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 31-39)

Clause 31

  139.    Clause 31 re-enacts powers in subsections (2) and (3) of section 61A of the Social Security Administration Act. Subsection (1) concerns any determination that a person is disqualified from receiving benefit under regulations made under section 171E of the Contributions and Benefits Act 1992. It enables regulations to provide that such a determination shall have effect as a decision that the person is capable of work during the period for which he is disqualified. The relevant regulation, which will continue in force under the new power, is regulation 18 of the Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995/311)

  140.    Subsection (2) enables regulations to be made allowing certain prescribed matters to be determined by the Secretary of State, notwithstanding that other related matters fall to be determined by another authority. The power relates to the determination of incapacity (by the Secretary of State) for the purposes of entitlement to the disability premium in Housing and Council Tax Benefit. The relevant regulation, which will continue in force under the new power, is regulation 20 of the Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995/311).

Clause 32

  141.    Clause 32 re-enacts section 62(1) of the Social Security Administration Act 1992 with amendments to reflect the changes to decision-making made in this Bill. It enables regulations to apply the provisions of Chapter 1 of the Bill to decisions made under sections of the Social Security Contributions and Benefits Act 1992 which deal with industrial diseases.

  142.    The regulations made under the existing power are regulations 43 to 54 of the Social Security (Adjudication) Regulations 1995 and certain of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985. (SI 1985/967) They deal with the functions of the medical adjudicating authorities and the procedures for dealing with the determination of medical questions. The intention is to maintain the procedures in their current form but modified as necessary to take account of the new decision-making arrangements in Part I of the Bill, while ensuring that appropriate medical advice continues to be available to enable claims for industrial injuries benefits in respect of prescribed diseases to be properly decided.

  143.    The Department considers that it is appropriate to continue to make this provision in secondary legislation, as was done in the Social Security Administration Act. It concerns adapting matters of procedural detail for the specific requirements of decision-making on industrial diseases.

Clause 34

  144.    Subsections (1) to (4) of Clause 34 re-enact section 63 of the Social Security Administration Act 1992, providing for regulations to be made on various aspects of decision-making on Housing Benefit and council tax benefit.

  145.    Subsections (1) and (2) provide that regulations shall require local authorities to notify the claimant of a decision on a claim to Housing Benefit or council tax benefit, and to require any notification to be given in such form as may be prescribed.

  146.    Subsection (3) enables regulations to make provision requiring local authorities to give priority to claims from people who have been entitled to Jobseeker's Allowance or Income Support in prescribed circumstances.

  147.    Subsection (4) enables regulations to provide for reviews of determinations relating to Housing Benefit and council tax benefit. (Housing Benefit and council tax benefit have a separate decision-making structure which will not be affected by the changes in Part I of the Bill for other benefits. They will retain their review procedure.)

  148.    Subsection (5) is new. It provides an explicit power to make regulations providing for matters arising out of the revision of a determination on review.

  149.    Regulations in the Housing Benefit (General) Regulations 1987 (SI 1987/1971) and the Council Tax Benefit (General) Regulations 1992 (SI 1992/1814) currently made under section 63 of the Social Security Administration Act will continue in force under the new power. These regulations will be unchanged, with one exception. The change of circumstances rules in Housing Benefit and council tax benefit will be brought into line with those in other social security benefits (provided for in Clause 11 of this Bill). In future, where a change of circumstances which is to the claimant's advantage is reported to the local authority within one month, any arrears of benefit due will be paid in full. If the change is reported after the one month period, the new decision will take effect only from the date the change is notified.

  150.    The Clause provides a broad power to review Housing Benefit and Council Tax Benefit determinations. This power has been used since 1987 to make regulations dealing with matters arising from such reviews, including regulations which limit benefit entitlement. Other social security benefits rely on more explicit powers to make regulations providing for matters arising out of reviews. The addition of subsection (5) is intended to put the position in Housing Benefit and Council Tax Benefit beyond doubt by introducing a similar provision.

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


Clause 35

  152.    Clause 35 deals with provision for suspending payments of Housing Benefit or Council Tax Benefit; and for suspending any right to make a reduction in council tax liability. It also covers the subsequent making of any payments or restoring of any right so suspended.

  153.    The Clause in the main mirrors provision for other benefits in Clause 22, and contains similar regulation-making powers. For the most part it reproduces existing powers to suspend and withhold benefit contained in section 5(1)(n),(o) and 6(1)(n), (o) of the Social Security Administration Act 1992. The current powers are being repealed as a consequence of the changes being made in Part I of the Bill to decision-making and appeals. The former powers will be subsumed within the new powers to suspend. The only new provision is the power in subsection 2(d) to suspend benefit in whole, or, as appropriate, in part, in cases which might otherwise fall to be reviewed in the light of a decision in a lead case which is under appeal.

  154.    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.

  155.    Current provision as to withholding of benefit is contained within regulation 95 of the Housing Benefit (General) Regulations 1987. The intention is to amend a number of these existing regulations to reflect the fact that they will now be based on the consolidated suspension power in subsection (1)(a).

  156.    Subsection (2) gives more detail of the cases which will, in fact, be covered by regulations under subsection (1). These are:

  -  when it appears to the local authority that an issue arises whether the conditions for entitlement to benefit are or were fulfilled. The intention is to cover cases where there is a reasonable doubt that the claimant may not be entitled to benefit - for example if there is a doubt that a claimant resides at the address for which he is receiving Housing Benefit.

  -  when it appears to the local authority that an issues arises whether the determination of a claim should be reviewed. The intention is to cover cases where the authority expects that the claimant's entitlement might have to be reduced rather than stopped altogether - for example where an authority knows that a claimant is working but needs to obtain precise details of his salary.

  -  when an appeal is pending to a court in relation to the determination.

  157.    It is intended that the consolidation regulations based on the above powers will be similar to existing provisions contained in regulations 95 and 96A of the Housing Benefit (General) Regulations 1987 and regulations 80 and 81A of the Council Tax Benefit (General) Regulations 1992.

  -  when an appeal is pending in another case (a "lead" case) and the local authority considers that, depending on the outcome in the "lead" case, the determination of benefit in the secondary case may need to be revised or superseded.

  158.    It is intended that the regulations under the above powers will mirror the provision to be made for centrally-administered benefits in Clause 22.

  159.    Subsection (3) defines when an appeal is considered to be "pending" to a court in England and Wales. Subsection (4) makes similar provision for Scotland.

  160.    Subsection (3)(d) contains a delegated power to prescribe circumstances in which an appeal is to count as pending to a court in England and Wales when the time for making an application or appeal has not yet expired.

  161.    Subsection (4)(c) contains a delegated power to prescribe circumstances in which an application to the supervisory jurisdiction of the Court of Session in Scotland is to be considered pending when an application has not been made in respect of the determination and a period prescribed for the purposes of this section for making such an application has not expired. This power is necessary because there is no fixed time limit in Scotland for making such applications to the Court of Session. It is the intention to prescribe such period as is allowed in England and Wales. This will ensure consistent treatment of cases throughout the United Kingdom, and ensure that payments of benefit are not suspended for an unreasonable period.

  162.    Subsection (4)(d) contains a delegated power to prescribe circumstances in which an appeal is to count as pending when the time for making an appeal against an order made on an application to the Court of Session in Scotland has not yet expired.

  163.    These delegated powers allow for the precise definition of the various permutations of circumstances in which an appeal is to count as pending for the purposes of this Clause. In the Department's view this is suitable matter for secondary legislation.

Clause 38

  164.    Clause 38 re-enacts with amendment section 66 of the Social Security Administration Act 1992 which provides for the review of social fund determinations by an appropriate officers and by a social fund inspector. In connection with the changes to the decision-making process for social fund budgeting loans in Clauses 68 and 69 which remove the element of discretion in most cases, Subsection (6) modifies the procedure for the review of budgeting loan decisions. The Clause contains two delegated powers:

  165.    Subsection (1)(a): a power to prescribe the form and manner and time limit in which an application for a review of a social fund determination is to be made.

  166.    Subsection (3): a power to prescribe the form, manner and time limits for an application for a further review of a social fund determination by a social fund inspector.

  167.    The existing regulations (Social Fund (Application for Review) Regulations 1988 SI 1988/34) will continue in force under the new powers, with amendments to replace references to "social fund officer" with "appropriate officer" when the provisions in Clause 36 are brought into force.


 
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