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Joint Committee on Statutory Instruments Thirtieth Report


Memorandum by the Department of Social Security


1.  The Committee has asked for a memorandum on the following points -

    (1)  The definition of "interim subsidy" in article 2 includes subsidy pursuant to articles "6(4)" and "7(2)". Given that the Order contains no provisions so numbered verify these references.

    (2)  Explain the requirements imposed on claimant authorities by the first 6 lines of article 5

  (a)  To provide information; and

  (b)  To keep and produce records;

  and in particular the requirements in respect of that information and those records which are comprised in the words -

(i)  "as the Secretary of State so requires"; and

(ii)"or as may otherwise be necessary"

  to enable the Secretary of State to satisfy himself of the stated matters.

    (3)  Article 11(1) contains a definition of "overpayment" which includes a provision that any reference in the Order to this term "in relation to any of the previous Orders shall bear the meaning in this Order". Explain the purpose and effect of this limb of the definition.

2.  In relation to the Committee's first point, the references to articles 6(4) and 7(2) are, as the Committee notes, incorrect and will be removed at the first opportunity. The remaining references, to articles 8(1) and 9(4), are the full extent of the intended definition of "interim subsidy". The Department apologies for this typographical error and is grateful to the Committee for pointing it out to them.

3.  In relation to the second point raised by the Committee, on the first 6 lines of Article 5, this continues the duty previously imposed on authorities by regulation 3 of the Housing Benefit and Council Tax Benefit (Subsidy) Regulations 1994 (S.I. 1994 No.781), which do not apply to claims made pursuant to the above Order. The purpose of the provision is to ensure that local authorities keep proper records of the benefit payments they make to claimants and provide, with their claim for subsidy, the information necessary to substantiate their claim. It is in general terms to ensure the maintenance of records appropriate to the subsidy which the authority claims. An authority, however, will be fully cognisant of what it is claiming and what benefit it is paying at all times and will, therefore, be readily able to comply with these requirements.

4.  The words referred to in the Committee's Memorandum are intended to convey that the information (pursuant to article 5(a)) and the records kept and produced (pursuant to article 5(b)) were such as might be needed or, in appropriate cases, formally required by the Secretary of State for the purposes specified in article 5(i) and (ii) (accuracy and completeness of the claim and the subsidy sought in it). The Department, however, recognises that the structure of the provision is unsatisfactory, particularly the relationship between paragraph (b) and the full out words, and this provision will be revised in due course.

5.  The Committee's third point relates to the definition of overpayment in article 11(1). The term "the previous Orders" is defined in article 1(2) to mean the Orders made under the earlier subsidy powers, which apply to all claims to subsidy made in respect of the Financial Year 1996/97 and earlier years. In the 1998 Order the term "overpayment" is given an extended meaning, in article 11(1), to include excess benefits by way of council tax benefit and community charge benefits. The term "overpayment" does not have such a wide meaning in the previous Orders, where it refers only to overpayments of housing benefit. Overpayments or excess benefits are brought into account for subsidy purposes at the appropriate rate in the year in which they are detected. This may well be in a financial year other than the one in which they were paid. The intention is that for subsidy purposes, "overpayment" has just one meaning and the definition to which the Committee alludes is to ensure uniformity of treatment and nomenclature. The Department considers that the definition to which the Committee allude achieves that aim.

April 1998

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