Joint Committee on Statutory Instruments First Report


Memorandum by the Department of Social Security


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

    (1)  Regulation 2(a)(ii)(aa) substitutes "resides" for "lives" in regulation 1(3) of the principal Regulations. Given that "lives" appears twice in regulation 1(3), explain whether the substitution is intended to apply in the first, in the second or in both places where it appears.

2. The substitution (in regulation 2(a)(ii)(bb) not (aa)) is intended to apply to the first place only where "lives" appears (with reference to residential care). The Department accepts that it would be preferable to put the position beyond doubt and will do so when the next opportunity arises. In the meantime, it should be clear that this was the intention when the principal regulations and amendments are read as a whole, as it will be seen that there is an intentional distinction between the use of the word "lives" and "living" which are used only in the context of living with a person, and "resides" which is used in the context of residential care. To substitute "resides" for "lives" in the second place where it appears in regulation 1(3) would provide an unnecessary definition and leave the concept of living with another person undefined.

    (2)  Regulation 2(a)(iii) inserts a new regulation 1(3A) which provides that paragraph 2A(3) of Schedule 2 to the Income Support Regulations shall apply as if it were modified in certain ways. As that paragraph applies only to the Income Support Regulations, explain the purpose and effect of this provision. Explain also why a modified version of paragraph "A(3) was not inserted into the principal Regulations instead.

3. Paragraph 2A(3) of Schedule 2 to the Income Support Regulations does not apply only to the Income Support Regulations. It is applied (with necessary modifications) for the purposes of the principal regulations by the opening words of the inserted regulation 1(3A). These apply paragraph 2A(3) of Schedule 2 to the Income Support Regulations which sets out circumstances when a person is to be treated as in residential care subject to the modifications necessary for this to work for the principal Regulations which are set out in regulation 1(3A)(a)(i) to (iii).

4. The reason this approach was taken is that the principal regulations already rely on the detailed provision in the Income Support Regulations relating to nursing homes, residential accommodation and residential care homes. With regard to residential care, the policy requirements are now more accurately met by reference to paragraph 2A(3) of Schedule 2 than by the existing definition of "residential care home" in regulation 1(2). Applying a modified version of paragraph 2A(3) seemed most consistent with the approach of the principal Regulations.

30 November 2000

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