Welfare Reform Bill (HL Bill 124)

(4) For the purposes of this section a person is “terminally ill” at any time if at that
time the person suffers from a progressive disease and the person’s death in
consequence of that disease can reasonably be expected within 6 months.

(5) For the purposes of this section, where—

(a) 5a person purports to make a claim for personal independence payment
on behalf of another, and

(b) the claim is made expressly on the ground that the person on whose
behalf it purports to be made is terminally ill,

that person is to be regarded as making the claim despite its being made
10without that person’s knowledge or authority.

(6) In subsection (2) “the enhanced rate” has the meaning given by section 79(3).

84 Persons of pensionable age

(1) A person is not entitled to the daily living component or the mobility
component for any period after the person reaches the relevant age.

(2) 15In subsection (1) “the relevant age” means—

(a) pensionable age (within the meaning given by the rules in paragraph 1
of Schedule 4 to the Pensions Act 1995); or

(b) if higher, 65.

(3) Subsection (1) is subject to such exceptions as may be provided by regulations.

85 20No entitlement to daily living component where UK is not competent state

(1) A person to whom a relevant EU Regulation applies is not entitled to the daily
living component for a period unless during that period the United Kingdom
is competent for payment of sickness benefits in cash to the person for the
purposes of Chapter 1 of Title III of the Regulation in question.

(2) 25Each of the following is a “relevant EU Regulation” for the purposes of this
section—

(a) Council Regulation (EC) No 1408/71 of 14 June 1971 on the application
of social security schemes to employed persons, to self-employed
persons and to members of their families moving within the
30Community;

(b) Regulation (EC) No 883/2004 of the European Parliament and of the
Council of 29 April 2004 on the coordination of social security systems.

86 Care home residents

(1) Regulations may provide that no amount in respect of personal independence
35payment which is attributable to entitlement to the daily living component is
payable in respect of a person for a period when the person meets the condition
in subsection (2).

(2) The condition is that the person is a resident of a care home in circumstances
in which any of the costs of any qualifying services provided for the person are
40borne out of public or local funds by virtue of a specified enactment.

(3) In this section “care home” means an establishment that provides
accommodation together with nursing or personal care.

(4) The following are “qualifying services” for the purposes of subsection (2)—

(a) accommodation;

(b) board;

(c) personal care;

(d) 5such other services as may be prescribed.

(5) The reference in subsection (2) to a “specified enactment” is to an enactment
which is specified for the purposes of that subsection by regulations or is of a
description so specified.

(6) The power to specify an enactment for the purposes of subsection (2) includes
10power to specify it only in relation to its application for a particular purpose.

(7) In this section “enactment” includes an enactment comprised in an Act of the
Scottish Parliament or in an instrument made under such an Act.

87 Hospital in-patients

(1) Regulations may provide as mentioned in either or both of the following
15paragraphs—

(a) that no amount in respect of personal independence payment which is
attributable to entitlement to the daily living component is payable in
respect of a person for a period when the person meets the condition in
subsection (2);

(b) 20that no amount in respect of personal independence payment which is
attributable to entitlement to the mobility component is payable in
respect of a person for a period when the person meets the condition in
subsection (2).

(2) The condition is that the person is undergoing medical or other treatment as an
25in-patient at a hospital or similar institution in circumstances in which any of
the costs of the treatment, accommodation and any related services provided
for the person are borne out of public funds.

(3) For the purposes of subsection (2) the question of whether any of the costs of
medical or other treatment,  accommodation and related services provided for
30a person are borne out of public funds is to be determined in accordance with
the regulations.

88 Prisoners and detainees

Except to the extent that regulations provide otherwise, no amount in respect
of personal independence payment is payable in respect of a person for a
35period during which the person is undergoing imprisonment or detention in
legal custody.

Supplementary

89 Claims, awards and information

(1) A person is not entitled to personal independence payment for any period
40before the date on which a claim for it is made or treated as made by that
person or on that person’s behalf.

(2) An award of personal independence payment is to be for a fixed term except
where the person making the award considers that a fixed term award would
be inappropriate.

(3) In deciding whether a fixed term award would be inappropriate, that person
5must have regard to guidance issued by the Secretary of State.

(4) Information supplied under this Part is to be taken for all purposes to be
information relating to social security.

90 Report to Parliament

The Secretary of State must lay before Parliament an independent report on the
10operation of assessments under section 81—

(a) within 2 years beginning with the date on which the first regulations
under that section come into force; and

(b) within 4 years beginning with that date.

General

91 15Abolition of disability living allowance

Sections 71 to 76 of the Social Security Contributions and Benefits Act 1992
(disability living allowance) are repealed.

92 Amendments

Schedule 9 contains amendments relating to this Part.

93 20Power to make supplementary and consequential provision

(1) The Secretary of State may by regulations make such consequential,
supplementary or incidental provision in relation to any provision of this Part
as the Secretary of State considers appropriate.

(2) The Scottish Ministers may by regulations make such consequential,
25supplementary or incidental provision in relation to any provision of this Part
as they consider appropriate, subject to subsection (3).

(3) The Scottish Ministers may only make provision under subsection (2) which
would be within the legislative competence of the Scottish Parliament if it were
contained in an Act of that Parliament.

(4) 30Regulations under this section may—

(a) amend, repeal or revoke any primary or secondary legislation passed
or made before the day on which this Act is passed, or

(b) amend or repeal any provision of an Act passed on or after that day but
in the same session of Parliament.

(5) 35In this section—

(a) “primary legislation” means an Act or Act of the Scottish Parliament;

(b) “secondary legislation” means any instrument made under primary
legislation.

94 Transitional

(1) Regulations may make such provision as the Secretary of State considers
necessary or expedient in connection with the coming into force of any
provision of this Part.

(2) 5Schedule 10 (transitional provision for introduction of personal independence
payment) has effect.

95 Regulations

(1) Regulations under this Part are to be made by the Secretary of State, unless
otherwise provided.

(2) 10A power to make regulations under this Part may be exercised—

(a) so as to make different provision for different cases or purposes;

(b) in relation to all or only some of the cases or purposes for which it may
be exercised.

(3) Such a power includes—

(a) 15power to make incidental, supplementary, consequential or
transitional provision or savings;

(b) power to provide for a person to exercise a discretion in dealing with
any matter.

(4) The power under subsection (2)(a) includes, in particular, power to make
20different provision for persons of different ages.

(5) Regulations made under this Part by the Secretary of State are to be made by
statutory instrument.

(6) A statutory instrument containing (whether alone or with other provision) any
of the following—

(a) 25the first regulations under section 79(4) or 80(4);

(b) the first regulations under section 81;

(c) the first regulations under that section containing provision about
assessment of persons under the age of 16,

may not be made unless a draft of the instrument has been laid before, and
30approved by a resolution of, each House of Parliament.

(7) Any other statutory instrument containing regulations under this Part is
subject to annulment in pursuance of a resolution of either House of
Parliament.

(8) Regulations made by the Scottish Ministers under section 93 are subject to—

(a) 35the affirmative procedure, if they contain provision amending or
repealing primary legislation (within the meaning of that section), and

(b) the negative procedure, in any other case.

96 Interpretation of Part 4

In this Part—

• 40“daily living activities” has the meaning given by section 79(4);

• “daily living component” means the daily living component of personal
  independence payment;

• “mobility activities” has the meaning given by section 80(4);

Welfare Reform BillPage 64

• “mobility component” means the mobility component of personal
  independence payment;

• “prescribed” means prescribed by regulations.

Part 5 5Social security: general

Benefit cap

97 Benefit cap

(1) Regulations may provide for a benefit cap to be applied to the welfare benefits
to which a single person or couple is entitled.

(2) 10For the purposes of this section, applying a benefit cap to welfare benefits
means securing that, where a single person’s or couple’s total entitlement to
welfare benefits with the exclusion of child benefit in respect of the reference
period exceeds the relevant amount, their entitlement to welfare benefits in
respect of any period of the same duration as the reference period is reduced
15by an amount up to or equalling the excess.

(3) In subsection (2) the “reference period” means a period of a prescribed
duration.

(4) Regulations under this section may in particular—

(a) make provision as to the manner in which total entitlement to welfare
20benefits for any period, or the amount of any reduction, is to be
determined;

(b) make provision as to the welfare benefit or benefits from which a
reduction is to be made;

(c) provide for exceptions to the application of the benefit cap;

(d) 25make provision as to the intervals at which the benefit cap is to be
applied;

(e) make provision as to the relationship between application of the benefit
cap and any other reduction in respect of a welfare benefit;

(f) provide that where in consequence of a change in the relevant amount,
30entitlement to a welfare benefit increases or decreases, that increase or
decrease has effect without any further decision of the Secretary of
State;

(g) make supplementary and consequential provision.

(5) In this section the “relevant amount” is an amount specified in regulations.

(6) 35The amount specified under subsection (5) is to be determined by reference to
estimated average earnings.

(7) In this section “estimated average earnings” means the amount which, in the
opinion of the Secretary of State, represents at any time the average weekly
earnings of a working household in Great Britain after deductions in respect of
40tax and national insurance contributions.

(8) The Secretary of State may estimate such earnings in such manner as the
Secretary of State thinks fit.

(9) Regulations under this section may not provide for any reduction to be made
from a welfare benefit—

(a) provision for which is within the legislative competence of the Scottish
Parliament;

(b) 5provision for which is within the legislative competence of the National
Assembly for Wales;

(c) provision for which is made by the Welsh Ministers, the First Minister
for Wales or the Counsel General to the Welsh Assembly Government.

(10) In this section—

• 10“couple” means two persons of a prescribed description;

• “prescribed” means prescribed in regulations;

• “regulations” means regulations made by the Secretary of State;

• “single person” means a person who is not a member of a couple;

• “welfare benefit” means any prescribed benefit, allowance, payment or
  15credit.

(11) Regulations under subsection (10) may not prescribe as welfare benefits—

(a) state pension credit under the State Pension Credit Act 2002, or

(b) retirement pensions under Part 2 or 3 of the Social Security
Contributions and Benefits Act 1992.

98 20Benefit cap: supplementary

(1) Regulations under section 97 may make different provision for different
purposes or cases.

(2) Regulations under section 97 must be made by statutory instrument.

(3) A statutory instrument containing the first regulations under section 97 may
25not be made unless a draft of the instrument has been laid before, and
approved by resolution of, each House of Parliament.

(4) A statutory instrument containing other regulations under section 97 is subject
to annulment in pursuance of a resolution of either House of Parliament.

(5) In section 150 of the Social Security Administration Act 1992 (annual up-rating
30of benefits) after subsection (7) there is inserted—

“(7A) The Secretary of State—

(a) shall in each tax year review the amount specified under
subsection (5) of section 97 of the Welfare Reform Act 2012
(benefit cap) to determine whether its relationship with
35estimated average earnings (within the meaning of that section)
has changed, and

(b) after that review may, if the Secretary of State considers it
appropriate, include in the draft of an up-rating order provision
increasing or decreasing that amount.”

(6) 40In Schedule 2 to the Social Security Act 1998 (decisions against which no appeal
lies) after paragraph 8 there is inserted—

“Reduction on application of benefit cap

8A A decision to apply the benefit cap in accordance with regulations
under section 97 of the Welfare Reform Act 2012.”

Claims and awards

99 Claims and awards

(1) Section 5(1) of the Social Security Administration Act 1992 (regulations about
claims and payments) is amended as follows.

(2) 5In paragraph (d) (conditional awards), for the words from “the condition” to
the end there is substituted—

“(i) the condition that the requirements for entitlement are
satisfied at a prescribed time after the making of the
award, or

(ii) 10other prescribed conditions;”.

(3) In paragraph (e), for “those requirements” there is substituted “the conditions
referred to in paragraph (d)”.

(4) In paragraph (g) (claims made on behalf of another), after “applies” there is
inserted “(including in particular, in the case of a benefit to be claimed by
15persons jointly, enabling one person to claim for such persons jointly)”.

(5) In paragraph (j) (notice of change of circumstances etc), at the end there is
inserted “or of any other change of circumstance of a prescribed description”.

100 Powers to require information relating to claims and awards

(1) Section 5 of the Social Security Administration Act 1992 (regulations about
20claims and payments) is amended as follows.

(2) In subsection (1), paragraphs (h) and (hh) (powers to make provision requiring
the furnishing of information or evidence) are repealed.

(3) After that subsection there is inserted—

“(1A) Regulations may make provision for requiring a person of a prescribed
25description to supply any information or evidence which is, or could
be, relevant to—

(a) a claim or award relating to a benefit to which this section
applies, or

(b) potential claims or awards relating to such a benefit.”

(4) 30Subsection (3A) is repealed.

(5) In section 22 of the Social Security Act 1998 (suspension for failure to furnish
information etc), in subsection (3), for “subsection (1)(hh) of section 5” there is
substituted “section 5(1A)”.

Payments

101 35Payments to joint claimants

In section 5 of the Social Security Administration Act 1992 (regulations about
claims and payments), after subsection (3A) there is inserted—

“(3B) The power in subsection (1)(i) above to make provision for the person
to whom a benefit is to be paid includes, in the case of a benefit awarded
40to persons jointly, power to make provision for the Secretary of State to

determine to which of them all or any part of a payment should be
made, and in particular for the Secretary of State—

(a) to determine that payment should be made to whichever of
those persons they themselves nominate, or

(b) 5to determine that payment should be made to one of them
irrespective of any nomination by them.”

102 Payments on account

(1) In section 5(1) of the Social Security Administration Act 1992 (regulations
about claims and payments), for paragraph (r) there is substituted—

“(r) 10for the making of a payment on account of such a benefit—

(i) in cases where it is impracticable for a claim to be made
or determined immediately, or for an award to be
determined or paid in full immediately,

(ii) in cases of need, or

(iii) 15in cases where the Secretary of State considers in
accordance with prescribed criteria that the payment
can reasonably be expected to be recovered;”.

(2) Section 22 of the Welfare Reform Act 2009 (payments on account), which has
not been brought into force, is repealed.

20Appeals

103 Power to require consideration of revision before appeal

(1) The Social Security Act 1998 is amended as follows.

(2) In section 12 (appeals to First-tier Tribunal), in subsection (2)—

(a) the words from “in relation to” to the end become paragraph (a), and

(b) 25after that paragraph there is inserted “, or

“(b) where regulations under subsection (3A) so provide.”

(3) After subsection (3) of that section there is inserted—

“(3A) Regulations may provide that, in such cases or circumstances as may be
prescribed, there is a right of appeal under subsection (2) in relation to
30a decision only if the Secretary of State has considered whether to revise
the decision under section 9.

(3B) The regulations may in particular provide that that condition is met
only where—

(a) the consideration by the Secretary of State was on an
35application,

(b) the Secretary of State considered issues of a specified
description, or

(c) the consideration by the Secretary of State satisfied any other
condition specified in the regulations.

(3C) 40The references in subsections (3A) and (3B) to regulations and to the
Secretary of State are subject to any enactment under or by virtue of
which the functions under this Chapter are transferred to or otherwise
made exercisable by a person other than the Secretary of State.”

(4) In subsection (7) of that section—

(a) the words from “make provision” to the end become paragraph (a);

(b) after that paragraph there is inserted—

“(b) provide that, where in accordance with regulations
5under subsection (3A) there is no right of appeal against
a decision, any purported appeal may be treated as an
application for revision under section 9.”

(5) In section 80(1)(a) (affirmative procedure for certain regulations) after “12(2)”
there is inserted “or (3A)”.

(6) 10Schedule 11 contains similar amendments to other Acts.

(7) Subsection (8) applies where regulations under a provision mentioned in
subsection (9) are made so as to have effect in relation to a limited area (by
virtue of provision made under section 150(4)(b)).

(8) Any power to make, in connection with those regulations, provision as
15respects decisions and appeals may be exercised so that that provision applies
only in relation to the area mentioned in subsection (7).

(9) The provisions referred to in subsection (7) are—

(a) section 12(3A) of the Social Security Act 1998;

(b) section 4(1B) of the Vaccine Damage Payments Act 1979;

(c) 20subsection (2A) of section 20 of the Child Support Act 1991 (as
substituted by section 10 of the Child Support, Pensions and Social
Security Act 2000);

(d) subsection (3A) of section 20 of the Child Support Act 1991 (as it has
effect apart from section 10 of the Child Support, Pensions and Social
25Security Act 2000);

(e) section 11(2A) of the Social Security (Recovery of Benefits) Act 1997;

(f) paragraph 6(5A) of Schedule 7 to the Child Support, Pensions and
Social Security Act 2000;

(g) section 50(1A) of the Child Maintenance and Other Payments Act 2008.

104 30Supersession of decisions of former appellate bodies

(1) Schedule 12 contains amendments reinstating powers to make decisions
superseding decisions made by appellate bodies before their functions were
transferred to the First-tier Tribunal and Upper Tribunal.

(2) The following have effect as if they had come into force on 3 November 2008—

(a) 35the amendments made by Schedule 12, and

(b) if regulations made in the exercise of the powers conferred by virtue of
those amendments so provide, those regulations.

Electronic communications

105 Electronic communications

(1) 40In section 189 of the Social Security Administration Act 1992 (regulations and
orders - general), after subsection (5) there is inserted—

“(5A) The provision referred to in subsection (5) includes, in a case where
regulations under this Act require or authorise the use of electronic

communications, provision referred to in section 8(4) and (5) and 9(5)
of the Electronic Communications Act 2000.

(5B) For the purposes of subsection (5A), references in section 8(4) and (5)
and 9(5) of the Electronic Communications Act 2000 to an order under
5section 8 of that Act are to be read as references to regulations under
this Act; and references to anything authorised by such an order are to
be read as references to anything required or authorised by such
regulations.”

(2) In section 79 of the Social Security Act 1998 (regulations and orders), after
10subsection (6) there is inserted—

“(6A) The provision referred to in subsection (6) includes, in a case where
regulations under this Act require or authorise the use of electronic
communications, provision referred to in section 8(4) and (5) and 9(5)
of the Electronic Communications Act 2000.

(6B) 15For the purposes of subsection (6A), references in section 8(4) and (5)
and 9(5) of the Electronic Communications Act 2000 to an order under
section 8 of that Act are to be read as references to regulations under
this Act; and references to anything authorised by such an order are to
be read as references to anything required or authorised by such
20regulations.”

Recovery of benefits

106 Recovery of benefit payments

(1) In the Social Security Administration Act 1992, after section 71ZA there is
inserted—

25“Recovery of benefit payments

71ZB Recovery of overpayments of certain benefits

(1) The Secretary of State may recover any amount of the following paid in
excess of entitlement—

(a) universal credit,

(b) 30jobseeker’s allowance,

(c) employment and support allowance, and

(d) except in prescribed circumstances, housing credit (within the
meaning of the State Pension Credit Act 2002).

(2) An amount recoverable under this section is recoverable from—

(a) 35the person to whom it was paid, or

(b) such other person (in addition to or instead of the person to
whom it was paid) as may be prescribed.

(3) An amount paid in pursuance of a determination is not recoverable
under this section unless the determination has been—

(a) 40reversed or varied on an appeal, or

(b) revised or superseded under section 9 or section 10 of the Social
Security Act 1998,

except where regulations otherwise provide.