Draft Social Security, Child Support and Tax Credits (Decisions and Appeals) Amendment Regulations 2004
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Ninth Standing Committee on Delegated Legislation
Wednesday 8 December 2004
[Mr. Win Griffiths in the Chair]
Draft Social Security, Child Support and Tax Credits (Decisions and Appeals) Amendment Regulations 2004
2.30 pm
The Parliamentary Under-Secretary of State for Work and Pensions (Maria Eagle): I beg to move,
That the Committee has considered the draft Social Security, Child Support and Tax Credits (Decisions and Appeals) Amendment Regulations 2004.
The Chairman: With this it will be convenient to consider the draft Child Benefit and Guardian's Allowance (Decisions and Appeals) (Amendment) Regulations 2004.
Maria Eagle: The regulations were laid before the House on 11 November and 16 November respectively.
The first and main draft statutory instrument makes amendments to regulations governing decision making and appeals for social security, including housing benefit, council tax benefit, child support and tax credits. The second, and smaller, draft statutory instrument makes an amendment to mirror one of the provisions in the main amendment regulations for the purposes of the Child Benefit and Guardian's Allowance (Decisions and Appeals) Regulations 2003. It also makes a small technical clarification to those regulations.
These amending regulations, complex though they appear, essentially do three things. They provide for the removal of provisions for the processing of misconceived appeals. They make changes to the rules on requests for oral and paper hearings of appeals. Finally, they provide new rights of appeals against defective claims to benefit and extend those rights to legislation governing housing benefit and council tax benefit.
The majority of the amendments in regulation 2 result from a decision to remove the procedure for dealing with misconceived or hopeless appeals following criticism by a child support commissioner. The process involved the appellant being given advance warning of the intention to strike out the appeal without a hearing and it then being struck out a fortnight later unless the appellant queried the question of whether the appeal was misconceived. The commissioner found the process to be unlawful because the advance notice did not come from the person who could strike out the appeal, namely a legally qualified panel member of the Appeals Service.
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Following the commissioner's decision, the president of appeal tribunals suspended the process from 18 March 2002. It has not been in operation since that time. The amendment at regulation 2(6)(b) to remove that provision formalises the practice to hold a hearing for all appeals, including misconceived ones. That practice has been in operation since March 2002. There are four other amendments in regulation 2 that are consequential to that amendment and one amendment in regulation 3 is made to achieve the same purpose for the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001.
The amendment at regulation 2(5) also follows a social security commissioner's decision. Parties to an appeal are directed by the clerk to the appeal tribunal to notify him whether they want an oral hearing or are content for the appeal tribunal to decide the appeal on the papers alone. Failure to notify him of preference will result in the appeal being struck out. The notification used is issued by the decision-making agency, but states that it is a direction from the clerk to the appeal tribunal. The commissioner decided that either the practice of the decision-making agency issuing the clerk's direction should cease or the notification should cease to claim to be a clerk's direction.
To ensure that the appellant receives all appeal-related documents at the same time, the notification is issued with a copy of the appeal papers. We want that valuable customer-service practice to continue instead of starting to send appellants a stream of correspondence from different places. So, we do not want to separate the issues of the appeal papers and the clerk's notification. That would simply add further to the time taken to arrange an appeal hearing, which is not in anybody's interests.
The amendment at regulation 2(5) changes the notification from being a clerk's direction to being a requirement to notify the clerk. A consequential amendment at regulation 2(6)(a) adds a new provision allowing the clerk to strike out an appeal where the appellant fails to notify him in accordance with the requirement. Identical amendments are made to the Tax Credit (Appeals) (No. 2) Regulations 2002 by regulation 6 of the amending regulations.
The third, final and perhaps most important purpose of the regulations is to give appeal rights in connection with the process of making a claim. That is achieved by the amendment at regulation 2(9). The present position is that a person has the right of appeal against a substantive benefit decision on entitlement, but not against initial decisions as to whether a claim is in a sufficient state to be determined. Any individual aggrieved at an administrative decision of this type can only challenge it through seeking a judicial review—which is rather a large sledgehammer to crack quite a small nut.
It is not considered likely that that will affect the numbers of appeals significantly—although it may do so slightly—because by far the most common response to being told that one's claim is defective is to put it right rather than to rush off and ask for a judicial review. Nevertheless, there will be a small number of
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cases where the granting of an appeal right, which is easier than a JR, will provide an important and appropriate safeguard. We were originally alerted to the inadequacy of the judicial review route for some of those decisions by a social security commissioner who held that in some instances there was a breach of article 6 of the European convention on human rights, which concerns the right to a fair trial. However, having been made aware of the situation, we have now gone further than required to put that right by the terms of the commissioner's decision itself.
That right of appeal is also extended to those decisions concerning the process of claiming housing benefit and council tax benefit by the amendments at regulation 3(4), 4 and 5. Although the decision by the social security commissioner did not apply to those benefits, we felt it only right to apply the principle to all benefits where the basic procedures are very much the same.
As a consequence of granting appeal rights in housing benefit and council tax benefit it was also necessary to amend the regulations concerning how a claim is made, to clarify those circumstances where a claim should be considered incomplete and the action to be taken to remedy that. We have also taken the opportunity in amending the regulations to remove the provision that purported to remove from a local authority its duty to decide a claim, which a tribunal of commissioners found to be ultra vires.
I turn now to the draft Child Benefit and Guardian's Allowance (Decisions and Appeals) (Amendment) Regulations 2004. Regulation 2(3) of those regulations mirrors, for the purposes of child benefit and guardian's allowance, the provisions to allow for an appeal right against defective claims that I have outlined in respect of the other regulations. Regulation 2(2) makes, in addition, a small technical clarification to regulation 28(2) of the Child Benefit and Guardian's Allowance (Decisions and Appeals) Regulations 2003, to bring them more closely into line with the social security regulations. Specifically, it makes it clear that the time limits in the regulation apply only where an application for a revision has also been made within those time limits. At present that can be inferred, but the aim of the amendment is to make it explicit.
The regulations introduce significant changes, and there may be some points, questions or issues that Committee members wish to raise concerning the amendments. They are generally positive extensions of opportunities for those to whom they apply, and they have gone through the usual statutory consultation procedures. In conclusion, the regulations make small but important changes, they are compatible with convention rights, and I commend them to the Committee.
2.39 pm
Mr. Paul Goodman (Wycombe) (Con): It is a pleasure to see you in the Chair, Mr. Griffiths.
I would like to pick up at once on a phrase that the Minister used as she drew her presentation of the regulations to a conclusion; she said that they were generally all positive. I thought I detected a slight note
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of reservation in her voice, which was an acknowledgment that any statutory instruments concerned with appeals are complex and may have unexpected aspects. I want to say that at the start because I do not have a preconceived view of whether I will want to vote at the end of the proceedings.
The Child Poverty Action Group has some reservations about the changes, which I want to go through in some detail. I also want to listen carefully to what the Minister says, because she may be able to convince me and members of the Committee that the Child Poverty Action Group's—
The Chairman: Order. I had to intervene not because the hon. Gentleman said anything incorrect, but because procedurally there has been a hitch in the communication system and consequently, as far as the House authorities are concerned, the Minister is not officially allocated to this Committee.
Mr. John Randall (Uxbridge) (Con): On a point of order, Mr. Griffiths. I understand that there has been a bit of a cock-up. Can you tell me what the procedure is? If the Minister is not supposed to be here, is she allowed to answer questions? Presumably my hon. Friend the Member for Wycombe (Mr. Goodman) will be asking lots of piercing questions and we will need somebody to answer them. Not that the Whip cannot do that—the Whips are a fine body of men and women.
