Joint Committee on Statutory Instruments Fourth Report


Memorandum by the Welsh Office


  The Committee requested a memorandum on the following point:

    "Explain, in the case of a deduction required by regulation 13(2) on the ground that a severance payment is `otherwise improper', whether it is intended that such payment, if determined to be wholly improper, should be deducted in its entirety from maintenance grant under regulation 4(1); and if so, how regulation 13(2) authorises this".

  This provision, which was included in the 1997 Regulations for the first time, was intended to meet concerns expressed by the Public Accounts Committee about the level of severance payments paid to teachers by the governing bodies of some grant-maintained schools. It was not envisaged that a severance payment might be wholly improper. Consequently, the Department is not anticipating a case where it would be necessary to deduct an amount equal to the severance payment in its entirety. Where a payment is made in respect of a dismissal, or for the purpose of securing the resignation, of a member of staff of the school it is likely that a least part of the payment will have some justification. However, the Department would not necessarily wish to concede that, where every part of the payment was excessive or otherwise improper, the payment could not be deducted in its entirety. In Chamberlain-v-Inland Revenue Commissioners 1945 2 All E R 351 the Court of Appeal held that the words in a Finance Act "such part of the income" were capable of being read and ought to be read as "such part, it may be the whole" in the same way, they said, as the word "some" in formal logic means "some, it may be all".

  When provision for deducting excessive severance payments from annual maintenance grant was under consideration by DfEE and the Welsh Office, there was some discussion about whether the additional words, "or otherwise excessive", were needed, or whether it would be sufficient to confine the provision to "excessive" severance payments. The Department notes that the words "or otherwise improper" have been omitted from the final version of the corresponding English Regulations (see Regulation 28(1) of the Education (Grant-maintained and Grant-maintained Special Schools) (Finance) Regulations 1997 (S.I. 1997/996).

  We shall be discussing with DfEE whether it is necessary to cover the possibility of a severance payment which is wholly excessive or otherwise improper. If it is, then no doubt it would be better to specially refer to the whole of such payment being deducted. We shall also discuss whether there is in fact anything added by the words "or otherwise improper". An improper payment in these circumstances will invariably result in a person receiving a payment which is larger than he should have received. If we conclude that changes are necessary then they will be included in next year's regulations.

13th June 1997

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