Date laid: 20 April
Parliamentary procedure: negative
Our 30th Report of the last session commented on the regulations for Great Britain which set out four exceptions to the provision that, from 6 April 2017, claimants can only receive certain benefits for two children or qualifying young persons in a household. The current instrument (SR 79/2017) is the equivalent Northern Ireland legislation. Its provisions exactly mirror the mainland Regulations, with the exception of the start date. The general concerns expressed in our 30th Report, for example, about how families in similar circumstances may be treated differently because of the order of their children, apply equally to this extension of the legislation.
There is an additional concern however in relation to this specific instrument, because of its interaction with section 5 of the Criminal Law Act (Northern Ireland) 1967. Where a woman makes a claim for benefits for a third child using the exception that the child was born as a result of non-consensual conception, the declaration required by SR 79 could significantly increase the likelihood of the police being drawn into the investigation of a claimant’s case. A letter from Women’s Aid points out that these Regulations place “the burden of navigating the tricky territory relating to section 5 obligations, and potential criminal sanction, entirely on the shoulders of designated voluntary sector organisations and healthcare professionals”. Where the victim has chosen not to involve the police previously, the increased likelihood of the police becoming involved, and the possibility that she herself may become liable to prosecution under section 5 for not informing them at the time of the incident, must make it likely that some women will not claim the benefit. As a result they will lose the additional funds to which they would otherwise be entitled and the policy will therefore not operate as intended.
These Regulations are drawn to the special attention of the House on the ground that they may imperfectly achieve their policy objective.
1.These Regulations have been prepared by the Department for Communities, Northern Ireland (DfC) and laid by the Department for Work and Pensions (DWP). They are accompanied by an Explanatory Memorandum (EM). A link is provided to the guidance that has been published on the application of this policy to Income Support and Job Seekers Allowance.1 DfC intend that this guidance will also apply to Universal Credit claims when the benefit is introduced in Northern Ireland in September 2017. A link is also provided to a copy of the form which has to be completed when a claim is made for a third child on the ground of non-consensual conception.2 Correspondence from the Women’s Aid Federation of Northern Ireland quoted below is published in full on our publications webpage. 3
2.From 6 April 2017, sections 13 and 14 of the Welfare Reform and Work Act 2016 restricted to two the number of children or qualifying young persons in a household for whom the Child Element in Universal Credit and equivalent benefits is payable. Our 30th Report of the last session dealt with the Regulations which set out four exceptions to the provision in Great Britain.4 Our Report concluded that the first three exceptions described were straightforward and based on facts (multiple birth, adoption, kinship care) but the fourth, relating to non-consensual conception, would be much more difficult to assess and DWP did not, at that stage, appear to have made adequate arrangements for doing so. Accordingly that instrument was reported on the ground that it may imperfectly achieve its policy objective, our strongest criticism.
3.We received over 100 emails about those Regulations and eight substantive submissions raising practical issues about the legislation. One of those, from Women’s Aid, pointed out that in Northern Ireland, confidential declarations of rape or coercion to a third party assessor would be contrary to the law. In Northern Ireland it is a criminal offence subject to a prison sentence for an organisation or support service to fail to declare information about a serious offence to the police if they become aware of it. Our Report commented:
“This will put both the applicant and the assessor in an invidious position. The practicalities of applying these requirements in Northern Ireland will need to be fully thought through before the equivalent regulations are brought forward”.
4.The current instrument (SR 79/2017) is the equivalent Northern Ireland legislation. Its provisions exactly mirror the mainland Regulations with the exception of the start date: the rules in respect of Income Support and Jobseeker’s Allowance came into operation on 11 May; the others will be brought into effect when Universal Credit is implemented in Northern Ireland (currently planned for September 2017).
5.In their letter of 31 May 2017, Women’s Aid question the absence of the Equality Assessment required by section 75 of the Northern Ireland Act 1998 and under the Belfast Agreement to promote equality of opportunity between persons of different religious belief, political opinion, racial group etc. DfC refers back to the work done on the original Welfare Reform Bill in Northern Ireland, stating that in 2013 the Ad Hoc Committee on Conformity with Equality Requirements concluded that it could not identify any specific breaches of equality or human rights.
6.DfC continued:
“ … while a consultation was not specifically undertaken by the Department for Communities on the proposed two child policy change, it is part of the wider reforms to the welfare system which is aimed at further reforming the benefit system by focusing on supporting people to find and keep work. …The Good Friday Agreement specifically cited social security as an area where parity is normally maintained and this was reflected in the Northern Ireland Act 1998 where provision was made to ensure that the systems in the two jurisdictions could continue to work, in effect, as coherent single systems.
Under the Fresh Start agreement on 17 November 2015 it was decided that Westminster should take the powers to legislate for Welfare Reform in NI. Consequently the Northern Ireland Welfare Reform legislation corresponds to that for Great Britain.
In relation to limiting support to a maximum of two children in Universal Credit, the UK Government assessed the equality and human rights impacts of the policies fully, throughout policy development and in preparation for its implementation, thus meeting its obligations under the Public Sector Equality Duty, and ensuring compliance with Human Rights Act 1998”.
7.Section 5 of the Criminal Law Act (Northern Ireland) 1967 provides that where a relevant offence has been committed, it shall be the duty of every other person who knows or believes that the offence has been committed and that has information which is likely to secure, or to be of material assistance in securing, the apprehension, prosecution or conviction of any person for that offence, to give the information to a constable, otherwise they shall be guilty of an offence.
8.Paragraph 7.20 of the EM nods to the concerns expressed in our 30th Report but is not entirely clear. It says that “an approved professional will not have to determine whether the incident actually occurred … nobody will be required to reach a view about whether a criminal offence has actually been committed.” On request DfC provided further explanation:
“The approved third party will be asked to tick a box indicating that the claimant’s circumstances are consistent with it being likely that the non-consensual conception exception applies. The third party approver will not be asked to provide any detail on those circumstances.
The form used to claim the non-consensual conception exception and the accompanying guidance will highlight that in Northern Ireland, if the third party knows or believes that a relevant offence (such as rape) has been committed, the third party will normally have a duty to inform the police of any information that is likely to secure, or to be of material assistance in securing the apprehension, prosecution or conviction of someone for that offence.
To ensure that claimants and third parties are aware of the law in Northern Ireland, HMRC’s guidance makes this long-standing legal obligation clear, although women applying for the exception for non-consensual conception are advised that they do not have to tell the third party the name of the other parent nor is there a requirement on the third party to seek any further evidence beyond confirming that the exception should apply”.5
9.To qualify for this exception, the mother must not be living at the same address as the other party to that intercourse (reg 5 (1)(b)(ii)). We asked how that requirement might be satisfied if the name of the father was not disclosed. DfC replied that when applying for this exemption the claimant will be asked to confirm that they are no longer be living with the child’s other biological parent. The claimant will have to tick a box to confirm this on their application. Should the claimant provide false information this would be fraud.
10.In their letter of 31 May 2017 Women’s Aid point out that, although the DfC says the third party assessor does not have to ask for the name of the other party to the conception, the assessor will need to obtain sufficient evidence to confirm that the applicant’s story is consistent with rape, otherwise the assessor may also risk becoming liable to prosecution by being complicit in fraud. Women’s Aid state that these Regulations place “the burden of navigating the tricky territory relating to section 5 obligations, and potential criminal sanction, entirely on the shoulders of designated voluntary sector organisations and healthcare professionals”.
11.Their letter states for this reason, and on moral and ethical grounds, few organisations are coming forward to act in as third party assessors. Although the DfC responded that a healthcare professional (for example, midwife, health visitor or doctor) or a registered social worker can also fulfill this role and this will ensure that any claimant has local access to an approved assessor, Women’s Aid state some GPs are asking if they are contractually obliged to undertake this task.
12.It is our understanding that section 5 requires those involved in the process of assessing a person’s claim only to report information disclosed in that process to the police, it does not impose a positive duty on anyone (the Department included) to try and obtain further information about the possible offence. Although this principle of disclosure is long-established in Northern Ireland and the bodies working as third parties will be used to operating under that constraint, Women’s Aid state that these Regulations make choosing the correct path particularly tricky. What if the claimant tells the assessor she was raped by her father/employer/next-door neighbour? Although this does not provide a name it would make the perpetrator identifiable and the assessor would be bound to report that information to the police.
13.It is also our understanding that the duty imposed by section 5 applies to the victim of the crime as well as to third parties. If a woman makes a claim relying on the non-consensual conception exception, she may be putting herself into the position of having to disclose information to the police, even if she does not provide enough information to trigger that duty for the third party assessor. Simply by claiming rape or coercion the victim puts the case into the public domain, and must, therefore, be put at greater risk of being prosecuted herself under section 5 for failing to give the police information which might help secure a prosecution or conviction of a crime. Although prosecution is only pursued with the consent of the Attorney-General and is rare, the possibility will be enough to deter some claimants and some assessors.
14.The general concerns expressed in our 30th Report of last session, for example, about how families in similar circumstances may be treated differently because of the order of their children, apply equally to this extension of the legislation. That Report also queried the practicalities of how the exception for non-consensual conception would operate.
15.There is an additional concern in relation to this specific instrument, because of its interaction with section 5 of the Criminal Law Act (Northern Ireland) 1967. The complexities of operating within the law place third party assessors in an invidious position, and the declaration required by SR 79 may significantly increase the likelihood of the police being drawn into the investigation of a claimant’s case. A claimant, who did not inform the police at the time of the incident, will have had her own reasons for not doing so. The fact that section 5 increases the likelihood of the police becoming involved must make it likely that some women will not claim the benefit in order to avoid that risk. As a result they will lose the additional funds to which they would otherwise be entitled and the policy will therefore not operate as intended.
2 https://www.nidirect.gov.uk/publications/form-ncc1niis-support-child-conceived-without-your-consent
3 30th Report, Session 2016–17 (HL Paper 148).
4 Social Security (Restrictions on Amounts for Children and Qualifying Young Persons) Amendment Regulations 2017 (SI 2017/376), 30th Report, Session 2016–17, (HL Paper 148).
5 See link to both the form and guidance in footnotes above.