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253. Under section 168 of the Social Security Administration Act 1992 the Secretary of State allocates money out of which Social Fund payments may be made under section 138(1)(b) of the Social Security Contributions and Benefits Act 1992.
254. The money available is limited. There is one budget for loans and one for grants. The budgets are currently allocated to Jobcentre Plus offices for the purpose of making payments of loans and grants to the customers in their geographical area. The intention is that there should be flexibility as to how allocations are made and, in particular, it should be clear that it is open to the Secretary of State to make a single allocation from which loans may be made nationwide, or to make an allocation for loans to be paid from a regional centre or in respect of a particular type of loan or grant. The amendments to section 168 in clause 52 would give that clarity and flexibility. There are other minor amendments to section 168, and an associated amendment to section 140 of the Social Security Contributions and Benefits Act, in paragraphs 2 and 3 of Schedule 7 to the Bill (minor and consequential amendments).
Vaccine Damage Payments Act 1979
255. Section 2(1)(a)(i) of the Vaccine Damage Payments Act 1979 provides that payments are normally only to be made under that Act in respect of vaccinations carried out in the United Kingdom or the Isle of Man. Section 2(5) of that Act currently provides that regulations shall specify cases where certain vaccinations given to members of Her Majesty's Forces and their families abroad are treated as though they are given in England for the purpose of entitlement to a vaccine damage payment.
256. Subsection (2) of clause 53 would substitute the regulation-making power currently in section 2(5) of the Vaccine Damage Payments Act 1979 with an order-making making power in new subsections (5A) and (5B) of that section. The order-making power in new subsection (5A) specifies that the Secretary of State may provide that, in such circumstances as may be specified in an order, the condition of entitlement in section 2(1)(a)(i) of the Vaccine Damage Payments Act 1979 does not need to be met in the case of vaccinations given under arrangements made by or on behalf of Her Majesty's forces, a specified government department, or any other body listed within the order. This means that the Secretary of State can provide that serving members of Her Majesty's forces, specified Crown servants and other people posted abroad and members of their families will be entitled to claim compensation through the Vaccine Damage Payments Act 1979 for disablement resulting from vaccinations given under specified arrangements.
257. This clause would provide for appeals tribunals in Northern Ireland to hear vaccine damage payments cases in Northern Ireland.
258. Section 3A(6) of the Vaccine Damage Payments Act 1979 defines an appeal tribunal for the purposes of an appeal under that Act to mean appeal tribunals constituted under Chapter 1 of Part 1 of the Social Security Act 1998. Sections 4 to 7 of the Social Security Act 1998 establish and provide the constitution for appeal tribunals. These provisions do not extend to Northern Ireland, in relation to which parallel provisions were made by the Social Security (Northern Ireland) Order 1998 (SI. 1998/1506 (N.I. 10).
259. Tribunals established under the Northern Ireland Order were not brought within the scope of the definition in section 3A(6) the Vaccine Damage Payments Act 1979. The consequence of this omission is that appeal tribunals constituted under the Northern Ireland legislation cannot hear appeals under the Vaccine Damage Payments Act 1979, although the legislation does permit the hearing of Northern Ireland cases by a Great Britain tribunal.
260. Subsection (2) of clause 54 would provide that appeals under the Vaccine Damage Payments Act 1979 are to be made to "an appropriate tribunal". It defines an appropriate tribunal as one constituted under the Social Security (Northern Ireland) Order 1998, where the claimant's address is in Northern Ireland. In all other cases the appropriate tribunal will be continue to be an appeal tribunal constituted under the Social Security Act 1998.
261. Subsection (3) would provide for making procedural rules for Northern Ireland tribunals in relation to such appeals.
262. Subsection (4) would enable the Department for Social Development in Northern Ireland to make provision by regulations in relation to the correction of a Northern Ireland appeal tribunal's errors and, where it appears reasonable, the setting aside of the tribunal decisions.
263. Subsection (5) would provide that the Department for Social Development in Northern Ireland is to pay travel and related costs to those required to attend before a Northern Ireland appeal tribunal and, where appropriate, to those who accompany the disabled person to such an appeal tribunal.
Compensation for pneumoconiosis etc.
264. The conditions of entitlement to a payment in the case of a person suffering from a disease to which the Pneumoconiosis etc. (Workers Compensation) Act 1979 applies are set out in section 2(1) of the Act. One of the conditions of entitlement is that all relevant employers have ceased to carry on business. "Relevant employer" is defined in section 2(3) as meaning any person by whom the person suffering from the disease was employed at any time during the period which he was developing the disease and against whom he might have or might have had a claim for damages in respect of the disablement. If there are no relevant employers, a payment is made.
265. Clause 55 substitutes a new definition of "relevant employer" which is set out in Schedule 6. A relevant employer is any person by whom the person was employed in a prescribed occupation at any time during the period he was developing the disease and against whom he might have or might have had a claim for damages in respect of the disablement.
266. The following periods of employment would be disregarded for the purposes of determining whether there is a relevant employer:
267. A person is not a relevant employer if, disregarding the periods of employment mentioned in the previous paragraph, the period during which he employed the person suffering from the disease:
268. A "dependant" of a person who, immediately before his death, suffered from a relevant disease can bring a claim under the Pneumoconiosis etc. (Workers Compensation) Act 1979. Section 3 of that Act sets out the meaning of a "dependant". Section 3(1) of that Act sets out an order of priority for determining which "dependant" may bring a claim in each case.
269. Clause 56 amends the 1979 Act so that civil partners, children of civil partners, a person who was living with a sufferer as if husband and wife and a person who was living with a sufferer as if they were civil partners are included within the meaning of "dependant".
270. Clause 56(3) removes a provision which, in certain circumstances, prevents a person from bringing a claim as a "dependant" where he or she and a person suffering from a relevant disease were living together as husband or wife in Scotland.
271. Subsection (1) of this clause would replace the existing power in section 67(2) of the Social Security Contributions and Benefits Act 1992 to provide for payment of attendance allowance to be stopped with new subsections (2) to (7).
272. New subsection (2) would confer a power to make regulations providing for circumstances in which payment of attendance allowance may be withdrawn from those resident in a care home, namely where any of the costs of any qualifying services provided in a care home are borne out of public or local funds under a specified enactment.
273. New subsections (3) to (7) define what is meant by a "care home", "qualifying services" and an "enactment" for these purposes.
274. Subsection (2) of this clause would replace the existing power in section 72(8) of the Social Security Contributions and Benefits Act 1992 to provide for the care component of disability living allowance to be stopped with new subsections (8) to (13).
275. New subsections (8) to (13) would confer a power to provide by regulations for circumstances in which payment of the care component of disability living allowance may be withdrawn from those resident in a care home.
276. This clause would amend the Disability (Grants) Act 1993 which provides for the making of grants by the Secretary of State for Work and Pensions and the Department for Social Development in Northern Ireland to the Independent Living (Extension) Fund, the Independent Living (1993) Fund and Motability. The current Independent Living Funds are being replaced by a new Trust called The Independent Living Fund (2006) and this clause will update the names of the funds to allow the Secretary of State and the Department for Social Development in Northern Ireland to make grants to the new fund.
277. This clause provides a power to make consequential amendments to subordinate legislation.
Clause 60: Northern Ireland
278. The Northern Ireland Act 2000 enables legislation for Northern Ireland to be made by Order in Council while devolved government is suspended. This clause enables such Orders in Council to be made by negative resolution procedure if they are made only for purposes corresponding to the purposes of the Bill.
279. Such Orders in Council are normally made at the Privy Council following Royal Assent to a Bill, usually later the same month or the following month. This practice has been adopted in order to enable parity of content and also, as far as possible, parity of timing, between legislation for Great Britain and for Northern Ireland.
280. This clause gives effect to Schedule 8, which repeals certain existing legislation as a consequence of the measures in the Bill.
281. Part 1 of this Schedule describes the conditions of entitlement to a contributory employment and support allowance relating to national insurance contributions. These are, in substance, the same as those that exist in relation to incapacity benefit now.
282. Part 2 of this Schedule provides for certain additional conditions for entitlement to an income-related employment and support allowance. These are similar, though not identical, to the conditions of entitlement that currently apply to income support. For example, as well as there being no entitlement if income exceeds the applicable amount, paragraph 6(1)(b) and (2) of the Schedule provide that there is no entitlement to an income-related allowance if the claimant and their partner together have capital assets in excess of a limit set out in regulations, which is expected to be £16,000, i.e. the same as that which applies for the purposes of income support.
283. Clause 1(3) provides that there is no entitlement to either a contributory allowance or an income-related allowance if the claimant is entitled to income support or any type of jobseeker's allowance. Paragraphs 6(1)(c) and (d) of this Schedule would provide that there is no entitlement to an income-related employment and support allowance where the claimant is entitled to state pension credit or the claimant's partner is entitled to income support, state pension credit or an income-based jobseeker's allowance. This is to ensure that only one income-related benefit is paid to a household at any one time in order to prevent duplicate provision from public funds.
284. The Schedule would further provide that there is no entitlement to an income-related employment and support allowance where, a claimant or their partner is in full time paid (remunerative) work, as is the case with income support. Regulations will determine what amounts to remunerative work.
285. The Schedule would also provide that there is no entitlement to an income-related allowance where a claimant is receiving education (paragraph 6(1)(g)). However, the Secretary of State may set out in regulations when a person is or is not to be treated as receiving education. The Secretary of State may also disapply this condition, so that, for example, certain disabled young people or disabled students may be entitled to an employment and support allowance (paragraph 6(4)).
286. Paragraph 6(7) provides a power for paragraph 6 of Schedule 1 to be modified where the claimant is a member of a polygamous marriage. This includes modifications in respect of how benefit, income and capital in respect of the second and any subsequent spouse will be aggregated for the purposes of determining entitlement to an employment and support allowance. It is intended that the modifications made in respect of an employment and support allowance would be based on the income support rules relating to polygamous marriages.
Schedule 2 - Employment and support allowance: supplementary provision
287. This Schedule contains additional provisions in respect of the employment and support allowance. Paragraph 1 confers powers to provide by regulations for claimants to be treated as having (or not having) limited capability for work, as well as to require capability for work to be determined afresh. Paragraph 9 makes equivalent provision for treating claimants as having (or not having) limited capability for work-related activity.
288. Paragraph 2 provides that a person is not entitled to an employment and support allowance for a certain number of days at the beginning of a period of limited capability for work. It is intended that claimants will be required to wait for three days at the beginning of a period of limited capability for work, before becoming entitled to an employment and support allowance (as now under incapacity benefit). Paragraph 2 allows for exceptions whereby the waiting days do not need to be served, for example, where someone was previously entitled to another benefit, such as jobseeker's allowance, regulations may disapply the waiting days requirement to ensure that the claimant would not have a break in benefit entitlement.
289. Paragraph 4 of this Schedule provides for periods of limited capability for work to be linked together and treated as one period of limited capability for work. Where periods are linked in this way then regulations can provide that a condition relating to an employment and support allowance that was satisfied in the earlier period of limited capability for work can be treated as satisfied in the later period of limited capability for work. Regulations may provide, for example that where a person has served the waiting days in relation to the previous period of limited capability for work then they may not have to serve them in relation to their later period of limited capability for work and so may become entitled to an employment and support allowance immediately when their later period of limited capability for work begins.
290. The Schedule also provides for regulations to prescribe circumstances where people are entitled to an employment and support allowance where they are not in Great Britain (for example, where they live abroad or are employed on a ship or oil rig) (paragraphs 5 to 8) and other additional matters.
Schedule 3 - Consequential amendments relating to Part 1
291. This schedule would make amendments consequential on the provisions about the employment and support allowance.
292. Paragraph 1 would amend the Child Support Act 1991 so that an income-related employment and support allowance would be treated the same way as income-based jobseeker's allowance and income support for the purposes of applications and reduced benefit decisions.
293. Paragraph 2 would amend the Criminal Justice Act 1991 so that the Secretary of State may make regulations enabling fines or compensation orders imposed on an offender entitled to an income-related employment and support allowance to be deducted from that benefit.
294. Paragraph 3 would amend the Social Security Contributions and Benefits Act 1992 so that earnings factors would be calculated the same way for an employment and support allowance as jobseeker's allowance for the purpose of satisfying the contributions conditions, and also so that an employment and support allowance recipient of either the support component or the work-related activity component would be entitled to Christmas Bonus. The paragraph also makes a number of other consequential amendments to the Act.
295. Paragraph 4 would amend the Social Security Administration Act 1992 so that an employment and support allowance would be subject to the usual provisions that relate to other benefits in respect of claims and overpayments. It also makes provision about the annual up-rating of the rates of an employment and support allowance.
296. Paragraph 4(9) would insert a reference to income-related employment and support allowance into section 105, thus ensuring that the offence provided for in that section applies to those in receipt of income-related employment and support allowance. The offence provided for in section 105 currently applies to those in receipt of income support on the grounds of incapacity.
297. Paragraph 4(20) would insert a new section into the Social Security Administration Act 1992 which makes provision, like that in relation to other benefits set out in sections 159, 159A and 159B of that Act, which sets out the circumstances, such as the annual up-rating of benefits, where the level of a person's employment and support allowance changes without a decision being made by the Secretary of State to supersede the decision on their award.
298. Paragraph 4(21) inserts a new section, section 160B, to provide for implementation of increases in employment and support allowance due to attainment of particular ages, without a decision being made by the Secretary of State to supersede the decision on their award.
299. Paragraph 5 would make consequential amendments to the Jobseekers Act 1995. In particular it amends section 1 of the Act to provide that one of the conditions of entitlement to a jobseekers allowance is that the claimant does not have limited capability for work instead of the current condition that the claimant "is capable of work". Further amendments make it clear that the question of whether a person has or does not have limited capability for work is to be determined in accordance with the provisions of Part 1 of this Bill.
300. Paragraph 6 would make consequential amendments to the Social Security Act 1998. In particular, the amendments apply the provisions relating to the making of benefit decisions by the Secretary of State, the supersession and revision of decisions, and the rights to independent appeal to an employment and support allowance.
301. Paragraph 7 of the Schedule would amend the Welfare Reform and Pensions Act 1999 so that the powers enabling the Secretary of State to share certain information with local authorities and others in connection with the administration of benefits would apply to information relating to an employment and support allowance.
302. Paragraph 8 amends the Income Tax (Earnings and Pensions) Act 2003 so that a contributory employment and support allowance is treated the same way for tax purposes as incapacity benefit.
Schedule 4 - Transition relating to Part 1
303. This Schedule provides for transitional arrangements for those people who are on existing benefits. Existing benefits are incapacity benefit (which includes transitional awards of incapacity benefit), severe disablement allowance and income support (on grounds of incapacity).
304. Paragraphs 1 to 3 provide for regulations to specify when a claim can be treated as a claim for an existing benefit and when a claim can be treated as a claim for an employment and support allowance. Regulations may make provisions that a claim for an existing benefit made before the day that the provisions in respect of an employment and support allowance come into effect, but for a period beginning after that day can be treated as a claim for an employment and support allowance.
305. Regulations may provide that, after the appointed day (i.e. the day on which the provisions about an employment and support allowance take effect), existing benefits cannot be claimed and an employment and support allowance is claimed instead. Paragraph 2(c) enables regulations to provide for a claim to an employment and support allowance to be treated as a claim for existing benefit. This power may be used, for example, when someone's benefit is backdated to a period before the appointed day. Regulations will specify the conditions and the amount of award of an employment and support allowance
306. Paragraphs 4 and 5 relate to claims that are made by those who had previously been entitled to an existing benefit, who subsequently ceased to be entitled to that benefit, but who can return to benefit because they are covered by linking rules. It covers those cases where the claimant's original claim was for an existing benefit, but their subsequent claim, which is covered by linking rules, is made after the provisions in relation to employment and support allowance have come into force. Regulations may provide that these cases may be awarded an employment and support allowance on terms which match wholly or partly the terms of the existing benefit.
307. Paragraph 6 provides for regulations to make provision for the migration of existing claimants onto an employment and support allowance. These regulations could provide both for voluntary migration, in prescribed circumstances, or mandatory migration. Regulations could prescribe the timing, conditions, kind and amount of any such entitlement to an employment and support allowance in such cases. Regulations could also make provision for determining whether a claimant has limited capability for work-related activity (i.e. that they would be entitled to the support component of an employment and support allowance). Paragraphs 7 and 8 provide for regulations to make provisions for the conditions of continuing entitlement, or for reviewing or terminating such awards.
308. The proposal in paragraphs 1, 8 and 11 is a minor technical amendment to primary legislation (Social Security Contributions and Benefits Act 1992, Social Security Administration Act 1992 and Local Government etc. (Scotland) Act 1994) in order to clarify and standardise references in this legislation to certain public authorities concerned with the administration of council tax benefit. It ensures that all references to relevant authorities administering council tax benefit in England and Wales are to "billing authorities" and those to relevant authorities in Scotland are to "local authorities in Scotland". Paragraph 8 is retrospective and will be taken to have had effect from 1 April 1997, the date of coming into force of section 140A of the Social Security Administration Act 1992.
Administration of housing and council tax benefits
309. Paragraphs 5 to 7 and 9 would amend sections 139E, 139F, 139G and 140B (5A) of the Social Security Administration Act 1992, to take account of the more flexible powers of direction contained in clause 36. The amendments would enable the Secretary of State to require information he needs from a local authority to decide whether it has taken the action specified in the direction, in the same way as he already decides whether specified standards have been obtained. The amendments also provide for the Secretary of State to take the same enforcement action when an authority fails to comply with a direction on actions, as he can when an authority fails to deliver on standards set down in a direction.
310. Local authorities who administer housing benefit and council tax benefit have discretionary powers to operate a local scheme to disregard up to the full amount, or any part of a war disablement pension and war widow's pension, which is not already subject to a statutory disregard of £10 a week. This power to disregard war disablement pensions and war widow's pensions would be provided by sections 134(8) (a) and 139(6) (a) of the Social Security Administration Act 1992. It is not subject to any limit on how much local authorities can spend.
311. The current legislation also provides at sections 134(8)(b) and 139(6)(b) of the Social Security Administration Act 1992 that the local authority may choose to disregard other income as part of their local scheme, but only where the source of that income has been prescribed by the Secretary of State. For example, this power is currently used to disregard income of war widowers and certain war widows who are not covered by the definition of war widow's pension in the primary legislation. However, for these types of disregard the legislation provides a spending limit on the amount of prescribed income that local authorities are able to disregard.
312. Paragraphs 3, 4, 10 and 14 of Schedule 5 relate to services benefits. Paragraphs 3 and 4 would amend section 134(8)(a) and 139(6)(a) of the Social Security Administration Act 1992 to enable the Secretary of State to prescribe in secondary legislation which pensions are to be included within the definitions of "war disablement pension" and "war widow's pension". A "war widow's pension" is defined to include corresponding pensions payable to a widower or surviving civil partner. This ensures that war widowers and certain war widows whose entitlement for being included within a local authority discretionary scheme is currently provided through prescription by the Secretary of State will be covered by the primary legislation and thereby avoid any potential indirect discrimination by these pensions being subject to a spending limit as is currently the case. The amendment would also allow the Secretary of State the flexibility to add further pensions to the definitions of qualifying service pensions, without the need for further amendments to primary legislation.
Local housing allowance
313. Paragraph 12 makes consequential changes to section 122(5) of the Housing Act 1996 as a result of the inclusion of provisions providing for referrals to rent officers and use of their determinations in the calculation of appropriate maximum housing benefit in the proposed new section 130A(3) and (4) in clause 27.
Revisions of decisions and appeals
314. Schedule 5, paragraph 13 amends Schedule 7 of the Child Support, Pensions and Social Security Act 2000.
315. The decision making process in respect of housing benefit and council tax benefit was amended in the Child Support, Pensions and Social Security Act 2000. This is set out in Schedule 7 and section 68 of the 2000 Act. An amendment is proposed because the relevant provision in Schedule 7 does not achieve the policy intention.
316. An overpayment comes into existence when a decision is either revised or superseded and the revised or superseded decision is less favourable. The benefit paid under the old decision, which is more than the entitlement under the new decision, is the overpayment and is recoverable. The intention is that such decisions should be capable of being revised and/or appealed. However, recent case law has precluded the former from being an option. This defeats the policy intention of changing, as quickly as possible, decisions which are wrong particularly if they are adverse to the claimant. As revision is not available, the claimant has no option but to make an appeal. The amendment rationalises the position.
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