Clause 32: Provision that may be made about direct payments

197.     This clause makes detailed provision about the provisions that may be included in regulations that provide for direct payments to disabled people. These regulations (which are defined as ‘direct payments regulations’) are made under clause 31(2)(d). So they are merely a special type of regulations under clause 31. Subsection (2) provides that direct payments regulations may-

• specify when an authority is or is not required to comply with a request for a direct payment,

• outline how the request for a direct payment can be made,

• enable a disabled person to require an assessment of the amount of direct payment to which that person would be entitled, if that person was to request a direct payment,

• require a mixture of direct payments and services to be made by an authority, should the disabled person request this,

• make provision that displaces the function or obligation of the authority if a direct payment is made. Where a providing authority has made a direct payment under regulations made under clause 31, regulations would provide that it does not remain under a statutory obligation to provide the service or services to which the payment relates.

198.     Subsection (3) requires direct payments regulations to provide that where a request for a direct payment places an unreasonable financial burden on an authority it will not have a duty to comply with the request.

199.     Subsection (4) enables direct payments regulations to make provision-

• for a power to provide for authorities to make direct payments instead of providing services;

• to prescribe conditions that the disabled person or other payee must comply with in order to receive the direct payment;

• for authorities to terminate the making of direct payments;

• for the authority to recover over-payments;

• for the authority to recover payment where the individual fails to meet conditions attached to receipt of the direct payment;

• to ensure that an authority can write off any debt arising from an overpayment;

• for direct payments to be made to a person on behalf of the disabled person.

200.     Subsection (5) specifies the types of conditions that regulations may require the disabled person or other payee to comply with. These conditions would be designed to secure that any direct payment was used for the purpose for which it was intended.

Clause 33: Exercise of rights on behalf of persons who lack capacity

201.     This clause enables regulations which make provision for the right to control to be exercised on behalf of a disabled person where the person lacks mental capacity to take decisions. It defines this concept by reference to the Mental Capacity Act 2005 (c.9) in relation to England and Wales and the Adults with Incapacity (Scotland) Act 2000 (asp 4) in relation to Scotland.

Clause 34: Pilot schemes

202.     Clause 34 enables the making of regulations having temporary effect and constituting pilot schemes. The duration of a pilot scheme is not to exceed 36 months, though it may be replaced by a further pilot scheme. Subsection (7) requires the Secretary of State (or other appropriate authority) to publish a report on the operation of a pilot scheme.

Clause 35: The appropriate authority by which regulations under section 31 are made

203.     This clause defines the appropriate authority which is to have power to make regulations under clause 31. The Secretary of State will be the appropriate authority except in cases where the provisions to be made would be within the legislative competence of either the Scottish Parliament or the National Assembly for Wales. If the provision would be within the devolved competence of either of those bodies, powers are conferred on the Scottish Ministers and the Welsh Ministers respectively. Regulations made by the Secretary of State will require the consent of the Treasury.

Clause 36: Regulations under section 31: supplementary provisions

204.     Clause 36 makes supplementary provision about regulations made under clause 31. In particular, it allows regulations to make different provision in respect of different circumstances. It also enables the regulations to include incidental, supplementary, consequential or saving provisions, and to amend or repeal any enactment.

Clause 37: Consultation

205.     This clause requires proposed regulations under clause 31 to be published in draft and consulted on for a period of not less than 12 weeks.

Clause 38: Regulations under section 31: control by Parliament or other legislature

206.     This clause provides that regulations made under clause 31 are to be subject to the affirmative resolution procedure in Parliament, the Scottish Parliament and the National Assembly for Wales.

Part 3: Child maintenance

Clause 40: Disqualification for holding etc. driving licence or travel authorisation

207.     Sections 39B to 39G of the Child Support Act 1991 (‘the 1991 Act’) (inserted by section 27 of the Child Maintenance and Other Payments Act 2008) allow the Child Maintenance and Enforcement Commission (‘the Commission’) to apply to a court for an order disqualifying a person, who has arrears of child maintenance which the Commission is enforcing, from holding or obtaining a travel authorisation (a passport or ID card). This disqualification could be for a period of up to two years.

208.     Section 40B of the 1991 Act allows the Commission to apply to a court for an order disqualifying a person from holding a driving licence. This disqualification could also be for a period of up to two years.

209.     Clause 40 and Schedule 5 amend sections 39B to 39G to allow the Commission itself to make such orders, without having to apply to a court.

210.     Subsection (2)(a) of clause 40 amends section 39B so that the Commission may make a disqualification order if:

• it has sought to recover the arrears through the use of bailiffs (in England and Wales), or diligence action (in Scotland) or by means of a third party debt order or charging order;

• the whole or any part of the arrears remains unpaid; and

• it is of the opinion that that the person has wilfully refused or culpably neglected to pay maintenance.

211.     Subsection (2)(b) substitutes subsections (3) to (13) of section 39B with new subsections (3) to (8).

212.     New subsection (3) provides that the person against whom an order is made will be subject to disqualification for holding or obtaining a driving licence and/or travel authorisation for the period the order has effect.

213.     New subsection (4) requires the Commission, before making a disqualification order, to consider whether the non-resident parent requires a driving licence or travel authorisation in order to earn a living.

214.     New subsections (5) and (6) set out that the disqualification order must specify the amount in respect of which it is made. This will be an aggregate of the amount stated in a liability order, or the amount that remains unpaid, and the costs incurred by the Commission in making the order.

215.     New subsection (7) provides that the Commission must serve the person with a copy of the disqualification order, together with any order for costs made under new section 39DA(1).

216.     New subsection (8) defines ‘driving licence’ and ‘travel authorisation’.

217.     Clause 40(3) amends section 39C of the 1991 Act, which concerns the duration of an order made under section 39B of that Act. This states that the duration of the order may not exceed 12 months, subject to any extension by the courts under new sections 39CA and 39CB.

218.     Subsection (4) inserts new sections 39CA and 39CB. Section 39CA relates to the surrender of a driving licence or travel authorisation after the Commission has made a disqualification order.

219.     Subsections (1) to (5) of new section 39CA provide that a person subject to such an order who holds a driving licence or travel authorisation document must surrender it in a prescribed manner to a prescribed person within a period of seven days starting on the date the order has effect, or has effect again following a period of suspension. If immediately before the end of the seven day period, the person who is subject to a disqualification order has presented good reason for not surrendering his or her driving licence or travel authorisation, that person will be allowed to surrender his or her documents as soon as is practicably possible after the end of the seven day period. Regulations will set out in what circumstances a person can, or cannot, be regarded as having good reasons. If the disqualification period ends or is suspended, the person will not be required to surrender the travel authorisation document.

220.     Subsections (6) and (7) set out that a person who refuses to surrender his or her documents to the prescribed person will be committing an offence, and liable on summary conviction to a fine (currently not exceeding level 3 on the standard scale (£1000)).

221.     Subsections (8) and (9) set out that where a person is sentenced for non-surrender of documentation under subsection (5), the court may extend the effective period of the original disqualification order. The effective period of the order, including any extension, may not exceed two years.

222.     For the avoidance of doubt, subsection (10) sets out that ‘relevant document’ has the same meaning as in section 39 of the 1991 Act.

223.     Subsection (11) makes clear that, prior to the coming into force of Schedule 3 to the Road Safety Act 2006, ‘relevant document’ includes a counterpart driving licence.

224.     New section 39CB provides a right of appeal to the magistrates’ court (or, in Scotland, the sheriff) for a person against whom an order is made to disqualify him or her from holding or obtaining a travel authorisation.

225.     Subsection (1) of section 39CB states that the period in which a person may appeal to a magistrates’ court (or, in Scotland, the sheriff) is to be prescribed by regulations, and that period begins with the first date the person has actual notice of the order.

226.     Subsection (2) suspends the implementation of the order until the appeal has been determined, withdrawn or discontinued.

227.     Subsections (3) and (4) allow the court to grant leave to appeal after the period specified in subsection (1) has expired and if other prescribed conditions are satisfied. If leave is granted, the court may suspend the order on such conditions as it thinks just.

228.     Subsection (5) states that when an appeal is made to the court, the court will reconsider the original order, and may either affirm, vary or revoke the order.

229.     Subsection (6) prevents a court, when hearing such an appeal, from questioning the liability order upon which an order for disqualification is made, or the maintenance calculation which is the basis of the liability order.

230.     Subsection (7) prevents the court, when varying an order, from extending the order so that it has effect for more than two years in total.

231.     Under subsection (8) if on appeal the court affirms or varies an order, the court can replace the amount specified in the order with an amount equal to the total of -

• the amount of arrears outstanding on the date the order is affirmed or varied;

• the amount of costs specified in relation to the making of the order which are outstanding;

• the amount of costs specified in relation to the appeal; and

• if a liability order has been made since the disqualification order was made, any amount specified in the liability order which remains unpaid.

232.     Subsections (9) and (10) lift the suspension of the order as soon as a court affirms or varies an order, unless the court considers that the suspension is justified for exceptional circumstances, or the non-resident parent has agreed to pay the amount specified in the order.

233.     Subsections (11) and (12) provide that should the court revoke an order, it will also revoke the order for costs, unless, having regard to all the circumstances, it considers it reasonable to require the non-resident parent to pay the costs.

234.     Subsection (13) defines ‘the court’ for the purposes of this section as -

• a magistrates’ court in relation to England and Wales;

• the sheriff in relation to Scotland.

235.     Subsection (5) of clause 40 inserts new section 39DA into the 1991 Act, which will allow the Commission, when making a disqualification order against a person, to make a further order requiring the person to pay an amount in respect of the Commission’s costs.

236.     Subsection (2) of new section 39DA provides that where a person has appealed, and the court affirms or varies the disqualification order, the court shall also make an order for the amount of the costs incurred by the Commission in connection with the appeal.

237.     Subsection (3) provides that where the court revokes a disqualification order, and it considers it reasonable in all the circumstances, it shall also make an order to require the person to pay an amount in respect of the Commission’s appeal costs.

238.     Subsection (4) provides that any order for costs made under this section must specify the amount, which will be determined in accordance with regulations made by the Secretary of State.

239.     Under subsection (5) the normal rules relating to the collection and enforcement of child maintenance will also apply to any amounts in respect of an order made under section 39DA.

240.     Subsection (6) of clause 40 introduces Schedule 5, which contains consequential amendments to the 1991 Act and the Child Maintenance and Other Payments Act 2008.

Clause 41: Report on operation of driving licences amendments

241.     Clause 41 makes provision for the Commission to pilot, for a period of two years, the power to disqualify the non-resident parent from driving. Clause 41(1) requires the Secretary of State to prepare and lay before Parliament a report on the operation of the driving licence amendments during the ‘review period’. Under clause 41(2) the ‘review period’ is the period of 24 months beginning with the day that the amendments relating to driving licences come into force. The report must be laid before parliament within six months of the end of the review period (clause 41(3)).

242.     At the end of the review period the Secretary of State must decide whether to continue to operate the amendments providing for the administrative removal of driving licences, or whether to restore the law to the existing position (namely, the court based removal of driving licences). Under clause 41(4) and (5) the Secretary of State may make an order providing for the amendments to continue to have effect. This order shall be subject to affirmative resolution, and must be made within 30 days from the date on which the report is laid before parliament. Under clause 41(6), if no order is made under clause 41(4), the Secretary of State may make an order reinstating the law as it would have been but for the amendments. This order is to be made using the negative resolution procedure.

Clause 42: Payments of child support maintenance

243.     Section 29 of the 1991 Act provides a general power to make regulations as to the payment of child support maintenance. These regulations allow the Child Maintenance and Enforcement Commission (‘the Commission’) to specify the intervals at which payments are to be made, having regard to the circumstances and preferences indicated by the non-resident parent. Many non-resident parents prefer to pay calendar monthly, in line with when they receive earnings. Precisely matching payments to weekly liabilities may not be straightforward and may be unclear to parents.

244.     Clause 42 amends section 29 of the 1991 Act, extending the provisions which may be made by regulations in relation to payments of child support maintenance. Subsection (2) allows for regulations making provision for determining the total amount of maintenance payments due in a reference period (a period of 52 weeks or, in some circumstances, a different period - see subsection (3)), and requiring payments to be made, by reference to that amount and that period, at prescribed intervals.

245.     This will enable the notification of the maintenance calculation, issued to each parent to show an annual rather than weekly amount. Where the payment interval is to be monthly, the schedule of payments due will show 12 equal monthly amounts. It will therefore be much easier for the non-resident parent to see what payments are due to be made, on what date, and how they relate to the maintenance liability. This will also facilitate the making of payments by regular direct debit because the amounts will be the same each month. Annual amounts will be adjusted if a relevant change in circumstances occurs during the year, requiring a new weekly liability to be calculated.

Clause 43: Child support maintenance: offences relating to information

246.     Clause 43 amends section 14A of the Child Support Act 1991, which deals with offences relating to the provision of information.

247.     Section 14A(3A) of the 1991 Act currently provides that a person commits an offence if he or she fails to notify the Child Maintenance and Enforcement Commission of a change of address. Clause 43(2) inserts a new subsection (3A), which extends this offence to a failure to report other changes of circumstances. These other changes of circumstances will be specified in regulations made under the provisions of section 14(1) of the 1991 Act.

248.     Section 14A(2) provides that it is an offence for a person to knowingly make a false statement or representation or knowingly provide, or cause or allow to be provided, a document or other information which is false. Clause 43(3) inserts new subsections (6) to (8) into section 14A of the 1991 Act, setting the time limit for bringing such a case to 12 months from the date the false information was provided. Currently section 127 of the Magistrates Courts Act 1980 and section 136 of the Criminal Procedure (Scotland) Act 1995 (in Scotland) limit the time in which a prosecution can be brought to 6 months. The amendment brings the time limits broadly in line with those for benefit fraud, and increases the likelihood of successful prosecutions under section 14A(2) of the 1991 Act due to the increased time in which the offence can be discovered and investigated by the prosecutor.

Part 4: Birth registration

Clause 44: Registration of births

249.     This clause gives effect to Schedule 6 which amends the Births and Deaths Registration Act 1953 to make provision for the joint registration of births where the parents of a child are not married to each other nor are civil partners of each other.

Part 5: Miscellaneous and supplementary

Clause 45: Consequential amendments of subordinate legislation

250.     This clause enables the Secretary of State to amend or revoke by way of regulations any statutory instruments made under other enactments before this Bill receives Royal Assent, where such amendments and revocations are necessary as a consequence of a provision of this Bill (other than any provision in Part 2 of the Bill). Regulations made under this power may include transitional provisions and savings, and provisions conferring discretion on any person. Regulations made under this power are subject to negative resolution procedure.

Clause 46: Repeals and revocations

251.     This clause gives effect to the repeals and revocations in Schedule 7. It lists provisions in Part 2 of Schedule 7 that will have effect on 6 April 2010. It protects the operation of article 3 of the Tax Credit Act 2002 (Commencement No. 3 and Transitional Protections and Savings) Order 2003 - (savings in relation to the abolition of child dependency increases).

Clause 48: Extent

252.     Clause 48 sets out the territorial extent of the Bill, which is described in paragraphs 43 to 49 of these Notes.

Clause 49: Commencement

253.     Clause 49 provides that clauses 1 and 2, 9, 21 and 22, 27, 45, 47 and 48, 50 and Schedule 3 will come into force on Royal Assent (as will clause 49).

254.     Clauses 12 and 25, Part 2, clause 46(2) and (3) and Part 2 of Schedule 7 relating to the repeals and revocations mentioned in clause 46(2) will come into effect at the end of two months after the date of Royal Assent.

255.     The remaining provisions will be brought into force by means of commencement orders made by the Secretary of State. The orders may appoint different days for different areas and purposes and make necessary transitory, transitional or savings provisions.

256.     Before making any commencement order relating to the registration of births under Part 1 of Schedule 6, the Secretary of State is required to consult with the Registrar General for England and Wales.

SCHEDULES

Schedule 1 - Amendments connected to section 3

Part 1

257.     Paragraph 2 amends section 8 of the Jobseekers Act 1995 so that only those persons on jobseeker’s allowance who are required to meet the jobseeking conditions, rather than those who have moved from income support, will be required to attend an interview with an employment officer and provide information and evidence of their circumstances, availability for employment and the extent to which they are actively seeking work.

258.     Paragraph 3 of Schedule 1 inserts new sections 11A, 11B and 11C into the Jobseekers Act 1995.

11A Persons not required to meet the jobseeking conditions

259.     This section provides for regulations to be made which would require people who are not required to meet the jobseeking conditions, and who are not a member of a joint-claim couple, to undertake work-focused interviews. The purpose of the interview is to consider a person’s existing and future employment and training prospects or needs.

11B Provision which may be made by regulations under section 11A

260.     This section details some of the things which can be specified in regulations made under new section 11A. This includes provision to sanction people who fail to comply and do not take part in a work-focused interview without having good cause. Matters to be considered as relevant in determining whether a person has shown good cause are to be prescribed in regulations. Where a person does not meet an interview requirement that is made as a condition of becoming entitled to benefit, the appropriate sanction will be to treat that person as not having made a claim. Where compliance with an interview requirement applies as a condition of entitlement to benefit continuing, the appropriate sanction will be to reduce the benefits paid to that person by an amount specified in regulations.

261.     Subsection (4) allows for the requirement to undertake a work-focused interview to be waived if it is not considered appropriate for the claimant. Under subsection (6), benefit can still be awarded in this situation.

262.     The meaning of ‘relevant benefit’ in subsection (7) currently applies to income support, housing benefit, council tax benefit, widows and bereavement benefits, carer’s allowance, severe disablement allowance and incapacity benefit.