APPENDIX 1
Letter from the Clerk of Delegated Legislation
to the Department for Work and Pensions
PROPOSAL FOR THE REGULATORY REFORM (CARER'S ALLOWANCE)
ORDER 2002
1. The Deregulation & Regulatory Reform
Committee held a first discussion on Tuesday morning of the proposal
for the Carer's Allowance Order, which was laid before Parliament
on 17 December.
2. You will not be surprised to learn that
while the Committee had no difficulty in accepting the main thrust
of the proposals taken as a whole, some concern was nevertheless
expressed about the specific proposal to repeal section 70(6)
of the 1992 Act, thus removing, for carers currently under the
age of 65, the concession allowing entitlement to ICA to continue
notwithstanding that the caring role has ceased.
3. While the Department's Statement understandably
stresses the unanimous support amongst respondents to the consultation
exercise for the main proposals in the draft Order (including
the transitional concession for existing over-65 carers), the
summary of responses appears somewhat to underplay the extent
of the concern felt about those who may be potentially disadvantaged
by the repeal of section 70(6). Although it is claimed by the
Department, and recognised by most respondents, that the number
who might be significantly disadvantaged is small, the Committee
is not convinced that that can in itself be sufficient argument
for the concession to be withdrawn in the case of carers currently
under 65. The case is more likely to stand or fall on the extent
to which necessary protection is retained and the extent to which
alternative means of state support will compensate for the withdrawal
of entitlement. While the Department stress the availability of
Minimum Income Guarantee as a protection for those who may fail
to qualify for the full State Pension, our understanding is that
those who retain entitlement to ICA currently qualify for Carer
Premium which may be paid over and above the rate of the Guarantee:
the possible loss of this entitlement would appear to be a significant
potential loss to an albeit small group.
4. The position is not entirely clear from
the Department's Statement, but we presume that appropriate estimates
must have been made before the Government arrived at their current
proposals, in rather more detail than appears in paras 78-81 and
the attached RIA, in order to meet the requirements of section
6(2)(h) of the 2001 Act. The Department will understand that the
Committee will need to feel themselves fully informed of the facts
before they are able to decide whether they share Ministers' conclusions
on whether the statutory tests are met by the proposed Order as
a whole. The Committee would accordingly appreciate the provision
of some additional information on the following points:
- Please
provide examples, in current cash terms, of what the effect would
be of the loss of ICA - or of entitlement to ICA - on the total
income of typical over-65 carers, including in particular the
vulnerable groups identified by your respondents.
- Please
indicate the current cost to the Government of meeting the existing
entitlement to carers over 65 currently benefiting from the section
70(6) concession.
- Paragraph
79 of the Department's Statement says that there will be "very
small savings over a period of time, as carers come up to 65 and
are subject to disallowance if the subsequently fail to meet the
conditions". Please try to quantify these savings.
5. In respect of the proposed repeal of
section 70(6), the Committee would appreciate an explanation of
why the decision has been taken at this stage to repeal the whole
subsection (subject to transitional arrangements), rather than
merely to repeal the current Regulations (SI, 1976, No. 409) made
under the subsection. Retention of the power to make further Regulations
in such cases might allow active consideration to be given at
a later stage to some of the less radical alternatives suggested
by respondents (such as the BMA's suggestion that the concession
might be applied at an age later than 65), or to re-introduce
the existing Regulations if experience were to demonstrate that
hardship was being caused by their repeal. Was any consideration
given to retaining the section 70(6) power on the Statute Book,
even if Ministers feel on current evidence that the specific arrangements
may no longer be necessary?
6. Finally, Counsel have suggested one or
two relatively minor drafting points which you may wish to consider
at this stage, as follows:
- We suggest
that you may wish to expand the recitals to the draft Order, at
the beginning, by including a specific reference to the removal
or reduction of burdens, which is a prerequisite (in accordance
with section 1(3) of the Act) of any Order made under the 2002
Act.
- In article
4, we suggest that the reference to "subsection (1)(a) to
(c)" of section 70 of the 1992 Act may be a misprint for
"subsection (1)(a) or (b)" (as in section 70(6) itself),
since subsection (1)(c) appears to include a requirement which
the carer cannot satisfy. Alternatively, should the references
to subsection (1) be expressed in the passive voice?
I would be most grateful if you could let me know
that you will be responding to this letter, and let the Committee
Clerk or his Assistant have a response by close of play on Monday
5 February.
24 January 2002
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