House of Lords - Explanatory Note
Child Support, Pensions And Social Security Bill - continued          House of Lords

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HOUSING BENEFIT AND COUNCIL TAX BENEFIT

REVISIONS AND APPEALS

Current position

787. Housing benefit and council tax benefit (HB and CTB) are income-related social security benefits which are administered by local authorities (unlike other social security benefits, which are administered by the Secretary of State). Under current legislation, a local authority may review a decision they have made in relation to a HB/CTB claim at any time if there has been a change of circumstances, or the authority considers that the decision was made on the basis of an error of fact or law. Where a person wishes to dispute a decision of a local authority on a HB/CTB claim, regulations provide for an initial, internal, review by the authority, with a right to a further review by a Review Board comprised of councillors from that local authority. A Review Board's decision may be challenged only by way of judicial review.

The measures in the Bill

788. The proposed measures would align the arrangements for decision-making in HB/CTB with those recently introduced in other social security benefits under the Social Security Act 1998*. They provide clearly defined procedures for changing decisions on benefit entitlement and other matters, and place greater emphasis on claimants' own responsibilities for exercising their rights promptly and ensuring that information held on their claims is accurate. They also introduce a right of appeal from local authorities' decisions on HB/CTB claims to an appeal tribunal administered by the Appeals Service agency. HB and CTB Review Boards would be abolished.

COMMENTARY ON CLAUSES

Clause 67: Housing benefit and council tax benefit: revisions and appeals

789. Clause 67 gives effect to Schedule 7. The Schedule sets out the detail of the proposed new provisions for decision-making and appeals in relation to local authority decisions on HB/CTB claims. The provisions of the Schedule are in the main self-contained, but the majority mirror provisions of the Social Security Act 1998 applying to decisions and appeals in the other social security benefits. The Schedule also amends the Social Security Administration Act 1992* (the "Administration Act") so that powers concerning the requirement to provide evidence and information in relation to revising or superseding decisions are extended to HB/CTB, and makes minor amendments to Schedules 1 and 4 to the Social Security Act 1998 to include HB/CTB in provisions under those Schedules.

790. In particular, the Schedule:

  • makes provision for the revision and supersession of local authority decisions;

  • introduces a right of appeal from the local authority decision to an appeal tribunal (as constituted under the Social Security Act 1998);

  • provides right of appeal from a decision of the tribunal, on a point of law, to a Social Security Commissioner.

791. It is intended that regulations made under the powers in this Schedule would closely mirror decision-making provisions for other social security benefits which are contained in the Social Security and Child Support (Decisions and Appeals) Regulations 1999, made under powers in the Social Security Act 1998. The regulations would also amend, where appropriate, the Social Security Commissioners (Procedure) Regulations 1999 to take account of HB/CTB.

Schedule 7

Paragraph 1: Introductory

792. This paragraph defines "relevant authority" and "relevant decision" for the purposes of the Schedule. The paragraph also provides that references to a relevant decision do not include a decision under paragraph 3 to revise a relevant decision.

Sub-paragraph (1) provides that "relevant authority" for the purpose of this Schedule means an authority administering HB or CTB.

Sub-paragraph (2) provides that "relevant decision" for the purposes of this Schedule means:

    (a) a decision of a relevant authority on a claim for HB/CTB;

    (b) decisions under paragraph 4 which supersede a decision falling within (a) above within this paragraph, or within sub-paragraph (1)(b) of that paragraph (decision of an appeal tribunal or Commissioner).

Paragraph 2: Decisions on claims for benefit

793. This paragraph provides that, once a decision has been made on a HB/CTB claim, that claim ceases to exist. This means that if a person's claim fails, but his circumstances subsequently change and he wishes to apply again for benefit, he must make a fresh claim.

Paragraph 3: Revision of decisions

794. This paragraph provides powers for local authorities to revise a HB/CTB decision (whether as originally made, or superseded under paragraph 4), either on application or on their own initiative. Regulations would prescribe the cases, circumstances and period in which a decision could be revised. The paragraph also provides for the date from which the decision takes effect (a revised decision would normally take effect from the same date as the decision being revised) and regulation-making powers to vary that date in certain circumstances. It further provides for the lapsing of appeals where the decision appealed against is revised.

Sub-paragraph (1) provides for the local authority to revise any HB/CTB decision, either on application by a person affected, or on their own initiative. It enables regulations to prescribe the period within which, and the cases or circumstances in which, a decision can be revised. In line with the regulations applying in other social security benefits, it is intended that a person will normally have one month to apply for revision of a HB/CTB decision. The regulations would provide for an extension of the time limit for special circumstances, with an overall time limit of 13 months.

Sub-paragraph (2) provides that when revising a decision the local authority need only consider the particular issue (or issues) raised by the application for revision, or (if acting on their own initiative) which caused them to consider revising the decision.

Sub-paragraph (3) provides that a revision would take effect from the day on which the original decision took effect, unless regulations under sub-paragraph (4) provided otherwise, or if the revision was made after a decision in another case had held that an authority's decision was wrong in law (in which case paragraph 18 would apply).

Sub-paragraph (4) allows for regulations to prescribe cases or circumstances in which the revision shall take effect other than from the date of the original decision. An example would be where the original decision took effect from the wrong date.

Sub-paragraph (5) provides that the period within which an application for appeal may be made (provided for in regulations made under paragraph 6(8)) runs from the date on which the revision was made.

Sub-paragraph (6) provides that, where an appeal has been lodged against a decision which is subsequently revised, the appeal would lapse, except in the circumstances prescribed in regulations. It is the intention that regulations would provide that an appeal continues where the revised decision is not advantageous to the claimant.

Paragraph 4: Decisions superseding earlier decisions

795. This paragraph would allow the local authority to supersede their decision (whether as originally made or as revised under paragraph 3), or, in prescribed circumstances, a decision made by an appeal tribunal or a Commissioner. A decision which supersedes an earlier decision would not normally take effect from the date of the decision being superseded. The local authority would supersede a decision in cases where a revision under paragraph 3 was inappropriate (for example, because there had been a change of circumstances, or in a case where a person did not apply for a revision within one month of the disputed decision). A new decision could be made either in response to an application or on the local authority's own initiative.

Sub-paragraph (1) provides for a local authority to supersede their own decisions, and those of appeal tribunals or Commissioners, both on application or on their own initiative.

Sub-paragraph (2) defines the term "appropriate relevant authority" for the purposes of this paragraph as the authority which made the decision being superseded or appealed.

Sub-paragraph (3) provides that in superseding a decision the local authority need only consider the particular issue (or issues) raised by the application for superseding, or (if acting on their own initiative) which caused them to consider superseding the decision.

Sub-paragraph (4) allows regulations to prescribe cases, circumstances and procedures to enable decisions to be superseded. In line with regulations applying to other social security benefits, it is proposed that, unless a decision falls to be revised, it will be superseded where it is wrong in fact or law. A decision will also be superseded where there has been a relevant change of circumstances.

Sub-paragraph (5) provides that, generally, a supersession would take effect on the day on which it was made or, where applicable, the day on which the application was made, unless regulations under sub-paragraph (6) provide otherwise, or if the revision was made after a decision in another case had held that an authority's decision was wrong in law (in which case paragraph 18 applies).

Sub-paragraph (6) allows for regulations to be made for cases or circumstances in which a decision to supersede an earlier decision would take effect from a different date from the date it is made or the date an application is made. In line with other social security benefits, where a decision is superseded with a decision which is to the claimant's advantage because of a change of circumstances, it is intended that regulations would provide that the new decision may take effect from the date of change, where the change is notified within one month. Otherwise, the new decision would take effect from the date the change is notified, or the date the decision is made where there is no notification. Where a new decision was disadvantageous, it would always take effect from the date of change.

It is also intended that regulations under sub-paragraphs (4) and (6) would include provision for the local authority to supersede a decision of an appeal tribunal or Commissioner where that decision was made in ignorance of, or based on a mistake as to, a material fact, and where the decision of the tribunal was based on a determination of a Commissioner or court in another case which has subsequently been overturned by a (higher) court.

Paragraph 5: Use of experts by authorities

796. This paragraph provides that a local authority may have the assistance of one or more experts, where it appears to them that a question of fact in relation to a decision requires special expertise. This provision enables the local authority to seek advice from, for example, an accountant where there was an issue surrounding income from self-employment.

Paragraph 6: Appeal to appeal tribunal

797. Paragraph 6 sets out which decisions may be appealed, by whom, when and how. It requires that a person who has a right of appeal shall be notified of that fact, and provides relevant regulation-making powers.

Sub-paragraph (1) sets out those decisions which may be appealed, namely local authority decisions (whether as originally made, or as revised under paragraph (3) or superseded under paragraph (4)), on claims for, or awards of, HB/CTB and other prescribed decisions (subject to the provisions of sub-paragraph 2).

Sub-paragraph (2) provides that no appeal lies against:

    (a) a decision terminating or reducing an award of HB/CTB made in consequence of a decision made under regulations under section 2A of the Administration Act (work-focused interviews);

    (b) a local authority decision on any modification of the HB/CTB schemes under section 134(8)(a) or 139(6)(a) of the Administration Act (disregard of war disablement and war widows' pensions);

    (c) the decision of a rent officer under an order made by virtue of section 122 of the Housing Act 1996 (decisions of rent officers for the purpose of housing benefit);

    (d) a decision determined by the rate of benefit provided for by law (for example, the rate of personal allowance used in the calculation of benefit entitlement, which is set annually by the Secretary of State and approved by Parliament);

    (e) any other decision prescribed in regulations.

It is proposed that regulations made under (e) above will, in line with other benefits, cover decisions which may broadly be termed "administrative", for example, the method of paying benefit. These regulations would be subject to affirmative resolution.

Sub-paragraph (3) provides that a person affected by a local authority decision to which this paragraph applies has a right of appeal to an appeal tribunal (defined in paragraph 23 as an appeal tribunal constituted under Chapter 1 of Part I of the Social Security Act 1998).

Sub-paragraph (4) provides that sub-paragraph (3) shall not confer a right of appeal against a prescribed decision, nor against determinations which are embodied in the final decision.

Sub-paragraph (5) clarifies the nature and limitations of the regulation-making power in subsection (4). It is explicit that the regulations shall not include any decision which relates to the conditions of entitlement to HB/CTB for which a claim has been validly made.

Sub-paragraph (6) provides that, where there is a decision that there is an overpayment of HB or CTB which is recoverable, any person from whom the local authority decides the overpayment is recoverable shall have a right of appeal to an appeal tribunal.

Sub-paragraph (7) provides for a person with a right of appeal to be given notice of a decision and right of appeal, as prescribed in regulations.

Sub-paragraph (8) provides for regulations setting out the manner and time for making appeals. It is intended that the regulations would provide for a time limit of one month from the date of the decision within which to ask for a revision of a decision (under paragraph 3) or lodge an appeal. If a person asks for a revision, he would have a further month from the date on which the local authority notifies him of the result of their reconsideration of the disputed decision in which to lodge an appeal. These time limits would bring HB/CTB into line with other social security benefits.

Sub- paragraph (9) provides that an appeal tribunal need not consider issues which are not raised on the appeal, and shall not take account of any changes of circumstances that have occurred since the appealed decision was made.

Paragraph 7: Redetermination etc. of appeals by a tribunal

798. This paragraph provides for cases to be re-heard by an appeal tribunal where the tribunal has made an error of law or where the parties to an appeal agree that the tribunal has made an error of law.

Sub-paragraph (1) provides for cases in which an appeal tribunal can redetermine an appeal as being those where an application for leave to appeal to a Commissioner has been made.

Sub-paragraph (2) allows the person who constituted, or was the chairman of, the tribunal when the decision under appeal was given (or, in prescribed cases, such other person as may be prescribed), to set aside the decision under appeal, if he considers that there was an error of law, and to refer the case for redetermination by the same, or a differently constituted, tribunal.

Sub-paragraph (3) requires that a decision be set aside and redetermined by a differently constituted tribunal where each of the principal parties to the appeal express the view that there was an error of law.

Sub-paragraph (4) defines who the principal parties to appeals are for the purpose of subsection (3) above and for paragraph 8, namely:

    (a) the Secretary of State, where he is the applicant for leave to appeal from the decision of the appeal tribunal to the Commissioner, or in circumstances prescribed by regulations;

    (b) the local authority against whose decision the appeal to the appeal tribunal was brought;

    (c) the person affected by that decision, or by the tribunal's decision on that appeal.

It is intended that regulations under sub-paragraph 4(a) may provide, for example, that where a case is drawn to Secretary of State's attention in which he believes there has been an error of law, he may draw that fact to the appeal tribunal's attention, even though he is not an applicant for leave to appeal.

Regulations made under paragraph 23 would define who is a person "affected" for the purposes of this Schedule.

Paragraph 8: Appeal from tribunal to Commissioner

799. Paragraph 8 sets out the powers of the Commissioner and who may appeal to the Commissioner, on what grounds, when and how. This paragraph mirrors provisions of section 14 of the Social Security Act 1998. It is intended that the regulations made under that section, which are contained in the Social Security Commissioners (Procedure) Regulations 1999, would be amended where necessary to take account of HB/CTB.

Sub-paragraph (1) provides a right of appeal from any decision of an appeal tribunal to a Commissioner on the ground that the decision of the tribunal was erroneous in point of law.

Sub-paragraph (2) specifies that the persons who have a right of appeal to a Commissioner are the Secretary of State, the local authority against whose decision the appeal to the appeal tribunal was brought and a person affected by that decision.

Sub-paragraph (3) provides that a Commissioner may set aside a decision of an appeal tribunal and refer the case to another tribunal for a fresh determination, provided all the principal parties to the appeal express the view that the original decision was erroneous in point of law.

Sub-paragraph (4) provides for a Commissioner to set aside a decision of an appeal tribunal where he holds that the decision appealed against was erroneous in point of law.

Sub-paragraph (5) enables the Commissioner, where he has set aside an appeal tribunal's decision under sub-paragraph (4): (a) to give the decision he considers the tribunal should have given, if he can do so without making fresh or further findings of fact; (b) to make such findings of fact and, in the light of them, to give the decision he considers appropriate; or (c) to refer the case to a tribunal with directions for its determination.

Sub-paragraph (6) provides that references made under sub-paragraphs (3) or (5) shall be to an appeal tribunal differently constituted from the tribunal which gave the original decision, unless otherwise directed by the Commissioner.

Sub-paragraph (7) provides for leave to appeal to be given by the person who constituted, or was the chairman of, the tribunal when the decision was given, or, in prescribed cases, by another person prescribed in regulations or by a Commissioner.

Sub-paragraph (8) provides for regulations to make provision as to the manner and time in which appeals and applications for leave to appeal should be made.

Paragraph 9: Appeal from Commissioner on a point of law

800. Paragraph 9 sets out provisions in respect of appeals from the decision of the Commissioner, what may be appealed, when and how. Appeals may be made to the appropriate court in England and Wales or Scotland. This paragraph mirrors provisions of section 15 of the Social Security Act 1998. It is intended that the regulations made under that section, which are contained in the Social Security Commissioners (Procedure) Regulations 1999, would be amended where necessary to take account of HB/CTB.

Sub-paragraph (1) allows an appeal on a point of law to the appropriate court from any decision of a Commissioner.

Sub-paragraph (2) provides that appeals can only be made with the leave of a Commissioner (either the Commissioner who gave the decision or, in prescribed cases, by another Commissioner selected in accordance with regulations) or, if the Commissioner refuses leave, with the leave of the appropriate court.

Sub-paragraph (3) specifies the persons who may apply for leave to appeal; namely, (a) a person who was entitled to appeal to the Commissioner, (b) any other person who was a party to the proceedings, and (c) any other person authorised by regulations to apply for leave. It also allows for regulations to make provision in relation to manner, time limit and procedure as to applications for leave to appeal.

Sub-paragraph (4) requires the Commissioner to specify, on an application for leave to appeal, the appropriate appeal court by reference to the dwelling in respect of which HB/CTB was awarded, namely, the Court of Appeal, where the dwelling is in England and Wales, and the Court of Session where the dwelling is in Scotland. A different appeal court will be specified, irrespective of where the dwelling is situated, if necessary, having regard to the circumstances of the case and the convenience of the parties.

Sub-paragraph (5) defines terms used in this paragraph.

Paragraph 10: Procedure

801. This paragraph provides for regulations to set out such procedures relevant for the purposes of this Schedule as are specified in Schedule 5 to the Social Security Act 1998. It also provides for Commissioners to have the assistance of experts in cases of special difficulty, and for tribunals of three or more Commissioners where there is a question of law of special difficulty. This paragraph mirrors provisions of section 16 of the Social Security Act. It is intended that regulations made under that section which are contained in the Social Security Commissioners (Procedure) Regulations 1999 would be amended where necessary to take account of HB/CTB.

Sub-paragraph (1) enables provision to be made in regulations as to procedural matters for HB/CTB decision-making and appeals. These would reproduce provisions in regulations made under Schedule 5 to the Social Security Act 1998 in respect of other social security benefits.

Sub-paragraph (2) provides that regulations specifying procedure to be followed in cases before a Commissioner shall provide for the hearing to be heard in public, unless the Commissioner, for special reasons, otherwise directs.

Sub-paragraph (3) provides that the power to prescribe procedure includes the power to make provision (a) for appellants to be represented at hearings by another person (regardless of whether that representative has professional qualifications); and (b) to confer on the Secretary of State the right to be heard in any proceedings before a Commissioner to which he is not already a party.

Sub-paragraph (4) provides that, if a matter before a Commissioner involves an especially difficult question of fact, he may direct that he should have expert assistance from one or more persons with relevant knowledge or experience.

Sub-paragraph (5) provides that the Chief Commissioner (or, if he is unable to act, any other Commissioner who has been nominated to act in his place) can direct that an appeal, or an application for leave to appeal, which involves a question of law of special difficulty be heard by a tribunal of three or more Commissioners.

Sub-paragraph (6) provides that, if the decision of the tribunal of Commissioners is not unanimous, the decision of the majority shall be the decision of the tribunal. In a case where votes are equally divided, the presiding Commissioner shall have a casting vote.

Sub-paragraph (7) ensures that the reference in paragraph 8(7)(b) to applications for leave to appeal being determined by a Commissioner may be construed as a reference to a tribunal of Commissioners when appropriate.

Sub-paragraph (8) provides that Part I of the Arbitration Act 1996 (which relates to arbitration pursuant to arbitration agreements) shall not apply to any proceedings under this Schedule, unless regulations provide otherwise in relation to England and Wales.

Paragraph 11: Finality of decisions

802. This paragraph provides that any decision made under the preceding provisions of this Schedule is final unless it is revised, superseded or appealed.

Paragraph 12: Matters arising as respects decisions

803. Paragraph 12 provides for regulations in respect of matters arising whilst a decision is pending, and those arising out of a revision of, or an appeal from, a decision. The intention is that regulations are to be made to allow an interim decision pending a decision by the local authority, an appeal tribunal or Commissioner which relates to a claim for or entitlement to HB/CTB. It would also enable provision to be made in regulations for matters arising out of the revision or appeal of such a decision.

Paragraph 13: Suspension in prescribed circumstances

804. This paragraph provides for regulations to be made for suspending payments of HB/CTB and the subsequent making of any payments so suspended in prescribed circumstances. It replaces sections 5(1)(n) and (o) and 6(1)(n) and (o) of the Administration Act.

Sub-paragraph (1) gives a power for regulations to: (a) set out the circumstances in which payments of HB/CTB may be wholly or partially suspended; (b) prescribe circumstances in which any reduction by way of CTB in a person's council tax liability may be partly or wholly suspended; and (c) prescribe the circumstances in which any or all the suspended payments are to be restored.

Sub-paragraph (2) provides that regulations under sub-paragraph (1) above may, in particular, cover cases where (a) there is a doubt as to whether the conditions of entitlement to benefit are met; (b) there is a question as to whether a decision may need to be revised or superseded; (c) an appeal against a decision of an appeal tribunal, a Commissioner or a Court is pending; or (d) the local authority considers that an award of HB/CTB might need to be revised or superseded after a decision is given on appeal in a different case by a Commissioner or a court. Sub-paragraph (3) defines "pending" for the purposes of this sub-paragraph.

Sub-paragraph (4) clarifies that the reference in sub-paragraph (2)(d) to a different case includes a case involving a different local authority, but does not include a case relating to a benefit other than HB or CTB.

Paragraph 14: Suspension for failure to furnish information etc

805. This paragraph provides a regulation-making power so that payments of benefit may be suspended where a person fails to provide information needed to determine whether a decision on an award of benefit should be revised or superseded.

Sub-paragraph (1) provides that the power to suspend in this paragraph applies to failure to comply with information requirements (defined in sub-paragraph 3).

Sub-paragraph (2) enables regulations to: (a) set out the circumstances in which payments of HB/CTB may be wholly or partially suspended; (b) prescribe circumstances in which any reduction by way of CTB in a person's council tax liability may be partly or wholly suspended; and (c) prescribe the circumstances in which any or all the suspended payments are to be restored.

In line with other social security benefits, it is proposed that regulations will provide that, as a general rule, payment of benefit may be suspended, in whole or in part, if the person fails to provide the requested information within one month of being asked.

Sub-paragraph (3) defines an information requirement, for the purposes of this paragraph and paragraph 15, as being a requirement under regulations made under section 5(1)(hh) or 6(1)(hh) of the Administration Act, as amended by paragraphs 21(2) and 21(3) of the Schedule, with respect to the provision of information and evidence needed to determine whether a decision on an award of HB/CTB should be revised or superseded.

 
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