Instruments reported
At the Committee's meeting on 2 November 2011 it
scrutinised a number of instruments. It was agreed that the special
attention of the House of Commons should be drawn to one of those
considered in accordance with Standing Orders. The Instrument
and the ground for reporting it is given below. The relevant Departmental
memorandum is published as an appendix to this report.
1
S.I. 2011/1780: Reported for requiring
elucidation and defective drafting
| Individual Savings Account (Amendment No. 2) Regulations 2011 (S.I. 2011/1780)
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1.1 The Committee draws the special attention of the House
to these Regulations on the ground that they require elucidation
in one respect and are defectively drafted in a connected respect.
1.2 The Regulations amend the Individual Savings Account Regulations
1998 (S.I. 1998/1870) ("the 1998 Regulations")
to provide for junior ISA accounts which are tax-exempt savings
accounts for children. Regulation 8 inserts regulations 4ZA to
4ZE into the 1998 Regulations. Regulation 4ZE permits withdrawals
from a junior ISA account in certain cases. One of those cases
(Case 1) is where the child holding the account "has been,
or is, accepted by the Department of Work and Pensions as falling
within section 72(5) of the Social Security Contributions and
Benefits Act 1992 (special rules for terminally ill person's entitlement
to care component of disability living allowance)". The other
case (Case 2) is where evidence that the child is terminally ill
has been supplied to the satisfaction of Her Majesty's Revenue
and Customs.
1.3 The Committee asked Her Majesty's Revenue and Customs what
is intended to be covered by the words "accepted by the Department
of Work and Pensions as" in Case 1 and why the statutory
reference in that Case is confined to legislation that appears
not to extend to Northern Ireland.
1.4 In a memorandum printed in the Appendix, the Department explains
that it will accept that withdrawals can be made from a child's
junior ISA account if the Department of Work and Pensions confirms
that it has accepted a claim that the child is entitled to the
care component of disability living allowance by virtue of section
72(5) of the Social Security Contributions and Benefits Act 1992
("section 72(5)"). In general, entitlement to benefit
is conditional on the determination by the Secretary of State
of a claim which must be supported by required evidence: see sections
1 and 5 of the Social Security Administration Act 1992 (c.5).
The Committee considered whether that rendered the words "accepted
by the Department of Work and Pensions as" wholly unnecessary
but it accepts that, had nothing been indicated, the test for
the Department would have been objective rather than based on
information received. Even so, the quoted words appear not properly
to describe the Department's policy as it is receipt of confirmation
from the Department of Work and Pensions that is supposed to count
rather than the mere acceptance of the claim by that Department.
The Committee accordingly reports regulation 8 in that respect
as requiring elucidation largely but not completely provided by
the Department's memorandum.
1.5 In the memorandum the Department acknowledges that Case 1
does not refer to section 72(5) of the Social Security Contributions
and Benefits Act (Northern Ireland) 1992 (c.7) which is the Northern
Ireland provision corresponding to section 72(5). The Department
states that, in circumstances that would fall within Case 1 if
that provision were referred to in Case 1, it will treat Case
2 as satisfied but it agrees to consider whether Case 1 should
be amended to refer to that provision. The Committee accordingly
reports regulation 8 for defective drafting in that respect, acknowledged
in part by the Department.
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