Committee Reports > List of Committees > Dáil > 1947 > Committee of Public Accounts > Report - Appropriation Accounts 1945 - 1946

APPENDIX XII.

LEGAL OPINION ON CERTAIN ADMINISTRATION DIFFICULTIES ARISING ON THE CHILDREN’S ALLOWANCES ACTS.

At the proceedings of the Public Accounts Committee on the 11th June last, during my examination in connection with the Appropriation Account of the Vote for Children’s Allowances (No. 51), I undertook to obtain the opinion of the Attorney-General on the matters raised in paragraph 61 of the Report of the Comptroller and Auditor-General on the Accounts of the Public Services, 1945-46.

I am now to enclose for the information of the Committee copy of the submission and of the opinion of the Attorney-General. It will be observed that the Attorney-General concurs in the course adopted by the Department in the cases in question.

Department of Industry and Commerce.

11ú Meán Fómhair, 1947.

I am directed by the Minister for Social Welfare to enclose a copy of a minute received from the Comptroller and Auditor-General together with a copy of this Department’s reply thereto and to state that the Accounting Officer has agreed to seek your advice in the matter as requested by the Comptroller and Auditor-General.

As regards (a) of the minute of the Comptroller and Auditor-General, relating to claims not received before the date of commencement of the relevant payment period, I am to state that the claimants in question represented that claims for children’s allowances had been duly made by them. The matter was thoroughly investigated and the Minister was fully satisfied as a result of such investigations that the claims in question had been duly made. Accordingly, duplicate claim forms were issued to the claimants in order to enable the Deciding Officer to make awards on the information supplied on these forms. This information was, of course, related to the qualifying date for which the original claims were made. I am to request the favour of your advice as to whether it was possible to accept such copy claims and award children’s allowances in accordance with the information contained therein.

As regards (b) of the minute of the Comptroller and Auditor-General, relating to claim forms which were not signed by the respective claimants or which had been signed on behalf of the claimants by some other person, it is the practice where claims are not duly signed or in other respects incomplete to return such claims to the claimants for signature or completion and to apply Regulation 5 in such cases. In the particular cases under review awards had, however, been made on the claims. Where the claim had not been signed this had been overlooked, due to pressure of work in the early stages of the Scheme. In the cases in which the forms had been signed by some other persons on behalf of the claimants it would appear that the comparison of signatures made in the Children’s Allowances Branch had not brought this to light, or the claim was an original claim, and there was no means available of identifying the particular signature.

It is not considered that Regulation 5 of the General Regulations was applicable in these cases. The forms were returned to have the correct signatures inserted when the matter came to light, but this was done merely as routine practice. The claims in question emanated from the correct claimants. Such persons were entitled to the allowances, as the absence of the claimants’ signatures was found to be merely an omission and did not constitute false or misleading representations on the part of the claimants concerned. The favour of your advice is also sought as to whether it was competent for the Deciding Officer to act accordingly.

It should also be stated that every effort is made to secure that the claimant will sign a claim personally. The necessity for this arises in claims which are subsequently found to have been fraudulent and on which prosecutions are undertaken. The difficulty of taking proceedings appears to be considerably increased if claimants, having refused to admit the offence under caution, have not personally signed all documents. It does not appear, however, that there is any way of being absolutely certain that all claimants have signed the claim forms personally unless every claim form is the subject of investigation by an Investigation Officer. In this connection it should be noted that there are approximately 140,000 claims on which awards are made twice yearly.

(Signed) W. MAGUIRE.

8ú Lúnasa, 1947.

Roinn An Ard Aighne,

Árd-Aighne:

1. If a claim has been duly made to the Minister but, for any reason, the information on the original claim form is not available for the Deciding Officer who is called upon to decide any question arising on the claim, the claim must be further investigated (see section 6 of the 1944 Act). I see nothing unlawful in, and a lot in favour of, gathering the required information by having a duplicate of the original claim prepared and signed by the claimant in such circumstances. On the facts stated in paragraph 2 of the Department’s minute, the procedure adopted appears to have been proper.

2. The cases mentioned at (b) appear to be of two sub-classes: (i) where there was no signature whatever on an otherwise complete claim form; (ii) where the signature was made, in the claimant’s name, by some other person. The prescribed forms of claim stipulate for the usual signature of the applicant, so that signature by a proxy or agent is not strictly sufficient. In both sub-classes, therefore, the claims were in some respect incomplete. This incompleteness does not appear, in a few instances, to have been detected in the initial examination of the claims or by the Deciding Officer, and an award or decision was made entitling the claimant to payment of an allowance, and payment was accordingly made.

3. The decision of a Deciding Officer stands until reversed or revised in the manner provided in the Acts. A revised award or decision by a Deciding Officer for cesser or reduction of an allowance is, under section 9 (4) (b) of the 1944 Act as amended by section 12 and the Schedule to the 1946 Act, to take effect prospectively from the date on which notice of it is given, unless the original award or decision was obtained by deliberately false or misleading statements or representations or by wilful concealment of a material fact. As it is indicated in the Department’s minute that no such fraudulent element entered into any of the cases in question, no purpose would have been served by obtaining a revised decision after the expiration of the payment period. If any of the original decisions had been given by a referee a revised decision could have been given by the referee with effect from such date as the referee might determine under section 9 (5) of the 1944 Act. It is doubtful if a referee would give retrospective effect to a revised award, in the absence of some mala fides on the part of the claimant; but if any of the cases mentioned were so revised by a referee it might be possible to recover the amount appearing to have been overpaid under section 11 of the 1944 Act.

(Intd.) K. M.

11th August, 1947.

1. I agree with Mr. Mangan’s minute.

2. I would answer “No” in general terms to the two questions submitted by the Comptroller and Auditor-General.

3. I think, however, that this answer is not sufficient to rule the propriety of the Department’s action in making payments in the three classes of cases specified in Mr. Price’s minute, viz.:

(i) applications duly made but presumably lost in transit or otherwise;

(ii) applications signed by persons other than the applicants, the true nature of the signatures not being established until after payment was made; and

(iii) applications unsigned through oversight, the absence of signature being overlooked in rush of office work.

Regulation 5 of the S.R. & O., No. 137/1944 was not, in my opinion, applicable in any of these three classes of cases.

4. The Department acted lawfully in dealing with class (i) cases by accepting copies of the lost applications and by ruling such claims in relation to the qualifying dates for which the original claims were made.

In the cases comprised in classes (ii) and (iii) decisions had been given and payment made when the irregularities in question were discovered. The irregularities however were not of such a character (see section 9 of the Act of 1944) as would have warranted the applicants being required to repay the moneys received; and in my opinion the Department acted quite properly in taking steps at that stage to have the application forms completed in correct form.

(Initd.) C. O’D.

Ard-Aighne.

8ú Meán Fómhair, 1947.