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Child Maintenance and Other Payments Bill


Child Maintenance and Other Payments Bill
Part 4 — Lump Sum Payments: Mesothelioma etc.

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42      

Conditions of entitlement

(1)   

In the case of a person who has diffuse mesothelioma, the conditions of

entitlement are—

(a)   

that no payment within subsection (3) has been made in consequence

of the disease;

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 such requirement, if any, as may be prescribed by regulations as to

the person’s connection with the United Kingdom is satisfied.

(2)   

In the case of a dependant of a person who, immediately before death, had

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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 such requirement, if any, as may be prescribed by regulations as to

the deceased’s connection with the United Kingdom is satisfied.

(3)   

The payments referred to in subsections (1)(a) and (2)(a) are—

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(a)   

a payment under this Part or under corresponding provision made for

Northern Ireland;

(b)   

a payment under the 1979 Act or under corresponding provision made

for Northern Ireland;

(c)   

an extra-statutory payment;

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(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

Northern Ireland;

(b)   

under section 5 of the 1979 Act or under corresponding provision made

for Northern Ireland;

(c)   

under the terms of an extra-statutory payment;

(d)   

in circumstances prescribed for the purposes of this section by

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regulations.

(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

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(or would have done but for any discretion to extend it).

 
 

Child Maintenance and Other Payments Bill
Part 4 — Lump Sum Payments: Mesothelioma etc.

38

 

(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.

44      

Reconsideration

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

to, a material fact.

(2)   

Regulations must prescribe the manner in which and the period within

which—

15

(a)   

an application may be made to the Secretary of State for reconsideration

of a determination; or

(b)   

the Secretary of State may institute such a reconsideration without an

application.

(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

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under this Part.

(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

consent.

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(6)   

Except as provided by subsection (5), no payment under this Part is

recoverable by virtue of a reconsideration of a determination under this

section.

(7)   

Any sums repaid to the Secretary of State by virtue of subsection (5) are to be

paid into the Consolidated Fund.

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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—

(a)   

on the claim, or

(b)   

on reconsideration under section 44 of a determination made on the

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claim.

(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).

 
 

Child Maintenance and Other Payments Bill
Part 4 — Lump Sum Payments: Mesothelioma etc.

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(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

be made;

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

point of law.

(2)   

An appeal under this section may be made by—

(a)   

the Secretary of State, or

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(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)).

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(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

financial matters.

(2)   

Subject to section 41(5) the payment is to be made for that person’s benefit by

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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.

48      

Regulations: Part 4

(1)   

A reference in this Part to regulations is a reference to regulations made by the

35

Secretary of State.

(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;

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(c)   

may be exercised so as to provide for a person to exercise a discretion

in dealing with any matter.

 
 

Child Maintenance and Other Payments Bill
Part 4 — Lump Sum Payments: Mesothelioma etc.

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(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

Parliament.

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)

insert—

“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

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(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”),

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(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—

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(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

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the compensation payment to nil);

(c)   

enable the amount of a lump sum payment made before

commencement to be recovered from a compensation payment

made after commencement;

(d)   

make provision about certificates in respect of lump sum

40

payments;

(e)   

apply any provision of this Act, with or without modifications.

(4)   

References in subsection (1) to a payment made in consequence of a

disease—

 
 

Child Maintenance and Other Payments Bill
Part 5 — General

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(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

disease, but

(b)   

do not include references to a payment mentioned in Part 1 of

Schedule 1.

5

(5)   

In this section—

(a)   

“commencement” means the date on which this section comes

into force,

(b)   

“compensation payment” means a payment within section

1(1)(a) above,

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(c)   

“dependant” has the meaning given by section 3 of the 1979 Act,

and

(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.”

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Part 5

General

50      

Regulations: general

(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.

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(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

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classes of case;

(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

specified condition;

(c)   

so as to provide for a person to exercise a discretion in dealing with any

35

matter.

(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

Parliament.

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