Instruments of interest
Draft Motor Vehicles (International Circulation) (Amendment) Order 2022
4.Since leaving the EU, the cabotage limits on hauliers set out in the UK-EU Trade and Cooperation Agreement (“the TCA”) have caused particular difficulties for drivers carrying equipment for touring events, such as musical or theatrical productions. The TCA limits UK hauliers to two journeys within an EU country or between two EU countries before they must return to their home base. These Regulations address that problem by providing a Vehicle Excise Duty exemption for specialist touring haulage operators who have bases established both in Great Britain (GB) and in the EU. This change would allow them to operate in the EU as EU operators, and in GB as GB operators, benefiting from the market access arrangements in the respective territories. The exemption is solely for specialist cargo for performances and does not apply to any goods intended for sale (including event merchandise).
Draft Smoke and Carbon Monoxide Alarm (Amendment) Regulations 2022
5.These draft Regulations propose new duties on both private and social landlords to provide smoke and carbon monoxide alarms. The proposed new duties would:
- require social landlords to provide a smoke alarm on every storey of their properties where there is a room used as living accommodation;
- require both social and private landlords to provide carbon monoxide alarms in any room of their properties used as living accommodation where a fixed combustion appliance is present, excluding gas cookers (which are responsible for fewer incidents of carbon monoxide poisoning than gas boilers); and
- require landlords to repair or replace any alarm which is found to be faulty during the period of a tenancy as soon as reasonably practicable.
6.The Department for Levelling Up, Housing and Communities (DLUHC) says that these changes will align safety standards in the social and private rented sectors. The draft Regulations do not propose any changes for owner-occupied accommodation. The instrument also proposes changes to improve the procedure to be followed when a Local Housing Authority serves a remedial notice on a landlord. This includes a set timetable for considering written representations by a landlord and a period of 21 days for the landlord to comply with the notice if the notice is confirmed following those representations.
7.We note that the instrument also corrects a drafting error in the Smoke and Carbon Monoxide Alarm (England) Regulations 2015 identified by the Joint Committee on Statutory Instruments almost seven years ago,2 so that changes made to the Housing Act 2004 in respect of mandatory conditions in licences for Houses in Multiple Occupation apply to both England and Wales.
Draft Warm Home Discount (England and Wales) Regulations 2022
8.These draft Regulations propose the continuation of the Warm Home Discount scheme (“the WHD scheme”) in England and Wales until 31 March 2026. The WHD scheme was originally introduced in 2011 and requires electricity suppliers to provide benefits to customers who are in, or are at risk of, fuel poverty. The costs are then passed on to domestic customers who therefore subsidise those at risk of fuel poverty. The Department for Business, Energy and Industrial Strategy (BEIS) intends to lay separate regulations to continue the WHD scheme in Scotland.
9.According to BEIS, the target is to provide benefits to 3 million households by 2026, up from over 2.2 million in 2020/21. The WHD scheme will have an annual spending envelope of £475 million (in 2020 prices), compared to £354 million in 2021/22. The main rebate under the WHD scheme will increase from £140 to £150. Asked whether this increase was seen as sufficient in the context of the current energy crisis, BEIS told us that:
“The aim is to provide as many people as possible with support for heating their homes each winter. At £150, we have struck a balance between supporting as many households as possible—3 million households—with providing meaningful support. Increasing the value of the rebates further would mean either fewer households receive rebates or the overall spending envelope grows, increasing the costs to consumers. We estimate that the costs of the expanded scheme that suppliers pass on to the customers will be around £19 per dual fuel account. The Warm Home Discount is only one of the Government’s measures for supporting households with the cost of living.”
10.BEIS provided further information about other measures the Government are taking to support households, and about the initiatives that energy suppliers will have to fund to meet part of their obligations under the WHD scheme which we are publishing at Appendix 3.
11.While the main current core group of customers will remain low-income pensioners,3 eligibility for others will be set out in an eligibility statement to be published by the Secretary of State. According to BEIS, the intention is to include low-income households with the highest energy costs. They will be identified through a qualifying means-tested benefit, such as Housing Benefit, or Tax Credit, and high energy costs will be estimated using property characteristic data. BEIS says that this approach will enable the majority of eligible households to be identified automatically and awarded a rebate, without having to take any action. The House may wish to be aware, however, that the Department acknowledges that this change will also mean that fewer households where a person is in receipt of a disability benefit will receive a rebate under the renewed WHD scheme. BEIS provided further information about this change which we are also publishing at Appendix 3.
Draft Statement of Changes in Immigration Rules (HC17)
12.This Statement of Changes in Immigration Rules implements certain changes arising from the Nationality and Borders Act 2022, including a number of revised definitions of refugee status, asylum seeker and humanitarian protection and when a claim for any of them may be inadmissible. These changes were brought into immediate effect, as is the change to consider an asylum applicant’s return to their “country of origin” rather than their “country of return”. The Explanatory Memorandum states that this change is needed to enable the effective operation of the Migration and Economic Development Partnership with Rwanda.
13.The instrument also inserts into the Immigration Rules the concept introduced by Section 12 of the Nationality and Borders Act 2022 of the different types of permission to stay to be granted to Group 1 refugees (permanent) and Group 2 refugees (temporary). It also includes changes for those entering the UK under the Homes for Ukraine Sponsorship Scheme, imposes an immediate visa regime on nationals of El Salvador (see also SI 2022/524) and expands on the electronic visa waiver scheme to include nationals of Bahrain and Saudi Arabia.
Armed Forces (Service Complaints) (Amendment) Regulations 2022 (SI 2022/494)
Armed Forces (Service Complaints Ombudsman Investigations) (Amendment) Regulations 2022 (SI 2022/496)
14.These two instruments make changes to the service complaints system. SI 2022/496 amends the date from which the time limit is calculated for making an application to the Service Complaints Ombudsman (SCO) to investigate a service complaint that has been finally determined. SI 2022/494 restricts the grounds on which an appeal against a decision on a service complaint can be made and amends the definition of a specified officer to whom a service complaint must be made to take this function away from the complainant’s chain of command. The instrument also specifies the information which must be included in a complaint statement and reduces the time limit for bringing an appeal from six weeks to two weeks. Asked whether the SCO had raised any concerns about the changes, the Ministry of Defence (MoD) explained that:
“The [SCO] is on the record as opposing the reduction in the time limit for appeals. However, she acknowledges the rationale for strengthening the grounds on which the Decision Body’s decision can be appealed. The Ministry of Defence will work with the [SCO] and the Services, to ensure that these changes are implemented through policy in a way that is fair, but also proportionate for the investigation of appeals. [ … ] In relation to timeframes for an appeal, a review of civilian best practice in the public and private sectors indicated that two weeks was considered standard. Adopting this approach aligns the service complaints process with civil service procedures.
The new regulations provide that late appeals may still be accepted in circumstances where it is just and equitable to do so. The Department is working with the SCO and the Services to introduce guidance on the circumstances in which it may be appropriate to allow an appeal out of time. [ … ] While the exercise of the discretion will be supported by the guidance, it is important to note that the guidance itself is not exhaustive, and it will remain possible to admit late appeals in circumstances outside of those listed, where it is appropriate to do so. The guidance will also include non-Service circumstances such as sudden or long-term illness, or other injury to a complainant.”
15.The MoD told us that in 2021, 749 complaints were ruled admissible and that of those, 209 complaints (28%) were appealed. The MoD was unable to say how many of those 209 complaints would no longer proceed under the new two-week time limit for appeals, adding, however, that “sample data shows that under the six-week time limit, complainants have been taking on average 5.2 weeks to lodge an appeal”. The fact that it currently takes complainants an average of 5.2 weeks to lodge an appeal suggests that the new two-week time limit could have a significant impact on the number of appeals that can proceed.
16.We are concerned that the MoD is legislating for a significant reduction in the time limit for appeals without having a clear understanding of how this may impact on the number of appeals that can proceed. This makes it particularly important that the discretion which will be available to allow late appeals where this is just and equitable will be used fairly, and that the guidance will not unnecessarily restrict the use of this discretion.
17.We also question the appropriateness of closer alignment between time limits for appeals in the armed forces and those in the civil service, given the unique circumstances in which members of the armed forces may find themselves. It is important therefore that the guidance should recognise combat situations and other unique requirements of the service as grounds for allowing an appeal out of time.
18.We were concerned that an appeal should be completely independent of the original complaints process, and have been assured by the MoD that:
“A decision body will decide on the original complaint. An admissibility decision on an appeal will be made by a Defence Council delegate from the relevant single Service Secretariat–this person will not have been part of the decision body who made the decision being appealed. A complainant may apply to the Ombudsman for a review of a decision that an appeal cannot be proceeded with.”
Competition Act 1998 (Vertical Agreements Block Exemption) Order 2022 (SI 2022/516)
19.This Order exempts certain categories of so-called vertical agreements from the prohibition in Chapter I of the Competition Act 1998 which prohibits agreements between firms that prevent, restrict or distort competition. According to the Department for Business, Energy and Industrial Strategy (BEIS), vertical agreements are agreements for the sale and purchase of goods or services between businesses operating at different levels of the production or distribution chain. This includes, for example, agreements between manufacturers and wholesalers or retailers. Vertical agreements between businesses that do not have a significant degree of market power are generally seen to have positive effects on competition and for consumers. For example, they may lead to lower prices, non-price competition, a wider availability of products, or better services.
20.The purpose of the new exemption is to ensure that businesses are not prevented from entering into agreements that the Competition and Markets Authority considers to be beneficial and not anticompetitive. The exemption will expire on 1 June 2028. It replaces a similar block exemption under retained EU law4 which expires on 31 May 2022.
21.BEIS says that following Brexit, the new exemption will depart from the current EU exemption in a number of areas, taking into account specific UK factors. This includes allowing dual pricing (that is charging the same distributor a higher price for products to be sold online than for products to be sold offline), and the imposition of criteria for online sales that are not overall equivalent to the criteria imposed on brick-and-mortar shops. BEIS says that these practices are not allowed under the current EU rules which were originally adopted in 2010 when online distribution was still at a nascent stage, but that a different approach is appropriate now that the internet is well-established as a means of distribution and in the context of exponential growth of online sales.
22.We understand that the EU is also making changes in this area, so it would have been helpful for the Department to provide an explanation of how future divergence of the UK and EU in this area may impact on businesses operating both in the UK and the EU The House may wish to note that, according to BEIS, the changes will help contribute to a more level playing field between online and bricks-and-mortar retailers, rather than providing preferential treatment for either when many businesses now have a mixed online and offline strategy.
Homelessness (Suitability of Accommodation) (Amendment) (England) Order 2022 (SI 2022/521)
23.This Order makes changes to make it easier for local authorities in England to find temporary accommodation for homeless families arriving from Ukraine and Afghanistan and for other new arrivals, including returning British nationals. The changes:
- Add an exemption to the definition of Bed and Breakfast (B&B) accommodation that is provided in a private dwelling, to make clear that accommodation in private homes, where facilities are shared, such as those being provided under the Homes for Ukraine Scheme, should not be automatically considered unsuitable. This provision is not time limited.
- Temporarily allow local authorities to place households who have recently arrived in the UK in B&B accommodation for more than six weeks, where no other accommodation is available. There will be no time limit on how long families within this cohort may be placed in B&B accommodation until the Order expires on 1 June 2023. At that point, the 6-week limit will apply and local authorities will be required to find suitable alternative temporary accommodation for any families that have been in B&B accommodation for more than 6 weeks.
- Ensure that local authorities only have to consider caring responsibilities in respect of family associations as a factor before placing a newly arrived household out of area. This provision is time limited and will expire on 1 June 2023.
Education (Student Fees, Awards and Support) (Amendment) (No. 2) Regulations 2022 (SI 2022/534)
24.This instrument introduces two new eligibility categories in relation to finance for students in further and higher education for:
- British nationals who were evacuated under Operation Pitting5 or assisted by the Government to leave Afghanistan after Operation Pitting; and
- those granted leave to enter or remain in the UK under the Ukrainian Family Scheme, the Homes for Ukraine Sponsorship Scheme or the Ukraine Extension Scheme.
25.The changes will allow British nationals evacuated or assisted from Afghanistan to access student finance and home fee status without being subject to a three-year ordinary residence requirement. The Department for Education (DfE) explains that this will create parity for British nationals arriving from Afghanistan and put them on an equal footing with third country nationals arriving from Afghanistan who have been identified by the Home Office as being at risk and with other refugees who are already eligible for home fee status and student support. This will apply to new students starting full-time or part-time undergraduate, further education and postgraduate courses from the 2022/23 academic year. DfE estimates that there will be no more than 21 applicants under this new category per academic year.
26.The changes will also allow those awarded leave under the Ukrainian Schemes to access home fee status and student support, bringing them in line with those in other protection-based categories, such as refugees and persons with humanitarian protection who are at risk if they return to their home country. This change will come into effect from 1 August 2022 and will apply to new and continuing students on full-time and part-time undergraduate, further education and postgraduate courses. Given the difficulty in forecasting the number of refugees from Ukraine at this stage, the House may wish to press the Minister on how universities could be impacted, and whether support will be made available should the numbers be larger than expected.
2 Joint Committee on Statutory Instruments, 2nd Report (Session 2015–16, HL Paper 29, HC 352-ii).
3 Those in receipt of the Guarantee Credit element of the Pension Credit.
5 Operation Pitting was the British military operation to evacuate British nationals and Afghans from Afghanistan between 14 and 28 August 2021, following the Taliban offensive.