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 40-47)

Clauses 40 to 44

  168.    These Clauses reproduce for child support the provision for social security in Clauses 10, 11, 13, 25, 26, 27 and 28, with amendments to reflect the nature of child support arrangements. The delegated powers and the justification for their use are similar.


Clause 40

  169.    Clause 40, which substitutes a new section 16 in the Child Support Act 1991, implements for child support the arrangements for revising decisions set out for benefits in Clause 10, enabling the Secretary of State to revise a decision either on application or at her own initiative. The provisions of the Clause, the delegated powers and their proposed use are similar to those in Clause 10.

  170.    Subsection (1) of new section 16 contains 3 delegated powers. The first enables regulations to prescribe the period within which a decision can be revised. The second enables regulations to prescribe the cases or circumstances in which a decision may be revised. It is intended that clients will not need to demonstrate "grounds" for changing a decision within a 28 day dispute period - if the Secretary of State considers that the decision is incorrect, she will revise the decision and this will have effect from the date of the original decision.

  171.    This section 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. 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.

  172.    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 there was an error in the original decision relating to the effective date.

  173.    Subsection (6) enables regulations to prescribe the circumstances in which an appeal against a decision shall not lapse if the decision is revised before the appeal is determined. 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. Wherever a revision produces a decision less favourable to the appellant, the appeal will not lapse.

Clause 41

  174.    Clause 41 substitutes a new section 17 in the Child Support Act 1991 which implements for child support the arrangements for the Secretary of State to make a decision superseding an earlier decision made by an appeal tribunal or a Commissioner. This enables the Department to replace a decision with a new decision when circumstances change. A new decision may be made either on application or at the Secretary of State's initiative. The provisions of the Clause, the delegated powers and the justification for their use are similar to those in Clause 11 for other social security cases.

  175.    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. It is intended that there will be three distinct cases in which a supersession might occur. Firstly, a mistake could be corrected by the Secretary of State on her own initiative. Secondly, it is intended that the Child Support Agency will conduct periodic checks of cases to ensure they are up to date. If there has been a change of circumstances then the assessment will be superseded. Finally, a party to the maintenance assessment could apply for a supersession, either on the grounds that the initial maintenance assessment was wrong or that there had been a change of circumstances. In this case, a new decision would be issued, even if the change reported or the supposed error did not affect the maintenance liability. Occasionally, an application for a supersession would be refused because no relevant issue was raised. In these circumstances, no new decision would be issued.

  176.    The second delegated power in subsection (3) allows for regulations to prescribe the procedure by which a decision to supersede may be made. The ability to prescribe in regulations the procedure by which decisions will be superseded will ensure that staff follow a consistent set of steps when changing a decision. 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.

  177.    Subsection (5) allows for regulations to provide that in prescribed circumstances or cases, the superseding decision can take effect from a date other than the date on which the new decision is made or the date on which the application for a new decision was made. In general it is intended that, in child support, a supersession would take effect from the date the application (if the decision to supersede were triggered by an application from a client) or, in the case of decisions to supersede made by the Secretary of State, on the date the decision was made. However, there will be circumstances when it would be inappropriate for the effective date to be that of the decision or the application. Examples of this include where an application relates to a change which has yet to occur.

Clause 42

  178.    Clause 42 sets out who has a right of appeal to an appeal tribunal, in relation to: an application for a maintenance assessment; a maintenance assessment which is in force; the cancellation of a maintenance assessment or the refusal of an application to cancel a maintenance assessment. It contains two delegated powers:

  179.    Subsection (4) 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.

  180.    Subsection (6) enables regulations to make provision as to the manner in which, and the time within which, appeals are to be brought.

  181.    These powers enable provision to be made for the administration of child support appeals similar to that made for benefit appeals under Clause 13(5) and (6). It is intended that the regulations will set out that an appeal must be lodged in writing within 28 days of the date of the decision being appealed against; the application must state which decision is being appealed against and must indicate the issues contested by the appeal. It is also intended that regulations will prescribe details of the form on which an appeal is to be lodged, how it is to be signed and where it is to be sent. This will ensure that appeals are received in a standard format. Late appeals will be allowed if the appellant can prove that there was a good reason why his appeal could not be lodged within 28 days.

Clause 43

  182.    Clause 43 replicates for child support the provisions for benefits in Clauses 25 and 26. It inserts 2 new sections into the Child Support Act. Section 28ZA introduces a new provision to delay making ("stay") a decision where it is not appropriate to make a decision because it turns on an issue of law which is being challenged in another case (the "lead" case) in the courts. The section also contains provision to make a decision in such a case in certain circumstances.

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

  184.    Subsection (2) of section 28ZA contains two delegated powers: (a) to prescribe the cases and circumstances in which the Secretary of State must make a decision while the appeal in the "lead" case is pending; and (b) to prescribe the cases and circumstances in which she may make a decision on such basis as may be prescribed. (a) would be used to prescribe cases where it is in the interests of the children involved to determine liability, or where it is expected that the lead case will not be finally resolved for some time, so the Secretary of State may make the decision; (b) would allow the determination of liability at a "safe" rate, while a decision in the "lead" case is awaited. This "safe" rate guarantees that the absent parent will not be required to pay more than the least possible assessment made on the basis of a decision in the "lead" case.

  185.    Clause 43 also inserts a section dealing with appeal cases which turn on an issue of law which is being challenged in another case (the "lead" case) through the Courts (section 28ZB). This section 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.

  186.    Subsections 28ZA(4)(c) and 28ZB(6)(c) contain 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. They mirror the powers in Clauses 22(3)(c) and 25.

  187.    Subsection (8) allows regulations to be made to supplement provision in this Clause. This is intended as a reserve power which is considered to be necessary having regard to the fact that Clause 43 is a new power and procedures for operating the "staying" process in practice may need to be refined in the light of experience. It would be used in the spirit of the clause to preserve the intention behind it. This is a prudent provision and appropriate matter for regulations.

Clause 44

  188.    Clause 44 replicates for child support the provisions for benefits in Clause 27 and Clause 28. It inserts a new section into the Child Support Act (28ZC) which deals with the situation where a Commissioner's or court's 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. The new section restricts the retrospective application of the new understanding of the law to after the determination was made for maintenance assessments.

  189.    Subsection (5) contains a delegated power to make regulations governing how the date of the "relevant determination" (ie the date on which the previous understanding of the law was overturned) is to be determined, and to prescribe the cases when the date will be determined in this manner.

  190.    Subsection (6) gives further detail concerning what the regulations in (5) 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.

  191.    Clause 44 also inserts a new section 28ZD which 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.

  192.    The provisions of the clause, the delegated powers and the justification for their use are similar to those in Clause 27 and 28.

Clause 45

  193.    Clause 45 inserts a new section 3A into the Vaccine Damage Payments Act 1979 to enable decisions of the Secretary of State and the appeal tribunal to be reversed, This is in line with provisions for other decisions in Clause 11 but with modifications to take account of the nature of vaccine damage payments. A vaccine damage payment is a single, tax-free payment for people who have suffered severe mental and/or physical disablement of 80% or more as a result of vaccination against one or a group of the specified diseases. A decision on such a payment can only be one of two types - to award a payment or not - therefore it is not considered appropriate to refer to one decision "superseding" another.

  194.    Subsection (1) enables any decision by the Secretary of State or by an appeal tribunal to be reversed by a decision made by the Secretary of State either within the prescribed period or in prescribed cases or circumstances. The period for applying for a decision to be reversed will continue to be six years. However 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 reverse that decision.

  195.    Subsection (3) enables regulations to prescribe the procedure by which a decision may be made under this section. This reflects the provision in Clause 10(1). The ability to prescribe in regulations the procedure by which decisions will be made will ensure that staff follow a consistent set of steps in each case.

Clause 46

  196.    Clause 46 substitutes a new section 4 into the Vaccine Damage Payments Act to introduce a right of appeal to an appeal tribunal in place of a right to a review by a Vaccine Damage Tribunal.

  197.    Subsection (2) enables regulations to make provision as to the manner in which, and the time within which, appeals are to be brought. It is intended that the regulations will set out details of the form on which an appeal is to be lodged, how it is to be signed, where it is to be sent. They will ensure that appeals are received in a standard format.

Clause 47

  198.    Clause 47 inserts a new section 7A into the Vaccine Damage Payments Act which replicates the provisions in Clause 28 for correction of errors and setting aside of decisions.

  199.    At present there is no existing legislation within the Vaccine Damage Payments Act which allows such straightforward errors to be corrected. This means that if a tribunal makes a simple mistake, the only way to correct it is through an appeal to the High Court. Furthermore, it will be simpler for appellants, staff and the tribunals themselves to have as far as possible one, consistent set of rules that apply to all appeals.

  200.    The provisions of the Clause, the delegated powers and the justification for their use mirror those in Clause 28.


 
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