Select Committee on Delegated Powers and Deregulation Tenth Report

Annex A (continued)

Letter from the National Association of Citizens Advice Bureaux

  The CAB Service asks you to consider the Social Security Bill's order making powers as they relate to claimants' appeals. It is not the ubiquity of such powers which concerns the Service, but rather their loose drafting.

  Key Powers Relating to Appeals

  The appeal tribunals established under Part I should be impartial in deciding disputes between claimants and the Secretary of State; but the Bill transfers the administration of the appeals system from the Independent Tribunal Service into the hands of the Secretary of State. It is in this light that the CAB Service views the regulation making powers of Part I.

  Clauses 6(3) and 7(3) allow the Lord Chancellor to appoint persons to the panel. At present there is a requirement in primary legislation (Social Security Administration Act 1992, section 41(5)) that the chairs be legally qualified. In committee in the House of Commons (col. 158) the Minister accepted that qualifications would be required to hear some cases, but stated that such a requirement was not suitable to primary legislation.

  Clause 8(3)(c) introduces "sifting" into the appeals system. Whereby the Secretary of State may make provision to have cases deemed "hopeless" by those administering the appeals system, and for those administrators to send such cases to a tribunal of one person untrained in law - at present, tribunals are of three members with a legally qualified chair.

  Clause 13(2) allows the Secretary of State to withdraw the right of appeal in circumstances he may prescribe. This is not qualified.

  Clause 13(6) allows the Secretary of State to prescribe the time within which an appeal must be brought. There is no minimum or maximum time stated in the Bill.

  Clause 15(11) is as Clause 13(6) but in respect of appeals from an appeal tribunal to a Commissioner.

  Clause 22(1) allows the Secretary of State to suspend payments of benefit in whatever circumstances he prescribes.

  Clause 35(1) is as Clause 22(1) but in respect of Housing and Council Tax benefits.

  Schedule 1(11) allows those appointed by the Secretary of State to administer the appeals system to make determinations which "would have the effect of preventing an appeal, application for leave to appeal or reference being determined by an appeal tribunal".

  Schedule 2(8) permits the Secretary of State to prevent appeals against "such other decisions as may be prescribed". This is not qualified in the Bill.

  Schedule 5(3) allows the Secretary of State to make "provision as to the striking out of proceedings". At present the Independent Tribunal Service, which administers appeals, may strike out proceeding only "for want of prosecution". It will be immediately apparent that it is a dangerous sea change to move to a position where employees of the Secretary of State strike out proceedings for any reason the Secretary of State prescribes.

  Schedule 5(5) allows the Secretary of State to make "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". Neither minimum or maximum periods are stated. The Government has resisted the inclusion of time limits on the face of the Bill saying that it is inappropriate for primary legislation, although this conflicts with clause 72 which fixes time limits for the backdating of benefits.


  The CAB Service believes that the regulation making powers listed above could be circumscribed without preventing the Secretary of State from implementing her stated intentions. The Service believes such a tightening of the drafting is required to strike an appropriate balance between the DSS's need for flexibility and the claimant's right to be protected from arbitrary power.

  Anton Obholzer

  Parliamentary Officer

  16th December 1997

Letter from the Child Poverty Action Group

  I understand that Anton Obholzer of the NACAB has written to you already regarding the Social Security Bill. Like NACAB, we are concerned about the regulation making powers contained in the Bill. I am writing to add a few points to those they have already made.

  Clause 11

  This gives the Secretary of State the power to make regulations prescribing circumstances in which s/he may make a decision superseding that of an appeal tribunal or Commissioner. At present, the decision of an appeal tribunal or Commissioner can only be "reviewed" by an adjudication officer if the grounds set out in section 25 of the Social Security Administration Act apply. We understand from the debate in Committee that the Government intend to use those same grounds but prefer to put them in secondary legislation. We are concerned, however, that the drafting of clause 11 leaves it open for regulations to be laid permitting the Secretary of State to overturn decisions of a tribunal or Commissioner in a much wider range of circumstances.

  Clause 12

  Clause 12(1) appears to give very wide regulation making powers. We do not know what the Government's intentions are in this respect.

  Clause 40, 41 and 42

  Clauses 40-41 replace sections 16-19 of the Child Support Act (the current child support review provisions.) Clauses 40-41 are much more loosely drawn than sections 16-19. CPAG recognises that some flexibility to amend the rules may be useful. However, we are concerned that the drafting of clauses 40-41 give very wide powers to make regulations and make it very difficult to see what is intended.

  Clause 42(6) mirrors clause 13(6) and allows the Secretary of State to "make provision as to the manner in which, and the time within which, appeals are to be brought".

  Djuna Thurley

  Welfare Rights Worker - Parliamentary Officer

  19th December 1997

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