1.In its letter to the Department of 21st March 2018, the Committee requested a memorandum on the following point:
Explain the intended difference between the phrase “within the meaning of” in regulation 2(2)(b) and the phrase “has the meaning assigned to it by” used, for example, in the definition of “care home” in regulation 2 of the Income Support (General) Regulations 1987.
2.The Department’s response to the Committee’s point is set out below.
3.These Regulations make amendments to social security and child support Regulations resulting from the coming into force of Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 (anaw 2), which introduces a new system of regulation and inspection of social and health care services in Wales, replacing the system established in England and Wales by the Care Standards Act 2000 (c.14). In particular, the definitions relating to care homes in those Regulations had to be amended in consequence of that Act.
4.The Department has achieved this by inserting a new definition within the existing definitions of “care home” or, as the case may be, “care home service” in each set of Regulations, to deal with the new situation in Wales. In each of the amendments made by these Regulations, the identical phrase has been used to define the reference to care homes in Wales: “within the meaning of Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016”.
5.The legislation being amended already contained inconsistent terminology. For example, the definition of “care home” in regulation 2 of the Income Support (General) Regulations 1987 (S.I. 1987/1967) referred to in the Committee’s letter uses different wording in defining care homes in England and Wales (“has the meaning assigned to it”) and in Scotland (“within the meaning assigned to it”). Further, care homes in Scotland are defined by reference to what is termed “a care home service”.
6.By way of further example, regulation 3 of these Regulations amends regulation 1A of the Social Fund Cold Weather Payments (General) Regulations 1988 (S.I.1988/1724), which also contains an existing inconsistency as between the definition of care homes in England and Wales (again “has the meaning assigned to it”) and in Scotland (“a care home service as defined by”).
7.In this context, the Department decided on balance that it was preferable to make minimal and (as far as possible) consistent changes in consequence of the new Act of the National Assembly of Wales, under the powers in section 150 of the Government of Wales Act 2006 (c.32), without seeking to address pre-existing inconsistencies in relation to England and Scotland. It did this by inserting in each set of Regulations a new definition which was identical in every case.
8.In conclusion, the Department did not intend any particular different legal effect by drafting the amendments in this way. It sought to define a new term, as clearly and consistently as it could across the statute book. The Department recognises that consistency is an important principle but, in this case, it was not possible to be absolutely consistent. In the Department’s view, neither the existing inconsistency nor the new drafting create any uncertainty or confusion for the reader as each phrase has a clear and obvious meaning.
Department for Work and Pensions
27 March 2018
Published: 20 April 2018