|
| |
|
42 | Conditions of entitlement |
| |
(1) | In the case of a person who has diffuse mesothelioma, the conditions of |
| |
| |
(a) | that no payment within subsection (3) has been made in consequence |
| |
| 5 |
(b) | that the person is not eligible for any payment in consequence of the |
| |
disease that is of a description prescribed by regulations; |
| |
(c) | that the person has such connection with the United Kingdom as may |
| |
be prescribed by regulations. |
| |
(2) | In the case of a dependant of a person who, immediately before death, had |
| 10 |
diffuse mesothelioma, the conditions of entitlement are— |
| |
(a) | that no payment within subsection (3) has been made in consequence |
| |
of the disease to that or another dependant or to the deceased or the |
| |
deceased’s personal representatives; |
| |
(b) | that the dependant is not, and the deceased was not, eligible for any |
| 15 |
payment in consequence of the disease that is of a description |
| |
prescribed by regulations; |
| |
(c) | that the deceased had such connection with the United Kingdom as |
| |
may be prescribed by regulations. |
| |
(3) | The payments referred to in subsections (1)(a) and (2)(a) are— |
| 20 |
(a) | a payment under this Part or under corresponding provision made for |
| |
| |
(b) | a payment under the 1979 Act or under corresponding provision made |
| |
| |
(c) | an extra-statutory payment; |
| 25 |
(d) | damages or a payment in settlement of a claim for damages; |
| |
(e) | a payment of a description prescribed by regulations. |
| |
(4) | A payment is to be disregarded for the purposes of subsection (1)(a) or (2)(a) if |
| |
it has been, or is liable to be, repaid— |
| |
(a) | under section 44 of this Act or under corresponding provision made for |
| 30 |
| |
(b) | under section 5 of the 1979 Act or under corresponding provision made |
| |
| |
(c) | under the terms of an extra-statutory payment; |
| |
(d) | in circumstances prescribed for the purposes of this section by |
| 35 |
| |
(5) | In this section “extra-statutory payment” has the meaning given by section |
| |
1A(5)(d) of the Social Security (Recovery of Benefits) Act 1997 (c. 27). |
| |
43 | Determination of claims |
| |
(1) | A claim under section 41 must be made in the manner and within the period |
| 40 |
prescribed by regulations. |
| |
(2) | Regulations may prescribe different periods for different cases or classes of |
| |
cases or for different circumstances. |
| |
(3) | Regulations may in particular provide that no claim may be made in cases |
| |
where the prescribed period expired before the commencement of section 41 |
| 45 |
(or would have done but for any discretion to extend it). |
| |
|
| |
|
| |
|
(4) | The Secretary of State may, before determining any claim under section 41, |
| |
appoint a person to inquire into any question arising on the claim, or any |
| |
matters arising in connection with it, and to report on the question, or on those |
| |
matters, to the Secretary of State. |
| |
| 5 |
(1) | Subject to subsection (2), the Secretary of State— |
| |
(a) | may reconsider a determination that a payment should not be made |
| |
under this Part, on the ground that there has been a material change of |
| |
circumstances since the determination was made; and |
| |
(b) | may reconsider a determination either that a payment should or that a |
| 10 |
payment should not be made under this Part, on the ground that the |
| |
determination was made in ignorance of, or was based on a mistake as |
| |
| |
(2) | Regulations must prescribe the manner in which and the period within |
| |
| 15 |
(a) | an application may be made to the Secretary of State for reconsideration |
| |
| |
(b) | the Secretary of State may institute such a reconsideration without an |
| |
| |
(3) | Section 43(4) applies in relation to any reconsideration of a determination |
| 20 |
under this section as it applies in relation to the determination of a claim. |
| |
(4) | Subsection (5) applies if— |
| |
(a) | whether fraudulently or otherwise, any person misrepresents or fails to |
| |
disclose any material fact, and |
| |
(b) | in consequence of the misrepresentation or failure, a payment is made |
| 25 |
| |
(5) | The person to whom the payment was made is liable to repay the amount of |
| |
that payment to the Secretary of State unless that person can show that the |
| |
misrepresentation or failure occurred without that person’s connivance or |
| |
| 30 |
(6) | Except as provided by subsection (5), no payment under this Part is |
| |
recoverable by virtue of a reconsideration of a determination under this |
| |
| |
(7) | Any sums repaid to the Secretary of State by virtue of subsection (5) are to be paid into |
| |
| 35 |
45 | Appeal to appeal tribunal |
| |
(1) | A person who has made a claim under section 41 may appeal against a |
| |
determination made by the Secretary of State— |
| |
| |
(b) | on reconsideration under section 44 of a determination made on the |
| 40 |
| |
(2) | Subject to regulations under subsection (4)(c), the Secretary of State must refer |
| |
any appeal to an appeal tribunal constituted under Chapter 1 of Part 1 of the |
| |
Social Security Act 1998 (c. 14). |
| |
|
| |
|
| |
|
(3) | On an appeal the tribunal may substitute for the determination concerned any |
| |
determination which could have been made in accordance with this Part. |
| |
(4) | Regulations may make provision— |
| |
(a) | as to the manner in which, and the time within which, an appeal may |
| |
| 5 |
(b) | as to the procedure to be followed if an appeal is made; |
| |
(c) | for the purpose of enabling an appeal under subsection (1)(a) to be |
| |
treated as an application for reconsideration under section 44 of the |
| |
determination made on the claim. |
| |
46 | Appeal to Social Security Commissioner |
| 10 |
(1) | An appeal may be made to a Commissioner against any decision of an appeal |
| |
tribunal under section 45 on the ground that the decision was erroneous in |
| |
| |
(2) | An appeal under this section may be made by— |
| |
(a) | the Secretary of State, or |
| 15 |
(b) | the person who brought the appeal under section 45. |
| |
(3) | Section 14(7) to (12) of the Social Security Act 1998 (c. 14) apply to an appeal |
| |
under this section as they apply to an appeal under section 14 of that Act |
| |
(reading references to a tribunal as references to an appeal tribunal constituted |
| |
as mentioned in section 45(2)). |
| 20 |
(4) | In this section “Commissioner” has the same meaning as in Chapter 2 of Part 1 |
| |
of the Social Security Act 1998. |
| |
47 | Minors and people who lack capacity |
| |
(1) | This section applies where a payment under this Part falls to be made to— |
| |
(a) | a person aged under 18, or |
| 25 |
(b) | a person who lacks capacity within the meaning of the Mental Capacity |
| |
Act 2005 (c. 9) (or, in Scotland, who is incapable within the meaning of |
| |
the Adults with Incapacity (Scotland) Act 2000 (asp 4)) in relation to |
| |
| |
(2) | Subject to section 41(5) the payment is to be made for that person’s benefit by |
| 30 |
paying it to such trustees as the Secretary of State may appoint. |
| |
(3) | The trustees are to hold the payment on such trusts or, in Scotland, for such |
| |
purposes and on such conditions as the Secretary of State may declare. |
| |
| |
(1) | A reference in this Part to regulations is a reference to regulations made by the |
| 35 |
| |
(2) | The power to make regulations under this Part— |
| |
(a) | is exercisable by statutory instrument; |
| |
(b) | includes power to make such incidental, supplementary or transitional |
| |
provision as the Secretary of State thinks fit; |
| 40 |
(c) | may be exercised so as to provide for a person to exercise a discretion |
| |
in dealing with any matter. |
| |
|
| |
|
| |
|
(3) | No regulations may be made under section 41 unless a draft of the statutory |
| |
instrument containing the regulations has been laid before, and approved by a |
| |
resolution of, each House of Parliament. |
| |
(4) | A statutory instrument that— |
| |
(a) | contains regulations under this Part, and |
| 5 |
(b) | is not subject to a requirement that a draft of the instrument be laid |
| |
before, and approved by a resolution of, each House of Parliament, |
| |
| shall be subject to annulment in pursuance of a resolution of either House of |
| |
| |
Recovery of mesothelioma and other lump sum payments |
| 10 |
49 | Amendment of Social Security (Recovery of Benefits) Act 1997 |
| |
After section 1 of the Social Security (Recovery of Benefits) Act 1997 (c. 27) |
| |
| |
“1A | Lump sum payments: regulation-making power |
| |
(1) | The Secretary of State may by regulations make provision about the |
| 15 |
recovery of the amount of a payment to which subsection (2) applies (a |
| |
“lump sum payment”) where— |
| |
(a) | a compensation payment in consequence of a disease is made to |
| |
or in respect of a person (“P”) to whom, or in respect of whom, |
| |
a lump sum payment has been, or is likely to be, made, and |
| 20 |
(b) | the compensation payment is made in consequence of the same |
| |
disease as the lump sum payment. |
| |
(2) | This subsection applies to— |
| |
(a) | a payment made in accordance with the Pneumoconiosis etc. |
| |
(Workers’ Compensation) Act 1979 (“the 1979 Act”), |
| 25 |
(b) | a payment made in accordance with Part 4 of the Child |
| |
Maintenance and Other Payments Act 2007, and |
| |
(c) | an extra-statutory payment (within the meaning given by |
| |
subsection (5)(d) below). |
| |
(3) | Regulations under this section may, in particular— |
| 30 |
(a) | make provision about the recovery of the amount of a lump |
| |
sum payment made to or in respect of a dependant of P; |
| |
(b) | make provision enabling the recovery of the amount of a lump |
| |
sum payment from a compensation payment (including |
| |
provision enabling the recovery of an amount which reduces |
| 35 |
the compensation payment to nil); |
| |
(c) | enable the amount of a lump sum payment made before |
| |
commencement to be recovered from a compensation payment |
| |
| |
(d) | make provision about certificates in respect of lump sum |
| 40 |
| |
(e) | apply any provision of this Act, with or without modifications. |
| |
(4) | References in subsection (1) to a payment made in consequence of a |
| |
| |
|
| |
|
| |
|
(a) | are references to a payment made by or on behalf of a person |
| |
who is, or is alleged to be, liable to any extent in respect of the |
| |
| |
(b) | do not include references to a payment mentioned in Part 1 of |
| |
| 5 |
| |
(a) | “commencement” means the date on which this section comes |
| |
| |
(b) | “compensation payment” means a payment within section |
| |
| 10 |
(c) | “dependant” has the meaning given by section 3 of the 1979 Act, |
| |
| |
(d) | “extra-statutory payment” means a payment made by the |
| |
Secretary of State to or in respect of a person following the |
| |
rejection by the Secretary of State of a claim under the 1979 Act.” |
| 15 |
| |
| |
| |
(1) | This section has effect in relation to regulations under this Act, except Part 4. |
| |
(2) | Power to make regulations is exercisable by statutory instrument. |
| 20 |
(3) | Power to make regulations includes power to make incidental, supplementary, |
| |
consequential or transitional provision or savings. |
| |
(4) | Power to make regulations may be exercised— |
| |
(a) | in relation to all cases to which it extends, in relation to those cases but |
| |
subject to specified exceptions or in relation to any specified cases or |
| 25 |
| |
(b) | so as to make, as respects the cases in relation to which it is exercised— |
| |
(i) | the full provision to which it extends or any lesser provision |
| |
(whether by way of exception or otherwise); |
| |
(ii) | the same provision for all cases, different provision for different |
| 30 |
cases or classes of case or different provision as respects the |
| |
same case or class of case but for different purposes of this Act; |
| |
(iii) | provision which is either unconditional or is subject to any |
| |
| |
(c) | so as to provide for a person to exercise a discretion in dealing with any |
| 35 |
| |
(5) | No regulations may be made under section 6 unless a draft of the statutory |
| |
instrument containing the regulations has been laid before, and approved by a |
| |
resolution of, each House of Parliament. |
| |
(6) | A statutory instrument that— |
| 40 |
(a) | contains regulations, and |
| |
(b) | is not subject to a requirement that a draft of the instrument be laid |
| |
before, and approved by a resolution of, each House of Parliament, |
| |
| shall be subject to annulment in pursuance of a resolution of either House of |
| |
| 45 |
|
| |
|