Attachment Orders & Social Welfare Recipients

ED E

Going on the ultra reliable GM228

GM228 wrote: »

Attachment orders and social welfare payments don't go hand in hand (there are a number of issues here), this is one of the occassions where such orders are considered inappropriate and the next step is therefore community service in default of payment.

An attachment order can only be issued if in contracted employment.

Less reliable CI

The Civil Debt (Procedures) Act 2015 provides for the attachment of earnings or deductions from social welfare payments, as appropriate, for the purpose of the enforcement of debts.

This legislation will apply to debts that are more than €500 and less than €4,000 in value, and for which a court judgment has been obtained. It is due to come into effect shortly.

Apparently not commenced:

Section Commencement Date Commencement Information
Whole Act Not yet commenced. Requires commencement order under s. 27(2)

Whats the holdup? Is this a political willpower problem or is there a legal issue to be straightened out?

Cheers,
ED-E

Fred Swanson

This post has been deleted.

hullaballoo

In general, the policy issue is as Fred Swanson alludes to, there is a minimum amount of SW that a person is deemed to need if in receipt of such allowances and siphoning off part of a person's SW to satisfy a judgment debt could leave them without the means to survive.

While we all might have views on individuals who are on SW as to whether they could afford to lose a few bob a week or not, the State cannot examine each individual's capacity to survive on SW payments and uses aggregated data to determine minimum payments.

Textronic

Fred Swanson wrote: »

The biggest legal issue is that SW payments cannot be reduced below the level of Supplementary Welfare Allowance.

The welfare of others wouldn't be uppermost on Ed E's mind.
Judging by some of his more offensive postings.

Victor

Fred Swanson wrote: »

This post has been deleted.

Lower 'penalty rates' can apply.

http://www.citizensinformation.ie/en/social_welfare/social_welfare_payments/unemployed_people/conditions_for_getting_a_jobseekers_payment.html

Penalty rates of payment for JB
Personal rate Reduction to
€198.00 €154.00
€155.10 €120.10
€127.80 €99.40
€88.90 €69.40

Penalty rates of payment for JA
Personal rate Reduction to
€198.00 €154.00
€152.80 €119.70
€107.70 €82.70

sexmag

Victor wrote: »

Lower 'penalty rates' can apply.

http://www.citizensinformation.ie/en/social_welfare/social_welfare_payments/unemployed_people/conditions_for_getting_a_jobseekers_payment.html

If this is true then i may need to see a solicitor.

A judge made an order for maintenance and arrears while I was in employed on 198 euro a week of 30 euro maintenance and 30 euro arrears leaving me with 138 euro a week with 2 other children, my appeal took 6 months to be heard, it was the hardest time of my life

That must have been illegal then?

GM228

The biggest issue associated with the Act was the Law Reform Commission report "Search Warrant and Bench Warrants LCR 115-2015" which was issued after the 2015 Act was enacted and pretty much ensured it didn't commence. It discussed the issue in depth and acknowledged there may be an argument that such a move could be unconstitutional.

The Commission has considered whether legislation should provide for the deduction at source of unpaid court fines from the social welfare payments of persons who have not paid court fines by the due date. Providing for the deduction of unpaid court fines from social welfare benefits would have some advantages. Such an approach would be likely to reduce the number of persons committed to prison for non-payment of fines, a measure which should be a last resort. It would provide courts with another alternative to issuing a warrant in respect of a person who has not paid a court fine, thereby reducing the figures for committal warrants issued. This would eventually lead to a decrease in the figures for outstanding committal warrants. Providing for the deduction of fines from social welfare payments would result in the collection of more revenue by ensuring the payment of a higher percentage of court fines. The Commission has also been advised that some people who are repeat offenders might strategically refuse to pay a fine or comply with any community service order that a court imposes, as they are aware that they will only spend a short time in custody if a committal warrant issues. Deduction from social welfare benefits would provide an additional means of enforcing court fines in respect of those who have the means to pay the fine but choose not to. During the Oireachtas debates on the Fines (Payment and Recovery) Act 2014, some TDs expressed the view that providing for attachment orders to persons who are employed, but not those who are in receipt of social welfare, unfairly targets those who are in employment. However, others argued that the exclusion of social welfare payments from the ambit of the attachment order provisions in the 2014 Act discriminates against those in receipt of social welfare, as the lack of provision for attachment orders for social welfare recipients means that such persons are more likely to be committed to prison. However, under the Fines (Payment and Recovery) Act 2014 (as yet uncommenced) a court has the option of considering a community service order where attachment is inappropriate.

There are also arguments against providing for the deduction of court fines from social welfare payments. In the case of most primary social welfare payments, the means of applicants are assessed by the Department of Social Protection. Most persons receiving such payments have therefore already undergone a thorough means-assessment process, after which a Department official has decided that the person meets the threshold that entitles them to a social welfare payment. Such payments are minimum subsistence payments and it can be argued that it would be unjust to provide for such incomes to be reduced. As discussed earlier, a number of legislative provisions exist which allow for deduction at source from social welfare payments. However, it can be argued that the legislation providing for the deduction of payments to repay overpayments, which allows for the deduction of up to 15% of a person’s payment without consent, was enacted for the specific purpose of addressing social welfare fraud, and is therefore exceptional. Those who received the overpayments were never entitled to them, but allowing for attachment of social welfare payments to unpaid court fines would involve compulsorily reducing payments to which persons have already been deemed entitled.

As discussed at paragraph 7.56, the Finance (Local Property Tax) Act 2012 provides for the tax to be deducted from a person’s social welfare payment. However, deductions can only be made in respect of certain social welfare payments which do not include Jobseeker’s Allowance or Jobseeker’s Benefit. In addition, such deductions can only be made where a person chooses this option, where a person fails to deliver a return choosing a payment method or chooses a payment method but defaults in payment. Moreover, the lack of power to deduct a sum which would bring a person’s payment to below the rate for Supplementary Welfare Allowance safeguards against a person’s income falling below the minimum basic level. If legislation providing for the deduction of unpaid court fines from social welfare were to include a similar safeguard, any deduction from a person receiving a primary payment of €188 could not result in the person’s payment falling below €186, which is the relevant rate of Supplementary Welfare Allowance. In the case of a person who fails to pay a court fine of €300, only €2 per week could be deducted from the person’s weekly payment, and it would therefore take 150 weeks or almost three years to recover the unpaid fine. From an economic perspective, the administrative costs involved in collecting fines using such a process may outweigh the benefits of collecting the fine.

It could be argued that legislation providing for deduction of unpaid fines from social welfare payments so as to reduce the social welfare payment below the minimum subsistence level would be an unconstitutional interference with a person’s property rights or socio-economic rights. It may be argued that social welfare payments amount to property rights under Article 43.1 of the Constitution. Article 45 provides:
“The State pledges itself to safeguard with especial care the economic interests of the weaker sections of the community and, where necessary, to contribute to the support of the infirm, the widow, the orphan and the aged.”

However, Article 45 also states that the directive principles of social policy are not cognisable by the courts. In Minister for Social, Community and Family Affairs v Scanlon, the Supreme Court held that benefits were governed by statute and that there was no constitutional right to overpaid benefits.

Assuming the deduction of social welfare payments to satisfy unpaid court fines is not unconstitutional, it would be possible for legislation to provide for the deduction of a higher sum than €2 from social welfare payments. However, bearing in mind the conclusion of the Nexus Research Report that attachment of social welfare payments may be problematic given that many people in receipt of such payments live in or are close to poverty, the desirability of deducting a greater sum from persons in receipt of social welfare is questionable. The Commission acknowledges that there may be people who can afford to pay their fines but choose not to, and deduction of fines from social welfare payments might assist in collecting fines from such persons. However, rather than enforcing the fine by providing for deduction from social welfare payments in all cases, the provisions of the Fines (Payment and Recovery) Act 2014 should be commenced. These allow for payment of fines by instalments and by enforcement of fines in the cases where persons wilfully choose not pay through the alternative measures of recovery orders and community service. Legislative provision for deduction from social welfare payments that sets a maximum deduction of €2 per week in the case of a person receiving a primary payment is unlikely to be of significant benefit, as it would take a number of years for a person to pay off most fines, making such a process costly to administer.

And the LRCs recommendation on the matter:-

The Commission does not recommend that deduction of fines at source from social welfare payments should be provided for at this time.

ED E

Definitive and clear answer as always, thanks GM.

ED E

Paddy O'Gorman queried it. Since the legislation went in there have been 2 attachment orders.

2