Determination of Questions

The Social Security (Determination of Questions) Regulations, 1979 dated the 7^th day of February, 1979 made by the Minister under section 35 of the Social Security Act, 1972 (No. 3 of 1972).

_______

1. Citation. These Regulations may be cited as the Social Security (Determination of Questions) Regulations, 1979.

PART I - PRELIMINARY

2. Interpretation. In these Regulations, unless the context otherwise requires Aappeal Tribunal@ means an appeal tribunal established and constituted under Regulation 7;

Aapplication@ means, for the purpose of Part II, any person who has made application to the Board for the determination of any question to which that Part relates;

Aquestion@ includes, for the purposes of Part III, a claim for benefit;

Areserved question@ means any question so prescribed by regulation 3.

PART II

DETERMINATION OF QUESTIONS BY THE BOARD.

3. Reserved Questions. The following reserved questions arising under or in connections with the Act shall be determined by the Board whose decision shall, subject to the provisions of these regulations, be final-

(a) whether a person is or was an employed person for the purposes of the Act;

(b) as to the class of insured person in which a person is to be included;

(c) at what rate any contribution is or was payable in accordance with any regulations made under the Act, or any question otherwise relating to a person=s contribution.

(d) who is or was liable for payment of any contribution as the employer of any insured person;

(e) as to which child or children should be granted survivor=s benefit.

4. Procedure for (1) Any person desiring to obtain the decision of the Board on any

Determination of reserved question shall send to the Board an application in writing in a

Reserved Questions. form approved by the Board and shall furnish such particulars as the

Board may require for the purposes of the consideration and determination of such questions.

(2) The Board shall take steps to bring any reserved questions and any particulars which may have been furnished in accordance with paragraph (1) to the notice of any other person appearing to it to be interested therein (in this Part referred to as Athe other person@) and may require the other person to furnish such particulars within such time and in such form as it considers reasonable for the proper determination of the question.

(3) The Board may, if it thinks fit, before determining a reserved question, appoint a person to hold an inquiry into the matter and to report to it thereon, and any person so appointed may by summons require any person to attend a such inquiry to give evidence or to produce reasonably required for the purposes of the inquiry, and may take evidence on oath and for that purpose administer oaths.

(4) Reasonable notice of the date and place of the holding of such an inquiry shall be given to the applicant and the other person.

(5) The applicant and the other person shall be entitled to attend and to be heard at the inquiry, and to be represented by any other person, and the procedure shall, subject to this regulation, be such as the person holding the inquiry shall determine.

(6) The Board shall give notice in writing of its decisions to the applicant and to the other person, and may publish its decision in such manner as it thinks fit.

5. References and (1) Any question of law arising in connection with the determination

Appeals to High by the Board of any reserved question, may, in accordance with rules of

Court. court, be referred by the Board for decision to the High Court.

(2) In the event of the Board deciding to refer any question of law to the High Court, it shall send notice in writing of its intention so to do to the applicant and to the other person.

(3) An person aggrieved by a decision of the Board on any question of law, and that question is not referred to the High Court by the Board, may, in accordance with rules of the court, appeal from that decision to the High Court, and the applicant and the other person shall, on request, be furnished by the Board with a statement of the reasons for its decision.

(4) The applicant, the other person (if any) and the Board shall be entitled to appear and be heard at the hearing of any reference or appeal to the High Court.

6. Review of Decisions (1) The Board may, on new facts being brought to its notice or if it is

by the Board. satisfied that a decision was made in ignorance of, or was based on a mistake as to, some material fact, review any decision made by it in accordance with these Regulations.

Provided that no decision shall be reviewed while a reference or an appeal to the High Court is pending or before the time for appealing against a decision has expired.

(2) The provisions of regulation 5 shall apply in relation to a decision which has been reviewed as they apply to the original decision.

PART III

DETERMINATION OF QUESTIONS BY THE DIRECTOR OR AN

APPEAL TRIBUNAL

7. Appeal Tribunal. For the purposes of these Regulations there shall be an appeal tribunal constituted in accordance with the provisions of the Schedule to these Regulations.

8. Determination of (1) The following questions, that is to say-

Questions by the

Director. (a) any question as to the right benefit; and

(b) any other question arising under or in connection with Act or any Regulation made thereunder, not being a reserved question, shall be submitted to the Director who shall consider the question, and, so far as practicable, dispose of it in accordance with these

Regulations within fourteen days from the date when

it was submitted to him.

(2) Any person desiring to obtain the decision of the Director on any question mentioned in paragraph (1) shall send to the Director an application in writing in a form approved by the Board and shall furnish such particulars as the Director may require for the purposes of the consideration and disposal of such question:

Provided that the Director may dispense with the requirements of this paragraph, if he thinks it proper so to do.

(3) If, on consideration of a question, the Director is of the opinion that a reserved question does not arise, then-

(a) if he is satisfied that the question ought to be determined wholly in favour of the claimant, he may decide the question accordingly;

(b) in so far as he is not so satisfied, he may either.-

(1) refer the question (so far as is practicable within fourteen days from the date on which it was submitted to him) to an appeal tribunal for its decision ; or

(2) himself decide the question in whole or in part adversely to the claimant.

(4) Where the Director refers a question to an appeal tribunal in accordance with paragraph (3), notice in writing of such reference shall be given to the claimant.

9. Action by Director (1) If, on consideration of a question the Director is of the opinion that

and Appeal Tribunal a reserved question arises he shall-

on Reserved

Questions.

(a) Refer the reserved question to the Board to determine the same; and

(b) deal with any other question as if a reserved question has not arisen;

Provided that the Director may-

(i) postpone the reference of, or the dealing with, any question until after any other question has been determined;

(ii) in any case where the determination of any question disposes of a claim or part thereof, make an award or decide that an award cannot be made as to the claim or any part thereof without the referring or dealing with, or before the determination of, any question.

(2) This regulation shall apply to the tribunal as it applies to the Director except than an appeal tribunal instead of itself referring a question for determination in accordance with subparagraph (a) of paragraph (1) shall require it to be so referred by the Director.

10. Appeals to Appeal (1) If the Director decides a question in whole or in part adversely to a

Tribunal. claimant, the Director shall notify the claimant accordingly in writing, stating in such notice the reasons for his decisions and informing the claimant of his right of appeal.

(2) A claimant shall, subject to this regulation, have the right to appeal against an adverse decision to an appeal tribunal, whose decision shall, subject to the provisions of these Regulations be final:

Provided that where the decisions of the Director has been based solely upon the decision of a reserved question by the Board or by the High Court, and the Director certifies accordingly, no appeal shall lie without the leave of the Chairman of the appeal tribunal.

(3) An appeal against a decision of the Director shall be brought by giving notice the Board within twenty-one days after the date of the decision or within such further time, not exceeding four months, as the Chairman of the appeal tribunal may allow.

(4) A notice of appeal shall be in writing and shall contains a statement of the grounds upon which the appeal is made.

11. Time and Place of (1) Reasonable notice of the time and place of any hearing before an

Hearing of Appeals. appeal tribunal shall be given to the claimant and to any other person who may appear to the Chairman of the tribunal to be interested therein (in this Part referred to as Athe other person@), and, except with the consent in writing of the claimant, the appeal tribunal shall not proceed with the hearing of any case unless such notice has been given.

(2) If a claimant or the other person fails either to appear in person or by representative at such hearing, and has not given a reasonable explanation for his absence, the appeal tribunal may proceed to determine the appeal as it thinks proper.

12. Hearing before

Appeals Tribunals. (1) Every hearing before an appeal tribunal shall be in public unless the Chairman of the tribunal otherwise directs if he of the opinion that intimate personal or financial circumstances may have to be disclosed or that considerations of public security are involved.

(2) The claimant, the other person (if any) and the Director shall be entitled to appear and be heard at the hearing of any appeal to an appeal tribunal.

(3) Any person, by virtue of this Regulation, has the right to be heard by an appeal tribunal may be represented at the hearing by some other person whether having professional qualifications or not and, for the hearing, any such representative shall have all the rights to which the person whom he represents is entitled under the Regulations.

(4) Any person who exercises the right conferred by this regulation to be heard at the hearing may call witnesses and shall be given an opportunity of putting questions directly to any witness called at the hearing.

(5) If it appears to an appeal tribunal that any appeal under this regulation involves a question of law or fact of special difficulty, it may direct that, in dealing with the appeal or any part thereof, it shall have the assistance of an assessor or assessors.

(6) For the purpose of arriving at a decision, or discussing any question of procedure, an appeal tribunal may, notwithstanding anything contained in this regulation, order all persons not being members of the tribunal or an officer of the Board acting as clerk to the tribunal, to withdraw from the sitting of the tribunal.

13. Decisions of Appeal (1) An appeal tribunal shall-

Tribunal

(a) record in writing every decision (whether on an appeal or on a reference from the Director); and

(b) include in the record of every decision (which shall be signed by all members of the tribunal) a statement of the reasons for its decision, including its findings on all questions of fact material thereto.

(2) Where an appeal tribunal is unable to reach a unanimous decision on any case, the decision of the majority of the members thereof shall be the decision of the tribunal.

(3) As soon as may be practicable, a copy of the record of its decision made in accordance with this regulation shall be sent to the claimant, to the Director and to the other person (if any).

14. Review of Decisions (1) Any decision of the Director or of an appeal tribunal may be

of Director and reviewed at any time by the Director, or on a reference from the

Appeal Tribunal. Director, or on a reference from the Director, by the appeal tribunal (as

the case may be), if-

(a) he is, or the appeal tribunal is, satisfied, but not without fresh evidence in the case of a decision of an appeal tribunal, that the decision was given in ignorance of, or was based on a mistake as to, some material fact; or

(b) there has been any relevant change, of circumstances since that decision was made; or

(c) that decision was based on the decision of any reserved question and the decision of that question has been revised.

(2) An application that a decision of the Director or of an appeal tribunal under paragraph (1) shall be sent to the Director in writing in a form approved by the Board and shall state the grounds upon which the application is based.

(3) On receipt of any such application, the Director shall proceed to deal with or refer any question arising thereon in accordance with these regulations:

Provided that the Director, before disposing of the application, shall send a copy of it to the other person if the application related to a decision of an appeal tribunal and the other person was a party to the proceedings before the appeal tribunal.

(4) Any refusal to review and any decision given on a review under this regulation shall be subject to appeal in like manner as an original decision, and the provisions of this Part shall, subject to the necessary modifications, apply in relation to any decision given on a review as they apply to the original decision of a question by the Director.

PART IV

EFFECT OF PROCEEDINGS ON AWARDS

15. Interim Payments. (1) Subject to this regulation and to the Social Security (Benefits) Regulations, 1973, benefit shall be payable in accordance with an award, notwithstanding that an appeal against, or a review of, the award is pending.

(2) Where it appears to the Director that a question has arisen whether-

(a) the conditions for the receipt of benefit payable under an award are or were fulfilled; or

(b) an award of benefit ought to be reviewed in accordance with these Regulations,

he may direct that payment of the benefit shall be suspended in whole or in part until that question has been determined.

16. Review of Decisions (1) Subject to the following provisions of this regulation, when a

involving Payment decision is revised on review so as to make benefit payable, or to

or Increase in increase the rate of benefit, the decision on review shall have effect as

Benefit. from the date of the application for the review.

(2) If any case a claimant proves that on a date earlier than the date on

which the application for the review was made, he was (apart from satisfying the condition of making a claim thereof) entitled to benefit, he shall not be disqualified from any benefit to which he would have been entitled in respect of the period between the earlier date and the date on which the application for the review was made.

(3) No sum on account of benefit shall be paid to any person in respect of any part of the period referred to in paragraph (2) earlier than six months before the date on which Publication for the review was made.

(4) If a decision on review was based on a material change of circumstances subsequent to the date from which the original decision took effect, the decision on review shall not have effect for any period before the date declared by the Director or an appeal tribunal (as the case may be) to be the date on which such material change of circumstances took place.

(5) Where a decision is reviewed by or at the instance of the Director under regulation 14 (1), the date on which it was first decided by the Director that the decision should be reviewed shall be deemed to be the date of the application for the review.

(6) For the purposes of this regulation Abenefit@ shall not include invalidity, age or survivor=s benefit or funeral grant.

17. Adjustment of (1) When a grant is awarded by a decision on review or appeal in lieu of a Benefit following grant previously awarded, such shall direct that any payment made on Review or Appeal account of the grant previously awarded shall, in so far as it does not exceed the amount of the subsequently awarded grant, be treated as being made on account of the latter.

(2) When any benefit other than a grant is awarded by a decision on review or appeal in lieu of another benefit previously awarded, that decision shall, as respects any payments made on account of the benefit previously awarded-

(a) direct that, in so far as the amount of such payment does not exceed of any arrears payable in respect of the benefit subsequently awarded, such payments shall be treated as having been made on account of such arrears; or

(b) direct that, to the extent by which the amount of such payments exceeds the amount of the said arrears, such payments shall (except in so far as they are required to be repaid under this regulation) be treated as having been made on account of sums becoming payable after the date of the decision on review or appeal in respect of the benefit awarded thereby.

(1) When on review or appeal a decision is revised, or is reversed or varied, so as to make benefit previously awarded not payable or to reduce the amount of such benefit, the decision given on review or appeal shall direct that the beneficiary shall repay to the Fund any benefit paid pursuance of the previous decision to the extent to which-

(1) it would not have been payable if the decision on review or appeal had been given in the first instance; and

(2) it is not directed to be treated as paid on account of the benefit subsequently awarded by the decision on review or appeal.

(4) When-

(a) on review or appeal against an award of benefit a decision is made, so that such benefit is not payable or if payable at a less rate; and

(b) on review or appeal, the subsequent decision is made so as to make such benefit again payable, or payable at a higher rate than that at which it was payable before the subsequent decision, any benefit paid in pursuance of the award before the subsequent decision shall, to the extent, to which it would not have been payable if the decision on review or appeal had been given in the first instance, be treated as having been paid on account of any benefit made payable for the same period by the decision on review or appeal, except in so far as that benefit has, in pursuance of that decision, been repaid or treated as having been paid on account of the benefit awarded by that decision.

(5) When, in accordance with a decision given on review or appeal, any benefit is required to be repaid to the Fund, then, without prejudice to any other method of recovery, such benefit shall be recoverable by deduction from any benefit then or thereafter payable to the person by whom it is to be repaid or from any benefit payable on his death.

(6) Nothing in the regulation shall be construed as preventing the operation of the Social Security (Benefit) Regulations, 1978 which provide for the adjustment of benefits where there is entitlement to more than one benefit.

PART V

MISCELLANEOUS

18. Powers of the Board (1) Subject to the Act and these Regulations, the procedure for the

The Director and determination of any question by the Board, the Director or an

Appeal Tribunal. an appeal tribunal shall be such as the Board, the Director or the

appeal tribunal, as the case may be, may determine.

(2) Any power given by these Regulations to extend the period during which anything is required to be done thereunder or to dispense with any of the requirements hereof may be exercised in any case, notwithstanding that the period which the thing is required to be done has expired.

19. Decisions to be (1) Where in any proceedings-

Conclusive for

Purpose of (a) for an offence under the Act; or

Proceedings

Under the Act. (b) involving any question as to the payment of contributions under the Act; or

(c) for the recovery of any sum due to the Fund, any question arises which, under the Act or any regulation made thereunder is to determined by the Board, or by the High Court in the event of a reference or an appeal on a point of law, or by the Director or an appeal tribunal (hereinafter referred to as Athe determining authority@), the decision of the determining authority shall, unless an appeal under these Regulations is pending or the time for so appealing has not expired, be conclusive for the purpose of these proceedings.

(2) If any decision mentioned in paragraph (1) has not been obtained and the decision of the question is necessary for the determination of the proceedings, the question shall be referred to the determining authority, as the case may require, in accordance with procedure (modified where necessary) prescribed by these Regulations.

(3) When any appeal mentioned in paragraph (1) is pending, or the time

for so appealing has not expired or where any question has been referred under paragraph (2), the court dealing with the proceedings shall adjourn them until such time as a final decision upon the question has been obtained.

20. Authority for (1) There shall be paid out of the Fund to the Chairman of the Appeal

Payments. Tribunal such salary or other remuneration and such expenses as the Minister may from time to time determine.

(2) There shall be paid out of the Fund-

(a) to the members of an appeal tribunal (not being the Chairman);

(b) to a person or persons appointed by the Board under

regulation 4 (3),

such remunerations and such travelling or other allowance as the Board may by resolution determine.

(3) There shall be paid out of the Fund to persons required to attend on the consideration of a case before an appeal tribunal or the Board such travelling or other allowances as the Board may by resolution determine.

(4) There shall be paid out of the Fund such other expenses incurred in

connection with the work of an appeal tribunal or the Board as the Board may by resolution determine.

(5) For the purposes of this regulation any reference to travelling or other allowances includes a reference to compensation for loss or remuneration:

Provided that such compensation shall not be paid to any person in respect of any time during which he is in receipt of remuneration under this regulation.

21. Revocation. The Social Security (Determination of Reserved Questions) Regulations, 1974 (No. 12 of 1974) are hereby revoked.

Made this 7^th day of February, 1979.

John E. St. Luce,

Minister responsible for Social Security.

Schedule (Regulation 7)

APPEAL TRIBUNAL

1. An appeal tribunal shall consist of-

(a) one person drawn, in accordance with paragraph 3, from a panel of persons nominated by the Board to represent employers;

(b) one person drawn, in accordance with paragraph 3, from a panel of persons nominated by the Board to represent insured persons; and

(c) a Chairman who, subject to the provisions of this Schedule shall be appointed by the Minister.

2. (1) The Chairman of an appeal tribunal shall be a barrister of at least five years standing and the Minister may appoint more than one person to perform the functions of Chairman.

(2) A Chairman shall hold office for such period not exceeding two years as the Minister may determine and shall be eligible for re-appointment.

3. (1) Before nominating persons to be members of either of the panels the Board shall take into consideration any recommendation from organisations concerned with the interests of employers and of insured persons.

(2) Members appointed to a panel shall hold office for such term and on such conditions as may be determined by the Board and shall be eligible for re-appointment.

4. The Minister may, if he considers it expedient so to do, at any time revoke the appointment of the Chairman and the Board may, if it considers it expedient so to do, at any time revoke the appointment of any member of a panel.

5. No member of the Board shall be eligible for appointment as a Chairman or member of an appeal tribunal.

6. As far as practicable the members of each panel shall be summoned by the Board to serve in turn on an appeal tribunal:

Provided that-

(a) no person shall sit on a tribunal during the consideration of a case-

(1) in which he appears as the representative of the claimant; or

(2) by which he is or may be directly affected; or

(3) in which he is involved as an employer or as an employed person or as a witness;

(b) where the claimant is a woman, at least one of the members of the tribunal shall, if practicable, be a woman.

7. The appeal tribunal may, with the consent of the claimant, but not otherwise, proceed with any case in the absence of any member other than the Chairman, and in any case the Chairman shall, if the number of members of the tribunal is an even number, have a second or casting vote.