Social Welfare Consolidation Act 2005
Entitlement to benefit.
[1993 s31(1)]
40.—F332[(1) Subject to this Act, a person shall only be entitled to illness benefit in respect of any day of incapacity for work (in this Act referred to as “a day of incapacity for work”) which forms part of a period of interruption of insurable employment, where—
F333[(a) on the day for which the benefit is claimed—
(i) the person is under pensionable age, or
(ii) the person was born on or after 1 January 1958 and has attained pensionable age but has neither attained the age of 70 years nor been awarded a State pension (contributory),]
(aa) he or she is incapable of work,
(ab) the reason for the period of interruption of employment is as a direct result of the person concerned being incapable of work and for no other reason, and
F334[(b) he or she satisfies the contribution conditions in section 41.]]
[1993 s31(2)]
(2) A person shall not be entitled to F335[illness benefit] for the first F336[3] days of any period of incapacity for work.
F337[(2A) Subsection (2) shall not apply to a person who had an entitlement to F338[jobseeker’s benefit, jobseeker’s allowance or jobseeker’s pay-related benefit] for any day or days in the period of 14 consecutive days ending on the day before the first day of incapacity for work.]
F339[(2B) Notwithstanding subsections (2) and (2A), a person shall not be entitled to illness benefit—
(a) for any day in respect of which the person is entitled to statutory sick leave under the Act of 2022, or
(b) for any day in respect of which the person, where he or she is otherwise entitled to statutory sick leave under the Act of 2022 is, instead of and in substitution for that entitlement to the statutory sick leave days concerned, being provided by his or her employer with a sick leave scheme under the Act of 2022.
(2C) Subsection (2B) shall not apply in a case where an exemption is for the time being in force under section 10 of the Act of 2022 in respect of the employer of the person concerned.
(2D) Notwithstanding subsections (2), (2A) and (2B), a person shall not be entitled to illness benefit for the first day of any such entitlement, where in the immediately preceding 6 days the person is entitled to statutory sick leave under the Act of 2022 in respect of a Sunday.]
[1993 s31(3); 2003 s8]
(3) For the purposes of any provision of this Act relating to F335[illness benefit]—
(a) a day shall not be treated in relation to an insured person as a day of incapacity for work unless on that day the person is incapable of work,
(b) “day of interruption of employment” means a day which is a day of incapacity for work or of unemployment,
(c) any 3 days of interruption of employment, whether consecutive or not, within a period of 6 consecutive days shall be treated as a period of interruption of employment and any 2 such periods not separated by a period of more than 26 weeks shall be treated as one period of interruption of employment,
(d) any 3 days of incapacity for work, whether consecutive or not, within a period of 6 consecutive days shall be treated as a period of incapacity for work and any two such periods not separated by more than 3 days shall be treated as one period of incapacity for work F340[…],
(e) notwithstanding paragraph (d), in the case of a person who, on or after 1 April 2002, has been in receipt of F335[illness benefit] for not less than 1,560 days in respect of a period of incapacity for work and who, within the same period of interruption of employment, has subsequent periods of incapacity for work, any 2 such subsequent periods of incapacity for work within that period of interruption of employment not separated by a period of more than 13 weeks shall be treated as one period of incapacity for work,
F341[(ea) notwithstanding paragraph (d), in the case of a person who, on or after 1 May 2007, has been in receipt of illness benefit for not less than 624 days in respect of a period of incapacity for work and who, within the same period of interruption of employment, has subsequent periods of incapacity for work, any 2 such subsequent periods of incapacity for work within that period of interruption of employment not separated by a period of more than 26 weeks shall be treated as one period of incapacity for work,]
F342[(eb) for the purpose of paragraph (ea), in calculating the total of 624 days, the following days shall, in addition to any days in respect of which the person was in receipt of illness benefit, be included in the calculation:
(i) any statutory sick leave days under the Act of 2022, other than the first 3 days of such sick leave;
(ii) any day in respect of which the person, where he or she is otherwise entitled to statutory sick leave under the Act of 2022 is, instead of and in substitution for that entitlement to the statutory sick leave days concerned, being provided by his or her employer with a sick leave scheme under the Act of 2022, other than the first 3 days of payment under such scheme.]
(f) F343[other than for the purposes of subsection (2A), Sunday] or any other day in each week that may be prescribed shall not be treated as a day of incapacity for work or of unemployment and shall be disregarded in computing any period of consecutive days,
(g) a day shall not be treated in relation to an insured person as a day of incapacity for work where, in respect of that day, the insured person is being paid by his or her employer in respect of holiday leave,
(h) any 2 periods of incapacity for work separated by a period in respect of which an insured person is being paid by his or her employer in respect of holiday leave shall be treated as one period of incapacity for work.
[1993 s31(4)]
(4) Subject to subsection (3), regulations may make provision as to the days which are or are not to be treated for the purposes of F335[illness benefit] as days of incapacity for work or of unemployment.
[1993 s31(5); 2001 s37 & Sch F]
(5) The amount payable by way of benefit for any day of incapacity for work shall be one-sixth of the appropriate weekly rate, subject to the total amount being paid at any time by virtue of this subsection being rounded up to the nearest 10 cent where it is a multiple of 5 cent but not also a multiple of 10 cent and being rounded to the nearest 10 cent where it is not a multiple of 5 cent or 10 cent.
[1993 s31(6)]
(6) A person who was in receipt of maternity benefit under section 47 on any of the 3 days before the day in respect of which a claim for F335[illness benefit] is made shall not be entitled to F335[illness benefit] for the first 3 days of incapacity for work in respect of that claim.
F347[(7) ...
(8) ...]
F344[(7) F345[…]
(8) F345[…]
(9) F345[…]
(10) F345[…]
(11) F345[…]
(12) F346[…]]
Annotations
Amendments:
F332
Substituted (27.01.2020) by Social Welfare (No. 2) Act 2019 (48/2019), s. 4(a), S.I. No. 38 of 2020.
F333
Substituted (1.01.2024) by Social Welfare (Miscellaneous Provisions) Act 2023 (37/2023), s. 35, commenced as per s. 1(3).
F334
Reverted (1.10.2022) to previous text following temporary amendment (9.03.2020 to 30.09.2022) by Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 (1/2020), s. 5(a), commenced in accordance with s. 2(1) and continued in operation as per E-Note below.
F335
Substituted (2.10.2006) by Social Welfare Law Reform and Pensions Act 2006 (5/2006), s. 4(1) and sch. 1 item 15, S.I. No. 334 of 2006.
F336
Substituted (1.03.2021) by Social Welfare Act 2020 (30/2020), s. 5(1), commenced as per subs. (2) as respects a period of incapacity for work the first day of which occurs on or after 1 March 2021.
F337
Inserted (6.01.2014) by Social Welfare and Pensions Act 2013 (38/2013), s. 4(1)(b), commenced as per subs. (2) as respects a period of incapacity for work, the first day of which occurs on or after 6 January 2014.
F338
Substituted (31.03.2025) by Social Welfare (Miscellaneous Provisions) Act 2024 (24/2024), s. 14 and sch. ref. 5, S.I. No. 499 of 2024.
F339
Inserted (1.01.2024) by Social Welfare (Miscellaneous Provisions) Act 2023 (37/2023), s. 24(a), commenced as per s. 1(3).
F340
Deleted (6.01.2014) by Social Welfare and Pensions Act 2013 (38/2013), s. 4(1)(c)(i), commenced as per subs. (2) as respects a period of incapacity for work, the first day of which occurs on or after 6 January 2014.
F341
Inserted (1.05.2007) by Social Welfare and Pensions Act 2007 (8/2007), s. 5(a), S.I. No. 219 of 2007.
F342
Inserted (1.01.2024) by Social Welfare (Miscellaneous Provisions) Act 2023 (37/2023), s. 24(b), commenced as per s. 1(3).
F343
Substituted (6.01.2014) by Social Welfare and Pensions Act 2013 (38/2013), s. 4(1)(c)(ii), commenced as per subs. (2) as respects a period of incapacity for work, the first day of which occurs on or after 6 January 2014.
F344
Inserted (9.03.2020) by Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 (1/2020), s. 5(b), commenced in accordance with s. 2(1).
F345
Operation of provision discontinued (1.10.2022) following temporary insertion (9.03.2020 to 30.09.2022) by Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 (1/2020), s. 5(a), commenced in accordance with s. 2(1) and continued in operation as per E-Note below.
F346
Deleted (5.08.2020) by Social Welfare (Covid-19) (Amendment) Act 2020 (12/2020), s. 10, commenced on enactment.
F347
Inserted by Social Welfare (Miscellaneous Provisions) Act 2010 (28/2010), s. 6, not commenced as of date of revision.
Modifications (not altering text):
C36
Prospective amending provision: subs. (7) and (8) inserted by Social Welfare (Miscellaneous Provisions) Act 2010 (28/2010), s. 6, not commenced as of date of revision.
F347[(7) For the purposes of establishing that an insured person is incapable of work on a specified day or days of incapacity for work—
(a) a document shall be provided in respect of that person, in such form as may be prescribed, in which it is certified by a registered medical practitioner, or other person as may be prescribed, that the insured person is, was or will be incapable of work on a specified day or days of incapacity for work, and
(b) the document shall be provided to an officer of the Minister in such manner as may be prescribed, by the insured person, a registered medical practitioner or other person as may be prescribed.
(8) Without prejudice to subsection (7), the Minister may make regulations for the purposes of that subsection and without prejudice to section 4, regulations under subsection (7) may—
(a) make different provision in relation to the different persons or classes of persons who may certify that an insured person is, was or will be incapable of work, and
(b) make different provision in relation to the different circumstances or classes of circumstances in respect of the persons referred to in paragraph (a) who may certify that an insured person is, was or will be incapable of work.]
C37
Entitlement to benefit or payment under subs. (9) excluded (27.03.2020) by Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020), s. 28(5)(g) and (h), commenced on enactment.
(5) Where this section applies, then, following the notification by the employer of the payment of emoluments to a specified employee in the applicable period in accordance with Regulation 10 of the Regulations, the following provisions shall apply:
...
(d) on the payment of the emoluments to the specified employee which are the subject of the notification first-mentioned in this subsection by the employer, the employer shall include in that payment an additional amount equivalent to the temporary wage subsidy in relation to the specified employee,
...
(g) where paragraph (d) applies, the employer shall treat the specified employee concerned as falling within Class J9 of Pay Related Social Insurance for the purposes of the employer’s obligations under Chapter 4 of Part 42 of the Act and the Regulations to report matters specified in that Chapter or the Regulations,
(h) the operation of paragraph (g) shall not prejudice the specified employee’s entitlement to benefits or assistance under the provisions of the Social Welfare Acts, but, where paragraph (d) applies in relation to a specified employee for any week, the specified employee shall not be entitled to any benefit or payment, related to Covid-19, from the Department of Employment Affairs and Social Protection for that week,
...
...
(22) Paragraph (g), in so far as it relates to Pay Related Social Insurance, and paragraph (h) of subsection (5), shall be construed together with the Social Welfare Acts.
Editorial Notes:
E236
Power pursuant to subs. (11) exercised (19.01.2022) by Social Welfare (Consolidated Claims, Payments and Control) (Amendment) (No. 2) (Illness Benefit payments arising from COVID-19) Regulations 2022 (S.I. No. 26 of 2022), art. 2, which amended Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142 of 2007), arts. 28O and 28P.
E237
Power pursuant to subs. (7)(a) exercised (9.03.2020) by Social Welfare (Consolidated Claims, Payments and Control) (Amendment) (No. 4) (Illness Benefit payments arising from COVID-19) Regulations 2020 (S.I. No. 97 of 2020), art. 3—which inserted Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142 of 2007), art. 28Q—in effect as per art. 2.
E238
Power pursuant to subs. (8) exercised (9.03.2020) by Social Welfare (Consolidated Claims, Payments and Control) (Amendment) (No. 4) (Illness Benefit payments arising from COVID-19) Regulations 2020 (S.I. No. 97 of 2020), art. 3—which inserted Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142 of 2007), arts. 28M and 28R—in effect as per art. 2.
E239
Power pursuant to subs. (10) exercised (9.03.2020) by Social Welfare (Consolidated Claims, Payments and Control) (Amendment) (No. 4) (Illness Benefit payments arising from COVID-19) Regulations 2020 (S.I. No. 97 of 2020), art. 3—which inserted Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142 of 2007), art. 28K—in effect as per art. 2.
E240
Power pursuant to subs. (11) exercised (9.03.2020) by Social Welfare (Consolidated Claims, Payments and Control) (Amendment) (No. 4) (Illness Benefit payments arising from COVID-19) Regulations 2020 (S.I. No. 97 of 2020), art. 3—which inserted Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142 of 2007), arts. 28O and 28P—in effect as per art. 2.
E241
Power pursuant to subs. (4) exercised (31.05.2019) by Social Welfare (Consolidated Claims, Payments and Control) (Amendment) (No. 9) (Days to be treated as days of Incapacity for Work) Regulations 2019 (S.I. No. 241 of 2019), art. 3(a)—which inserted Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142 of 2007), art. 20A and amended art. 21—in effect as per art. 2.
E242
Power pursuant to subs. (4) exercised (29.03.2007) by Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142 of 2007), arts. 20 to 22 and 25, in effect as per art. 2.
E243
Previous affecting provision: subs. (12) temporarily inserted (9.03.2020) by Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 (1/2020), s. 5(a) and (b), commenced in accordance with s. 2(1); continued in operation (20.03.2020) to 9 May 2020 in accordance with s. 2(3)(a), commenced on enactment; continued in operation (1.05.2020) to 19 June 2020 by Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 (Continuation of Part 2) Order 2020 (S.I. No. 155 of 2020), art. 2; continued in operation (5.06.2020) to 10 August 2020 by Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 (Continuation of Part 2) (No. 2) Order 2020 (S.I. No. 207 of 2020), art. 2; deleted (5.08.2020) as per F-Note above.
E244
Previous affecting provision: subs. (1)(b) temporarily substituted and subs. (7) to (11) temporarily inserted (9.03.2020) by Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 (1/2020), s. 5(a) and (b), commenced in accordance with s. 2(1); continued in operation (20.03.2020) to 9.05.2020 in accordance with s. 2(3)(a), commenced on enactment; continued in operation (1.05.2020) to 19 June 2020 by Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 (Continuation of Part 2) Order 2020 (S.I. No. 155 of 2020), art. 2; continued in operation (5.06.2020) to 10 August 2020 by Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 (Continuation of Part 2) (No. 2) Order 2020 (S.I. No. 207 of 2020), art. 2; continued in operation (4.08.2020) to 31 March 2021 by Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 (Continuation of Part 2) (No. 3) Order 2020 (S.I. No. 285 of 2020), art. 3; continued in operation (23.03.2021) to 30 June 2021 by Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 (Continuation of Part 2) Order 2021 (S.I. No. 133 of 2021), art. 2; continued in operation (29.06.2021) to 8 February 2022 by Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 (Continuation of Sections 4, 5 and 6 of Part 2) Order 2021 (S.I. No. 325 of 2021), art. 2; continued in operation (1.02.2022) to 30 June 2022 by Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 (Continuation of Sections 4, 5 and 6 of Part 2) Order 2022 (S.I. No. 47 of 2022), art. 2; continued in operation (21.06.2022) to 30 September 2022 by Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 (Continuation of Sections 4, 5 and 6 of Part 2) (No. 2) Order 2022 (S.I. No. 301 of 2022), art. 2; reverted to previous text (1.10.2022) as per F-Note above.
E245
Previous affecting provision: subs. (2) amended (6.01.2014) by Social Welfare and Pensions Act 2013 (38/2013), s. 4(1)(a), commenced as per subs. (2); substituted (1.03.2021) as per F-Note above.
E246
Previous affecting provision: power pursuant to subs. (4) exercised (1.11.2006) by Social Welfare (Consolidated Payments Provisions) (Amendment) (No. 13) (Miscellaneous Provisions) Regulations 2006 (S.I. No. 571 of 2006), arts. 8(a) and (c)—which amended Social Welfare (Consolidated Payments Provisions) Regulations 1994 (S.I. No. 417 of 1994), arts. 11 to 13, 16 and sch. A—in effect as per art. 2; revoked (29.03.2007) by Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142 of 2007), art. 5 and sch. 17, in effect as per art. 2.
E247
Previous affecting provision: subs. (1) amended (2.10.2006) by Social Welfare Law Reform and Pensions Act 2006 (5/2006), s. 4(1) and sch. 1 item 15, S.I. No. 334 of 2006; substituted (27.01.2020) as per F-Note above.
E248
Previous affecting provision: power pursuant to statutory precursor of subs. (4) exercised (2.1.1995) by Social Welfare (Consolidated Payments Provisions) Regulations 1994 (S.I. No. 417 of 1994), arts. 11 to 13, 16 and sch. A, in effect as per art. 2; amended (6.06.1995) by Social Welfare (Consolidated Payments Provisions) (Amendment) (No. 3) Regulations 1995 (S.I. No. 146 of 1995), art. 4; amended (31.12.2001) by Social Welfare (Consolidated Payments Provisions) (Amendment) (No. 7) (Euro) Regulations 2001 (S.I. No. 614 of 2001), art. 4 and sch., in effect as per art. 3(c); continued in force (1.12.2005) by s. 362(2) as if made under this Act; revoked (29.03.2007) by Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142 of 2007), art. 5 and sch. 17, in effect as per art. 2.