Draft Public Bodies (Abolition of the Disability Living Allowance Advisory Board) Order 2013, Draft Homelessness (Suitability of Accommodation) (England) Order 2012, plus correspondence on immigration and timing of Statutory Instruments. - Secondary Legislation Scrutiny Committee Contents

Twelfth Report

Public Bodies Order

A.  Draft Public Bodies (Abolition of the Disability Living Allowance Advisory Board) Order 2013

1.  This draft Order was laid under section 5(1) of the Public Bodies Act 2011. It proposes to abolish the Disability Living Allowance Advisory Board, a committee of medical and disability experts who, on request, provide advice to the Secretary of State for Work and Pensions about the Disability Living Allowance and the Attendance Allowance. The Government do not propose to replace the Board as they state in their Explanatory Document that other avenues of consultation have replaced its function. The Committee considered this Order at its meeting on 30 October and were not satisfied with the Government's explanation of how the Minister has complied with all the statutory requirements for consultation under section 10 of the 2011 Act. As a result, we are seeking further information from the Minister and we will report substantively on the draft Order in due course. In the meantime, we therefore recommend that the draft Order should be subject to the 60 day enhanced affirmative procedure set out in section 11(6) and (9) of the Public Bodies Act.

Instrument Drawn to the Special Attention of the House

The Committee has considered the following instrument and has determined that the special attention of the House should be drawn to it on the ground specified.

A.  Homelessness (Suitability of Accommodation) (England) Order 2012 (SI 2012/2601)

Date laid: 17 October

Parliamentary Procedure: negative


We draw this instrument to the special attention of the House on the ground that it gives rise to issues of public policy likely to be of interest to the House.

2.  The Department for Communities and Local Government (DCLG) has laid this Order. It has also provided an accompanying Explanatory Memorandum (EM) and impact assessment (IA).

3.  Under the Housing Act 1996 ("the 1996 Act"), local housing authorities (LHAs) have a duty to secure that accommodation is available for occupation by an applicant who is homeless, eligible for assistance and has a priority need for accommodation: this is known as the main homelessness duty. The Localism Act 2011 contains a provision[1] which amends the 1996 Act, to give LHAs the power to discharge the main homelessness duty by way of a private rented sector offer.

4.  In the EM, DCLG states that the new power, allowing LHAs to meet the main homelessness duty with offers of accommodation in the private rented sector without requiring the applicant's agreement, was introduced in order to give local authorities freedom to make better use of good-quality private sector accommodation for homeless households. However, the Department explains that, during the passage of the Localism Act 2011, Members of both Houses of Parliament and homelessness organisations raised concerns about the quality of private rented sector accommodation; and that these related to issues of damp, cold, mould and the possibility of using rogue landlords.

5.  This Order sets out circumstances in which accommodation is not to be regarded as suitable for the purposes of a private rented sector offer by an LHA, and includes a requirement for LHAs to take into account the location of the accommodation. The Department states that the Order will help prevent the use of poor-quality accommodation for homeless households placed in the private rented sector, and will also mean that they are not placed hundreds of miles away from their previous home when there is available, affordable accommodation nearer to them.

6.  DCLG states that it carried out consultation[2] from May to July of this year, receiving 808 replies; and that the responses were overwhelmingly supportive. Five elements were proposed to determine whether accommodation is to be regarded as not suitable: physical condition of the property; health and safety matters; licensing for Houses in Multiple Occupation; landlord behaviour; and elements of good management. DCLG states that of those consultation responses which answered the question about the importance of these five elements, 88% agreed they were the right ones. The consultation paper also proposed that the Order should set out a number of factors to determine the suitability of location: distance of the accommodation from the applicant's previous home; disruption to the employment, caring responsibilities, or education of members of the household; access to amenities such as transport and shops; and established links with schools, doctors, social workers and other key services and support. 93% of people responding felt that the existing provisions on location needed to be strengthened and 94% agreed with the proposed factors to be taken into account.

7.  While it is helpful to see this information in the Explanatory Memorandum, we regret the fact that the Department has not published its summary of the consultation process at the same time as laying the Order before the House, and we urge it to do so as soon as possible.

Other Instruments of Interest


8.  Using powers conferred by the Child Support and Other Payments Act 2008, these Regulations enable the Secretary of State to:

  • accept part payment of arrears in full and final satisfaction of a child maintenance debt; and
  • write off arrears of child maintenance in certain limited circumstances such as the death of one of the parties.

The intent of these powers is to allow the Secretary of State to bring to a final resolution the minority of cases where the arrears are unlikely to ever be collected in full. The intention is to enable the Department's resources and enforcement powers to be concentrated on those cases where it is possible to recover full payment. Arrears remain due and parents generally will not be relieved of their liability to pay.


9.  In our 10th Report of this Session,[3] we published information about the Allocation of Housing (Qualification Criteria for Armed Forces) (England) Regulations 2012 (SI 2012/1869), which were laid by the Department for Communities and Local Government (DCLG). That Department has now laid these draft Regulations, on an "additional preference" for social housing allocated to members of the armed forces. Both instruments relate to the process of housing allocation by local authorities and are intended to meet the overall aim of assisting members of the armed forces in need of social housing. However, the two sets of Regulations relate to different aspects of the allocation process and serve different purposes.

10.  As a result of changes to the allocation legislation in the Localism Act 2011, local housing authorities now have the power to decide who qualifies or does not qualify to go on their waiting list. SI 2012/1869 prevents local housing authorities from applying a "local connection" criterion to disqualify members of the armed forces, and is intended to ensure that service personnel are not disadvantaged by the requirement to move from base to base.

11.  These draft Regulations will ensure that members of the armed forces who are admitted on to the waiting list and who have more urgent housing needs are always given the highest priority ("additional preference") for social housing. Previous policy has been that former and serving members of the regular and reserve armed forces who have an identified housing need must be given priority ("reasonable preference") for social housing; these draft Regulations raise their priority status.


12.  The Regulations, laid by the Department for Environment, Food and Rural Affairs (Defra), set revised minimum recovery and recycling targets for packaging waste for the period from 2013 to 2017, in line with an EC Directive.[4] Defra announced its intention to consult on higher targets in the June 2011 Review of Waste Policy for England,[5] and carried out the consultation from 12 December 2011 to 10 February 2012. Defra reduced the consultation period from 12 to eight weeks in order to make a decision by Budget 2012. Overall, despite specific concerns, respondents supported the proposals to increase targets.

13.  We obtained further information from Defra; this is enclosed as Appendix 1. We note that one stakeholder organisation objected to the shortened consultation period, because it did not give enough time to sound out its members. In July of this year, the Government announced a new approach to consultation which included an expectation that Departments would more often set periods of under 12 weeks for taking views on proposals. We would stress the importance of ensuring that consultation arrangements take account of the ability of interested parties to respond effectively, and are not compressed by Government deadlines in ways that militate against responses.


14.  Following a Government review of the Vetting and Barring Scheme which reported in February 2011, provisions in the Protection of Freedoms Act 2012 enabled the creation of a new streamlined organisation to oversee a scaled-back criminal records checking and barring system. The new organisation is the Disclosure and Barring Service ("DBS") which will be a Non-Departmental Public Body of the Home Office. It will incorporate functions of the Criminal Records Bureau and the Independent Safeguarding Authority in a single body and is expected to implement a range of reforms to the criminal record checking system, which will see the number of posts requiring checks reduced from 9.3 million to 5 million. This Order sets out the functions which are to be transferred and in effect determines the "go-live" date for the new organisation as 1 December 2012.


15.  The Police and Criminal Evidence Act 1984 (Armed Forces) Order 2009 (SI 2009/1922: "the 2009 Order")[6] provides that fingerprints and DNA samples taken from a person in connection with the investigation of a Service offence may only be held for up to three years from when they are taken, unless within that period the person is convicted of the Service offence. For material taken before the commencement date of the 2009 Order, the Order provides for the three-year period to run from that commencement date. In doing so, the 2009 Order applies broadly similar provisions to the Service police as apply to civilian police forces under Part 5 of the Police and Criminal Evidence Act 1984 ("the 1984 Act"), as amended.

16.  The amendments to the 2009 Order made by the latest Order (SI 2012/2505) allow material taken by the Service police on or after 31 October 2009 to be retained for up to four years from the date on which it was taken, unless during that period the person is convicted. For material taken before 31 October 2009, the four-year period runs from that date. We note that the practical effect of this technique (already used in an amending instrument in 2011) is potentially to enable the material to be retained indefinitely.

17.  In the EM to the latest Order, the Ministry of Defence (MOD) states that in 2008 the European Court of Human Rights held (in the case of S and Marper v UK) that the relevant provisions in Part 5 of the 1984 Act were in breach of article 8 of the European Convention on Human Rights (ECHR). The provisions held to be in breach allowed for the indefinite retention of fingerprints and DNA samples without conviction. MOD states that Part 5 of the 1984 Act is to be amended by the provisions in Chapter 1 of Part 1 of the Protection of Freedoms Act 2012 ("the 2012 Act"), and that those provisions are unlikely to be commenced before mid 2013. When those provisions come into force, MOD will lay a further Order to make the periods for which the Service police may retain material generally equivalent to those applying to the civilian police under the 2012 Act.

18.  MOD states that the aim of the 2009 Order, and subsequent amending Orders, was to make interim provision which would be compliant with the ECHR and would allow the Service police to retain material until Part 5 of the 1984 Act was amended. We would comment that this interim provision is now expected to be in place until at least five years after the European Court gave its judgment; that there must be a risk that it is kept in place even longer if there is further delay in commencing the relevant provisions of the 2012 Act; and that it is open to question whether successive statutory instruments with the practical effect of potentially allowing the indefinite retention of material taken by Service police can be considered compliant with the European Court's judgment.





19.  These four statutory instruments have been laid by four different Departments to deal with the consequences of a judgment by the Court of Justice of the European Union (ECJ), in March 2011, in the case of Gerardo Ruiz Zambrano v Office National d'Emploi ("the Zambrano judgment").[7]

20.  Mr Zambrano is a Colombian national who had claimed asylum in Belgium and two of whose children had been born in Belgium and had Belgian nationality. The ECJ decided that Mr Zambrano had a right to reside in that Member State by reference to Article 20 of the Treaty on the Functioning of the EU. Although he was due to be deported, the Court held that the refusal to grant Mr Zambrano a right of residence in Belgium would have resulted in his Belgian children having to leave the EU, thus depriving those children of their rights as EU citizens.

21.  The Home Office has laid the Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2012 (SI 2012/2560) to give effect to the Zambrano judgment.[8] In the accompanying Explanatory Memorandum (EM), the Home Office states that the judgment created a derivative right to enter and reside for the primary carer[9] of an EU citizen who is living in his or her own country, and where a refusal to confer such a right would force the EU citizen to leave the EEA. In the United Kingdom, the judgment enables the primary carer of a British citizen to acquire a right to enter and reside in the country whilst he or she remains the primary carer of that British citizen and where the refusal of such a right would force the British citizen to leave the EEA.

22.  As regards the other instruments, which have been brought forward in parallel with the Home Office Regulations giving effect to the Zambrano judgment:

  • the Department for Work and Pensions has laid the Social Security (Habitual Residence) (Amendment) Regulations 2012 (SI 2012/2587), to maintain the current position on entitlement to income-related benefits;
  • the Department for Communities and Local Government has laid the Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012 (SI 2012/2588), to maintain the Government's policy on housing eligibility in relation to non-EEA nationals; and
  • HM Treasury has laid the Child Benefit and Child Tax Credit (Miscellaneous Amendments) Regulations 2012 (SI 2012/2612), to maintain the current policy position on entitlement to these benefits.


23.  These Regulations, laid by the Department for Business, Innovation and Skills, prescribe the categories of further education (FE) institutions which are exempt from routine inspection by Her Majesty's Chief Inspector, and the circumstances in which those FE institutions will be exempt. All categories of institutions within the FE sector, and 16 to 19 Academies, are prescribed; such institutions will be exempt from routine inspection if their overall effectiveness has been awarded the highest grade (currently the "outstanding" grade) in the most recent inspection by the Chief Inspector.

24.  In our 3rd Report of this Session, we referred to an instrument laid by the Department for Education (the Education (Exemption from School Inspection) (England) Regulations 2012 (SI 2012/1293)) which similarly provided that prescribed categories of schools would become exempt from routine inspections if they had received the highest grading in their latest inspection by the Chief Inspector (also an "outstanding" grading).


25.  Council Directive 92/35/EEC lays down control rules and measures to combat African horse sickness (AHS), a disease that affects horses, zebras, mules and donkeys, and is caused by a virus that is transmitted by midges. The Directive sets out procedures to be followed and restrictions that apply in the event of an actual or suspected outbreak of AHS. Implementation of the Directive was previously achieved through statutory instruments (SIs) made under the Animal Health Act 1981.[10] The Department for Environment, Food and Rural Affairs (Defra) has now laid these Regulations, which implement the Directive and remove references to AHS from the earlier SIs. In the Explanatory Memorandum, the Department states that it now places importance on having dedicated legislation to control exotic disease outbreaks, and the present domestic controls require supplementing in case of a future outbreak.

26.  In line with established disease control principles, the Regulations provide the Secretary of State with the power to declare a control zone, protection zone and surveillance zone around infected premises. Measures that would be imposed in the control zone include restrictions on the movements of horses. The Regulations also provide the Secretary of State with the power to arrange for the killing of horses on infected premises and on contact premises.


Immigration Rules

27.  In its 6th, 9th and 10th Reports of this session[11] the Committee raised concerns about recent Statements of Changes of Immigration Rules, in particular how Parliamentary endorsement of the proposed interaction between the Rules and Article 8 of the European Convention on Human Rights was to be achieved, the insertion into the Immigration Rules of over 300 pages of material previously published as guidance and how the courts would react to those actions. We are grateful to the Home Office Immigration Minister, Mark Harper, who has written seeking to address a number of those points, which is printed in Appendix 2.

Timing of Laying of Statutory Instruments relating to schools

28.  In its 10th Report of this session[12], the Committee drew the Education (School Government) (Terms of Reference) (Amendment) Regulations 2012 (SI 2012/1845) to the attention of the House. We expressed concern that schools be given sufficient time to plan for changes determined by the Government, and that interested parties be effectively consulted on changes affecting them. We were also concerned about the practice of laying SIs, and bringing them into force, during a Parliamentary recess. We have received a reply from Elizabeth Truss MP, Parliamentary Under-Secretary of State for Education and Childcare, printed in Appendix 3.

Instruments not drawn to the special attention of the house

The Committee has considered the instruments set out below and has determined that the special attention of the House need not be drawn to them.

Draft Instrument subject to affirmative approval

  Child Support Management of Payments and Arrears (Amendment) Regulations 2012

  Contracting Out (Local Authorities Social Services Functions) (England) (Amendment) Order 2012

  District Electoral Areas Commissioner (Northern Ireland) Order 2012

  Housing Act 1996 (Additional Preference for Armed Forces) (England) Regulations 2012

  Legal Services Act 2007 (The Law Society) (Modification of Functions) (Amendment) Order 2012

  Producer Responsibility Obligations (Packaging Waste) (Amendment) Regulations 2012

  Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012

Draft negative instruments subject to annulment

Cumbria (Electoral Changes) Order 2012

Derbyshire (Electoral Changes) Order 2012

Feed-in Tariffs: Modifications to the Standard Conditions of Electricity Supply Licences (No. 4 of 2012)

Somerset (Electoral Changes) Order 2012

Swale (Electoral Changes) Order 2012

Instruments subject to annulment

SI 2012/2463  Early Years Foundation Stage (Exemptions from Learning and Development Requirements) (Amendment) Regulations 2012

SI 2012/2505  Police and Criminal Evidence Act 1984 (Armed Forces) (Amendment) Order 2012

SI 2012/2560  Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2012

SI 2012/2569  Jobseeker's Allowance (Members of the Forces) (Northern Ireland) (Amendment) Regulations 2012

SI 2012/2573  Agricultural Holdings (Units of Production) (England) Order 2012

SI 2012/2575  Social Security (Miscellaneous Amendments) (No. 2) Regulations 2012

SI 2012/2576  Further Education Institutions (Exemption from Inspection) (England) Regulations 2012

SI 2012/2587  Social Security (Habitual Residence) (Amendment) Regulations 2012

SI 2012/2588  Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012

SI 2012/2605  North Wales (East and Central) (Coroner's District) Order 2012

SI 2012/2607  Port Security (Port of Aberdeen) Designation Order 2012

SI 2012/2608  Port Security (Port of Grangemouth) Designation Order 2012

SI 2012/2609  Port Security (Port of Portland) Designation Order 2012

SI 2012/2610  Port Security (Port of Tees and Hartlepool) Designation Order 2012

SI 2012/2611  Port Security (Port of Workington) Designation Order 2012

SI 2012/2612  Child Benefit and Child Tax Credit (Miscellaneous Amendments) Regulations 2012

SI 2012/2613  Town and Country Planning (Local Planning) (England) (Amendment) Regulations 2012

SI 2012/2629  African Horse Sickness (England) Regulations 2012

1   Section 148 of the Localism Act 2011, inserting a new section 193(7AA) into the 1996 Act. Back

2   See: http://www.communities.gov.uk/publications/housing/homelessnessorderconsult for consultation paper. Back

3   HL Paper 46  Back

4   Council Directive 94/62/EC on packaging and packaging waste (as amended by Council Directive 2004/12/EC) Back

5   See: http://www.defra.gov.uk/publications/files/pb13540-waste-policy-review110614.pdf  Back

6   As amended by the Police and Criminal Evidence Act 1984 (Armed Forces) (Amendment) Order 2011 Back

7   http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62009J0034:EN:HTML  Back

8   The instrument also makes amendments to address transposition issues and to provide clarity and consistency in the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003, previously amended several times). Back

9   A primary carer (as defined in the Immigration (European Economic Area) (Amendment) Regulations 2012 (SI 2012/1547)) of another person under the age of 18 is a direct relative or legal guardian of that person, and has primary responsibility for that person's care, or shares equally that responsibility with one other person who is not entitled to reside in the United Kingdom.


10   The Specified Diseases (Notification and Slaughter) Order 1992 (SI 1992/3159) and the Specified Diseases (Notification) Order 1996 (SI 1996/2628). Back

11   HL Papers 26, 40 and 46. Back

12   HL Paper 46. Back

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