceeding £10,000 or imprisonment for a term not exceeding 3 years, or to both.

(2) Where a person, after conviction of an offence under this Act continues to contravene the provision concerned, he shall be guilty of an offence on every day on which the contravention continues and for each such offence he shall be liable to a fine, on summary conviction, not exceeding £200 or, on conviction on indictment, not exceeding £2,000.

Miscellaneous Control Provisions

[1991, s. 29(1)]

219.—(1) Where an employer has failed to keep records under regulations made under section 14(5) or has failed to make a notification under regulations made under section 215 and an employee of the employer receives payment, due wholly or partly by reason of that failure, of disability benefit, unemployment benefit, retirement pension, invalidity pension, unemployment assistance, pre-retirement allowance or family income supplement which he was not entitled to receive in respect of any day on which he was in the employment of the said employer, such employer shall be liable to pay to the Minister on demand a sum not exceeding the amount of benefit, pension, assistance, allowance or supplement which was paid to the said employee and that sum, if not repaid by the employee, may be recovered by the Minister as a simple contract debt in any court of competent jurisdiction.

[1991, s. 29(2)]

(2) It shall be presumed until the contrary is proved that any payment aforesaid was made wholly or partly by reason of the employer's failure to keep the said records or to make the said notification referred to in subsection (1).

[1991, s. 29(3)]

(3) Where there is a material difference between any document issued by an employer, his servant or agent to an employee and any other document furnished to the Minister or to the Collector-General and an employee, wholly or partly as a result of that difference, receives benefit or assistance to which he was not entitled, such employer shall be liable to pay to the Minister on demand a sum not exceeding the amount of benefit, pension, assistance, allowance or supplement which was paid to the said employee and such sum, if not repaid by the employee, may be recovered by the Minister as a simple contract debt in any court of competent jurisdiction.

[1991, s. 29(4)]

(4) For the purposes of subsection (3) an employee shall include the employee's spouse and any other member of the employee's household whose entitlement to benefit or assistance is regulated or adjusted by the income of the employee.

[1991, s. 29(5)]

(5) Notwithstanding the provisions of subsection (1) or (3) or any other provisions of this Act under which amounts of benefit, assistance or supplement may be recovered, the amount recovered by the Minister in any case may not exceed the amount of benefit, assistance or supplement received by the employee which he was not entitled to receive.

[1981, s. 132(1)]

220.—(1) Where an employer has failed or neglected—

(a) to pay any employment contribution which under Part II he is liable to pay in respect of an employed contributor in his employment, or

(b) to comply, in relation to any such employed contributor, with any requirement of Part II or regulations which relates to the payment or collection of employment contributions,

and by reason thereof the employed contributor or any other person has lost, in whole or in part, any benefit to which he would have been entitled, such contributor or other person shall be entitled to recover from the employer as a simple contract debt in any court of competent jurisdiction a sum equal to the amount of the benefit so lost.

[1981, s. 132(2)]

(2) Where an employed contributor or other person has lost benefit in a case referred to in subsection (1) and has not taken proceedings under that subsection, the Minister may, in the name of and on behalf of such contributor or other person, recover from the employer as a simple contract debt in any court of competent jurisdiction a sum equal to the amount of the benefit lost.

[1981, s. 132(3); 1982, s. 10]

(3) Where, by virtue of regulations made under section 14—

(a) employment contributions which have not been paid have been treated as paid, or

(b) employment contributions which have been paid late 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.

[1981, s. 132(4)]

(4) Proceedings may be taken under this section notwithstanding that proceedings have been taken under any other provision of Part II or this Part in respect of the same failure or neglect.

[1981, s. 132(5)]

(5) In ascertaining, for the purposes of this section, the amount of benefit lost by an employed contributor or other person by reason of a failure or neglect referred to in subsection (1), account shall not be taken of any assistance paid to such contributor or other person during a period when he was losing benefit by reason of such failure or neglect.

[1981, s. 132(6)]

(6) The amount of assistance paid to an employed contributor or other person during a period when he was losing benefit by reason of a failure or neglect referred to in subsection (1) may be recovered by the Minister—

(a) in case the full amount of the benefit which was lost has been recovered by such contributor or other person, from such contributor or other person—

(i) by deduction from any benefit or assistance to which such contributor or other person may be or become entitled, or

(ii) as a simple contract debt in any court of competent jurisdiction, or

(b) in any other case, from the employer guilty of the failure or neglect as a simple contract debt in any court of competent jurisdiction,

and, if the amount of the assistance is recovered by the Minister from the employer, the sum recoverable by such contributor or other person from the employer under this section shall be reduced by the amount of such assistance.

[1981, s. 132(7)]

(7) Any sums recovered by the Minister under subsection (6) shall be paid into the Exchequer.

[1981, s. 2(1)]

(8) In this section “benefit” means benefit under Part II.

[1991, s. 28; 1992, s. 48]

221.—For the purposes of controlling and investigating entitlement to any benefit, under this Act or under schemes administered by or on behalf of the Minister, the Minister may require such persons as may be prescribed to provide him with such information in relation to such persons or classes of persons as the Minister may determine and any person so prescribed shall be required to provide such information as may be required.

[1988, s. 31(1); 1993, s. 38(9)]

222.—(1) Information held by the Minister for the purposes of this Act (including the purpose of collection by the Revenue Commissioners of employment and self-employment contributions) may be transferred by the Minister to the Revenue Commissioners, and information held by the Revenue Commissioners for the purposes of this Act or the Income Tax Acts, relating to employers, the reckonable earnings of employed contributors or reckonable income or reckonable emoluments of self-employed contributors or of any payments made under this Act, may be transferred by the Revenue Commissioners to the Minister.

[1988, s. 31(2); 1993, s. 38(9)]

(2) Information held by the Minister for the purposes of this Act or the control of schemes administered by or on behalf of the Minister or the Department of Social Welfare may be transferred by the Minister to another Minister of the Government or a specified body, and information held by another Minister of the Government or a specified body which is required for the said purposes or the control of any such scheme administered by another Minister of the Government or a specified body may be transferred by that Minister of the Government or the specified body to the Minister.

[1988, s. 31(3)]

(3) In subsection (2) “a specified body” means a local authority (for the purposes of the Local Government Act, 1941 ), a health board, the Garda Síochána or any other body established—

(a) by or under any enactment (other than the Companies Acts, 1963 to 1990), or

(b) under the Companies Acts, 1963 to 1990, in pursuance of powers conferred by or under any other enactment,

and financed wholly or partly by means of moneys provided or loans made or guaranteed, by a Minister of the Government or the issue of shares held by or on behalf of a Minister of the Government and a subsidiary of any such body.

[1993, s. 23(1)]

223.—(1) The Minister may allocate and issue a personal social services number to a person in such manner as he deems fit.

[1993, s. 23(2)]

(2) A claimant or beneficiary under this Act shall be required to furnish to an officer of the Minister such information, as may be prescribed, which is necessary for the allocation and issue of a personal social services number under subsection (1).

[1993, s. 23(3)]

(3) For the purposes of this Act, including the making of a claim for benefit or the payment of any such benefit, a person shall furnish to an officer of the Minister, his personal social services number and that of his spouse, if any, and any child dependant.

[1993, s. 23(4)]

(4) In this section a reference to a personal social services number shall be construed as including a reference to a number known as a revenue and social insurance number.

Proceedings

[1988, s. 20(1)]

224.—(1) Proceedings for an offence under this Act shall not be instituted except by or with the consent of the Minister or by an officer authorised in that behalf by special or general directions of the Minister.

[1988, s. 20(2)]

(2) A prosecution for a summary offence under this Act may be brought at the suit of the Minister.

[1988, s. 20(3)]

(3) Notwithstanding the provisions of subsection (1) or any provision in any enactment specifying the period within which proceedings may be commenced, a prosecution for a summary offence under this Act may be brought at any time within whichever of the following periods later expires—

(a) the period of 6 months commencing on the date on which evidence sufficient to justify the institution of that prosecution came into the possession of the Minister, or

(b) the period of 2 years commencing on the date on which the offence was committed.

[1988, s. 20(4)]

(4) For the purposes of subsection (3), a certificate, sealed with the official seal of the Minister, as to the date on which such evidence as aforesaid came into his possession shall be sufficient evidence thereof until the contrary is shown.

[1988, s. 20(5)]

(5) Where in a prosecution for an offence under this Act it is shown to the satisfaction of the court—

(a) that an application has been made by a person (in this section referred to as “the defendant”) for any benefit, and

(b) that as a result of that application any such benefit has been paid to any person (whether or not such benefit was that applied for and whether or not it was paid to the defendant),

the defendant shall be presumed to have given any information contained in the application (or to have caused it to be given on his behalf) and, where such information is false, with full knowledge of such falsity and with intent that it should deceive; but this presumption may be rebutted.

[1988, s. 20(6)]

(6) For the purpose of the institution of proceedings under this Act a certificate, purporting to be given by an officer of the Minister authorised in that behalf by the Minister and to be signed by that officer, certifying the following facts, namely, that a person is an officer of the Minister and that he has been authorised under a special or general direction of the Minister to institute such proceedings, or that the Minister has consented to the institution of such proceedings, shall be sufficient evidence in any legal proceedings of the matters certified in the certificate, until the contrary is shown.

[1981, s. 15(4)]

(7) (a) In proceedings instituted by virtue of section 14, a certificate purporting to be signed by the Collector-General which certifies that a stated amount is due and payable by the defendant shall be evidence until the contrary is proved that that amount is due and payable, and when tendered in evidence shall be deemed until the contrary is proved to have been signed by him.

(b) For the purposes of this subsection, the rules of the court concerned for the time being applicable to civil proceedings shall apply to proceedings by virtue of section 14.

[1989, s. 20(1)]

225.—(1) In this section—

“copy record” means any copy of an original record being a record made for the purposes of or in connection with this Act or schemes administered by the Department of Social Welfare or a copy of that copy made in accordance with either of the methods referred to in subsection (2) and accompanied by the certificate referred to in subsection (3);

“original record” means any document, record, or record of an entry in a document or record or information stored by means of any mechanical or electronic device, whether or not in a legible form, which was made or stored by the Minister or a specified agency for the purposes of or in connection with this Act or schemes administered by the Department of Social Welfare at the time of or shortly after the event recorded and which is in the possession of the Minister or a specified agency;

“provable record” means an original record or a copy record;

“specified agency” means An Post or a person authorised to carry on banking business under section 9 of the Central Bank Act, 1971 .

[1989, s. 20(2)]

(2) The Minister or a specified agency may, where by reason of the deterioration of, or inconvenience in storing, or technical obsolescence in the manner of keeping any original record or any copy record, make a legible copy of the record or store information concerning that record otherwise than in a legible form so that the information is capable of being used to make a legible copy of the record, and the Minister or the specified agency may thereupon destroy the original record or the copy record:

Provided that any authorisation required by the National Archives Act, 1986 , for such destruction has been granted.

[1989, s. 20(3)]

(3) In any proceedings a certificate signed by an officer of the Minister or a specified agency, as the case may be, stating that a copy record has been made in accordance with the provisions of subsection (2) shall be evidence of the fact of the making of such copy record and that it is a true copy, until the contrary is shown.

[1989, s. 20(4)]

(4) A document purporting to be a certificate under subsection (3) shall be deemed to be such a certificate without proof of the signature of the person purporting to sign the certificate or that such person was a proper person to so sign, until the contrary is shown.

[1989, s. 20(5)]

(5) In any proceedings any provable record may be given in evidence and shall be prima facie evidence of any fact therein stated or event thereby recorded:

Provided that the court is satisfied of the reliability of the system used to make or compile, in the case of an original record, that record, and in the case of a copy record, the original on which it was based.

[1989, s. 20(6)]

(6) Where information contained in a provable record is in a form which would normally not be comprehensible to a person who has no knowledge of that type of information, an explanation of its meaning by a suitably qualified person shall be admissible.

[1989, s. 20(7)]

(7) In any proceedings a certificate signed by an officer of the Minister or a specified agency, as the case may be, stating that a full and detailed search has been made for a provable record of an event in every place where such records are kept by the Minister or the agency, as the case may be, and that no such record has been found shall be prima facie evidence that the event did not happen:

Provided that the court is satisfied—

(a) of the reliability of the system used to compile or make and keep such records,

(b) that, if the event had happened, a record would have been made of it, and

(c) that the system is such that the only reasonable explanation for the absence of a record is that the event did not happen.

[1989, s. 20(8)]

(8) This section shall apply to any original record or to any copy record made before the 26th day of March, 1989, in accordance with either of the methods referred to in subsection (2) but the proviso to that subsection shall not have effect in relation to anything deemed to have been done under that subsection before the commencement of section 7 of the National Archives Act, 1986 .