SOCIAL SECURITY BILL
Details of the delegated powers,
Part I - Decisions
and Appeals (Clauses 6-9)
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)).
(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.
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.
(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.
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
(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.
(3) enables regulations to make provision relating to
(a) the composition of appeal
(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.
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.
(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.
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
- 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.
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.
(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.