Tenth Report Contents

Instruments of interest

Jobseeker’s Allowance (Schemes for Assisting Persons to Obtain Employment) (Amendment) Regulations 2017 (SI 2017/1020)

8.The main effect of this instrument is to add another scheme, the Work and Health Programme, to the list of schemes which the Secretary of State for Work and Pensions can require Jobseeker’s Allowance (JSA) claimants to attend and participate in. The effect of the instrument is that a claimant, who fails without good reason to comply with such a requirement, can be liable to a benefit sanction that is the reduction or loss of JSA for a period of several weeks. The instrument also removes a few redundant schemes from that list.

9.The original Explanatory Memorandum (EM) supplied by the Department for Work and Pensions (DWP) took too simplistic an approach: although it gave some statistics around the scope of the Work and Health Programme, it did not explain what the scheme might involve for the individual claimant. The Committee asked an extensive list of questions so that it could judge whether the requirements seemed reasonable (and therefore if sanction would be an appropriate penalty for failing to participate). The DWP has now revised the EM to incorporate the supplementary material that the Committee requested, and it is now significantly better. We have also asked that some of the material from the slides additionally offered to the Committee in explanation should be incorporated into the EM. The Department’s description of its policy should not rely on providing the Committee with additional material: the purpose of an Explanatory Memorandum is to enable any reader, including potential claimants and the organisations that help them, to have a clear idea of what is being proposed so that any concerns can be identified and raised while the instrument is still before Parliament. We trust that the information that DWP provides to individual claimants setting out their personal “conditionality” under the Work and Health Programme will make clear what they will have to do to avoid sanctions.

Non-Contentious Probate (Amendment) Rules 2017 (SI 2017/1034)

10.There is an on-going project to modernise the way applications for non-contentious probate are made. This instrument enables the second phase of the pilot which will allow a sample group of solicitors or probate practitioners (“professional applicants”) to make applications for non-contentious probate online. Additionally, for the existing pilot involving personal applicants, the instrument also permits the application to be made with a “statement of truth” included in the application form, instead of with a sworn oath. These changes are designed to provide all the information necessary to enable the Probate Service to decide whether, and on what terms, a grant can be issued. This is part of a drive by Her Majesty’s Courts and Tribunals Service to improve efficiency and drive down the unit cost of administering the probate process. This initiative is quite separate from the proposal for a significant increase in fees contained in the Draft Non-Contentious Probate Fees Order 2017 laid earlier this year, which is still awaiting debate.4

Court of Protection Rules 2017 (SI 2017/1035)

11.The Court of Protection Rules were first introduced in 2007 in response to the requirements set out in the Mental Capacity Act 2005. This instrument is principally a consolidation of the amendments made over the last ten years but, in addition, reformats the Rules on the same model used in other courts. These changes have been piloted over 2016-17 together with some new rules in relation to case management and the use of expert evidence. A separate pilot addressed transparency matters, and involved representatives of the media (among other things, piloting a standard form of injunction for public hearings to restrict reporting of the subject of the hearing, “P’s”, identity). Consultation on the pilots included Court of Protection judges from all over the country and court users. We commend what appears to be a thorough and useful piece of work.

Mental Health Act 1983 (Places of Safety) Regulations 2017 (SI 2017/1036)

12.The Policing and Crime Act 2017 amends the provisions of the Mental Health Act 1983 which confer powers on the police to remove persons considered to be suffering from a mental disorder to a “place of safety” for the purpose of their examination, care or treatment. New section 136A provides that only those aged over 18 may be detained in a police station and that detention there should only be in exceptional circumstances. These Regulations set out the circumstances: they are that the person’s behaviour poses an imminent risk of serious injury or death to themselves or another person and that no other place of safety can reasonably be expected to detain the person. They also require the custody officer to make hourly checks to determine whether those circumstances still apply. Other safeguards in the Regulations require that, so far as reasonably practicable, a healthcare professional must be present and available during the period the person is detained at the police station and make frequent checks. The Regulations are supported by guidance jointly produced by the Home Office and the Department of Health.5

Environmental Offences (Fixed Penalties) (England) Regulations 2017 (SI 2017/1050)

13.The Department for Environment, Food and Rural Affairs (Defra) has laid these Regulations with an Explanatory Memorandum (EM). Among other things, the Regulations increase the levels of on-the-spot fines which local councils may impose for littering offences. Defra says that, in 2005, councils were given discretion to set the level of fixed penalties locally between £50 and £80, with a default of £75; and that these levels have not changed since 2006. This instrument increases the minimum, default and maximum fixed penalty to £65, £100 and £150 respectively (the increase in the minimum from £50 to £65 is deferred until April 2019). Defra consulted on these changes over a period of 10 weeks to 18 June of this year: 87% of respondents agreed that the fixed penalties for littering should be increased.

14.In the EM, the Department comments that increasing these levels may create the perception that fixed penalties could be used to generate income for councils. It says that it has a clear view that fixed penalties should not be used in this way, and that it has given a public commitment to publish improved guidance on the proportionate use of these enforcement powers. In response to our queries, Defra has said that general guidance on the use of these powers is already in place, which states that fixed penalties should not be issued when enforcement action would be “inappropriate or disproportionate”.6 The guidance referred to in the EM will update this existing guidance, to strengthen and clarify the Government’s view on the appropriate use of these and similar enforcement powers. Defra intends to consult on the guidance within the next few months, and to have the improved guidance in place before the increase in fixed penalties takes effect in April 2018. We welcome this commitment on the timing of the guidance.


4 See our 28th Report, Session 2012-13 (HL Paper 131).

5 Department of Health, Guidance for the implementation of changes to police powers and places of safety provisions in the mental health act 1983, October 2017: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/656025/Guidance_on_Police_Powers.PDF [accessed 13 November 2017]

6 See: Department for Environment, Food and Rural Affairs, Fixed penalty notices: issuing and enforcement by councils, published March 2015, updated May 2016: https://www.gov.uk/guidance/fixed-penalty-notices-issuing-and-enforcement-by-councils and Department for Environment, Food and Rural Affairs, Enforcement officers: issuing fixed penalty notices, published March 2015, updated May 2016: https://www.gov.uk/guidance/enforcement-officers-issuing-fixed-penalty-notices [accessed 13 November 2017].




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