Select Committee on Delegated Powers and Deregulation Tenth Report


Details of the delegated powers, by Clause

Part I - Decisions and Appeals (Clauses 6-9)

Clause 6

  21.    Clause 6 requires the Lord Chancellor to constitute a panel of persons to act as members of appeal tribunals. Members from this panel will normally sit on tribunals in England and Wales. They may, however, sit on a tribunal in Scotland should for example an appeal call for a particular specialism which is not available on the panel appointed by the Lord Advocate under Clause 7. (See Clause 8(1)(a)).

  22.    Subsection (3) of Clause 6 requires the panel to include persons possessing such qualifications as may be prescribed by regulations made with the concurrence of the Lord Chancellor. The panel will need to include persons with a wide range of qualifications, skills and experience to deal with all the issues raised in social security, child support and vaccine damage appeals. The regulations will prescribe the kinds of expertise to be included in the panel - in areas such as the law, medicine, finance and disability. The regulations will not be exhaustive. The Lord Chancellor may appoint persons with other expertise to the panel as he thinks fit.

  23.    In the Department's view it would not be appropriate to specify the detail of these qualifications on the face of primary legislation because of the need to retain flexibility for adjusting this provision as the benefit system evolves; in particular, there may be changes in the requirement for different types of expertise. Regulations also provide the flexibility to take account of changes made by professional bodies in their practices.

Clause 7

  24.    Clause 7 requires the Lord Advocate to constitute a panel of persons to act as members of appeal tribunals. Members from this panel will normally sit on tribunals in Scotland. They may, however, sit on a tribunal in England or Wales should an appeal call for a particular specialism which is not available on the panel constituted by the Lord Chancellor under clause 6.

  25.    Subsection (3) of Clause 7 requires the panel to include persons possessing such qualifications as may be prescribed by regulations made with the concurrence of the Lord Advocate. The qualification requirements will be similar to those in regulations made under Clause 6(3) above, with changes to reflect Scottish legal qualifications. The arguments for the use of delegated powers are the same as for Subsection (3) of Clause 6 above. That is, that the power is required to enable provision to adapt to changing circumstances over time without frequent recourse to primary legislation.

Clause 8

  26.    Clause 8 sets out how appeal tribunals are to be constituted. It replaces the existing requirement in the Social Security Administration Act (sections 41, 43 and 50) for all appeals to be heard by three-person tribunals with provision for one, two or three-member tribunals. It sets out arrangements for nominating a chairman, for majority voting and for the use of experts to assist the tribunal with matters of special difficulty. It (in conjunction with Clause 5) also gives effect to Schedule 1 (appeal tribunals: supplementary provisions).

  27.    Subsection (2)(c) of Clause 8 allows for regulations to provide for circumstances when the chairman of the tribunal should not have the casting vote. If, for example, an appeal required the expertise of a medical practitioner and a legally qualified member, it is likely that the President would appoint the latter as chairman of the tribunal. However, where the decision to be made by that tribunal turned on an issue of medical judgement, it could be more appropriate for the medical practitioner, rather than the chairman, to have the casting vote. Defining the relevant types of cases will require a degree of technical detail which is more appropriate to secondary legislation; furthermore regulations will better accommodate any future changes in benefit policy, which might require additional types of experts to be included in appeal tribunals, and where appropriate to have the casting vote.

  28.    Subsection (3) enables regulations to make provision relating to

  (a) the composition of appeal tribunals

  (b) the procedure to be followed on appeals and other proceedings

  (c) the procedure to be followed in allocating cases among differently constituted tribunals

  29.    The regulations under (a) will set out the detail of how tribunals are to be composed in order to deal with the various issues which will come before them. It is intended that medical, legal or other expertise will be included on the tribunals where this is appropriate. Appeals which are straightforward, for example an appeal against the rate of benefit as specified in legislation, may be dealt with by a single, appropriately trained panel member. A tribunal hearing an appeal on incapacity benefit which turns on a person's capacity to work will include a medical practitioner among its members. An appeal on a child support maintenance assessment will always go to a tribunal including a legally-qualified panel member, (who will be appointed chairman if the tribunal consists of more than one member), as such cases often raise complex legal issues.

  30.    Regulations under (b) will provide for the administrative procedure which takes place prior to an appeal or an application to ensure that it is carried out in a consistent manner.

  31.    The regulations under (c) will ensure that similar cases are allocated consistently to similar types of tribunals. The intention is that appeals will be allocated to different types of tribunal by administrators in the Appeals agency. In cases of doubt, they will seek the advice of a legally-qualified member of the panel. Clerks to the tribunals will then summon panel members with the appropriate expertise to serve on the tribunals. (See in this connection paragraph 10(b) of Schedule 1 to the Bill).

  32.    The level of detail required to achieve appeals arrangements which are at the same time fair and consistent, in that like cases are treated alike, and also responsive to the specific requirements of particular cases so that expertise is efficiently and effectively applied, makes this, in the Department's view, suitable for secondary legislation. It will also enable the provisions to be adapted or extended to take into account any future changes to the benefits system.

  33.    Subsection (4) contains a delegated power to prescribe the circumstances when a tribunal may not require experts to provide assistance in dealing with a question of special difficulty. It is the intention to use this power if it becomes clear over time that tribunals are routinely using experts inappropriately.

Schedule 1

  34.    Schedule 1 makes supplementary provision for appeal tribunals. It contains 3 delegated powers:

  35.    Paragraph 7 contains a power to prescribe the circumstances in which the President of appeal tribunals shall ensure that an appeal tribunal takes appropriate steps to secure the confidentiality of any prescribed material or prescribed classes or categories of material. It is intended to use this power to ensure that appeal tribunals secure the confidentiality of such material as a person's address where there has been a specific request not to disclose it. For example, in a child support case, a woman may fear violence from a former partner if her address is disclosed.

  36.    Paragraph 10 enables the Secretary of State to provide by regulations for clerks to be assigned to service appeal tribunals; and for these clerks to be responsible for summoning members of the appropriate panel to serve on tribunals. This provision is carried forward from Schedule 2 to the Social Security Administration Act 1992. It is intended that clerks will continue to assist tribunals.

  37.    Paragraph 11 enables regulations to provide for

    -  officers authorised by the Secretary of State to make any determinations which fall to be made by an appeal tribunal and which do not involve the determination of any appeal, application for leave to appeal or reference

    -  the procedure to be followed by such officers in making such determinations

    -  the manner in which such determinations by such officers may be called in question.

  38.    This provision mirrors, for the new unified appeal tribunals, existing provision for authorised officers appointed by the Lord Chancellor for the Commissioners. It will enable best use to be made of the time and expertise of the appeal panel members as they will not need to spend time on minor matters. It is intended that authorised officers will make decisions on the postponement of hearings and on requests for changes of venue, and the correction of accidental errors in the record of a tribunal's decision; and may also make some directions as to procedure - for example, that information required by the tribunal be submitted within a specified time.

  39.    Paragraph 11(2) clarifies that authorised officers may make determinations that would have the effect of preventing an appeal, application for leave to appeal or reference being determined by an appeal tribunal.

  40.    Having regard to the degree of detail necessary, and the ability to accommodate minor administrative change, the Department considers that secondary legislation is more suitable.

Clause 9

  41.    Clause 9 provides that it shall be for the Secretary of State to decide any claim for a relevant benefit, any claim for social fund payments, to make decisions under relevant enactments relating to social security and to decide any issue arising in connection with entitlement to statutory sick pay or statutory maternity pay.

  42.    The Clause contains two delegated powers. Subsection (1)(d) is a re-enactment of a power contained in section 20(3) of the Social Security Administration Act 1992 under which regulation 20 of the Social Security (Adjudication) Regulations 1995 (SI 1995/1801) (the "Adjudication Regulations") is made. It allows for regulations to govern what issues the Secretary of State may decide in relation to statutory sick pay and statutory maternity pay. SSP and SMP are paid by employers, and if an employer declines to pay, the employee may ask the Secretary of State to make a decision on whether the benefit is due. The provision will deal, as now, with the form and manner in which applications for such a decision are to be made.

  43.    Subsection (3) defines the meaning of "relevant benefit" for the purposes of Chapter II of Part I of the Bill. Subsection (3)(h) provides the power to add to the list of those benefits such other benefit as may be prescribed. This will enable the legislation to keep up to date with any future changes to the benefit system without frequent recourse to primary legislation.

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