# Amendment to an Act or Statutory Instrument SI in relation to Social Welfare entitlem



## justsally (24 Jul 2008)

Can someone advise me on this. If regulations are being changed in relation to Social Welfare entitlement must reference be made in the amending Act to the specific part of the Act or Statutory Instrument which is being amended.


*if this is posted in the wrong forum please move it.*


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## csirl (25 Jul 2008)

*Re: Amendment to an Act or S.I.*

Im not an expert on Social Welfare Acts, so not going to comment on their contents.

Sometimes authority to make regulations is delegated to a Minister in an Act of the Oireactas. The Minister makes these regulations by way of Statutory Instrument (S.I.). When an S.I. is signed by the Minister, it becomes law from that point forward. Regulations do not amend an Act, they are usually an additional layer of more detailed rules.


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## ClubMan (25 Jul 2008)

*Re: Amendment to an Act or S.I.*



justsally said:


> Can someone advise me on this. If regulations are being changed in relation to Social Welfare entitlement must reference be made in the amending Act to the specific part of the Act or Statutory Instrument which is being amended.


Presumably so or the amendment would hardly make any sense out of context! But as mentioned above perhaps you are referring to a situation in which the higher level rules and not the actual underlying legislation is being changed?


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## justsally (25 Jul 2008)

*Re: Amendment to an Act or S.I.*

Thanks for the replies.

That's what I thought I understood to be the case. An Act was brought in, in 1997 which amended, by way of a subsection clause, an earlier Act. 
In between the said first Act and the later Act amending the previous Act a S.I. was introduced through the Oireachtas and signed off in 1996. I cannot find any reference anywhere to the S.I. in the 1997 amendment. The said S.I. was benefical to some, including us.

The amendment (1997 Act) is beneficial to others in a different category, but not our category, yet it is being applied in our case. The S.I. would entitle us to a part pension, whereas the amendment would bar us from same. So it's an important matter for us. 

As far as I was aware, all Legislation, be it Statutory Instruments or Acts, has the same authority, the only difference being their methods of introduction. I may be wrong.

Is there anywhere one can have an Act intrepreted for a lay person. (that will not cost an arm and a leg) It takes a very clear and focussed mind to follow through on these acts, what with all the referrals to previous Acts, amendments, and S.I.s etc - which I don't possess. Hope I'm making myself clear.


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## Pulped (26 Jul 2008)

*Re: Amendment to an Act or S.I.*



> As far as I was aware, all Legislation, be it Statutory Instruments or Acts, has the same authority, the only difference being their methods of introduction. I may be wrong



Statutory Instruments are secondary legislation, minister's use them to give effect to provisions in legislation. Where there is a conflict between a S.I. and an Act of the Oireachtas the Act will always take precedence. If you are looking for legal advice then the best bet is to go to your solicitor. If you don't want to pay for the advice you could always try a free legal aid clinic (FLAC).


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## Allen (28 Jul 2008)

*Re: Amendment to an Act or Statutory Instrument SI in relation to Social Welfare enti*

The S.I. may have referred to the original Act, or been brought into effect because the original Act allowed for an S.I. to be introduced. It may then have no authority when the original Act was amended. 
Read the start of the S.I. and it may clarify matters.


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## csirl (29 Jul 2008)

*Re: Amendment to an Act or Statutory Instrument SI in relation to Social Welfare enti*

So to clarify.

The Primary Act dates from 1996. S.I. was made under delegated authority shortly afterwards. An Amendment Act was introduced in 1997. 

The big question is whether the Amendment Act changed the part of the Primary Act that the S.I. depended upon.

If the changes introduced by the Amendment Act were to an unrelated part of the Primary Act (to the S.I.), then the S.I. is still in force. If the Amendment Act changed to Primary Act to the effect that the S.I. becomes meaningless or redundant, then the S.I. is no longer in force.

In the event of conflicts between Acts, the latest Act is the one in force. In the event of conflicts between an Act and a S.I., the Act is the one in force as the Act is Primary Legislation voted for in the Dail and so has precedence over an S.I. which is only Secondary Legislation.


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## dereko1969 (29 Jul 2008)

*Re: Amendment to an Act or Statutory Instrument SI in relation to Social Welfare enti*

if you post the exact acts and statutory instruments you're talking about, people will be able to help. 

csirl has stated the relevant facts, however the original Act from my reading of the OPs post was made prior to 1996.


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## SarahMc (29 Jul 2008)

*Re: Amendment to an Act or S.I.*



justsally said:


> Is there anywhere one can have an Act intrepreted for a lay person. (that will not cost an arm and a leg) It takes a very clear and focussed mind to follow through on these acts, what with all the referrals to previous Acts, amendments, and S.I.s etc - which I don't possess. Hope I'm making myself clear.


 
The Irish Taxation Institute (and this forum) were brilliant to me when I was trying to make sense to amendments to Finance Acts on behalf of a charity.

If you are approaching on behalf of a charity/interest group, the Law Society may point you in the direction of some-one who can do this pro-bono.


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## justsally (4 Aug 2008)

*Re: Amendment to an Act or Statutory Instrument SI in relation to Social Welfare enti*

Thanks for all the very helpful replies. Sorry for the confusion. I referred to 2 Acts instead of one Act and 2 Statutory Instruments.. Having read and re-read the various documents this is the best I can come up with:-

In this order

S.I. No. 417, 1994 Social Welfare (Consolidated Payments Provisions) Regulations 1994 amended by
S.I. No. 143/1996 - Social Welfare (Consolidated Payments Provisions) Amendment (No. 3) Regulations 1996.(Consolidation Act) 1993
Social Welfare Act 1997 amended Social Welfare (Consolidations Act) 1993.

My question is Can the 1997 Act or part of same be amended without reference to the two previous Statutory Instruments. My reason for asking?-

1997 Act.
*"(1A) In the case of a person, *other than a person*, *who on or before the 6th day of April, 1997, is a voluntary contributor paying contributions under Chapter 4 of Part II, *who* *attained pensionable age on or after the 6th day of April, 2002, but before the 6th day of April, 2012, subsection (1) (b) shall be construed as if '260' were substituted for '156'*


"Explanation" (footnote on 1997 Act)
These Regulations amend existing regulatory provisions so as to enable a person who has a mixed insurance record, that is periods of full and modified rate insurance, to qualify for a Pro-Rata Mixed Insurance Old Age (Contributory) or Retirement Pension where the rate of such pension is higher than the rate of other pension entitlement"

This is simply not the correct in all cases. In fact the amendment is detrimental to us - whereas the S/I. 143/1966 was beneficial.

S.I. 143/1996
*(I) an aggregate of at least 260 contributions, reckonable for the purposes of the contribution conditions for entitlement to old age (contributory) pension, have been paid in respect of or credited to him, *


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## csirl (5 Aug 2008)

*Re: Amendment to an Act or Statutory Instrument SI in relation to Social Welfare enti*

I would imagine that the 1997 Act only has to mention that it is amending the 1993 Act. Does not have to refer to the S.I.s as these are only secondary legislation to the 1993 Act.

The "Explanation" footnotes should always be taken with a health warning - they are not 100% legally accurate, just a broad description of the contents of the Act.


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## justsally (5 Aug 2008)

*Re: Amendment to an Act or Statutory Instrument SI in relation to Social Welfare enti*

Yikes


That's what I was afraid of.    I understand what you mean about the "health warning".    I read the Minister's speech.  which he made when   introducing the Bill in the Dail,and understood it to mean that the regulation was being made to facilitate people who had broken contributions, not contributors with mixed but not broken contributions.    When I  e-mailed the said Minister in Europe with my query, he replied "As far as I know, paid and credited contributions can be totalled in order to meet the 260 contributions requirements for a pension".

Is it any wonder I'm confused.

Thanks again for your helpful and early response.


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## Black Sheep (5 Aug 2008)

*Re: Amendment to an Act or Statutory Instrument SI in relation to Social Welfare enti*

As I have no legal expertise I cannot give an informed opinion but I have some experience of mixed rate pensions.  It appears to me that a similar situation is likely to occur after 2012.

Do you have more than 156 class A/Ord contributions and less than 260 plus class D contributions. If so do you have the official records of all those contributions. I have come up against a stone wall on several occasions trying to obtain class D records.


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## justsally (6 Aug 2008)

*Re: Amendment to an Act or Statutory Instrument SI in relation to Social Welfare enti*

I was able to obtain contribution records from Pensions Forecast Section, both full and reduced contributions. 

Why did u have problems obtaining the records you need.


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## Black Sheep (6 Aug 2008)

*Re: Amendment to an Act or Statutory Instrument SI in relation to Social Welfare enti*

The central records records section supplied the Class A records and state that they do not have the class D (civil service records) and they referred me to the Department in which my colleague worked. 
That department has no records of the PRSI paid but supplied all personal records which shows that the person worked there between the years x and y but still no actual PRSI records.

My doubts are that no PRSI was payable due to the regulations that pertained at the time but the assumption is being made that payments *were* made. This means that the persons (reduced pension) is being paid on an assumption that PRSI was paid even in the absence of records/proof. 
As I'm sure you are aware pension is calculated from the first day of insurable employment. As the first day of insurable employment is being taken as the date on which the person entered the civil service. This gives the person a working life of 47 years whereas if the first day of insurable employment was taken as the date the person entered *private *employment that person would be entitled to a full rate of pension


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## justsally (6 Aug 2008)

*Re: Amendment to an Act or Statutory Instrument SI in relation to Social Welfare enti*

Thanksin advance!!!!
Any chance that someone who understands Legal language can explain 
the following to me - just can't handle the legal jargon:- 

"Social Welfare Act, 1997
Continuance of instruments. *36.*—An instrument that is made under a provision of The Principal Act (other than section 205 (2)) that is amended by this Act  and that is in force immediately before the commencement of the amendment shall continue in force as if made under the provision so amended."


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## justsally (7 Aug 2008)

*Re: Amendment to an Act or Statutory Instrument SI in relation to Social Welfare enti*

Blacksheep

I think I hear where you are coming from.   Is it possible to find out if was obligatory to pay modified contributions when employed in the institution where you colleague worked.       Perhaps someone on these boards may have been employed by the same institution and  would be able to guide you as to what contributions were generally paid in the specific years for which you cannot trace records.   I realise the modified contribution years (if they exist) would militate against your colleague getting a full pension by reducing the yearly average etc., whereas a shorter contribution record of class A contributions may well get him a full pension.   This is one of the S.W. anomolies that exists.

Good luck with your search.


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## SarahMc (7 Aug 2008)

*Re: Amendment to an Act or Statutory Instrument SI in relation to Social Welfare enti*



justsally said:


> I read the Minister's speech. which he made when introducing the Bill in the Dail,and understood it to mean that
> .....


 
Don't rely on the Minister's speech for clarification, I know from experience, it can often be inaccurate.



justsally said:


> When I e-mailed the said Minister in Europe with my query, he replied "As far as I know, paid and credited contributions can be totalled in order to meet the 260 contributions requirements for a pension".


 
You really need to get this clarified from the Minister in question, "As far as I know" is really not good enough.  Get your local TD to table a parlimentary question for clarification if necessary.


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## Black Sheep (8 Aug 2008)

*Re: Amendment to an Act or Statutory Instrument SI in relation to Social Welfare enti*

Justsally
I have tried many times in the SW records section and the pension office and read many regulations to ascertain if it was obligatory to pay reduced prsi. I have asked among others who were in a similar situation and all are quite adamant they did *not* pay prsi.
I have tried the freedom of information and to date no result. I have posted on this forum to find others who may be in a similar situation.
I have also made a submission to the Green Paper re this and other  anomalies


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## justsally (8 Aug 2008)

*Re: Amendment to an Act or Statutory Instrument SI in relation to Social Welfare enti*

SarahMc

I will indeed be having a question tabled for a written reply.    I did not intend accepting the nebulous reply received, and will in time be following it up.   Re. having the matter raised in the House for a written reply just pondering whether to approach a local Labour TD whose party made the amendment, or a Fianna Fail TD whose party continues to promulgate the change.    I'll probably check out *all *the local T.Ds to see their response.

Blacksheep
I've never come across a situation such as yours before.    Have you considered having the matter raised in the Dail for a written reply.    As far as I can recall, more substantial information is often given to the constituent even before the question is raised in the House.    Sorry, if I'm suggesting something that you have already done this.


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## Black Sheep (8 Aug 2008)

*Re: Amendment to an Act or Statutory Instrument SI in relation to Social Welfare enti*

I can assure you there are many people in similar situation. I'm doing the digging on behalf of a group of colleagues. (They have given up).
I've written to the Minister for SW,The Fine Gael spokesperson on SW, The Labour spokesperson on SW, The Ombudsman, The Pension Ombudsman and others. I attended the Pension Green Paper seminar and met many like minded people there.
Of these Roisin Shorthall seemed to have a clearer understanding of the situation and a genuine interest in the topic and sent a list of her Dail questions. However none of her discussions matched with my colleagues. Perhaps you may be interested in contacting her.
We dealt with a lady many years ago who persued her pension for ten years.(I hope yours doesn't take that long) She also had been a civil servant also and eventually got her pension at age 75. 

Dr Orla Quinn is head of Pension Policy at Dept of SW. She may be an interesting contact


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## csirl (8 Aug 2008)

*Re: Amendment to an Act or Statutory Instrument SI in relation to Social Welfare enti*



> The central records records section supplied the Class A records and state that they do not have the class D (civil service records) and they referred me to the Department in which my colleague worked.
> That department has no records of the PRSI paid but supplied all personal records which shows that the person worked there between the years x and y but still no actual PRSI records.


 
Have you tried contacting the Pensions Section in Personel & Remuneration Division of the Dept of Finance (was old Dept of Public Service in days gone by)? They have pension records relating to retired public servants.


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## justsally (8 Aug 2008)

*Re: Amendment to an Act or Statutory Instrument SI in relation to Social Welfare enti*

You certainly have done your work!.    I know Roisin well and will be discussing matters with her in any event.    I'll take note of Dr. Orla Quinn.    *What did the ombudsman have to say*?.     Did you read one of the sample cases where a member of the Garda Siochana was given the wrong information re his pension contribution requirements etc.

Those "many people" should individually send a standard/agreed letter to their local TDs/Minister in order to get the matter resolved.    Numbers matter, a concerted approach, in my opinion, is best.    Seats have been won and lost by as little as four votes.   Pity there isn't a general election soon - amazing how it sharpens the mind.   Sorry I may be rambling.

My case is different to those you are looking after.    The full contributions were paid before the modified contributions, therefore the time element doesn't come into it.


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## Black Sheep (8 Aug 2008)

*Re: Amendment to an Act or Statutory Instrument SI in relation to Social Welfare enti*

csirl
Many thanks for that, hadn't thought of that angle

Justsally
Still not clear on what the problem is with yours or are you under the 260 class A contributions


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## justsally (8 Aug 2008)

*Re: Amendment to an Act or Statutory Instrument SI in relation to Social Welfare enti*

*Can someone advise me on this. If regulations are being changed in relation to Social Welfare entitlement must reference be made in the amending Act to the specific part of the Act or Statutory Instrument which is being amended - *That was my original post.we have less than 260 class A contributions, but sufficent (more than 156) according to the S.I. but not sufficient according to the 1997 Act.  Hence my query.

Cheers


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## Black Sheep (8 Aug 2008)

*Re: Amendment to an Act or Statutory Instrument SI in relation to Social Welfare enti*

Csirl
Now that I read your post again you say Dept of Finance have pension records of retired civil servants. Perhaps these are civil service pension records. I'll shoot off a letter to them anyhow.
Prior to 1979 civil servants paid a modified rate of contribution known as WOPS (Widows & orphans pensions). I find it difficult to believe that women were obliged to pay these contributions as they could not benefit. They could not be widowed while working (due to the marriage bar) and could not be orphaned, same reason.


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## Welfarite (8 Aug 2008)

*Re: Amendment to an Act or Statutory Instrument SI in relation to Social Welfare enti*

Am I right in this summary then?:

You are asking if  a change in the conditions for receipt of a pension (in this case, a change from having 156 contributions paid rather than 260 contributions paid) comes into force as soon as a new act is in place.


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## justsally (8 Aug 2008)

*Re: Amendment to an Act or Statutory Instrument SI in relation to Social Welfare enti*

*"Am I right in this summary then?:*

*You are asking if a change in the conditions for receipt of a pension (in this case, a change from having 156 contributions paid rather than 260 contributions paid) comes into force as soon as a new act is in place".......*
*without reference to the Statutory Instrument which permited 260 paid or credited contributions. *The 1997 Act introduced the amendment to read *260 paid contributions *without reference to any part of the Statutory Instrument, which was effective between the making of the Original Act and the 1997 Act.


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## Welfarite (8 Aug 2008)

*Re: Amendment to an Act or Statutory Instrument SI in relation to Social Welfare enti*

My understanding is that, if the 156/260 rule was implemented in between Acts by S.I., the new Act incorporates that S.I. into it (not necessarily referring to it). BTW, there is now a SW Consolidation Act 2005!.

In essence, what matters here (and this is only my understanding of it, I might be wrong) is what was the requirement (whether by S.I. or by main act) when the person reached pension age?


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## csirl (8 Aug 2008)

*Re: Amendment to an Act or Statutory Instrument SI in relation to Social Welfare enti*



> Now that I read your post again you say Dept of Finance have pension records of retired civil servants.


 
They also control the superannuation schemes off all sections of the public service. I'm not sure if they would have data on individuals outside the civil service (though its worth asking as they may), but I'm sure they have information on the rules, any precendents, anomolies etc. that would apply to all sectors of the public service. They also dealt with public sector PRSI policy in the days when public servants paid reduced rate.


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## SarahMc (8 Aug 2008)

*Re: Amendment to an Act or Statutory Instrument SI in relation to Social Welfare enti*



justsally said:


> Re. having the matter raised in the House for a written reply just pondering whether to approach a local Labour TD whose party made the amendment, or a Fianna Fail TD whose party continues to promulgate the change.


 
IMO, go for a Green or PD TD if you have one, if not, Labour.


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## justsally (10 Aug 2008)

*Re: Amendment to an Act or Statutory Instrument SI in relation to Social Welfare enti*

Thanks once again for all the replies.


Sarah re. which party.......I was just thinking our loud not necessarily asking a question of anyone, but thanks for your suggestion.


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