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 21-28)

Clause 21

  101.    Clause 21 enables an appeal tribunal to refer persons to a medical practitioner for examination and report for the purpose of providing the tribunal with information for use in determining the appeal. It re-enacts with amendment section 55 of the Social Security Administration Act 1992 which relates to Disability Appeal Tribunals, to make provision for the new unified appeal tribunals to deal with similar cases.

  102.    Subsection (2) enables an eligible person to refer a person for examination and report if prescribed conditions are satisfied. The conditions prescribed in regulation 30 of the Adjudication Regulations will be carried forward - if the relevant person is satisfied that an appeal cannot be properly determined unless the claimant is examined by a medical practitioner and information is provided to the appeal tribunal.

  103.    Subsection (3) prevents an appeal tribunal from carrying out a physical examination of a person or requiring them to undergo a physical test of walking ability except in prescribed circumstances. With the establishment of a new unified appeal tribunal, regulations will be needed in order to continue in appropriate cases the existing practice of medical appeal tribunals who currently examine appellants in cases concerning industrial injuries disablement benefit and severe disablement allowance, where an examination may be necessary to establish whether the required level of disablement is satisfied.

Clause 22

  104.    Clause 22 deals with provision for suspending payments of a relevant benefit, the subsequent making of any payments so suspended and the termination of entitlement in prescribed cases or circumstances. The power to suspend payment of benefit pending resolution of an issue regarding entitlement avoids the accrual of overpayments which are frequently impossible to recover. The power to suspend payment protects the integrity of public expenditure.

  105.    Provision for suspension is currently made in section 5(1)(n) of the Social Security Administration Act 1992 under which regulation 37 of the Claims and Payments Regulations are made. The provision in regulation 37 will continue under the new power.

  106.    Subsection (1)(a) enables regulations to provide for suspending payments of benefit in whole or in part, in prescribed circumstances; subsection (1)(b) enables regulations to provide for subsequently making the suspended payments.

  107.    Subsection (2) gives more detail of the particular cases which will be covered by regulations under subsection (1). These are:

  -  when it appears to the Secretary of State that an issue arises whether the conditions for entitlement to a relevant benefit are or were fulfilled. The intention is to cover cases where there is a question as to whether the claimant is entitled to benefit; for instance if it appears that an Income Support claimant may be working

  -  when it appears to the Secretary of State that a decision may need to be revised or superseded. The intention is to cover cases where there is a question as to whether the amount of benefit to which the claimant is entitled may be less than what is in payment; for instance if it appears that an Income Support claimant may be receiving an increased amount of occupational pension.

  -  when an appeal is pending against a decision of an appeal tribunal, a Commissioner or Court.

  -  when an appeal is pending in another case (a "lead" case) and the Secretary of State considers that, depending on the outcome in the "lead" case, the award of benefit in another case may need to be revised or superseded. It is envisaged that the regulation made under this power will be, in substance, similar to regulation 37A of the Claims and Payments Regulations. This particular regulation has not been used since November 1996 following the judgement in the Sutherland case that it was unsupported by the primary power.

  108.    The general power to make regulations to provide for suspension in subsection (1) is a power to put the Department in a position to guard against unforeseen developments in the appeals system where provision for suspension of payment may become necessary to prevent significant leakage of public expenditure. Such an event occurred in the early 1990s with the emergence of thousands of lookalike cases linked to particular test cases proceeding through the Courts. We do not currently foresee circumstances other than the four listed in subsection (2) where we would use the power.

  109.    The regulations will contain procedural detail concerning how and when notice is to be given which would not justify the greater use of Parliamentary time.

  110.    Subsection (3) defines when an appeal is considered to be "pending" for the purposes of this Clause. Subsection (3)(c) contains a delegated power to prescribe circumstances in which an appeal is to be considered as pending when an appeal has not been brought, but the time limit within which it may be brought has not yet expired. The intention is to cover situations where the Secretary of State has received a decision of an appeal tribunal or a Commissioner and is considering whether there appears to her to be an error of law in the decision, and whether she should seek leave to appeal against the decision. This would normally involve seeking legal and other advice. If it is decided that leave to appeal will not be sought, the effect of the provisions will be that any suspension imposed under regulations made under subsections (2)(c) or (d) will cease immediately. The Department considers that this definition is a technical matter and suitable for secondary legislation.

  111.    Subsection (4) enables regulations made under subsection (1) to provide that entitlement to benefit shall be terminated from a date not earlier than that on which payments were suspended. This is directed at situations where a doubt arises under subsection (2)(a) or (b), payment of benefit is suspended in whole but the claimant does not respond to requests for information which would resolve the doubt. Rather than continue suspension of payment of benefit indefinitely, a decision terminating entitlement to benefit can be made. Our intention is that claimants will have one month in which to respond to such requests for information before entitlement to benefit is terminated. Regulations will also stipulate the circumstances in which the one month rule can be further extended.

  112.    Under present legislation, a doubt which is never resolved can mean that a notional entitlement to benefit continues indefinitely, even though nothing is paid. This distorts statistical information about the numbers of live cases, adds to the burden of administration and creates the potential for fraudulent activity. It is not intended that suspension cases under (2)(c) or (d) will be caught by subsection (4). In those cases it is the outcome of the appeal which will resolve the doubt. Neither will subsection (4) be invoked if payment of benefit is only partially suspended because entitlement to benefit itself is not in doubt.

Clause 23

  113.    Clause 23 enables provision in regulations for suspension of payments of benefit and subsequent termination of entitlement where a person fails to provide information to enable the Secretary of State to determine whether a decision on an award of benefit needs to be revised or superseded. Its purpose, along with Clause 24 below, is to enable the Department to satisfy itself that benefit is being paid correctly to people who are entitled to it.

  114.    Subsection (2) enables regulations to provide for (a) suspending payments of a relevant benefit in whole or in part and (b) subsequent making of prescribed circumstances of any or all of the payments so suspended.

  115.    Subsection (3) enables regulations to provide for entitlement to a relevant benefit to cease from a date not earlier than the date on which payments were suspended, and to prescribe when exceptions will be made.

  116.    The intention is that as a general rule payments may be suspended, in whole or in part, if the person fails to provide the information requested within one calendar month. The person will then have a further calendar month to respond before benefit entitlement is terminated. The power to suspend will be discretionary to provide flexibility to take into account the individual circumstances of the person concerned. Guidance on the exercise of discretion will be issued to officers.

  117.    Certain individual benefits will have different time limits. For Invalid Care Allowance, it is intended to retain current procedures allowing up to 8 weeks. For Jobseeker's Allowance, the time limit will remain at 7 days, to enable questions which arise about labour market participation to be resolved quickly. There will also be prescribed exceptions for special cases, such as when a person is in hospital with severe injuries or disability.

  118.    These regulations will cover a substantial amount of administrative detail, regarding the type and length of notice which the Department will give to the person regarding the information he is required to provide, the time limits within which different types of information are to be provided and the circumstances in which the Department will accept that the information could not be provided, or may be provided by a later date. In the Department's view, this is not appropriate for primary legislation. It is also subject to change and modification as the substance of the social security system changes, and to address unforeseen difficulties which may arise during the practical operation of the powers; for these reasons the Department considers the use of secondary legislation is justified.

Clause 24

  119.    Clause 24 concerns the suspension and termination of benefit if a person fails to submit to medical examination. Its purpose is to enable the Department to satisfy itself that benefit is being paid correctly to people who are entitled to it. In part it re-enacts section 57A of the Social Security Administration Act as inserted by section 18 of the Social Security Administration (Fraud) Act 1997, with the additional power to cease entitlement to benefit once payments have been suspended. It contains 4 delegated powers:

    (a)  enabling the Secretary of State to require a person who has been awarded a relevant benefit to submit to medical examination

    (b)  suspending payments of benefit, in whole or in part, if a person fails to submit to such an examination

    (c)  for the subsequent making in prescribed circumstances of suspended payments

    (d)  for entitlement to benefit to cease except in prescribed cases or circumstances

  120.    It is intended that the provision in the Social Security (Attendance Allowance and Disability Living Allowance) (Miscellaneous Amendments) Regulations 1997 (SI 1997/1839) will be preserved under the new power. It is envisaged that the regulations will provide that a person who is awarded Attendance Allowance or Disability Living Allowance shall be required to attend for, or submit himself to, a medical examination where the Secretary of State is checking entitlement under section 5(1)(hh) of the Social Security Administration Act (as inserted by Clause 59 of the Social Security Bill); if the claimant fails to do this on more than one occasion, benefit may be suspended in full or in part from a date not earlier than the second failure unless -

    - the claimant satisfies the Secretary of State that he has good reasons for failing to comply (including absence abroad, state of health, nature of disability at relevant time)

    - the claimant provides alternative evidence in lieu

    - the Secretary of State has other acceptable evidence available to her (eg. a notification of change of address, or admission to hospital or residential care which is sent to another part of the Department).

  121.    If the Secretary of State is satisfied that no question about entitlement arises, benefit payments will be reinstated, including arrears. If a question has arisen, the Secretary of State will make a decision about entitlement and pay benefit in accordance with that decision; if there has been no contact from or in respect of the claimant, the Secretary of State can decide that entitlement ceased from a date not earlier than the first suspended payment.

  122.    The provisions will necessarily be lengthy and detailed as they will need to cover a number of contingencies. The use of secondary legislation will also enable the Department to act swiftly to address any unintended effects which emerge during the practical operation of the powers.

Clause 25

  123.    Clause 25 introduces a new provision to delay making ("stay") a decision where it is not appropriate to make a decision because a case turns on an issue of law which is being challenged in another case (the "lead" case) in the courts. The Clause also contains provision to make a decision in such a case in certain circumstances.

  124.    The provision to "stay" will avoid in many cases the need to make a decision, then suspend benefit, then revise the decision when the law is finally established. It will make administration simpler for staff and the process clearer for claimants.

  125.    Subsection (3) deals with decisions which would be affected, if the "lead" case were determined, but where a person would still be entitled to some benefit as opposed to the situation where the claimant is not entitled at all (which is covered by subsection (2)). Subsection (3) enables the Secretary of State to make a decision as to that element of a claimant's benefit which would not be affected by the "lead" case.

  126.    It contains two delegated powers: (a) to prescribe the cases and circumstances in which the Secretary of State may make the decision while the appeal in the "lead" case is pending; and (b) to prescribe the cases and circumstances in which she may make the decision on such basis as may be prescribed. (a) would be used to prescribe cases where the amount of benefit involved is significant; or, it is expected that the lead case will not be finally resolved for some time. In exceptional cases the Secretary of State will make the decision. (b) would be used to cover cases in which the lead case involved entitlement to, for example, a premium in Income Support. The intention is in these cases to enable the Secretary of State to make a decision on the other elements of the benefit which are not at issue so that these may be paid.

  127.    It is considered more appropriate to provide for the detail of this new procedure in secondary legislation which will also allow for fine-tuning its operation in the light of experience.

  128.    Subsection 5(c) contains a delegated power to prescribe circumstances in which an appeal is to be considered as pending when an appeal has not been brought, but the time limit within which it may be brought has not yet expired. It is identical to the power in Clause 22(3)(c) and it has a similar justification.

Clause 26

  129.    Clause 26 deals with appeal cases which turn on an issue of law which is being challenged in another case (the "lead" case) through the Courts. It enables the Secretary of State to require an appeal tribunal or Commissioner to refer an appeal case to her, to stay an appeal case or to make a decision in an appeal case as if the "lead" case was decided in the way most unfavourable to the appellant.

  130.    Subsection (6)(c) contains a delegated power to prescribe circumstances in which an appeal is to be considered as pending when an appeal has not been brought, but the time limit within which it may be brought has not yet expired. It mirrors the provision in Clause 22(3)(c) and a similar justification applies.

  131.    Subsection (8) allows regulations to be made to supplement provision in this Clause. This power was taken because of the fact that Clause 26 is a new power and procedures for operating the "staying" process in practice may need to be refined in the light of experience. It can be used to iron out operational difficulties arising in the implementation of the Clause.

Clause 27

  132.    Clause 27 concerns the situation where the decision on appeal ("the relevant determination") in one case overturns an existing application of the law; and as a result, decisions which have been made in other cases are now wrong in law. It restricts the arrears of benefit which would otherwise fall to be paid by the Department in such cases.

  133.    Subsection (7) contains a delegated power to make regulations governing how the date of the "relevant determination" is to be determined, and to prescribe the cases when the date will be determined in this manner.

  134.    Subsection (8) gives further detail concerning what the regulations in (7) will cover: (a) provision for a determination of a higher court to be treated as if it had been made on the date of a determination of a lower court and (b) vice versa.

  135.    In most cases, it will be clear what the date is without the need for provision in regulations - for example when the Commissioners decide the point and there is no subsequent appeal. In other cases, the date of the relevant determination may be less easy to determine, for example, if a Commissioner decides a case one way, on appeal the Court of Appeal takes the opposite view, and then the House of Lords decides that the Commissioner's interpretation is correct. Sometimes, the points of law which the Court considers will be different to those addressed by the Commissioner - for example something in the Commissioner's reasoning itself raised a point of law for the Court which was not a question of law before the Commissioner, or the Court may identify a different point of law altogether.

  136.    These regulation-making powers are important to be able to accommodate the different permutations in which a point of law can come to be decided.

Clause 28

  137.    Clause 28 provides regulation-making powers to make provision with respect to (a) the correction of accidental errors in any decision or record of a decision; and (b) the setting aside of any decision in the interests of justice if a procedural error has occurred.

  138.    Provision in regulations 9 and 10 of the Adjudication Regulations and 24 and 25 of the Commissioners Procedure Regulations will be preserved under the new power. The regulations will continue to specify who may correct accidental errors in a decision or the record of a decision, and that there will be no right of appeal against any decision to correct such an error, or the refusal to do so. The provisions will contain minor administrative detail unsuitable for primary legislation.


 
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