3 S.I.
2013/266: Reported for doubtful vires
Income-related Benefits (Subsidy to Authorities)
Amendment Order 2013 (S.I. 2013/266)
3.1 The Committee draws the special attention
of both Houses to this Order on the ground that there is doubt
as to whether it is intra vires in one respect.
3.2 The Order (made on 13th February
2013) makes changes about the calculation and payment to local
authorities of housing benefit subsidy and council tax benefit
subsidy. Article 3 substitutes 30th April for 31st
May as the date by which a local authority must make a claim for
subsidy. Article 1(3) provides that article 3 has effect from
1st April 2012.
3.3 The Committee wondered whether (given article
1(3)) the amendment made by article 3 was intended to have any
effect on a claim made in May 2012 and (if so) what the authority
is for making provision to that effect and (if not) how the intention
is achieved. It accordingly asked the Department for Work and
Pensions for an explanation.
3.4 In a memorandum printed at Appendix 3, the
Department explained that, because other amendments relating to
subsidy for the financial year 2011/12 which are made by the Order
could not be made until after the end of that financial year (because
they relate to amounts of subsidy that are subject to agreement
at the end of the financial year), it had decided to hold up making
all the amendments relating to that financial year until after
it had ended. The memorandum states the Department's view that
this approach assists local authorities. But, while the Committee
appreciates the advantages of reducing the number of separate
instruments, it is not convinced that to delay making the amendment
in article 3 is consistent with the law.
3.5 Article 3 is made under section 140C of the
Social Security Administration Act 1992. Subsection (1) of that
section allows the Secretary of State to make by order provision
about a number of things relating to subsidy, including claims,
and (as the Department's memorandum indicates) subsection (4)
allows an order to be made before, during or after the year or
years to which it relates. But, whatever its literal terms, the
Committee thinks it unlikely that that subsection gives power
to advance the time by which a claim must be made by a provision
made after the time by which a claim must be made.
3.6 The Department seeks in its memorandum to
justify the timing of the change made by article 3 by explaining
that it had consulted local authorities on the proposed amendment
in July 2011, informed them about it in August 2011 and reminded
them about it in March 2012. But the Committee was nevertheless
surprised that the Department saw fit to treat claims made during
May 2012 as made late when they were made before the date then
specified by law. The Department's memorandum asserts that no
local authority should have made a claim in May 2012 unaware that
the deadline was to be changed to 30th April. But 16
local authorities did; and the Committee considers that they were
acting within the law as it stood at the time when they did so.
3.7 The Committee considers that there is considerable
doubt whether there was vires to shift forward the date by which
claims had to be made many months after the date by which a claim
was required to be made. The Committee considers that the right
course would have been to make the provision in article 3 by an
order made before 30th April 2012. By the time the
order was made, some nine months later, it was impossible for
any local authority to comply with the changed requirement. The
Committee does not consider that section 140C(4) of the Social
Security Administration Act 1992 was ever intended to frank provisions
that are retrospective in that sense.
3.8 The Committee accordingly reports articles
1(3) and 3 on the ground that there is doubt as to whether they
are intra vires.
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