Select Committee on Delegated Powers and Deregulation Tenth Report


SOCIAL SECURITY BILL (continued)

Details of the delegated powers, by Clause

Part I - Decisions and Appeals (Clauses 10-19)

Clause 10

  44.    Clause 10 enables the Secretary of State to revise a decision made under Clause 9 or Clause 11 either on application or on her own initiative. When a decision is revised (as opposed to superseded under the powers in Clause 11) it is changed from (and has effect from) the date of the original decision, as a general rule.

  45.    Subsection (1) (a) contains 2 delegated powers. The first enables regulations to prescribe the period within which and the second the cases or circumstances in which a decision can be revised. It is intended that a claimant will have one month in most cases to dispute a decision with the Department. Claimants will not need to demonstrate "grounds" for changing a decision within this period. If the Secretary of State considers that the decision is incorrect, she will revise the decision. The regulations will set out specified circumstances in which a decision can be revised after the end of the prescribed period, for example where a customer can show that they could not reasonably have disputed a decision within the dispute period, for example through incapacity or absence from home.

  46.    The purpose of this section is to give the Secretary of State maximum flexibility to put right decisions which are incorrect for any reason, and avoid them entering the appeals process unnecessarily.

  47.    Subsection (1) also allows for regulations to prescribe the procedure by which decisions may be revised. The ability to prescribe in regulations the procedure by which decisions will be revised will ensure that staff follow a consistent set of steps when changing a decision.

  48.    Subsection (4) enables regulations to provide for a revised decision to take effect from a date other than the date of the original decision. It is intended that these regulations will cover circumstances when the error in the original decision related to the effective date of that decision.

  49.    These are matters of detail which the Department believe are appropriate to secondary legislation and also in respect of which flexibility is required to accommodate any future administrative changes.

  50.    Subsection (6) provides that an appeal against a decision of the Secretary of State shall lapse if the decision is revised before the appeal is determined, except in prescribed circumstances. In general it is intended that if a decision which has been appealed is looked at again by the Department and put right, the appeal should not proceed (the claimant of course will have a right of appeal against the revised decision). However in some cases the Department may look again at a decision and conclude that it should be revised in a way that is less favourable to the claimant - for example, a revised decision on an overpayment which increases the amount of the overpayment which the claimant must pay back. It is intended that in these cases the regulations will provide that the appeal shall proceed to an appeal tribunal.

  51.    The Department anticipates that the definition of what constitutes "less favourable to the claimant", across all benefits, national insurance contributions decisions, overpayments decisions etc., will be sufficiently lengthy and technical to be an appropriate matter for secondary legislation.

Clause 11

  52.    Clause 11 allows the Secretary of State to make a decision superseding a decision made under Clause 9 or Clause 10, or a decision made by an appeal tribunal or a Commissioner. When a decision is superseded, a fresh decision is made and takes its place; as a general rule the fresh decision will not have effect from the date of the original decision but from the date of the supersession. The powers in this Clause will be used in two circumstances. The first is when an error in the original decision has not been identified within the dispute period of one month. The second is when circumstances change, and the original decision needs to be replaced by a new decision.

  53.    Subsection (3) contains two delegated powers. The first enables regulations to prescribe the cases or circumstances in which a decision can be made superseding an earlier decision. The cases and circumstances will include the following specified reasons: where there has been ignorance of, or a mistake as to a material fact, an error of law in the original decision, or where there has been a relevant change of circumstances. Putting specified reasons in secondary legislation will enable adjustments to be made to maintain the spirit behind the provision if problems arise later.

  54.    The second power allows for regulations to prescribe the procedure by which this may be done. The ability to prescribe in regulations the procedure by which decisions will be revised will ensure that staff follow a consistent set of steps when changing a decision.

  55.    These are matters of detail which the Department believe are appropriate to secondary legislation and also in respect of which flexibility is required to accommodate any future administrative changes.

  56.    Subsection (4) provides, as a general rule, that a decision under Clause 11 shall take effect from the date on which it is made, or, where applicable, the date on which the application was made. Subsection (5) allows for regulations to provide that in prescribed circumstances or cases, the new decision shall take effect from a date other than the date set out in subsection (4).

  57.    It is intended that the regulations will provide for the following special cases:

  -  where a decision is superseded because of a change of circumstances, the new decision may take effect from the date of the change, where the change is to the customer's advantage, and it is notified within one month of it occurring. If it is not notified within one month, the new decision will take effect from the date on which it is notified. If a new decision is to a customer's disadvantage, it will in all cases take effect from the date the change occurred.

  -  where the decision of a tribunal or Commissioner is superseded by the Secretary of State because the decision was given in ignorance of, or mistake as to, a material fact, the new decision may take effect from the same date as the original decision. Where the decision of a tribunal or Commissioner is superseded by the Secretary of State, as a result of a relevant determination as defined by Clause 27 (cases of error), the new decision may take effect from the date of the relevant determination.

  58.    The details of this provision are likely to be lengthy and involved, and in the Department's view would not justify the greater use of Parliamentary time required by primary legislation. The use of regulations will also enable further special cases to be accommodated, should this become necessary.

Clause 12

  59.    Clause 12 re-enacts with amendments at subsections (1) and (2) sections 58(1) and (4) of the Social Security Administration Act. It permits provision to be made in regulations for the making of any decision by the Secretary of State in connection with former or current legislation. It also provides that the Secretary of State may direct that she should have the assistance of experts where a matter involves a question of special difficulty.

  60.    Subsection (1) is a broad power which enables regulations to be made to ensure the smooth running of the social security system. The Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (SI 1996/2349) are currently in force under section 58(1) of the Social Security Administration Act. The power has been used in the past, for example to make provision for dealing with decisions needed under repealed legislation, for example calculating an overpayment which goes back for many years.


Clause 13

  61.    Clause 13 sets out what may be appealed to an appeal tribunal, who may appeal, and how. It re-enacts, with amendments, section 22 of the Social Security Administration Act 1992.

  62.    Subsection 2(b) contains a delegated power to prescribe persons other than the claimant who have a right of appeal. With the introduction of a right of appeal on National Insurance contributions decisions, this provision will ensure that employers and employees also have a right of appeal, in appropriate cases. It also enables additional persons to be given a right of appeal, if substantive aspects of welfare provision are altered, or there is some important societal change.

  63.    Subsection (2) also contains a power to prescribe in regulations circumstances in which its provisions shall not confer a right of appeal. This power complements the power in Schedule 2(8) so that it can be put beyond doubt, if this should become necessary, that individuals have no right of appeal on matters other than claims or awards, or those decisions covered by Schedule 3, in the event of future developments in the benefits system; and ensures that rights of appeal are not given in respect of decisions on administrative matters where no appeal rights currently exist.

  64.    Subsection (5) provides that a person with a right of appeal under this section shall be given such notice of a decision and of that right as may be prescribed. The intention is to prescribe that the notification must be in writing and must contain information on the decision made and the right of appeal.

  65.    Subsection (6) allows regulations to provide for the manner in which and the time within which appeals are to be brought. With regard to time limits for appeals, the regulations will provide for a time limit of one month from the date of the decision within which a person may either dispute the decision with the Department, or lodge an appeal. If a person disputes the decision, he will have one month to appeal from the date on which the Department notifies him of the outcome of their reconsideration of the disputed decision.

  66.    With regard to late appeals, similar provision to that in Regulation 3(3) of the Adjudication Regulations, which concern special reasons for granting an extension to the time limit, will be re-made under this power.

  67.    With regard to the manner in which appeals are to be brought, it is intended that this power will be used to provide similar rules to those currently in the Adjudication Regulations, which cover matters such as information requirements, and where appeals are to be lodged.

  68.    The powers in subsections (5) and (6) allow for developments in information or communications technology, or changes in business processes; and give flexibility with respect to time limits for appealing should the practical operation of the new arrangements show up particular difficulties in certain cases.

  69.    The Department considers that the delegated powers in this Clause are justified as they will enable the new framework of appeal rights to be maintained in good order as the social security system changes over time.

Schedule 2

  70.    Schedule 2 lists decisions on a claim or award of benefit against which there is no right of appeal.

  71.    Paragraph 8 contains a regulation-making power to add other decisions to the list. It is our intention to use this power, in the first place, to exclude a right of appeal, as now, on decisions made under regulation 4 of the Social Security (Claims and Payments) Regulations (SI 1987/1968) (Claims and Payments Regulations), such as whether a claim has been properly made, or which one of a couple should make a claim for income support if they cannot agree. The power will also give the provisions in this Bill sufficient flexibility to accommodate any future changes to social security which are as yet unforeseen - for example the introduction of a new kind of benefit or new procedures for the administration of benefit, where the interests of effective administration might require certain decisions to be made unappealable. It is not our intention to use this power to remove appeal rights in respect of existing "outcome" decisions or to introduce any new welfare provision in the future without appropriate appeal rights. However it is important, as the social security system evolves, to keep appeal rights and the appeal system focused on the issue of substance (which in a social security benefit, means the amount and period of benefit), and not peripheral issues (such as which day of the week benefit should be paid on).

  72.    The Department's view is that this is appropriate for secondary legislation as it will enable the legislation on decision-making and appeals to keep pace with the evolution of the substantive aspects of the welfare state.

Schedule 3

  73.    Schedule 3 lists decisions, other than those on a claim or award of benefit, which carry a right of appeal.

  74.    Paragraph 1 contains a regulation-making power to prescribe cases and circumstances in which a decision whether a person is entitled to a benefit where no claim is required is appealable. The regulations will cover decisions on Cold Weather Payments and those cases covered in regulation 3 of the Claims and Payments Regulations (for example entitlement to an age addition, which is an increase in the rate of benefit due on attainment of a particular age).

  75.    Paragraph 4 provides a right of appeal on a decision whether the whole of or part of a benefit to which a person is entitled is to be paid to a person other than him (for example directly to an electricity company to pay off a debt). It contains a delegated power to prescribe cases and circumstances in which exceptions will be made - the intention is that this will cover decisions on third party payments which currently do not have a right of appeal - for example payment of Income Support mortgage interest direct to a lender.

  76.    Paragraph 9 contains a power to add other decisions relating to relevant benefits to the decisions in this list by regulations and paragraph 30 contains an identical power with respect to decisions relating to contributions. As with the power in paragraph 8 of Schedule 2 above, it is our intention to use these powers over time to keep the provisions relating to appeals in step with the rest of the social security system as it evolves.

Clause 15

  77.    Clause 15 provides for rights of appeal to a Commissioner, who may appeal, when and how and the powers of the Commissioner to deal with cases. It re-enacts with amendments section 23 of the Social Security Administration Act.

  78.    Subsection (3)(b) contains a delegated power to prescribe persons other than the claimant who have a right of appeal to a Commissioner, similar to the power in Clause 13(2)(b) above. As for Clause 13(2)(b), this provision will ensure that employers and employees also have a right of appeal, in appropriate cases.

  79.    Subsection (10) deals with the issue of leave to appeal. It contains two delegated powers - the first to prescribe cases in which leave may be sought from persons other than the person who constituted, or was chairman of, the tribunal which gave the decision, the second to allow regulations to govern the granting of leave by a Commissioner. It is intended that the first will cover cases where the chairman or the person who constituted the tribunal is not available to consider the application; the second will cover cases when leave to appeal has been refused at the tribunal level, or an application was made out of time, and the appellant applies to the Commissioners for leave to appeal direct to them. These powers are currently exercised in regulation 3 of the Commissioners Procedure Regulations 1987 (SI 1987/214).

  80.    Subsection (11) enables the Lord Chancellor to make regulations to provide for the manner in which and the time within which appeals to a Commissioner are to be brought. It is essentially a re-enactment of existing powers in sections 23, 34 and 48 of the Administration Act, which made separate provision for appeal to Commissioners from separate tribunal jurisdictions (with the additional requirement that the Lord Chancellor shall consult the Lord Advocate). Similar provision to that in the Adjudication Regulations and the Commissioners Procedure Regulations will be made under the new powers.

  81.    The Department considers it appropriate to continue to make this provision in secondary legislation, as was done under the Social Security Administration Act.

Schedule 4

  82.    Schedule 4 deals with the appointment, remuneration and tenure of office of Commissioners, and other matters relating to Commissioners.

  83.    Paragraph 6 enables the Lord Chancellor to provide by regulations for

  (a)  authorised officers to make any determinations which fall to be made by Commissioners

  (b)  the procedure to be followed by such officers in making such determinations

  (c)  the manner in which such determinations may be called into question.

  84.    Currently there is similar provision for nominated officers in section 58(6) of the Social Security Administration Act, and the relevant regulation is regulation 29 of the Commissioners Procedure Regulations. This provision will continue under the new power. However the activities of nominated officers in paragraph 6(a) are currently restricted to making determinations which "do not involve the determination of any appeal, application or reference". The new power in Clause 15(7) enables Commissioners to set aside tribunal decisions where both parties consent. The wider power in (a) for nominated officers is intended to enable them to handle these straightforward cases and thereby reduce the Commissioners' workloads and improve clearance times for appeals.

  85.    The Department considers it appropriate to continue to make this provision (amended as set out in the previous paragraph) in secondary legislation, as was done under the Social Security Administration Act.

Clause 16

  86.    Clause 16 re-enacts with minor amendments section 24 of the Social Security Administration Act. It sets out arrangements for appeal from the Commissioners to the higher courts, who may apply for leave, to whom, when and how. It contains three delegated powers.

  87.    Subsection (2) re-enacts the provision in section 24(2) of the Administration Act. It contains a power which enables regulations to prescribe cases in which leave may be granted by a Commissioner other than the one who gave the decision, and to prescribe how such a Commissioner is to be selected. Provision similar to that in regulation 31 of the Commissioners Procedure Regulations, will be made under the new power. This provides that such an application is to be decided by the Chief Commissioner, or by another Commissioner selected by the Chief Commissioner.

  88.    Subsection (3) deals with who may make an application for leave to appeal. Subsection (3)(c) enables "any other person who is authorised by regulations" to apply for leave. Subsection (3) also contains a power to make provision in regulations for the manner in which, the time within which applications must be made to a Commissioner and for the procedure for dealing with such applications. Similar provision to that in regulation 31 of the Commissioners Procedure Regulations will be made under the new power.

  89.    The Department considers it appropriate to continue to make this provision in secondary legislation as was done under the Social Security Administration Act.

Clause 17

  90.    Clause 17 concerns the procedure to be followed in cases before a Commissioner. Subsection (1) enables provision to be made in regulations as to the procedural matters specified in Schedule 5.

Schedule 5

  91.    Schedule 5 deals with provision which may be made in procedure regulations as follows:

  (References below are to the paragraphs in Schedule 5.)

  (2)  provision prescribing the procedure to be followed in connection with (a) the making of decisions or determinations by the Secretary of State or a competent tribunal; and (b) the withdrawal of claims, applications, appeals or references falling to be decided or determined by him or such a tribunal

  (3)  provision as to the striking out of proceedings

  (4)  provision as to the form which is to be used for any document, the evidence which is to be required and the circumstances in which any official record or certificate is to be sufficient or conclusive evidence

  (5)  provision as to the time within which, or the manner in which - (a) any evidence is to be produced; or (b) any application, reference or appeal is to be made

  (6)  provision for summoning persons to attend and give evidence or produce documents and for authorising the administration of oaths to witnesses

  (7)  provision for authorising an appeal tribunal consisting of two or more members to proceed with any case in the absence of any member

  (8)  provision for empowering an appeal tribunal to give directions for the disposal of any purported appeal which is outwith its jurisdiction

  (9)  provision for the non-disclosure to a person of the particulars of any medical advice or medical evidence.

  92.    Paragraphs 2 and 4 to 9 re-enact parts of Schedule 3 to the Social Security Administration Act, with minor amendments to take into account the introduction of a unified appeals jurisdiction and single-status decision makers. The regulations will make similar provision as is currently in the Adjudication Regulations.

  93.    The regulations under these powers will enable the Secretary of State, or the Lord Chancellor, as appropriate, to ensure that appeals are conducted in a consistent manner for all appellants, in order that procedural fairness is achieved.

  94.    Paragraph 3 is a power for the striking out of proceedings. It is wider than that in Schedule 3 to the Administration Act, which is qualified "for want of prosecution". Its purpose is to enable appeals to be struck out

    -  where a person fails to co-operate when they have been clearly told what is required of them (for example they have not made an appeal in the proper way, or provided the necessary information or evidence);

    -  where an appeal could have no material effect on the decision (for example the appellant is paying mortgage interest at a rate which exceeds the standard rate set out in the Income Support (General) Regulations 1987);

    -  where an appeal has no prospect of success (for example against a refusal of benefit where the person is clearly older than the age limit for that benefit);

    -  where an appeal is frivolous or vexatious.

  95.    This will help to speed up the appeals process for all cases. The decision to strike out appeals will be taken by a member of the independent appeals panel. In the Department's view, the level of technical detail required to define the specific circumstances in which an appeal may be struck out, and the procedure to be followed, makes this suitable for secondary legislation.

Clause 18

  96.    Clause 18 provides for decisions to be final. It contains one delegated power. Subsection (2) allows regulations to provide for facts or determinations embodied in a decision to be conclusive for the purpose of further decisions. It is the intention that at the outset, the regulations will provide that only decisions on incapacity for work will be final for the purposes of subsequent decisions. The aim is to reduce the amount of double-handling by administrators and unnecessary delay for claimants. As information technology develops to allow for greater co-ordination between benefits, it is our intention to extend the list of issues that will be final.

  97.    The Department considers this matter suitable for secondary legislation as the extent of the provision is dependent upon development of improved information technology and operational innovations in the future.

Clause 19

  98.    Clause 19 re-enacts (with changes to reflect the measures in this Bill) section 61 of the Social Security Administration Act 1992. Subsection (1) enables regulations to make provision for matters arising

  (a) pending a decision by the Secretary of State, an appeal tribunal or a Commissioner

  (b) out of the revision or appeal of such a decision.

  99.    This power is currently exercised in regulations 56 and 56A of the Adjudication Regulations 1995, which provide for interim decisions to be made where certain Income Support, Social Fund and Jobseeker's Allowance questions cannot immediately be determined. For example, where an Income Support claim involves the calculation of mortgage interest costs, but the full details of those costs are not immediately available, the regulations allow a decision to be made on the basis of the costs which are readily determinable. Current provision in secondary legislation will be preserved when Clause 19 comes into force. Clause 19(1)(b) provides the same power to make interim decisions when a decision falls to be made which relates to an existing award.

  100.    Subsection (2) enables these regulations to include provision as to the date from which child benefit is to be payable to a person in respect of a child in a case where, before the benefit was awarded to that person, child benefit in respect of the child was awarded to another person. Its purpose is to enable the Department not to hold up paying child benefit in respect of a child, while information is sought regarding which person it should be paid to.


 
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