SOCIAL SECURITY BILL
Details of the delegated powers,
Part I - Decisions and Appeals
Clauses 40 to 44
168. These Clauses
reproduce for child support the provision for social security
in Clauses 10, 11, 13, 25, 26, 27 and 28, with amendments to reflect
the nature of child support arrangements. The delegated powers
and the justification for their use are similar.
169. Clause 40,
which substitutes a new section 16 in the Child Support Act 1991,
implements for child support the arrangements for revising decisions
set out for benefits in Clause 10, enabling the Secretary of State
to revise a decision either on application or at her own initiative.
The provisions of the Clause, the delegated powers and their proposed
use are similar to those in Clause 10.
(1) of new section 16 contains 3 delegated powers. The first
enables regulations to prescribe the period within which a decision
can be revised. The second enables regulations to prescribe the
cases or circumstances in which a decision may be revised. It
is intended that clients will not need to demonstrate "grounds"
for changing a decision within a 28 day dispute period - if the
Secretary of State considers that the decision is incorrect, she
will revise the decision and this will have effect from the date
of the original decision.
171. This section
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.
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.
(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 there was an error in the original decision relating to the
(6) enables regulations to prescribe the circumstances in which
an appeal against a decision shall not lapse if the decision
is revised before the appeal is determined. 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. Wherever a revision produces a decision less favourable
to the appellant, the appeal will not lapse.
174. Clause 41
substitutes a new section 17 in the Child Support Act 1991 which
implements for child support the arrangements for the Secretary
of State to make a decision superseding an earlier decision made
by an appeal tribunal or a Commissioner. This enables the Department
to replace a decision with a new decision when circumstances change.
A new decision may be made either on application or at the Secretary
of State's initiative. The provisions of the Clause, the delegated
powers and the justification for their use are similar to those
in Clause 11 for other social security cases.
(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. It is intended that there
will be three distinct cases in which a supersession might occur.
Firstly, a mistake could be corrected by the Secretary of State
on her own initiative. Secondly, it is intended that the Child
Support Agency will conduct periodic checks of cases to ensure
they are up to date. If there has been a change of circumstances
then the assessment will be superseded. Finally, a party to the
maintenance assessment could apply for a supersession, either
on the grounds that the initial maintenance assessment was wrong
or that there had been a change of circumstances. In this case,
a new decision would be issued, even if the change reported or
the supposed error did not affect the maintenance liability. Occasionally,
an application for a supersession would be refused because no
relevant issue was raised. In these circumstances, no new decision
would be issued.
176. The second
delegated power in subsection (3) allows for regulations to prescribe
the procedure by which a decision to supersede may be made. The
ability to prescribe in regulations the procedure by which decisions
will be superseded will ensure that staff follow a consistent
set of steps when changing a decision. 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.
(5) allows for regulations to provide that in prescribed circumstances
or cases, the superseding decision can take effect from a date
other than the date on which the new decision is made or the date
on which the application for a new decision was made. In general
it is intended that, in child support, a supersession would take
effect from the date the application (if the decision to supersede
were triggered by an application from a client) or, in the case
of decisions to supersede made by the Secretary of State, on the
date the decision was made. However, there will be circumstances
when it would be inappropriate for the effective date to be that
of the decision or the application. Examples of this include where
an application relates to a change which has yet to occur.
178. Clause 42
sets out who has a right of appeal to an appeal tribunal, in relation
to: an application for a maintenance assessment; a maintenance
assessment which is in force; the cancellation of a maintenance
assessment or the refusal of an application to cancel a maintenance
assessment. It contains two delegated powers:
(4) 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.
(6) enables regulations to make provision as to the manner in
which, and the time within which, appeals are to be brought.
181. These powers
enable provision to be made for the administration of child support
appeals similar to that made for benefit appeals under Clause
13(5) and (6). It is intended that the regulations will set out
that an appeal must be lodged in writing within 28 days of the
date of the decision being appealed against; the application must
state which decision is being appealed against and must indicate
the issues contested by the appeal. It is also intended that regulations
will prescribe details of the form on which an appeal is to be
lodged, how it is to be signed and where it is to be sent. This
will ensure that appeals are received in a standard format. Late
appeals will be allowed if the appellant can prove that there
was a good reason why his appeal could not be lodged within 28
182. Clause 43
replicates for child support the provisions for benefits in Clauses
25 and 26. It inserts 2 new sections into the Child Support Act.
Section 28ZA introduces a new provision to delay making ("stay")
a decision where it is not appropriate to make a decision because
it turns on an issue of law which is being challenged in another
case (the "lead" case) in the courts. The section also
contains provision to make a decision in such a case in certain
183. The provision
to "stay" will avoid in many cases the need to make
a decision, then revise the decision when the law is finally established.
It will make administration simpler for staff and the process
clearer for claimants.
(2) of section 28ZA contains two delegated powers: (a) to prescribe
the cases and circumstances in which the Secretary of State must
make a decision while the appeal in the "lead" case
is pending; and (b) to prescribe the cases and circumstances in
which she may make a decision on such basis as may be prescribed.
(a) would be used to prescribe cases where it is in the interests
of the children involved to determine liability, or where it is
expected that the lead case will not be finally resolved for some
time, so the Secretary of State may make the decision; (b) would
allow the determination of liability at a "safe" rate,
while a decision in the "lead" case is awaited. This
"safe" rate guarantees that the absent parent will not
be required to pay more than the least possible assessment made
on the basis of a decision in the "lead" case.
185. Clause 43
also inserts a section dealing with appeal cases which turn on
an issue of law which is being challenged in another case (the
"lead" case) through the Courts (section 28ZB). This
section 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.
28ZA(4)(c) and 28ZB(6)(c) contain 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. They mirror the powers
in Clauses 22(3)(c) and 25.
(8) allows regulations to be made to supplement provision in this
Clause. This is intended as a reserve power which is considered
to be necessary having regard to the fact that Clause 43 is a
new power and procedures for operating the "staying"
process in practice may need to be refined in the light of experience.
It would be used in the spirit of the clause to preserve the
intention behind it. This is a prudent provision and appropriate
matter for regulations.
188. Clause 44
replicates for child support the provisions for benefits in Clause
27 and Clause 28. It inserts a new section into the Child Support
Act (28ZC) which deals with the situation where a Commissioner's
or court's 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. The new section restricts the
retrospective application of the new understanding of the law
to after the determination was made for maintenance assessments.
(5) contains a delegated power to make regulations governing how
the date of the "relevant determination" (ie the date
on which the previous understanding of the law was overturned)
is to be determined, and to prescribe the cases when the date
will be determined in this manner.
(6) gives further detail concerning what the regulations in (5)
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.
191. Clause 44
also inserts a new section 28ZD which 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.
192. The provisions
of the clause, the delegated powers and the justification for
their use are similar to those in Clause 27 and 28.
193. Clause 45
inserts a new section 3A into the Vaccine Damage Payments Act
1979 to enable decisions of the Secretary of State and the appeal
tribunal to be reversed, This is in line with provisions for other
decisions in Clause 11 but with modifications to take account
of the nature of vaccine damage payments. A vaccine damage payment
is a single, tax-free payment for people who have suffered severe
mental and/or physical disablement of 80% or more as a result
of vaccination against one or a group of the specified diseases.
A decision on such a payment can only be one of two types - to
award a payment or not - therefore it is not considered appropriate
to refer to one decision "superseding" another.
(1) enables any decision by the Secretary of State or by an appeal
tribunal to be reversed by a decision made by the Secretary of
State either within the prescribed period or in prescribed
cases or circumstances. The period for applying for a decision
to be reversed will continue to be six years. However 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 reverse that decision.
(3) enables regulations to prescribe the procedure by which a
decision may be made under this section. This reflects the provision
in Clause 10(1). The ability to prescribe in regulations the
procedure by which decisions will be made will ensure that staff
follow a consistent set of steps in each case.
196. Clause 46
substitutes a new section 4 into the Vaccine Damage Payments Act
to introduce a right of appeal to an appeal tribunal in place
of a right to a review by a Vaccine Damage Tribunal.
(2) enables regulations to make provision as to the manner in
which, and the time within which, appeals are to be brought.
It is intended that the regulations will set out details of the
form on which an appeal is to be lodged, how it is to be signed,
where it is to be sent. They will ensure that appeals are received
in a standard format.
198. Clause 47
inserts a new section 7A into the Vaccine Damage Payments Act
which replicates the provisions in Clause 28 for correction of
errors and setting aside of decisions.
199. At present
there is no existing legislation within the Vaccine Damage Payments
Act which allows such straightforward errors to be corrected.
This means that if a tribunal makes a simple mistake, the only
way to correct it is through an appeal to the High Court. Furthermore,
it will be simpler for appellants, staff and the tribunals themselves
to have as far as possible one, consistent set of rules that apply
to all appeals.
200. The provisions
of the Clause, the delegated powers and the justification for
their use mirror those in Clause 28.