Appendix 1
S.I. 2019/1302
Social Security (Iceland) (Liechtenstein) (Norway) (Citizens’ Rights Agreement) Order 2019
S.I. 2019/1303
Social Security (Switzerland) (Citizens’ Rights Agreement) Order 2019
1.In its letter to the Department of 6 February 2020, the Committee requested a memorandum on the following:
(1) Clarify whether, in relation to article 2 of each Order:
a)the modifications made to the Social Security Administration Act 1992 by virtue of paragraph (2)(a) are intended to include modifications in relation to the benefits listed in section 179(4)(b) of that Act;
b)paragraph (4) is intended to apply paragraph (1) to the whole of the Social Security Contributions (Transfer of Functions, etc.) (Northern Ireland) Order 1999, or only to Part 2 of that Order.
(2) Having regard to the apparent differential use of “modifying” and “adapting” in s.179(2), clarify, in relation to both Orders, what enabling power is relied on to provide generally that the legislation to which article 2(1) applies is adapted to give effect to the relevant agreement.
2.In response to question (1)(a), the modifications made to the Social Security Administration Act 1992 by virtue of article 2(2)(a) and to the Social Security Contributions and Benefits Act 1992 by virtue of article 2(2)(b) of each Order do not include modifications to the five benefits listed in the fullout words of section 179(4) of the Social Security Administration Act 1992. The five benefits listed in fullout words of section 179(4) of the Social Security Administration Act 1992 are not capable of modification under the enabling powers of section 179(1) and section 179(2) of that Act. By way of background, the Orders relate to implementing reciprocal agreements in relation to DWP and HMRC benefits.
3.We have taken the limitations in the fullout words of section 179(4) into account in giving effect to the reciprocal agreements on social security coordination. The benefits listed in the fullout words of section 179(4) are not either relevant or legislation does not need to be modified for the purposes of implementing the reciprocal agreements in respect of social security coordination. For example, community charge benefits are not relevant benefits for the purposes of social security coordination. However, Winter Fuel Payment is a benefit which falls within the fullout words of section 179(4) (as it is a payment out of the social fund) and it is a benefit payable under the Swiss Citizens’ Rights and EFTA Citizens’ Rights agreements. In this case, each Order will not be used to modify legislation using section 179(1) and section 179(2) to pay the Winter Fuel Payment. Instead existing domestic legislation on Winter Fuel Payments (without modification) will be used to pay Winter Fuel Payments in order to give effect to the Swiss Citizens’ Rights and EFTA Citizens’ Rights agreements. In relation to statutory maternity pay and statutory sick pay, these are benefits paid by the employer in accordance with existing domestic legislation (without modification) and the Christmas Bonus is also paid under existing domestic legislation (without modification).
4.The fullout words are part of section 179(4), not paragraph (b) of section 179(4). They therefore also apply to the other paragraphs of section 179(4). The modifications made to the Social Security Contributions and Benefits Act 1992 by virtue of article 2(2)(b) of each Order also do not include modifications to the benefits listed in the fullout words. For example, paragraph (iii) of the fullout words refers to Christmas Bonus, which is provided under sections 148 to 150 of the Social Security Contributions and Benefits Act 1992.
5.In response to question 1(b), we believe that the Committee may be asking whether paragraph (4) is intended to apply only to Part III of the Social Security Contributions (Transfer of Functions, etc.) (Northern Ireland) Order 1999 (rather than Part II) in reference to section 179(4)(ad) of the Social Security Administration Act 1992. Paragraph (4) is intended to apply paragraph (1) to Part III of the Social Security Contributions (Transfer of Functions, etc.) (Northern Ireland) Order 1999 in accordance with section 179(4)(ad) of the Social Security Administration Act 1992. The reference to “Part III” should have been included.
6.In response to question (2), the enabling power relied upon is section 179(1) (or more specifically section 179(1)(a)) as read with section 179(2). Article 2(1) is making general modifications (rather than specific modifications) to the legislation specified in Article 2(2) and Article 2(4) to give effect to the reciprocal agreement in the Schedule to each Order. We acknowledge that section 179(1) refers to “modifying or adapting” legislation whereas section 179(2) refers to legislation being “modified” or “…to give effect to the provisions contained in the agreement or, as the case may be, alterations in question.” The words “or adapted” should not have been included because we are not making adaptations. The words were not intended to add anything new to the word “modified” and should in practice be meaningless because of the wording of the enabling power.
7.We acknowledge that there is defective drafting in relation to each Order in respect of questions 1(b) and 2 and apologise. However, we do not think it is necessary to amend The Social Security (Iceland)(Liechtenstein)(Norway)(Citizens’ Rights Agreement) Order 2019 because it is not in force. The Order was intended to implement the reciprocal agreement in the Schedule to the Order in the event there was no Withdrawal Agreement between the European Union and the UK under Article 50 of the Treaty on European Union (the “Withdrawal Agreement”) as the reciprocal agreement only enters into force in the event there is no Withdrawal Agreement (Article 43(2) of the reciprocal agreement). As there is a Withdrawal Agreement in place, this Order is no longer necessary and we intend to revoke it.
8.In relation to The Social Security (Switzerland) (Citizens’ Rights Agreement) Order 2019, this Order is not in force but may come into force on satisfying the later of the events at article 1(2). The Swiss Citizens’ Rights Agreement does not come into force until the end of the transition period (and is not being provisionally applied). Therefore, should it be necessary to amend the Order in light of the Committee’s findings, we do not propose to make immediate changes to this Order but we will keep this position under review and either modify it at an opportune moment if it comes into force or revoke it.
9.The Committee might like to note that Northern Ireland has separate orders made under section 155 of the Social Security Administration (Northern Ireland) Act 1992 to modify Northern Ireland legislation in respect of Swiss and EFTA agreements: The Social Security (Switzerland) (Citizens’ Rights Agreement) Order (Northern Ireland) 2019 S.R.2019/212 and The Social Security (Iceland) (Liechtenstein) (Norway) (Citizens’ Rights Agreement) Order (Northern Ireland) 2019 S.R. 2019/211. These orders have been drafted in substantially the same terms and so similar points may arise. We will share the findings of the Committee with our Northern Ireland colleagues.
Department for Work and Pensions
13 February 2020
Published: 28 February 2020