Clause 42: Conditions of entitlement

370.     Clause 42 sets out the conditions that must be satisfied by persons with mesothelioma, and by a dependant of a person who, immediately before their death, suffered from mesothelioma in order for a lump sum payment to be made.

371.     Subsection (1)(a) provides that to be entitled to a lump sum payment a person with mesothelioma must not have already received a payment in respect of mesothelioma contained in the provisions of subsection (3).

372.     Subsection (1)(b) provides that to be entitled to a lump sum payment a person must not be eligible, in respect of mesothelioma, for a payment of a type prescribed by regulations.

373.     Subsection (1)(c) provides that the person must have those links with the United Kingdom prescribed by regulations.

374.     Subsection (2)(a) provides that for a dependant of a deceased person who suffered from mesothelioma immediately before their death to be entitled to a lump sum payment, neither they, nor the deceased person with mesothelioma, nor the deceased person's estate, nor any other dependant, must have already received a payment in respect of mesothelioma contained in the provisions of subsection (3).

375.     Subsection (2)(b) provides that for a dependent of a deceased person who suffered from mesothelioma immediately before their death to be entitled to a lump sum payment, neither they, nor the deceased person with mesothelioma, must be eligible, in respect of mesothelioma, for a payment of a type prescribed by regulations.

376.     Subsection (2)(c) provides that the deceased person must have those links with the United Kingdom prescribed by regulations.

377.     Subsection (3) provides that the payments mentioned in subsections (1)(a) and (2)(a) are: a payment under this Part, a payment under corresponding Northern Ireland provisions, a payment under the 1979 Act, an extra-statutory payment for mesothelioma after making a claim under that Act, or a payment of a type prescribed by regulations.

378.     Subsection (4) provides that a payment under this Part, a payment under corresponding Northern Ireland provisions, a payment under the 1979 Act, an extra-statutory payment for mesothelioma after making a claim under that Act, or a payment of a type prescribed by regulations, will not disqualify a person from receiving a mesothelioma lump sum payment if that payment was made in consequence of a misrepresentation or failure to disclose material facts (whether fraudulently or otherwise), and an obligation to repay it has arisen under section 4 of this Part or section 5 of the 1979 Act or for some other reason.

379.     Subsection (5) defines an extra-statutory payment as a payment made by the Secretary of State when a claim has been rejected under the 1979 Act (by reference to the section inserted by clause 49).

Clause 43: Determination of claims

380.     Clause 43 sets out how a claim for a lump sum payment is to be decided.

381.     Subsection (1) provides that a claim for a lump sum payment as made under section 41 will be made in the manner and within the period prescribed by regulations.

382.     Subsection (2) sets out that the lump sum payment can be set at different levels for different people based on different factors.

383.     Subsection (3) provides that, if any questions concerning the claim arise before the claim is decided, then the Secretary of State may appoint someone to inquire into the issues or to request answers to those questions. The person holding appointed will then report their findings to the Secretary of State.

Clause 44: Reconsideration

384.     Clause 44 enables the Secretary of State to reconsider a decision not to make a lump sum payment where there is a change in circumstances that may affect the claim since the decision was taken, or a decision to make or not to make a lump sum payment if the original decision was made in ignorance or based on error about the facts of the case.

385.     Subsection (2) provides that regulations must prescribe how and within what timescale, a person may apply to the Secretary of State for a decision to be reconsidered, or for the Secretary of State to reconsider a decision without an application to do so being made.

386.     Subsection (3) provides that subsection (4) of section 43 will apply to any reconsideration of a decision under this section, in the same way as it applies to the decision on a claim.

387.     Subsection (4) and (5) provide that where a person, either fraudulently or otherwise, provides misleading or false information, or does not disclose relevant information, and a lump sum payment for mesothelioma is paid to them as a result of this, they will be liable to repay any lump sum payment they receive. This liability to repay would not apply if the person can show that they had not given permission or had not been involved in the failure to disclose, or the provision of misleading or incorrect, information.

388.     Subsection (6) provides that a mesothelioma lump sum payment can not be recovered where a decision has been reconsidered, unless the payment was obtained by providing misleading or false information, or because relevant information was not properly disclosed.

389.     Subsection (7) provides for any sums repaid to the Secretary of State to be paid in to the Consolidated Fund.

Clause 45: Appeal to appeal tribunal

390.     This clause provides that a person who has made a claim for a payment under clause 41, will have a right of appeal to an appeal tribunal against a decision made by the Secretary of State on the claim, or a decision made following a reconsideration under clause 44.

391.     Subsection (2) provides that, 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.

392.     Subsection (3) provides the tribunal with the power to substitute a decision on matters decided in accordance with Part 4.

393.     Subsection (4) provides that regulations may make provision:

• as to the manner in which, and the time within which, an appeal may be brought;

• as to the procedure to be followed if an appeal is made; and

• for the purposes of enabling an appeal to be treated as an application for a reconsideration under clause 44.

Clause 46: Appeal to Social Security Commissioner

394.     This clause provides a right of appeal to a Social Security Commissioner against any decision of an appeal tribunal under clause 44, on the ground that the decision was wrong in law.

395.     Subsection (2) states that an appeal to the Commissioner may be made by the Secretary of State, or by the person who brought the appeal under clause 45.

396.     Subsection (3) provides that section 14(7) to (12) of the Social Security Act 1998 applies to an appeal under this section, as they apply to an appeal under that section.

Clause 47: Minors and people who lack capacity

397.     Clause 47 concerns how lump sum payments are to be made to a person under the age of 18, or a person who lacks capacity within the meaning of the Mental Capacity Act 2005 (or, in Scotland, who is incapable within the meaning of the Adults with Incapacity (Scotland) Act 2000) in relation to financial matters.

398.     Subsection (2) provides for a lump sum payment in respect of these persons to be made to any trustees appointed by the Secretary of State.

399.     Subsection (3) provides for those trustees to hold the lump sum payment in trust, or in Scotland, under the conditions and for the purposes that the Secretary of State may declare.

Clause 48: Regulations: Part 4

400.     Clause 48 provides power to the Secretary of State to make regulations by statutory instrument, which includes power to make such incidental, supplementary or transitional power as the Secretary of State thinks fit.

401.     Subsections (3) and (4) provide that any regulations made under section 42 of this Part must be subject to the affirmative resolution procedure. Subsection (4) provides that any other regulations made under any other provision of this Part will be subject to the negative resolution procedure.

Recovery of mesothelioma and other lump sum payments

Clause 49: Amendment of Social Security (Recovery of Benefits) Act 1997

402.     This clause inserts a new section 1A into the Social Security (Recovery of Benefits) Act 1997, which provides the Secretary of State with powers to make regulations providing for the recovery of lump sum payments made under the Pneumoconiosis etc. (Workers' Compensation) Act 1979, the new scheme or those made on an extra-statutory basis following the rejection of a claim made under that Act.

403.     Subsection (1) of section 1A sets out that the Secretary of State may by regulations make provision about the recovery of a lump sum payment to which subsection (2) applies, where:

• a compensation payment is made to, or in respect of a person to whom, or in respect of whom, a lump sum payment has been made or is likely to be made; and

• the compensation payment is made in respect of the same disease as the lump sum payment.

404.     Subsection (2) applies to:

• a payment made in accordance with the Pneumoconiosis etc. (Workers' Compensation) Act 1979;

• an extra-statutory payment following the rejection of a claim made under the 1979 Act; or

• a payment made under the new scheme.

405.      Subsection (3) sets out that regulations made under this section may in particular:

• make provision about the recovery of the lump sum payment made to, or in respect of a dependant of the person with mesothelioma;

• make provision enabling the recovery of a lump sum payment from a compensation payment (including provision enabling the recovery of an amount that reduces the compensation payment to nil);

• enable the amount of lump sum payment made before commencement to be recovered from a compensation payment made after commencement;

• make provision about certificates in respect of lump sum payments;

• apply any provision of the Social Security (Recovery of Benefits) Act 1997, with or without modifications.

406.     Subsection (4) provides that reference in subsection (1) to a payment in consequence of a disease 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 disease.

407.     Subsection (5) sets out definitions for the purposes of this section. In particular, commencement means the date on which this section comes into force.

Part 5 - General

Clause 50: Regulations

408.     This clause has effect in relation to regulations under this Act, except Part 4 which relates to lump sum payments. It provides that, where the Secretary of State is empowered to make regulations, these are to be made by statutory instrument.

409.     Subsection (3) provides that such regulations may include power to make incidental, consequential, transitional or saving provisions.

410.     Subsection (4) provides that power to make regulations under this Act may be exercised:

• 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 classes of case;

• to make full provision for which it extends, the same or different provision for different cases or classes of case, or different provision for the same case or class of case. Provisions can be unconditional or subject to any specified conditions; and

• to provide for a person to exercise discretion in dealing with any matter.

411.     Subsection (5) provides that any regulations made under clause 6, which relate to fees, are subject to the draft affirmative resolution procedure. Subsection (6) provides that any other regulations are subject to the negative resolution procedure.

Clause 51: General interpretation

412.     This clause sets out definitions for the purposes of the Act. Subsection (1) defines the 'Commission', for the purposes of this Act, as a body corporate to be known as the Child Maintenance and Enforcement Commission.

413.     Subsection (2) sets out that for the purposes of amendments or repeals, where the Child Support Act 1991 has been amended by the Child Support, Pensions and Social Security Act 2000, for limited purposes only, the amendment will apply to both versions of the Act unless otherwise stated.

Clause 52: Minor and consequential amendments

414.     Clause 52 gives effect to Schedule 7, which contains minor and consequential amendments, as a consequence of the measures in the Bill.

415.     Subsection (2) provides regulation-making powers to the Secretary of State to make consequential provisions on this Act in subordinate legislation.

Clause 53: Repeals

416.     This clause gives effect to the repeals set out in Schedule 8.

Clause 54: Transition

417.     Subsection (1) provides that until the functions of the Secretary of State are transferred to the Commission, all references to the Commission included in the Child Support Act 1991 will be treated as if they were references to the Secretary of State.

418.     Subsection (2) gives the Secretary of State the power to make regulations to modify the textual amendments made in Schedule 3 as necessary during the period between the functions being transferred to the Commission and the repeal of section 6 (applications by those claiming or receiving prescribed benefit) and section 46 (reduced benefit decision) of the Child Support Act 1991.

419.     It is envisaged that functions will be transferred to the Commission and the consequential amendments made in Schedule 3 will be brought into force some time before sections 6 and 46 are repealed. During this interim period, the Secretary of State may make reduced benefit decisions where a parent does not co-operate with an application under section 6, and certain of the amendments made in Schedule 3 will need to be modified to take account of this. For example, the requirement to have regard to the welfare of the child in exercising a discretionary power will need to be modified so that it applies both to the Secretary of State and to the Commission, rather than just referring to the Commission.

420.     Subsection (3) gives the Secretary of State power to make regulations modifying the effect of sections 6 and 46 before they are repealed. This is to enable changes to be made in preparation for the removal of compulsion for benefit claimants.

421.     Subsections (4) and (5) ensure that some of the new provisions which the Bill inserts into the Child Support Act 1991 will apply in relation to cases under the CSA 'old scheme'.

422.     Subsection (4) provides that new sections 32A, 32D, 32E, 32G, 32I, 32K, 41C to 41E, 43A, 49A and 49B of the Child Support Act 1991 will have effect as if references to child support maintenance included maintenance due under an old scheme assessment.

423.     Subsection (5) provides that new sections 32A, 32B, 32D, 32E, 32G, 32I, 32K, 39E, 39J, 40 and 40B of the Child Support Act 1991 will have effect as if references to maintenance calculations included assessments made under the old scheme.

424.     Subsection (6) provides that sections 35, 36, 38, 39B, 39E, 39J, 39M, 40, 40B and 49B of the Child Support Act 1991 will have effect as if orders made under section 33 of that Act had been made under section 32I of that Act. This ensures that any references to the new administrative liability order include an order made by the court before section 32I comes into force.

425.     Subsection (7) is a general power enabling the Secretary of State to make transitional provision or savings in relation to the coming into force of any provision under this Act.

Clause 55: Financial provisions

426.     Clause 55 provides that there shall be paid out of money provided by Parliament:

• Any expenditure incurred by the Secretary of State or a government department in consequence of this Act; and

• Any increase attributable to this Act in the sums payable out of money so provided under any other enactment.

427.     Subsection (2) provides that there shall be authorised the extinguishing in consequence of this Act of liabilities owed to the Crown under the Child Support Act 1991.

Clause 56: Extent

428.     This clause sets out the territorial extent of the Bill. The provisions of the Bill will extend to England, Wales and Scotland only, apart from the clauses below which will also extend to Northern Ireland:

• ???Clauses 50, 52(2), 57 and 58;

• ???Paragraphs 4 to 6 of Schedule 6, and clause 39 so far as relating to those paragraphs;

429.     Any amendment or repeal made by the Bill has the same extent as the enactment to which it relates.

Clause 57: Commencement

430.     Clauses 50, 54(7), 56 and 58 will come into force on Royal Assent. The remaining provisions of the Bill will come into force on such days as the Secretary of State may by order appoint.

Clause 58: Citation

431.     The Act may be cited as the Child Maintenance and Other Payments Act 2007.

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Schedule 1: The Commission

432.     This Schedule makes more detailed provision about the Commission including its structure and how appointments will be made.

433.     The table below summarises the appointment procedures for the Commission and its staff as set out in paragraphs 2 to 10 of this Schedule.

434.     Paragraph 1 sets out that the Commission shall consist of:

• a person appointed to chair the Commission;

• a chief executive of the Commission who will be known as the Commissioner for Child Maintenance;

• one or more executive directors, appointed from the staff of the Commission; and

• two or more non-executive directors, who must not be staff of the Commission.

435.     Paragraphs 3(3) and (4) require that there are always more non-executive directors than executive directors.

436.     Paragraphs 4 and 5 make provision for the tenure of members of the Commission.

437.     Paragraph 5(2) states that an executive director will no longer be a member of the Commission if they cease to be a member of its staff.

438.     Paragraph 5(3) states that the Chair or any non-executive member will cease to be a member of the Commission if they become a member of its staff.

439.     Paragraph 6 stipulates that remuneration paid by the Commission to the Chair may be determined by the Secretary of State, as may any pension, allowances or gratuities paid to or in respect of the Chair.

440.     Sub-paragraph (3) allows the Commission to pay compensation to the Chair upon early expiry of the appointment if the Secretary of State considers it appropriate.

441.     Paragraph 7 stipulates that remuneration paid by the Commission to a non-executive director, may be determined by the Secretary of State, as may any pension, allowances or gratuities paid to or in respect of a non-executive director.

442.     Sub-paragraph (3) allows the Commission to pay compensation to a non-executive director upon early termination of the appointment if the Chair considers it appropriate. The amount of any such payment will be determined by the Chair, with the approval of the Secretary of State.

443.     Paragraph 8 requires the Chair to appoint one of the non-executive directors as a deputy chair.

444.     Paragraph 9 provides that the Secretary of State will make the initial appointment, and determine the terms and conditions, of the Chief Executive. Subsequent appointments and terms and conditions will be made by the Commission with approval of the Secretary of State.

445.     Paragraph 10 enables the Commission to appoint employees as it considers appropriate and determine their terms and conditions including remuneration.

446.     Paragraph 11 enables the Commission to establish committees and sub-committees (in addition to the non-executive functions committee established under paragraph 20). Committees and sub-committees established under this paragraph may include or be entirely made up of people who are not members of the Commission or the Committee by which it is established.

447.     Paragraph 12 enables the Commission to determine terms and conditions for committee members who are not Commission members or employees. This function will be exercised on behalf of the Commission by the non-executive functions committee.

448.      Paragraph 13 enables the Commission to set its own procedure and procedure of its committees.

449.     Paragraph 14 enables the Commission to authorise any member of the Commission, an employee or a committee member, to carry out its functions (apart from the non-executive functions) on its behalf.

450.     Paragraph 15 enables the Chair to delegate their functions of determining the terms and conditions, including remuneration, of non-executive directors, to any executive member of the Commission, any member of staff of the Commission, or subject to sub-paragraph (2), any of its committees.

451.     Sub-paragraph (2) prevents these functions from being delegated to any committee that has a non-executive director as a member, or if a committee is carrying out one of these functions on behalf of the Chair, the authority to do so must cease if a non-executive director becomes a member of the committee.

452.     Paragraph 16 makes provisions relating to how the common seal is authenticated and provides that any document which appears to be executed under the Commission's seal or signed on its behalf is to be presumed to be sealed or signed for the Commission unless it is proved otherwise. This provision does not apply in relation to Scotland.

453.     Paragraph 17 makes provision for the Secretary of State to fund the Commission out of money provided by Parliament through a grant in aid. Sub-paragraph (2) allows the Secretary of State to make such funding subject to conditions

454.     Paragraph 18 requires the Commission to keep proper accounts and produce an annual statement of accounts. A copy of each statement of accounts must be sent to the Secretary of State and the Comptroller and Auditor General. The Comptroller and Auditor General will report on the statement. The statement and reports will be laid before Parliament.

455.     Paragraph 19 requires the Commission to keep its internal financial controls under review. This function is to be carried out by the non-executive functions committee.

456.     Paragraph 20 requires the Commission to establish a non-executive functions committee, and sets out the structure of, and functions that are to be carried out by, such a committee.

457.     Sub-paragraph (1) of paragraph 20 lists the functions to be carried out by the non-executive functions committee. These are:

• to determine the terms and conditions of the chief executive, with approval of the Secretary of State;

• to determine the terms and conditions of the Commission's executive directors;

• to determine the terms and conditions of committee or sub-committee members who are not members of the Commission or its staff; and

• to monitor and audit the Commission's internal financial controls.

458.     Sub-paragraphs (2), (3) and (4) stipulate that the non-executive functions committee must consist of at least three members who are non-executive members of the Commission, and that the Chair is prevented from being a chair of the non-executive functions committee.

459.     Sub-paragraphs (5) and (6) require the non-executive functions committee to produce a report on its own functions to include within the Commission's annual report to Secretary of State. The report should cover the same period as the Commission's report.

460.     Sub-paragraphs (7) to (10) provide for the non-executive functions committee to be able to set up sub-committees to carry out its monitoring and audit and report functions. Sub-committees may include people who are not members of the Commission but may not include executive members or staff of the Commission.

461.     Paragraph 21 allows the Commission to do anything (other than borrow money) which is conducive or incidental to the carrying out of its functions. This would for example, enable the Commission to enter into contracts for supply of goods and services.

462.     Paragraph 22 sets out that the Commission is not a Crown Body and does not have any Crown status, privilege or immunity. Property owned by the Commission will not be regarded as Crown Property.

463.     Paragraph 23 enables the Commission to carry out its functions even if there is not a full board in place or there has been a defect in an appointment.

464.     Paragraph 24 ensures that no individual staff member, Commission or Committee member, will be liable in damages for anything done in carrying out functions of the Commission. Nor will the Chair be liable in damages for anything done in carrying out his or her functions.

465.     The exceptions to this are where the individual has acted in bad faith, for example, has been deliberately dishonest or malicious in their actions, or where the provision would prevent an award of damages under the Human Rights Act 1998.

466.     Paragraph 25 amends the Public Records Act 1958 to include the Commission so that records held by the Commission will fall within the definition of public records.

467.     Paragraph 26 amends the Parliamentary Commissioner Act 1967, to include the Commission as a department or authority subject to investigation.

468.     Paragraph 27 amends the Superannuation Act 1972 to enable the Chair and employees of the Commission to benefit from pension schemes under the Act. This means they can join the Principal Civil Service Pension Scheme (PCSPS). The Commission will be required to fund the cost of its Chair and employees being members of PCSPS.

469.     Paragraph 28 amends the House of Commons Disqualification Act 1975, disqualify members of the Commission from being members of the House of Commons.

470.     Paragraph 29 amends the Northern Ireland Assembly Disqualification Act 1975, to disqualify members of the Commission from being members of the Northern Ireland Assembly.

471.     Paragraph 30 ensures that the Commission is subject to the Freedom of Information Act 2000.

472.     Paragraph 31 sets out various definitions for the purposes of the Commission structure. Specifically that:

• executive members of the Commission are the Chief Executive and the executive directors;

• non-executive members are members of the Commission who are not executive members;

• references to staff of the Commission should be read as references to the Commissioner for Child Maintenance and other employees of the Commission

• committees of the Commission are the non-executive functions committee and any of its sub-committees; and

• any other committee or sub-committee set up by the Commission.