SOCIAL SECURITY BILL
(continued)
Details of the delegated powers,
by Clause
Part I - Decisions and Appeals
(Clauses 21-28)
Clause 21
101. Clause 21
enables an appeal tribunal to refer persons to a medical practitioner
for examination and report for the purpose of providing the tribunal
with information for use in determining the appeal. It re-enacts
with amendment section 55 of the Social Security Administration
Act 1992 which relates to Disability Appeal Tribunals, to make
provision for the new unified appeal tribunals to deal with similar
cases.
102. Subsection
(2) enables an eligible person to refer a person for examination
and report if prescribed conditions are satisfied. The
conditions prescribed in regulation 30 of the Adjudication Regulations
will be carried forward - if the relevant person is satisfied
that an appeal cannot be properly determined unless the claimant
is examined by a medical practitioner and information is provided
to the appeal tribunal.
103. Subsection
(3) prevents an appeal tribunal from carrying out a physical examination
of a person or requiring them to undergo a physical test of walking
ability except in prescribed circumstances. With the establishment
of a new unified appeal tribunal, regulations will be needed in
order to continue in appropriate cases the existing practice of
medical appeal tribunals who currently examine appellants in cases
concerning industrial injuries disablement benefit and severe
disablement allowance, where an examination may be necessary to
establish whether the required level of disablement is satisfied.
Clause 22
104. Clause 22
deals with provision for suspending payments of a relevant benefit,
the subsequent making of any payments so suspended and the termination
of entitlement in prescribed cases or circumstances. The power
to suspend payment of benefit pending resolution of an issue regarding
entitlement avoids the accrual of overpayments which are frequently
impossible to recover. The power to suspend payment protects
the integrity of public expenditure.
105. Provision
for suspension is currently made in section 5(1)(n) of the Social
Security Administration Act 1992 under which regulation 37 of
the Claims and Payments Regulations are made. The provision in
regulation 37 will continue under the new power.
106. Subsection
(1)(a) enables regulations to provide for suspending payments
of benefit in whole or in part, in prescribed circumstances; subsection
(1)(b) enables regulations to provide for subsequently making
the suspended payments.
107. Subsection
(2) gives more detail of the particular cases which will be covered
by regulations under subsection (1). These are:
- when it appears to
the Secretary of State that an issue arises whether the conditions
for entitlement to a relevant benefit are or were fulfilled.
The intention is to cover cases where there is a question as to
whether the claimant is entitled to benefit; for instance if it
appears that an Income Support claimant may be working
- when it appears to
the Secretary of State that a decision may need to be revised
or superseded. The intention is to cover cases where there is
a question as to whether the amount of benefit to which the claimant
is entitled may be less than what is in payment; for instance
if it appears that an Income Support claimant may be receiving
an increased amount of occupational pension.
- when an appeal is
pending against a decision of an appeal tribunal, a Commissioner
or Court.
- when an appeal is
pending in another case (a "lead" case) and the Secretary
of State considers that, depending on the outcome in the "lead"
case, the award of benefit in another case may need to be revised
or superseded. It is envisaged that the regulation made under
this power will be, in substance, similar to regulation 37A of
the Claims and Payments Regulations. This particular regulation
has not been used since November 1996 following the judgement
in the Sutherland case that it was unsupported by the primary
power.
108. The general
power to make regulations to provide for suspension in subsection
(1) is a power to put the Department in a position to guard against
unforeseen developments in the appeals system where provision
for suspension of payment may become necessary to prevent significant
leakage of public expenditure. Such an event occurred in the
early 1990s with the emergence of thousands of lookalike cases
linked to particular test cases proceeding through the Courts.
We do not currently foresee circumstances other than the four
listed in subsection (2) where we would use the power.
109. The regulations
will contain procedural detail concerning how and when notice
is to be given which would not justify the greater use of Parliamentary
time.
110. Subsection
(3) defines when an appeal is considered to be "pending"
for the purposes of this Clause. Subsection (3)(c) contains a
delegated power to prescribe circumstances in which an appeal
is to be considered as pending when an appeal has not been brought,
but the time limit within which it may be brought has not yet
expired. The intention is to cover situations where the Secretary
of State has received a decision of an appeal tribunal or a Commissioner
and is considering whether there appears to her to be an error
of law in the decision, and whether she should seek leave to appeal
against the decision. This would normally involve seeking legal
and other advice. If it is decided that leave to appeal will not
be sought, the effect of the provisions will be that any suspension
imposed under regulations made under subsections (2)(c) or (d)
will cease immediately. The Department considers that this definition
is a technical matter and suitable for secondary legislation.
111. Subsection
(4) enables regulations made under subsection (1) to provide that
entitlement to benefit shall be terminated from a date not earlier
than that on which payments were suspended. This is directed
at situations where a doubt arises under subsection (2)(a) or
(b), payment of benefit is suspended in whole but the claimant
does not respond to requests for information which would resolve
the doubt. Rather than continue suspension of payment of benefit
indefinitely, a decision terminating entitlement to benefit can
be made. Our intention is that claimants will have one month
in which to respond to such requests for information before entitlement
to benefit is terminated. Regulations will also stipulate the
circumstances in which the one month rule can be further extended.
112. Under present
legislation, a doubt which is never resolved can mean that a notional
entitlement to benefit continues indefinitely, even though nothing
is paid. This distorts statistical information about the numbers
of live cases, adds to the burden of administration and creates
the potential for fraudulent activity. It is not intended that
suspension cases under (2)(c) or (d) will be caught by subsection
(4). In those cases it is the outcome of the appeal which will
resolve the doubt. Neither will subsection (4) be invoked if
payment of benefit is only partially suspended because entitlement
to benefit itself is not in doubt.
Clause 23
113. Clause 23
enables provision in regulations for suspension of payments of
benefit and subsequent termination of entitlement where a person
fails to provide information to enable the Secretary of State
to determine whether a decision on an award of benefit needs to
be revised or superseded. Its purpose, along with Clause 24 below,
is to enable the Department to satisfy itself that benefit is
being paid correctly to people who are entitled to it.
114. Subsection
(2) enables regulations to provide for (a) suspending payments
of a relevant benefit in whole or in part and (b) subsequent making
of prescribed circumstances of any or all of the payments so suspended.
115. Subsection
(3) enables regulations to provide for entitlement to a relevant
benefit to cease from a date not earlier than the date on which
payments were suspended, and to prescribe when exceptions will
be made.
116. The intention
is that as a general rule payments may be suspended, in whole
or in part, if the person fails to provide the information requested
within one calendar month. The person will then have a further
calendar month to respond before benefit entitlement is terminated.
The power to suspend will be discretionary to provide flexibility
to take into account the individual circumstances of the person
concerned. Guidance on the exercise of discretion will be issued
to officers.
117. Certain individual
benefits will have different time limits. For Invalid Care Allowance,
it is intended to retain current procedures allowing up to 8 weeks.
For Jobseeker's Allowance, the time limit will remain at 7 days,
to enable questions which arise about labour market participation
to be resolved quickly. There will also be prescribed exceptions
for special cases, such as when a person is in hospital with severe
injuries or disability.
118. These regulations
will cover a substantial amount of administrative detail, regarding
the type and length of notice which the Department will give to
the person regarding the information he is required to provide,
the time limits within which different types of information are
to be provided and the circumstances in which the Department will
accept that the information could not be provided, or may be provided
by a later date. In the Department's view, this is not appropriate
for primary legislation. It is also subject to change and modification
as the substance of the social security system changes, and to
address unforeseen difficulties which may arise during the practical
operation of the powers; for these reasons the Department considers
the use of secondary legislation is justified.
Clause 24
119. Clause 24
concerns the suspension and termination of benefit if a person
fails to submit to medical examination. Its purpose is to enable
the Department to satisfy itself that benefit is being paid correctly
to people who are entitled to it. In part it re-enacts section
57A of the Social Security Administration Act as inserted by section
18 of the Social Security Administration (Fraud) Act 1997, with
the additional power to cease entitlement to benefit once payments
have been suspended. It contains 4 delegated powers:
(a) enabling the
Secretary of State to require a person who has been awarded a
relevant benefit to submit to medical examination
(b) suspending
payments of benefit, in whole or in part, if a person fails to
submit to such an examination
(c) for the subsequent
making in prescribed circumstances of suspended payments
(d) for entitlement
to benefit to cease except in prescribed cases or circumstances
120. It is intended
that the provision in the Social Security (Attendance Allowance
and Disability Living Allowance) (Miscellaneous Amendments) Regulations
1997 (SI 1997/1839) will be preserved under the new power. It
is envisaged that the regulations will provide that a person who
is awarded Attendance Allowance or Disability Living Allowance
shall be required to attend for, or submit himself to, a medical
examination where the Secretary of State is checking entitlement
under section 5(1)(hh) of the Social Security Administration Act
(as inserted by Clause 59 of the Social Security Bill); if the
claimant fails to do this on more than one occasion, benefit may
be suspended in full or in part from a date not earlier than the
second failure unless -
- the claimant satisfies
the Secretary of State that he has good reasons for failing to
comply (including absence abroad, state of health, nature of disability
at relevant time)
- the claimant provides
alternative evidence in lieu
- the Secretary of
State has other acceptable evidence available to her (eg. a notification
of change of address, or admission to hospital or residential
care which is sent to another part of the Department).
121. If the Secretary
of State is satisfied that no question about entitlement arises,
benefit payments will be reinstated, including arrears. If a
question has arisen, the Secretary of State will make a decision
about entitlement and pay benefit in accordance with that decision;
if there has been no contact from or in respect of the claimant,
the Secretary of State can decide that entitlement ceased from
a date not earlier than the first suspended payment.
122. The provisions
will necessarily be lengthy and detailed as they will need to
cover a number of contingencies. The use of secondary legislation
will also enable the Department to act swiftly to address any
unintended effects which emerge during the practical operation
of the powers.
Clause 25
123. Clause 25
introduces a new provision to delay making ("stay")
a decision where it is not appropriate to make a decision because
a case turns on an issue of law which is being challenged in another
case (the "lead" case) in the courts. The Clause also
contains provision to make a decision in such a case in certain
circumstances.
124. The provision
to "stay" will avoid in many cases the need to make
a decision, then suspend benefit, then revise the decision when
the law is finally established. It will make administration simpler
for staff and the process clearer for claimants.
125. Subsection
(3) deals with decisions which would be affected, if the "lead"
case were determined, but where a person would still be entitled
to some benefit as opposed to the situation where the claimant
is not entitled at all (which is covered by subsection (2)).
Subsection (3) enables the Secretary of State to make a decision
as to that element of a claimant's benefit which would not be
affected by the "lead" case.
126. It contains
two delegated powers: (a) to prescribe the cases and circumstances
in which the Secretary of State may make the decision while the
appeal in the "lead" case is pending; and (b) to prescribe
the cases and circumstances in which she may make the decision
on such basis as may be prescribed. (a) would be used to prescribe
cases where the amount of benefit involved is significant; or,
it is expected that the lead case will not be finally resolved
for some time. In exceptional cases the Secretary of State will
make the decision. (b) would be used to cover cases in which the
lead case involved entitlement to, for example, a premium in Income
Support. The intention is in these cases to enable the Secretary
of State to make a decision on the other elements of the benefit
which are not at issue so that these may be paid.
127. It is considered
more appropriate to provide for the detail of this new procedure
in secondary legislation which will also allow for fine-tuning
its operation in the light of experience.
128. Subsection
5(c) contains a delegated power to prescribe circumstances in
which an appeal is to be considered as pending when an appeal
has not been brought, but the time limit within which it may be
brought has not yet expired. It is identical to the power in
Clause 22(3)(c) and it has a similar justification.
Clause 26
129. Clause 26
deals with appeal cases which turn on an issue of law which is
being challenged in another case (the "lead" case) through
the Courts. It enables the Secretary of State to require an appeal
tribunal or Commissioner to refer an appeal case to her, to stay
an appeal case or to make a decision in an appeal case as if the
"lead" case was decided in the way most unfavourable
to the appellant.
130. Subsection
(6)(c) contains a delegated power to prescribe circumstances in
which an appeal is to be considered as pending when an appeal
has not been brought, but the time limit within which it may be
brought has not yet expired. It mirrors the provision in Clause
22(3)(c) and a similar justification applies.
131. Subsection
(8) allows regulations to be made to supplement provision in this
Clause. This power was taken because of the fact that Clause 26
is a new power and procedures for operating the "staying"
process in practice may need to be refined in the light of experience.
It can be used to iron out operational difficulties arising in
the implementation of the Clause.
Clause 27
132. Clause 27
concerns the situation where the decision on appeal ("the
relevant determination") in one case overturns an existing
application of the law; and as a result, decisions which have
been made in other cases are now wrong in law. It restricts the
arrears of benefit which would otherwise fall to be paid by the
Department in such cases.
133. Subsection
(7) contains a delegated power to make regulations governing how
the date of the "relevant determination" is to be determined,
and to prescribe the cases when the date will be determined in
this manner.
134. Subsection
(8) gives further detail concerning what the regulations in (7)
will cover: (a) provision for a determination of a higher court
to be treated as if it had been made on the date of a determination
of a lower court and (b) vice versa.
135. In most cases,
it will be clear what the date is without the need for provision
in regulations - for example when the Commissioners decide the
point and there is no subsequent appeal. In other cases, the
date of the relevant determination may be less easy to determine,
for example, if a Commissioner decides a case one way, on appeal
the Court of Appeal takes the opposite view, and then the House
of Lords decides that the Commissioner's interpretation is correct.
Sometimes, the points of law which the Court considers will be
different to those addressed by the Commissioner - for example
something in the Commissioner's reasoning itself raised a point
of law for the Court which was not a question of law before the
Commissioner, or the Court may identify a different point of law
altogether.
136. These regulation-making
powers are important to be able to accommodate the different permutations
in which a point of law can come to be decided.
Clause 28
137. Clause 28
provides regulation-making powers to make provision with respect
to (a) the correction of accidental errors in any decision or
record of a decision; and (b) the setting aside of any decision
in the interests of justice if a procedural error has occurred.
138. Provision
in regulations 9 and 10 of the Adjudication Regulations and 24
and 25 of the Commissioners Procedure Regulations will be preserved
under the new power. The regulations will continue to specify
who may correct accidental errors in a decision or the record
of a decision, and that there will be no right of appeal against
any decision to correct such an error, or the refusal to do so.
The provisions will contain minor administrative detail unsuitable
for primary legislation.
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