House of Commons - Explanatory Note
Welfare Reform Bill - continued          House of Commons

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Clause 39: Information relating to certain benefits

214.     Since April 2003, support services, which assist vulnerable persons to live independently, have been provided for or on behalf of local authorities under the Supporting People programme. Those in receipt of certain income-related benefits automatically qualify under the Supporting People means-test to receive assistance with charges for these services. The Bill would enable the Department for Work and Pensions and local authorities to confirm to the Supporting People team of a local authority whether a person is in receipt of one of these benefits, without that Supporting People team having first to obtain that person's consent. It would also enable Supporting People teams to provide certain information to local authorities to assist with the administration of housing benefit, for example to help identify where it would be appropriate to make payments of housing benefit to the landlord rather than to a claimant. These information exchanges would only be permissible for limited purposes. If a person is a certain person within a Supporting People team or a Supporting People service provider, he would commit a criminal offence if he discloses, without lawful authority, information supplied to him by virtue of one of these powers.

215.     Supporting People teams for local authorities in England and Wales administer grants from the Department for Communities and Local Government and the National Assembly for Wales to provide welfare services. These services provide support to assist vulnerable groups in society, including the elderly, people suffering from substance abuse and people with mental health or learning difficulties, to live in the community. Section 93 of the Local Government Act 2000 provides a power by which these grants can be paid. An equivalent to this grant-making provision exists in Scotland but is contained within Scottish legislation.

216.     The existing section 94(1) to (3) of the Local Government Act 2000 allows information relating to certain income-related benefits - housing benefit, income support, income-based jobseeker's allowance and state pension credit, administered by the Department for Work and Pensions or local authorities - to be supplied to Supporting People teams for purposes connected with applying a grant made under section 93 towards welfare services. Section 95 of the Local Government Act 2000 creates an offence concerning disclosure without, lawful authority, of information which was supplied by virtue of section 94.

217.     The present section 94 of the Local Government Act 2000 enables the supply of information by the benefit teams of the Secretary of State or the local authorities to Supporting People teams. There is presently no power for information to be supplied by the Supporting People teams to the benefit teams. Subsection (1) would enable a two-way supply of information between benefit teams and Supporting People teams. Specifically, the subsection would enable Supporting People teams to contact benefit teams when they receive an application for support services. In common with what presently occurs, this subsection would then enable the benefit team to confirm whether a certain income-related benefit (including the new income-related employment and support allowance) is in payment. This information would be used by the Supporting People team to determine whether the claimant meets the means test in determining the amount of assistance with service charges for the support services. Similarly, the subsection would enable benefit teams to inform Supporting People teams when payment of a certain income-related benefit - and hence automatic entitlement to full support - ceased.

218.     It is intended that grants to support these welfare services would in future be made under powers in addition to section 93 of the Local Government Act 2000. To support this shift in funding arrangements, subsection (1) of this clause creates a freestanding provision that enables supply of information concerning grant paid under enactments which will be specified by order as per subsection (7).

219.     Subsection (2) of this clause would also enable certain information held for prescribed purposes by Supporting People teams or by housing benefit teams to be supplied to the other teams for prescribed purposes. The prescribed purposes are limited either to a purpose relating to housing benefit or to a purpose relating to welfare services (subsection (8)). This provision would be used, for example, to enable housing benefit teams to consider information relating to the vulnerability of a claimant or the probity of a landlord when considering whether to pay housing benefit to the claimant or to the landlord. For example, in considering whether a payment of housing benefit should be made to the claimant or to the landlord it would contribute to the decision-making process in housing benefit teams for them to know whether the claimant is receiving Supporting People assistance because of a disability and, if so, whether that disability may indicate a level of vulnerability.

220.     Certain information supplied to Supporting People teams could be passed to the welfare service providers when required under subsection (5). This mirrors the provision currently in Section 94(4) of the Local Government Act 2000.

221.     The information sharing powers provided for within this clause and the offence of unlawful disclosure in clause 40 replace those contained in sections 94 and 95 of the Local Government Act 2000, which are omitted.

Clause 40: Unlawful disclosure of certain information

222.     Section 95 of the Local Government Act 2000 makes it an offence for a person to disclose without lawful authority information supplied by virtue of section 94 of the Local Government Act 2000. Clause 40 would create a similar unlawful disclosure provision in relation to information received by virtue of clause 39.

223.     Subsection (2) sets out who is included within the provision of this clause. It covers specified positions within Supporting People teams and those providing welfare services. Relevant persons in the Department for Work and Pensions or local authority benefit teams are not covered by this new clause as there is an existing unlawful disclosure provision which applies to them, section 123 of the Social Security Administration Act 1992.

224.     This clause complements section 123 of the Social Security Administration Act 1992 and the subsections (3) to (6) of this clause follow the wording of that section.

Overpayment recovery

Clause 41: Recovery of overpaid benefit: Great Britain

225.     This clause would amend section 71 of the Social Security Administration Act 1992 in relation to the recovery of overpayments of benefits.

226.     Subsection (2) provides for the removal of section 71(5), which, according to a Social Security Commissioner's decision, has the effect that benefit overpayments caused by errors made in the direct credit transfer system (which are recoverable in accordance with regulations under section 71(4)) can be recovered only where a decision to revise the award and a decision that the payment is recoverable were made at the same time.

227.     Section 71(5A) provides that, where overpayments of benefits have arisen because a person has misrepresented facts, such overpayments are not recoverable unless there has been a decision to revise the award, e.g. on appeal. Subsection (3) would amend section 71(5A) by widening its scope to include overpayments recoverable under section 71(4) so that the necessary decisions can be made separately.

Clause 42: Recovery of overpaid child benefit and guardian's allowance: Northern Ireland

228.     This clause provides for the same changes as clause 41 in respect of child benefit and guardian's allowance in Northern Ireland. Child benefit and guardian's allowance are not devolved in Northern Ireland. Her Majesty's Commissioners for Revenue and Customs administer these two benefits throughout the United Kingdom.

Benefit fraud

Clauses 43 and 44: local authority powers to investigate and prosecute benefit fraud

229.     At present, section 110A of the Social Security Administration Act 1992 allows local authorities to investigate fraud against local benefits (i.e. housing benefit and council tax benefit). However, significant doubt has arisen as to whether this allows them to investigate fraud in connection with national benefits administered by the Department for Work and Pensions. In particular, the doubt exists where entitlement to a national benefit means that a claimant automatically satisfies some eligibility conditions to a local one. This reduces the scope for effective joint working between local authorities and the Department for Work and Pensions to investigate and prosecute fraud cases that involve more than one benefit. The Government estimates that around 50% of fraud against a local benefit also involves fraud against a national benefit.

230.     On 10th March 2005, the Government published a consultation paper 6 setting out proposals to remove the doubt by using powers in the Regulatory Reform Act 2001. Forty eight responses were received, the overwhelming majority of which were in favour of the proposals. However it became clear that the use of a Regulatory Reform Order would not be able to deliver an effective set of powers for local authorities. Therefore the Government announced to Parliament in a written Ministerial statement on 18th July that it had decided not to proceed with the Regulatory Reform Order, and instead to seek to address the issue in this Bill.

6 Local Authority Investigative Powers Regulatory Reform order: A consultation document on proposed changes to the powers of local authorities to investigate and prosecute benefit fraud, Department for Work and Pensions, March 2005.

231.     Most cases of national benefit fraud would continue to be investigated by the Department for Work and Pensions. However, the Bill would provide local authorities with clear powers to investigate and prosecute offences in relation to national benefits where they already have power to investigate and prosecute offences concerning local benefits.

232.     While it is proposed that Scottish local authorities be allowed to investigate offences against national benefits, the power to prosecute would not apply in Scotland, where the Procurator Fiscal is responsible for the prosecution of all criminal offences.

233.     Clause 43 sets out the scope of the new provisions which give local authorities administering housing benefit or council tax benefit a wider power to investigate benefit fraud. The measures in this clause permit them to investigate offences concerning social security benefits administered by the Department for Work and Pensions.

234.     Clause 43 extends the powers of local authority authorised officers to permit them to obtain information from persons such as employers, pension providers, financial service companies, utilities and educational organisations for "relevant purposes" that relate to:

    -     the entitlement to social security benefits;

    -     whether benefit legislation has been contravened; and

    -     the prevention or detection of benefit offences.

235.     This brings the investigative powers of local authorities generally into line with those available to the Department for Work and Pensions and allows them to obtain information relating to national social security benefits in addition to housing benefit and council tax benefit. However, local authorities would not be able to obtain information about the circumstances of accidents or injuries giving rise to claims for benefit, because such a power would be unnecessary for the investigation of benefit fraud. The measures will not add to the list of persons who may be required to provide information.

236.     Subsection (3) would give the Secretary of State power to prescribe in regulations that certain conditions must be satisfied in order for an authority to make use of these powers. These "prescribed conditions" enable him to limit the powers in a way that ensures that only certain benefit offences may be investigated and to provide safeguards against misuse.

237.     Clause 44 creates a new power for local authorities administering housing benefit or council tax benefit to prosecute offences concerning "relevant social security benefits" as defined in section 121DA of the Social Security Administration Act 1992. It would do so by the insertion of a new section 116A into that Act.

238.     Subsection (3) of new section 116A would give the Secretary of State power to prescribe in regulations that certain conditions must be satisfied before an authority can prosecute offences against national benefits. These conditions allow safeguards to be put in place to ensure that the authority's powers are not misused and permit the Secretary of State to prevent the prosecution of certain cases on an individual basis. For example, the Secretary of State would be able to require that local authorities abide by nationally recognised standards when prosecuting national benefit offences, such as the evidential and public interest tests in the Code for Crown Prosecutors. He will be able to prevent a local authority prosecuting specified offences if he considers the nature of the case to be particularly sensitive. He will also be able to withdraw the powers of local authorities to prosecute national benefit offences where he considers that they have misused, or are likely to misuse, those powers. In situations where the local authority ceased to satisfy the prescribed conditions, the Secretary of State will have a power to continue with the prosecution himself rather than see the charges dropped.

239.     Subsection (6) of new section 116A clarifies that the powers would apply in England and Wales only, because the Procurator Fiscal is responsible for the prosecution of all criminal activity in Scotland.

Clause 45: Local authority functions relating to benefit: information

240.     This clause provides for a number of changes to the information sharing provisions contained in the Social Security Administration Act 1992 by giving local authorities access to information relating to national benefit offences as well as allowing the Secretary of State to obtain information from them relating to those offences. These changes are of a consequential nature, in that they are necessary to allow the new investigation and prosecution powers to function effectively.

241.     Currently, section 122C of the Social Security Administration Act 1992 permits the Secretary of State to disclose information to local authorities for purposes relating to the administration of, and offences against, housing benefit and council tax benefit. Restricted in such a way, local authorities will not have access to information and evidence held by the Department for Work and Pensions relating to national benefit offences. Subsection (1) amends section 122C so as to allow the Secretary of State to disclose to local authorities information relating to national benefit fraud investigations and prosecutions. This extension applies to the investigation and prosecution of benefit offences only, and does not extend his power to supply information to local authorities for administrative purposes more generally. This information may include details about the award and payment of benefits as well as copies of claim forms and other signed declarations.

242.     Section 122D of the Social Security Administration Act 1992 allows the Secretary of State to require an authority to provide him with certain information relating to social security or benefit policy. As a result of the measures in the Bill, authorities will be able to obtain information relating to national benefit fraud investigations that would be relevant to the Secretary of State in preparing future policy and expenditure estimates for national benefits, but which the Secretary of State could not currently obtain. Subsection (2) amends section 122D so as to permit the Secretary of State to require a local authority to provide him with information it had obtained during the investigation or prosecution of a national benefit offence.

243.     Section 122E of the Social Security Administration Act 1992 currently contains a power allowing local authorities to share information amongst them, so long as it is information relating to housing benefit and council tax benefit. Unless this restriction is removed, local authorities will not be able to share information relating to national benefit offences in the same way that they are permitted to share information relating to local benefit offences creating a number of anomalies for the way that local authorities investigate fraud. For example, local authorities could continue to conduct joint investigations into housing benefit fraud but could not work jointly to investigate national benefit offences because they would be prevented from sharing information relating to those offences. Subsection (3) amends section 122E so as to remove this restriction by extending the powers of local authorities to share information with other local authorities for purposes relating to benefit offences more generally. However, they will not be permitted to share such information for general administrative purposes. Subsection (4) makes a consequential amendment to section 126A(8) of the 1992 Act (power to require information from landlords and agents) so that it reflects the provisions of sections 122D and 122E as revised by subsections (2) and (3).

Clause 46: Loss of benefit for commission of benefit offences

244.     Subsection (1) would amend section 7 of the Social Security Fraud Act 2001, which enables benefit entitlement to be removed or reduced where a person is convicted of benefit fraud twice and the second offence was committed within three years of the date of conviction for the first offence. This amendment will extend the period between the date of conviction in the earlier proceedings and the date of commission of the offence in the later proceedings from three to five years. This will have the effect that a person's benefit may be withdrawn or reduced if they commit a benefit offence, of which they are later convicted, within five years of a conviction for a previous benefit offence.

245.     Subsection (2) would provide that this amendment should be disregarded when considering whether an offence committed before the date that this clause comes into force was committed within the relevant period. Where an offence was committed before the date this clause comes into force, the relevant period will remain three years. The examples below illustrate how this works.

Example 1:     Commencement date of clause 46:          2 April '07

          Conviction date 1st offence:                1 May '03

          Date 2nd offence is committed:          6 May '07

          Conviction date 2nd offence:               8 October '07

Loss of benefit provision may be applied because 2nd offence is committed after commencement date and within 5 years of previous conviction date.

Example 2:     Commencement date of clause 46:          2 April '07

          Conviction date 1st offence:               1 May '03

          Date 2nd offence is committed:          2 February '07

          Conviction date 2nd offence:               8 October '07

Loss of benefit provision cannot be applied because 2nd offence is committed before the commencement date and more than 3 years after the previous conviction date.

Example 3:     Commencement date of clause 46:          2 April '07

          Conviction date 1st offence:               1 May '04

          Date 2nd offence is committed:          2 February '07

          Conviction date 2nd offence:               8 October '07

Loss of benefit provision may be applied because 2nd offence is committed before the commencement date and less than three years after the previous conviction date.

PART 4: Miscellaneous

Benefits for widows and widowers

Clause 47: Widowed mother's allowance

246.     Broadly, in order to be entitled to widowed mother's allowance, a widow must be entitled to child benefit in respect of a child. 7 A widow is entitled to child benefit in respect of a child if:

7 Section 37(1) (a) of the Social Security Contributions and Benefits Act 1992. A widow may also be entitled to widowed mother's allowance where she is pregnant.

    -     the child is living with her, or

    -     the child is not living with her but she makes contributions to the cost of providing for the child at a rate which is not less than the rate of child benefit payable in respect of the child. 8

8 Sections 141 and 143(1) of the Social Security Contributions and Benefits Act 1992.

247.     At present, section 37 of the Social Security Contributions and Benefits Act 1992 provides that, where a widow is entitled to child benefit in respect of a child who is not living with her, she is not entitled to widowed mother's allowance unless she also makes additional contributions to the cost of providing for the child at a rate which is not less than the rate of guardian's allowance. 9 Clause 47 removes this requirement.

9 Sections 37(2) and 77(5) of the Social Security Contributions and Benefits Act 1992. This requirement was added by the Tax Credits Act 2002. It replaced a requirement to make contributions at not less than the amount of child dependency increases payable in respect of a child under section 81 of the Social Security Contributions and Benefits Act 1992. Child dependency increases were abolished by the Tax Credits Act 2002 (except for cases in respect of which transitional provision was made).

Clause 48: Widowed parent's allowance

248.     This clause would amend the provisions of section 39A of the Social Security Contributions and Benefits Act 1992 in respect of widowed parent's allowance in the same way that clause 47 would amend the provisions about widowed mother's allowance.

Disability living allowance: age conditions

Clause 49: Care component of disability living allowance: persons under the age of 16

249.     This clause would amend section 72 of the Social Security Contributions and Benefits Act 1992, which sets out the entitlement conditions to the care component of disability living allowance (section 72(1)). The entitlement conditions are modified in the case of claims for a period in which the claimant is under the age of 16 (section 72(6)). This clause would remove subsection (6) and replace it with new subsections (1A) and (2A). The new subsections apply the same modifications to the standard entitlement conditions for the care component (in section 72(1)) but only if a person is under the age of 16 on the date on which the award would begin and only in relation to any period up to and including the day before a person reaches the age of 16. Consequential amendments are also made.

Clause 50: Mobility component of disability living allowance: persons under the age of 16

250.     This clause would amend section 73 of the Social Security Contributions and Benefits Act 1992, which sets out the entitlement conditions to the mobility component of disability living allowance (section 73(1)). The entitlement conditions are modified in the case of claims for a period in which the claimant is under the age of 16 (section 73(4)). This clause would remove subsection (4) and replace it with new subsections (4A) and (9A). The new subsections apply the same modifications to the standard entitlement conditions for the mobility component (in section 73(1)) but only if a person is under the age of 16 on the date on which the award would begin and only in relation to any period up to and including the day before a person reaches the age of 16. Consequential amendments are also made.

Social Fund

Clause 51: Matters to which regard must be had in awarding budgeting loans

251.     Section 138 of the Social Security Contributions and Benefits Act 1992 provides for payments to be made out of the social fund in the form of budgeting loans, crisis loans and community care grants to give help to people on low incomes.

252.     Certain officials at Jobcentre Plus ("appropriate officers") determine applications for social fund payments in accordance with the provisions in primary legislation, principally section 140 of the Social Security Contributions and Benefits Act 1992, and directions and guidance issued by the Secretary of State (and guidance issued by the nominated appropriate officer for the area). Section 140(1) sets out factors relevant to decisions on crisis loans and community care grants and section 140(1A) does the same for budgeting loans. The system of decision-making in respect of budgeting loans has been simplified with the consequence that some of the provisions in section 140(1A) are unnecessary. The amendments in clause 51 would remove them. The possibility that a third party may meet the need under consideration would no longer be one of the factors relevant to decisions on budgeting loans (see section 140(1)(c) and (1A)(b)). The reference in section 140(1A) to budgeting loan criteria other than the applicant's personal circumstances which may be specified by the Secretary of State in directions would be removed, as the directions no longer contain such criteria.

 
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