SOCIAL SECURITY BILL
(continued)
Details of the delegated powers,
by Clause
Part I - Decisions and Appeals
(Clauses 10-19)
Clause 10
44. Clause 10 enables
the Secretary of State to revise a decision made under Clause
9 or Clause 11 either on application or on her own initiative.
When a decision is revised (as opposed to superseded under the
powers in Clause 11) it is changed from (and has effect from)
the date of the original decision, as a general rule.
45. Subsection
(1) (a) contains 2 delegated powers. The first enables regulations
to prescribe the period within which and the second the cases
or circumstances in which a decision can be revised. It is intended
that a claimant will have one month in most cases to dispute a
decision with the Department. Claimants will not need to demonstrate
"grounds" for changing a decision within this period.
If the Secretary of State considers that the decision is incorrect,
she will revise the decision. The regulations will set out specified
circumstances in which a decision can be revised after the end
of the prescribed period, for example where a customer can show
that they could not reasonably have disputed a decision within
the dispute period, for example through incapacity or absence
from home.
46. The purpose
of this section is to give the Secretary of State maximum flexibility
to put right decisions which are incorrect for any reason, and
avoid them entering the appeals process unnecessarily.
47. Subsection
(1) also allows for regulations to prescribe the procedure by
which decisions may be revised. The ability to prescribe in regulations
the procedure by which decisions will be revised will ensure that
staff follow a consistent set of steps when changing a decision.
48. Subsection
(4) enables regulations to provide for a revised decision to take
effect from a date other than the date of the original decision.
It is intended that these regulations will cover circumstances
when the error in the original decision related to the effective
date of that decision.
49. These are matters
of detail which the Department believe are appropriate to secondary
legislation and also in respect of which flexibility is required
to accommodate any future administrative changes.
50. Subsection
(6) provides that an appeal against a decision of the Secretary
of State shall lapse if the decision is revised before the appeal
is determined, except in prescribed circumstances. In
general it is intended that if a decision which has been appealed
is looked at again by the Department and put right, the appeal
should not proceed (the claimant of course will have a right of
appeal against the revised decision). However in some cases
the Department may look again at a decision and conclude that
it should be revised in a way that is less favourable to the claimant
- for example, a revised decision on an overpayment which increases
the amount of the overpayment which the claimant must pay back.
It is intended that in these cases the regulations will provide
that the appeal shall proceed to an appeal tribunal.
51. The Department
anticipates that the definition of what constitutes "less
favourable to the claimant", across all benefits, national
insurance contributions decisions, overpayments decisions etc.,
will be sufficiently lengthy and technical to be an appropriate
matter for secondary legislation.
Clause 11
52. Clause 11 allows
the Secretary of State to make a decision superseding a decision
made under Clause 9 or Clause 10, or a decision made by an appeal
tribunal or a Commissioner. When a decision is superseded, a
fresh decision is made and takes its place; as a general rule
the fresh decision will not have effect from the date of the original
decision but from the date of the supersession. The powers in
this Clause will be used in two circumstances. The first is when
an error in the original decision has not been identified within
the dispute period of one month. The second is when circumstances
change, and the original decision needs to be replaced by a new
decision.
53. Subsection
(3) contains two delegated powers. The first enables regulations
to prescribe the cases or circumstances in which a decision can
be made superseding an earlier decision. The cases and circumstances
will include the following specified reasons: where there has
been ignorance of, or a mistake as to a material fact, an error
of law in the original decision, or where there has been a relevant
change of circumstances. Putting specified reasons in secondary
legislation will enable adjustments to be made to maintain the
spirit behind the provision if problems arise later.
54. The second
power allows for regulations to prescribe the procedure by which
this may be done. The ability to prescribe in regulations the
procedure by which decisions will be revised will ensure that
staff follow a consistent set of steps when changing a decision.
55. These are matters
of detail which the Department believe are appropriate to secondary
legislation and also in respect of which flexibility is required
to accommodate any future administrative changes.
56. Subsection
(4) provides, as a general rule, that a decision under Clause
11 shall take effect from the date on which it is made, or, where
applicable, the date on which the application was made. Subsection
(5) allows for regulations to provide that in prescribed circumstances
or cases, the new decision shall take effect from a date other
than the date set out in subsection (4).
57. It is intended
that the regulations will provide for the following special cases:
- where a decision is
superseded because of a change of circumstances, the new decision
may take effect from the date of the change, where the change
is to the customer's advantage, and it is notified within one
month of it occurring. If it is not notified within one month,
the new decision will take effect from the date on which it is
notified. If a new decision is to a customer's disadvantage,
it will in all cases take effect from the date the change occurred.
- where the decision
of a tribunal or Commissioner is superseded by the Secretary of
State because the decision was given in ignorance of, or mistake
as to, a material fact, the new decision may take effect from
the same date as the original decision. Where the decision of
a tribunal or Commissioner is superseded by the Secretary of State,
as a result of a relevant determination as defined by Clause 27
(cases of error), the new decision may take effect from the date
of the relevant determination.
58. The details
of this provision are likely to be lengthy and involved, and in
the Department's view would not justify the greater use of Parliamentary
time required by primary legislation. The use of regulations
will also enable further special cases to be accommodated, should
this become necessary.
Clause 12
59. Clause 12 re-enacts
with amendments at subsections (1) and (2) sections 58(1) and
(4) of the Social Security Administration Act. It permits provision
to be made in regulations for the making of any decision by the
Secretary of State in connection with former or current legislation.
It also provides that the Secretary of State may direct that she
should have the assistance of experts where a matter involves
a question of special difficulty.
60. Subsection
(1) is a broad power which enables regulations to be made to ensure
the smooth running of the social security system. The Employment
Protection (Recoupment of Jobseeker's Allowance and Income Support)
Regulations (SI 1996/2349) are currently in force under section
58(1) of the Social Security Administration Act. The power has
been used in the past, for example to make provision for dealing
with decisions needed under repealed legislation, for example
calculating an overpayment which goes back for many years.
Clause 13
61. Clause 13 sets
out what may be appealed to an appeal tribunal, who may appeal,
and how. It re-enacts, with amendments, section 22 of the Social
Security Administration Act 1992.
62. Subsection
2(b) contains a delegated power to prescribe persons other than
the claimant who have a right of appeal. With the introduction
of a right of appeal on National Insurance contributions decisions,
this provision will ensure that employers and employees also have
a right of appeal, in appropriate cases. It also enables additional
persons to be given a right of appeal, if substantive aspects
of welfare provision are altered, or there is some important societal
change.
63. Subsection
(2) also contains a power to prescribe in regulations circumstances
in which its provisions shall not confer a right of appeal.
This power complements the power in Schedule 2(8) so that it can
be put beyond doubt, if this should become necessary, that individuals
have no right of appeal on matters other than claims or awards,
or those decisions covered by Schedule 3, in the event of future
developments in the benefits system; and ensures that rights of
appeal are not given in respect of decisions on administrative
matters where no appeal rights currently exist.
64. Subsection
(5) provides that a person with a right of appeal under this section
shall be given such notice of a decision and of that right
as may be prescribed. The intention is to prescribe that
the notification must be in writing and must contain information
on the decision made and the right of appeal.
65. Subsection
(6) allows regulations to provide for the manner in which and
the time within which appeals are to be brought. With regard
to time limits for appeals, the regulations will provide for a
time limit of one month from the date of the decision within which
a person may either dispute the decision with the Department,
or lodge an appeal. If a person disputes the decision, he will
have one month to appeal from the date on which the Department
notifies him of the outcome of their reconsideration of the disputed
decision.
66. With regard
to late appeals, similar provision to that in Regulation 3(3)
of the Adjudication Regulations, which concern special reasons
for granting an extension to the time limit, will be re-made
under this power.
67. With regard
to the manner in which appeals are to be brought, it is intended
that this power will be used to provide similar rules to those
currently in the Adjudication Regulations, which cover matters
such as information requirements, and where appeals are to be
lodged.
68. The powers
in subsections (5) and (6) allow for developments in information
or communications technology, or changes in business processes;
and give flexibility with respect to time limits for appealing
should the practical operation of the new arrangements show up
particular difficulties in certain cases.
69. The Department
considers that the delegated powers in this Clause are justified
as they will enable the new framework of appeal rights to be maintained
in good order as the social security system changes over time.
Schedule 2
70. Schedule 2
lists decisions on a claim or award of benefit against which there
is no right of appeal.
71. Paragraph 8
contains a regulation-making power to add other decisions to the
list. It is our intention to use this power, in the first place,
to exclude a right of appeal, as now, on decisions made under
regulation 4 of the Social Security (Claims and Payments) Regulations
(SI 1987/1968) (Claims and Payments Regulations), such as whether
a claim has been properly made, or which one of a couple should
make a claim for income support if they cannot agree. The power
will also give the provisions in this Bill sufficient flexibility
to accommodate any future changes to social security which are
as yet unforeseen - for example the introduction of a new kind
of benefit or new procedures for the administration of benefit,
where the interests of effective administration might require
certain decisions to be made unappealable. It is not our intention
to use this power to remove appeal rights in respect of existing
"outcome" decisions or to introduce any new welfare
provision in the future without appropriate appeal rights. However
it is important, as the social security system evolves, to keep
appeal rights and the appeal system focused on the issue of substance
(which in a social security benefit, means the amount and period
of benefit), and not peripheral issues (such as which day of the
week benefit should be paid on).
72. The Department's
view is that this is appropriate for secondary legislation as
it will enable the legislation on decision-making and appeals
to keep pace with the evolution of the substantive aspects of
the welfare state.
Schedule 3
73. Schedule 3
lists decisions, other than those on a claim or award of benefit,
which carry a right of appeal.
74. Paragraph 1
contains a regulation-making power to prescribe cases and circumstances
in which a decision whether a person is entitled to a benefit
where no claim is required is appealable. The regulations will
cover decisions on Cold Weather Payments and those cases covered
in regulation 3 of the Claims and Payments Regulations (for example
entitlement to an age addition, which is an increase in the rate
of benefit due on attainment of a particular age).
75. Paragraph 4
provides a right of appeal on a decision whether the whole of
or part of a benefit to which a person is entitled is to be paid
to a person other than him (for example directly to an electricity
company to pay off a debt). It contains a delegated power to
prescribe cases and circumstances in which exceptions will be
made - the intention is that this will cover decisions on third
party payments which currently do not have a right of appeal -
for example payment of Income Support mortgage interest direct
to a lender.
76. Paragraph 9
contains a power to add other decisions relating to relevant benefits
to the decisions in this list by regulations and paragraph 30
contains an identical power with respect to decisions relating
to contributions. As with the power in paragraph 8 of Schedule
2 above, it is our intention to use these powers over time to
keep the provisions relating to appeals in step with the rest
of the social security system as it evolves.
Clause 15
77. Clause 15 provides
for rights of appeal to a Commissioner, who may appeal, when and
how and the powers of the Commissioner to deal with cases. It
re-enacts with amendments section 23 of the Social Security Administration
Act.
78. Subsection
(3)(b) contains a delegated power to prescribe persons other than
the claimant who have a right of appeal to a Commissioner, similar
to the power in Clause 13(2)(b) above. As for Clause 13(2)(b),
this provision will ensure that employers and employees also have
a right of appeal, in appropriate cases.
79. Subsection
(10) deals with the issue of leave to appeal. It contains two
delegated powers - the first to prescribe cases in which leave
may be sought from persons other than the person who constituted,
or was chairman of, the tribunal which gave the decision, the
second to allow regulations to govern the granting of leave by
a Commissioner. It is intended that the first will cover cases
where the chairman or the person who constituted the tribunal
is not available to consider the application; the second will
cover cases when leave to appeal has been refused at the tribunal
level, or an application was made out of time, and the appellant
applies to the Commissioners for leave to appeal direct to them.
These powers are currently exercised in regulation 3 of the Commissioners
Procedure Regulations 1987 (SI 1987/214).
80. Subsection
(11) enables the Lord Chancellor to make regulations to provide
for the manner in which and the time within which appeals to a
Commissioner are to be brought. It is essentially a re-enactment
of existing powers in sections 23, 34 and 48 of the Administration
Act, which made separate provision for appeal to Commissioners
from separate tribunal jurisdictions (with the additional requirement
that the Lord Chancellor shall consult the Lord Advocate). Similar
provision to that in the Adjudication Regulations and the Commissioners
Procedure Regulations will be made under the new powers.
81. The Department
considers it appropriate to continue to make this provision in
secondary legislation, as was done under the Social Security Administration
Act.
Schedule 4
82. Schedule 4
deals with the appointment, remuneration and tenure of office
of Commissioners, and other matters relating to Commissioners.
83. Paragraph 6
enables the Lord Chancellor to provide by regulations for
(a) authorised officers
to make any determinations which fall to be made by Commissioners
(b) the procedure to
be followed by such officers in making such determinations
(c) the manner in which
such determinations may be called into question.
84. Currently there
is similar provision for nominated officers in section 58(6) of
the Social Security Administration Act, and the relevant regulation
is regulation 29 of the Commissioners Procedure Regulations. This
provision will continue under the new power. However the activities
of nominated officers in paragraph 6(a) are currently restricted
to making determinations which "do not involve the determination
of any appeal, application or reference". The new power in
Clause 15(7) enables Commissioners to set aside tribunal decisions
where both parties consent. The wider power in (a) for nominated
officers is intended to enable them to handle these straightforward
cases and thereby reduce the Commissioners' workloads and improve
clearance times for appeals.
85. The Department
considers it appropriate to continue to make this provision (amended
as set out in the previous paragraph) in secondary legislation,
as was done under the Social Security Administration Act.
Clause 16
86. Clause 16 re-enacts
with minor amendments section 24 of the Social Security Administration
Act. It sets out arrangements for appeal from the Commissioners
to the higher courts, who may apply for leave, to whom, when and
how. It contains three delegated powers.
87. Subsection
(2) re-enacts the provision in section 24(2) of the Administration
Act. It contains a power which enables regulations to prescribe
cases in which leave may be granted by a Commissioner other than
the one who gave the decision, and to prescribe how such a Commissioner
is to be selected. Provision similar to that in regulation 31
of the Commissioners Procedure Regulations, will be made under
the new power. This provides that such an application is to be
decided by the Chief Commissioner, or by another Commissioner
selected by the Chief Commissioner.
88. Subsection
(3) deals with who may make an application for leave to appeal.
Subsection (3)(c) enables "any other person who is authorised
by regulations" to apply for leave. Subsection (3) also contains
a power to make provision in regulations for the manner in which,
the time within which applications must be made to a Commissioner
and for the procedure for dealing with such applications. Similar
provision to that in regulation 31 of the Commissioners Procedure
Regulations will be made under the new power.
89. The Department
considers it appropriate to continue to make this provision in
secondary legislation as was done under the Social Security Administration
Act.
Clause 17
90. Clause 17 concerns
the procedure to be followed in cases before a Commissioner.
Subsection (1) enables provision to be made in regulations as
to the procedural matters specified in Schedule 5.
Schedule 5
91. Schedule 5
deals with provision which may be made in procedure regulations
as follows:
(References below are to
the paragraphs in Schedule 5.)
(2) provision prescribing
the procedure to be followed in connection with (a) the making
of decisions or determinations by the Secretary of State or a
competent tribunal; and (b) the withdrawal of claims, applications,
appeals or references falling to be decided or determined by him
or such a tribunal
(3) provision as to
the striking out of proceedings
(4) provision as to
the form which is to be used for any document, the evidence which
is to be required and the circumstances in which any official
record or certificate is to be sufficient or conclusive evidence
(5) provision as to
the time within which, or the manner in which - (a) any evidence
is to be produced; or (b) any application, reference or appeal
is to be made
(6) provision for summoning
persons to attend and give evidence or produce documents and for
authorising the administration of oaths to witnesses
(7) provision for authorising
an appeal tribunal consisting of two or more members to proceed
with any case in the absence of any member
(8) provision for empowering
an appeal tribunal to give directions for the disposal of any
purported appeal which is outwith its jurisdiction
(9) provision for the
non-disclosure to a person of the particulars of any medical advice
or medical evidence.
92. Paragraphs
2 and 4 to 9 re-enact parts of Schedule 3 to the Social Security
Administration Act, with minor amendments to take into account
the introduction of a unified appeals jurisdiction and single-status
decision makers. The regulations will make similar provision
as is currently in the Adjudication Regulations.
93. The regulations
under these powers will enable the Secretary of State, or the
Lord Chancellor, as appropriate, to ensure that appeals are conducted
in a consistent manner for all appellants, in order that procedural
fairness is achieved.
94. Paragraph 3
is a power for the striking out of proceedings. It is wider than
that in Schedule 3 to the Administration Act, which is qualified
"for want of prosecution". Its purpose is to enable
appeals to be struck out
- where a person
fails to co-operate when they have been clearly told what is required
of them (for example they have not made an appeal in the proper
way, or provided the necessary information or evidence);
- where an appeal
could have no material effect on the decision (for example the
appellant is paying mortgage interest at a rate which exceeds
the standard rate set out in the Income Support (General) Regulations
1987);
- where an appeal
has no prospect of success (for example against a refusal of benefit
where the person is clearly older than the age limit for that
benefit);
- where an appeal
is frivolous or vexatious.
95. This will help
to speed up the appeals process for all cases. The decision to
strike out appeals will be taken by a member of the independent
appeals panel. In the Department's view, the level of technical
detail required to define the specific circumstances in which
an appeal may be struck out, and the procedure to be followed,
makes this suitable for secondary legislation.
Clause 18
96. Clause 18 provides
for decisions to be final. It contains one delegated power. Subsection
(2) allows regulations to provide for facts or determinations
embodied in a decision to be conclusive for the purpose of further
decisions. It is the intention that at the outset, the regulations
will provide that only decisions on incapacity for work will be
final for the purposes of subsequent decisions. The aim is to
reduce the amount of double-handling by administrators and unnecessary
delay for claimants. As information technology develops to allow
for greater co-ordination between benefits, it is our intention
to extend the list of issues that will be final.
97. The Department
considers this matter suitable for secondary legislation as the
extent of the provision is dependent upon development of improved
information technology and operational innovations in the future.
Clause 19
98. Clause 19 re-enacts
(with changes to reflect the measures in this Bill) section 61
of the Social Security Administration Act 1992. Subsection (1)
enables regulations to make provision for matters arising
(a) pending a decision by
the Secretary of State, an appeal tribunal or a Commissioner
(b) out of the revision
or appeal of such a decision.
99. This power
is currently exercised in regulations 56 and 56A of the Adjudication
Regulations 1995, which provide for interim decisions to be made
where certain Income Support, Social Fund and Jobseeker's Allowance
questions cannot immediately be determined. For example, where
an Income Support claim involves the calculation of mortgage interest
costs, but the full details of those costs are not immediately
available, the regulations allow a decision to be made on the
basis of the costs which are readily determinable. Current provision
in secondary legislation will be preserved when Clause 19 comes
into force. Clause 19(1)(b) provides the same power to make interim
decisions when a decision falls to be made which relates to an
existing award.
100. Subsection
(2) enables these regulations to include provision as to the date
from which child benefit is to be payable to a person in respect
of a child in a case where, before the benefit was awarded to
that person, child benefit in respect of the child was awarded
to another person. Its purpose is to enable the Department not
to hold up paying child benefit in respect of a child, while information
is sought regarding which person it should be paid to.
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