Select Committee on Delegated Powers and Deregulation Thirteenth Report


PART III

SOCIAL SECURITY - LOSS OF BENEFIT

INTRODUCTION

321.  The measures in the Bill will give the Secretary of State for Social Security the power to withdraw, or reduce, benefit where a person fails to comply with a designated community sentence. The sanction will be for a fixed period (to be set in regulations) and will commence when the benefit office receives a notification from the probation service confirming that a person has been referred to Court for failing to comply with such a community sentence.

322.  In the Department's view the technical detail required for the operation of these measures is most appropriate to secondary legislation. In addition, using regulations will provide flexibility to respond to the findings in respect of the detailed operation of the measures, from the evaluation of the pilot exercise, before national roll-out.

CLAUSE 61: LOSS OF BENEFIT FOR BREACH OF COMMUNITY ORDER

323.  Clause 61 provides for benefit to be reduced (in respect of Income Support) or withdrawn (in respect of Jobseeker's Allowance or Training Allowances), where an offender is in breach of a "relevant community order". Subsection (2) provides that the relevant benefit shall not be payable for the prescribed period. This is covered in the section on clause 64.

324.  Benefit withdrawal or reduction under subsection (1) is triggered when an offender is referred back to Court for failing to comply with the terms of their community sentence. In England and Wales this will happen when the probation service lays an information at the court; in Scotland, when proceedings are commenced by the issue of a warrant by the Court. At this point, the Probation Service, or the court (in Scotland) will notify the Secretary of State that the offender has been referred to Court for an alleged breach.

325.  Subsection (3) allows the Secretary of State to prescribe regulations providing that the amount of Income Support payable for the prescribed period (see note on clause 64) shall be ascertained by reducing the offenders' applicable amount in a prescribed manner. Such regulations will be used to provide for Income Support to be reduced by 20% of the appropriate single person's personal allowance if a member of the family is either pregnant or seriously ill, and by 40% of the appropriate single person's personal allowance in all other cases.

326.  Subsection (4) allows the Secretary of State to provide in regulations that income-based Jobseeker's Allowance (JSA(IB)) may be paid during all, or part, of the period in respect of which JSA(IB) is not payable pursuant to this clause. The amount of such payments and the conditions for their receipt, will be modelled on the provisions that currently apply where JSA is withdrawn because of a labour market sanction (eg: refusing employment). In these cases, if hardship is established and the claimant satisfies the other conditions of entitlement, the claimant will be awarded a reduced payment of JSA(IB). The reduction is normally a sum equivalent to 40% of the appropriate single person's allowance, whether or not the claimant is a single person. However, if a member of the family is either pregnant or seriously ill, the reduction is 20%.

327.  There will be one feature of the hardship payments which will be unique to these provisions, that is the treatment of training premiums. Any New Deal top up payment or Training Premium will be completely disregarded by the decision maker when determining applications for hardship payments.

328.  Subsection (5) allows the Secretary of State to make regulations prescribing the extent to which a training allowance will be payable during the period to be prescribed under clause 64. The regulations will provide for a training allowance to be withdrawn to the extent that it equates to Jobseeker's Allowance but will also provide that training top-up premiums will continue to be paid during a period when a sanction applies under this Part.

329.  Subsection (8) allows the Secretary of State to prescribe regulations which will limit the period for which a notification from the Probation Service or in Scotland, from the Court, that breach proceedings have commenced, remains valid. The need for such a regulation will be monitored during the pilot exercise. The concern is that if there are significant delays in processing, a benefit sanction might take effect an unacceptably long time after the Secretary of State was initially notified of the breach, for example, not until after a relevant community order has become spent. If there is evidence of this happening, then regulations will be brought in to cover this. This power is appropriate to secondary legislation because the Department wishes to use the evaluation to determine whether it is necessary to exercise the power and, if so, what the appropriate period should be.

330.  Paragraph (c) of the definition of "relevant benefit" in subsection (9) allows the Secretary of State to prescribe which other benefits under the Social Security Contributions and Benefits Act 1992 may be a relevant benefit for the purposes of the loss of benefit provisions. Such regulations would be subject to the affirmative procedure (clause 64(4)(a)).

331.  Under paragraph (d) of that definition, the Secretary of State may also prescribe, for England and Wales only, which types of training allowance under section 2 of the Employment and Training Act 1973 will be subject to the loss of benefit provisions. The application to this paragraph to Scotland by subsection (11)(d)(i) disapplies the loss of benefits provisions in respect of any payments made by the Scottish Ministers under section 2 of the 1973 Act.

332.  For the pilot exercise, the following Training Allowances will be brought into the scope of this measure:

  • Work-Based Learning for Adults. This is the main Government-funded training scheme for adults.
  • The New Deal for Young People. This is the main Government-funded programme for young people aged 18 to 24.
  • No other Government-funded scheme or programme currently attracts a benefit-equivalent allowance. If new schemes of this type are introduced (before the start of the pilots), they will be considered separately.

333.  Paragraph (d) of the definition of "relevant community order" in subsection (9) allows the Secretary of State to prescribe community orders other than those coming within paragraphs (a) to (c) of that definition for the purposes of the loss of benefit provisions. Such regulations would be subject to the affirmative procedure (clause 64(4)(b)). A comparable provision applies for Scotland under the application made by subsection (11)(d)(ii).

CLAUSE 62: LOSS OF JOINT-CLAIM JOBSEEKER'S ALLOWANCE

334.  This clause explains how the Community Sentences benefits sanction will apply to joint-claim Jobseeker's Allowance as introduced by section 59 of, and Schedule 7 to, the Welfare Reform and Pensions Act 1999.

335.  Subsection (2) of clause 62 provides that the relevant benefit shall not be payable for the prescribed period. This is explained in the section on clause 64.

336.  Subsection (3)(a) states that the amount payable shall be calculated using a method to be prescribed. The method is set out in subsection (4), which states that the reduced amount payable will be calculated in the manner prescribed in section 20A of the Jobseekers Act 1995.

337.  Subsection (7) provides the Secretary of State with the same powers in relation to joint-claim Jobseeker's Allowance, as he has in relation to other relevant benefits by clause 61(8) to limit the period that a notification from the Probation Service or, in Scotland, the Court remains valid.

CLAUSE 63 INFORMATION PROVISION.

338.  This clause prescribes the procedures which will be necessary before the loss of benefit provisions can take effect. These relate to informing the offender of the consequences of a failure to comply with a relevant community order and for the information which needs to be exchanged between all the relevant parties.

339.  Subsection (2) allows the Secretary of State to require, by regulations, the Chief Probation Officer for any area in England and Wales, or such other prescribed person (being a member of the Probation Service), to notify him at the prescribed time and in the prescribed manner, of the laying of an information relating to an alleged breach of a relevant community order, of any prescribed information about the offender which that person has, and of any other circumstances which may relate to the reduction or withdrawal of a relevant benefit.

340.  A different approach is taken for Scotland, as set out in subsection 3, because the proceedings for breach of a community order are instituted by the Procurator Fiscal based on information provided to him by, for example, a social worker or probation officer. Consequently the power is given to the High Court of Justiciary in Scotland (which is a criminal court) to make Rules of Court (referred to as Acts of Adjournal) to provide for the clerk of the court in which the proceedings for breach of the community order have been commenced, notifying the Secretary of State of the commencement, of such information about the offender as may be set out in the Act of Adjournal, and of any circumstances where, as a result of those proceedings being withdrawn or of the offender having a reasonable excuse for his breach of the community order, a payment of benefit or an adjustment to benefit may have to be made to him.

341.  Under this power also the Act of Adjournal will specify how and when notification is to be made to the court by the Secretary of State.

342.  These rules of the criminal court are not made by the Secretary of State. The intention is that the Department will consult with the rule-making body at the High Court about the content of the rules and draw its attention to what is proposed for England and Wales.

343.  The information which the rules may prescribe to be given to the Secretary of State about the offender can, of course, only be that information which is known to the Clerk of Court and which is relevant for the purposes of withdrawing or the reinstatement of benefit. The Court Rules will prescribe when and how the Clerk of Court is to notify the Secretary of State of the commencement of proceedings for breach of the relevant community order.

344.  Regulations under subsection (2) will allow the Secretary of State to prescribe the format that the notification (in respect of England and Wales) should take. The intention is that regulations will set out the precise details required in each case. The information required (subject to it being relevant or available) is likely to be:

  • full name;
  • date of birth;
  • National Insurance number;
  • home address;
  • any other name they have been known by;
  • previous address if recently changed;
  • any benefit in payment;
  • address of benefits office dealing with their last claim;
  • sentencing court, and date, of community sentence;
  • date on which breach proceedings were instigated (ie: date information laid at Court).

345.  In addition to notifying the benefits office when proceedings are commenced, regulations under subsection (2)(b) will set out how and when the Probation Service will inform the benefits office when a case is either withdrawn or the Court decides that a breach has not occurred. On receipt of a notification of this type, any arrears of benefit will be repaid, in full, providing the other conditions for receipt of benefit have been met during the period of the sanction.

346.  Subsection (5) allows the Secretary of State to make regulations about the use and supply of information relating to community orders and social security. Regulations made under this subsection will prescribe:

  • how information about community orders and social security may be used for the purposes of the loss of benefit provisions by those involved in implementing those provisions (paragraph (a));
  • how such information will be supplied to persons involved in the procedure and others (paragraph (b)); and
  • the purposes for which such information may be used (the only purpose to be permitted will be in connection with the loss of benefit provisions and its evaluation and monitoring).(paragraph (c).)

347.  Subsection (7) provides that the powers in subsection (5) may be used to authorise information supplied to a person under the regulations, to be used to update information held by that person or any other person to whom that information could be supplied. As an example, the notification from the Probation Service or in Scotland, the Court, may contain a different address than that held by the benefits office. They could then pass that information to a local authority who may be making a decision on that person's claim for housing benefit.

CLAUSE 64: LOSS OF BENEFIT REGULATIONS

348.  This clause contains general provisions relating to the regulation-making powers under the "loss of benefit" provisions contained in clauses 61 to 65.

349.  Subsection (1) defines "prescribed" for the purposes of these provisions.

350.  For the duration of the pilot schemes to be undertaken, the prescribed period will be 4 weeks. Clauses 61(7) and 62(6) provide that the maximum period of the sanction will be 26 weeks. This provides some flexibility to respond to the findings of the evaluation of the pilots, while providing an upper limit on the length of the sanction which is in line with the upper limit relating to other labour market sanctions. If there was no upper limit specified in the primary legislation, there would be no limit on the powers of the Secretary of State to increase the period without further reference to Parliament.

351.  Subsection (2) allows regulations to specify the date on which the sanction will commence. For the pilot exercise, the intention is that the sanction will commence from the first day of the benefit week following the decision to impose the sanction, made by the decision maker in the benefits office.

352.  Subsection (3) provides that all regulations under these provisions, except for those extending the range of benefits, or types of community sentence covered, shall be made by the negative resolution procedure. Subsection (4) specifies the powers for which the affirmative resolution procedure is required.

353.  Subsection (5) applies section 189(4) to (6) of the Social Security Administration Act 1992 to the powers to make regulations under the loss of benefit provisions. This will allow regulations to be made under those powers which apply, subject to specified exceptions or in relation to any specified case or classes of case. In particular, this will enable the Secretary of State to specify in regulations that notifications in relation to the laying of informations shall only be made in respect of those offenders aged between 18 and 59. This subsection will also allow such regulations to make such incidental, consequential or transitional provision as may be necessary or to allow a discretion to be exercised.

354.  Subsection (6) explains that regulations in respect of these powers may vary in different areas. This is to allow for these provisions to be piloted.

355.  Subsection (7) allows regulations to be made which modify clause 61 to reflect particular features of new types of community orders which may be introduced in Scotland that would require that clause to be amended (e.g. if a new type of sentence was introduced with different procedures for initiating breach proceedings).

HOUSING BENEFIT AND COUNCIL TAX BENEFIT

CLAUSE 67 (SCHEDULE 7) - HOUSING BENEFIT AND COUNCIL TAX BENEFIT: REVISIONS AND APPEALS

INTRODUCTION

356.  Schedule 7 provides a new system of local authority decision-making and appeals in the Housing Benefit and Council Tax Benefit schemes.

357.  The Schedule contains a range of regulation-making powers designed to ensure that the Secretary of State, or where necessary the Lord Chancellor or Ministers in the Scottish Parliament, have the appropriate powers to introduce regulations that will enable a system of decision-making and appeals, which will align with that already in use for other social security benefits, to apply. The intention is to mirror closely the existing decision making and appeals regulations for other social security benefits.

358.  Paragraph 3(1) enables regulations to prescribe the time limits, circumstances and procedures to revise a decision made by a relevant authority. The regulations would lay down the details of how and in what circumstances a decision is to be revised by the decision maker (the local authority) and include set time limits for making the application for revision, for dealing with an application for revision and a requirement on the claimant to provide further information when it is required of them.

359.  In most cases a revision will be effective from the date of the original decision on the issue. Paragraph 3(4) provides that regulations would prescribe the cases or the circumstances, when the revision is to take effect from a different date. The intention is to mirror the current regulations for other social security benefits. In the past this power has been used to provide that in cases where there has been an official error, for example where the original decision took effect from the wrong date, the error is corrected.

360.  Paragraph 3(6) provides that in prescribed circumstances some appeals will not lapse when they have been revised under paragraph 3 before the appeal is heard. The intention is to introduce regulations that would enable the appeal to continue where, for example, the revision was not favourable to the claimant.

361.  Paragraph 4(4) provides that regulations will prescribe the cases and the circumstances in which a relevant authority may supersede an earlier decision. The intention is to introduce regulations that would provide that a decision is superseded for example if it is wrong in fact or in law or where there has been a relevant change of circumstances. Regulations will prescribe the procedure by which a decision may be suspended.

362.  Paragraph 4(6) provides that regulations may prescribe that, in certain circumstances or cases, the date a decision to supersede is to take effect is a date other than the date the supersession or the application is made. In some cases a supersession may need to be effective from the date of the original decision. For example, we have introduced regulations to provide for cases where there has been a supersession of a decision to the claimant's advantage following the notification of the change of circumstances. If the claimant has notified the change within one month then the supersession will take effect from the date of the change. If the claimant has delayed notifying the change then the supersession will come into effect from the date of the notification. It is intended to introduce regulations that will reflect those in place for other benefits.

363.  Paragraph 6(1)(b) enables regulations to be introduced that would prescribe further decisions that may be appealable. This provides for future flexibility to enable the scheme to be amended to reflect changing needs.

364.  Paragraph 6(2)(e) enables regulations to be introduced that would prescribe other decisions that will not be appealable (any regulations will be subject to affirmative resolution by both Houses.) Paragraph 6(2) sets out the decisions against which it is intended no appeal will lie. We intend that any further items would be of an administrative nature, for example the method of paying benefit.

365.  Paragraph 6(4) provides that nothing in paragraph 6(3) (which provides that any person affected by the decision made under this paragraph shall have the right of appeal) would give a right of appeal in relation to a prescribed decision or against a determination embodied in the final decision. The intention is that people will only be able to appeal those decisions which are not prescribed and will appeal against the final decision, not any of the determinations that may have been made in order to come to the final decision.

366.  Paragraph 6(5) limits the power to make regulations under paragraph 6(4) above. It will ensure that such regulations will not include any decision that relates to conditions of entitlement for Housing Benefit or Council Tax Benefit if a claim has been validly made.

367.  Paragraph 6(7) enables regulations to prescribe, for the person with the right of appeal, the notice of the decision and of the right of appeal.

368.  Paragraph 6(8) provides for regulations to be introduced that would prescribe the manner and time for making appeals. The intention is that regulations would provide a one month time limit from the date of the decision within which to ask for a revision of a decision or lodge an appeal. If a person asks for a revision they would have a further month from the date on which the relevant authority notifies them of the result of their reconsideration of the question to make an appeal.

369.  Paragraph 7(4) defines the main parties to an appeal and provides that regulations may prescribe that where the Secretary of State is not the applicant there may be other circumstances when he would want to be a party to the appeal. For example if he has been made aware that there may have been an error in law the Secretary of State may wish to bring this to the attention of the tribunal.

370.  Paragraph 8(7)(b) provides that regulations may prescribe that leave to appeal to a Commissioner may be given by a Commissioner.

371.  Paragraph 8(7)(c) provides that in prescribed circumstances regulations may prescribe that leave to appeal to a Commissioner may be given by someone other than the person who constituted the tribunal, or the chairman of the tribunal when the decision was given, or a Commissioner. The intention is that regulations would be introduced to ensure that, if it is impracticable or it would cause undue delay to refer the application to the tribunal or chairman of the tribunal then the application for leave to appeal shall be heard by a legally qualified panel member.

372.  Paragraph 8(8) provides for regulations to prescribe the manner and time for making an appeal and any applications for leave to appeal, against a decision of the appeal tribunal and for applications to the Social Security Commissioners for leave to appeal on a point of law. The intention is to introduce similar regulations for Housing Benefit and Council Tax Benefit to those introduced for other benefits. These would include a set time limit for making an appeal (one month is the intended limit, but there will also be a provision which will set out the grounds for accepting a late appeal) and the need for the representations to be made in writing.

373.  Paragraph 9(2) provides that regulations would prescribe the criteria by which another Commissioner would be selected to consider an application for leave to appeal on a case on which he has not made a decision. The intention to is to mirror the procedures currently used by other benefits so that one Commissioner may transfer proceeding to another Commissioner if it become impractical or inexpedient for the original Commissioner to continue.

374.  Paragraph 9(3) will provide for regulations to cover an appeal made against a decision of the Social Security Commissioner on a point of law. The power would enable the introduction of regulations, similar to those for other benefits, which will prescribe the manner and time for such an appeal, for applications for leave to appeal to be made and for the procedures for dealing with such applications.

375.  Paragraph 10(1) introduces a power for regulations made under Schedule 5 of the Social Security Act 1998 to apply for Housing Benefit and Council Tax Benefit under this Schedule. This will ensure that Housing Benefit and Council Tax Benefit procedures fit with those provided for the other benefits covered by Schedule 5. Schedule 5 sets out the provisions relating to procedure which can be made by regulations for decision making by the relevant authority, an appeal tribunal or a Social Security Commissioner. These cover such areas: the withdrawal of claims, applications for appeals or references to be decided or determined by the relevant authority, appeal tribunal, or a Commissioner; striking out of proceedings; the form of documents and the evidence required; the time allowed for producing evidence and making an appeal, application or reference; summoning persons to attend for the purpose of giving evidence and for authorising the administration of oaths to witnesses; the procedure to be followed on appeals to and in other proceedings before appeal tribunals; an appeal tribunal to give directions for disposing of a case which is outside the jurisdiction of that tribunal; and the tribunal to refrain from disclosing medical advice or medical evidence given or submitted to the tribunal for the purposes of a determination.

376.  Paragraph 10(2) is an enabling power that provides that the regulations for the procedure to be followed in a case to be heard before a Commissioner would require that hearing will be in public unless the Commissioner has special reasons to direct otherwise.

377.  Paragraph 10(3)(a) provides that the regulations to be introduced for procedures would include a power to enable one person to be represented by another. The regulation would also provide that there is no requirement that the representative is professionally qualified.

378.  Paragraph 10(3)(b) provides that regulations would give the right of the Secretary of State to be represented and heard at any proceedings before a Commissioner to which he is not already a party.

379.  Paragraph 10(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 are introduced to provide otherwise for England and Wales. Similar powers have been introduced into the Social Security Act 1998 for other benefits; the intention is to ensure that any regulations deemed necessary in the future will be applicable across all benefits.

380.  Paragraph 12 provides for regulations in respect of matters arising whilst a decision is pending and those arising out of a revision of or appeal from a decision. The intention is that regulations would allow an interim decision to be made pending a decision from a relevant authority, an appeal tribunal or a Commissioner. The power is limited to issues in connection with the claim for Housing Benefit or Council Tax Benefit or the person's entitlement to or receipt of these benefits.

381.  Paragraph 13(1) the power in this paragraph will enable regulations to be introduced that will enable the payment of benefit to be suspended in whole or in part. They will also allow the reduction in council tax liability (by the award of council tax benefit) to be suspended in whole or in part. The paragraph replaces similar provisions contained in section 35 of the 1998 Act. The power will also enable regulations to provide in certain circumstances for the making, restoration of any or all of the payments or reductions that were suspended. This will mean that if there is a question about a claimant's continuing entitlement to benefit, payment of that benefit may be temporarily halted whilst the issue is resolved.

382.  Paragraph 13(2) provides the particular circumstances for the regulations provided for in paragraph 13(1). These cover where there is an issue about if the conditions of entitlement are satisfied; whether a decision should be revised or superseded; if there is an appeal pending against a decision of an appeal tribunal, a Commissioner or a Court; or if there is an appeal pending in another case which is directly relevant to the issue awaiting decision.

383.  Paragraph 13(3)(c) enables regulations to be introduced, where an appeal against a decision is pending, that would prescribe the circumstances in which the time limit for an application for leave to appeal may be made or an appeal against a decision may be brought.

384.  Paragraph 14(2) provides that regulations may provide for the suspension of payment where a person has failed to provide the information requested. The regulations would enable the payment of benefit to be suspended in whole or in part. They will also allow the reduction in council tax liability (by the award of council tax benefit) to be suspended in whole or in part. The power will also enable regulations to provide in certain circumstances for the making, restoration of any or all of the payments or reductions that were suspended.

385.  Paragraph 15(1) provides that regulations may be introduced which provide that where a claim is suspended under paragraphs 13 and the claimant subsequently fails to supply information required, or under paragraph 14 and the claimant fails to supply the information required, their entitlement to benefit will cease but from a date not before the date of the suspension. Regulations may provide for exceptions.

386.  Paragraph 16(3) provides the power to prescribe the circumstances where the relevant authority would be required to make a decision on a case where the outcome of a lead case might affect the decision on a case. This would be used to introduce regulations that would ensure that a decision would be made if the claimant would be entitled to the benefit to which the decision relates even if the appeal in the other case is decided in a way that is unfavourable to him.

387.  Paragraph 16(5) defines when an appeal is pending in a lead case for the purposes of this paragraph. The regulations provided for would cover cases where an appeal has not been brought, or an application for appeal has not been made, but the time limit for doing so has not expired. This would cover the situation where the local authority has received a decision of an appeal tribunal or a Commissioner and is considering whether they should seek leave to appeal.

388.  Paragraph 17(6) defines when an appeal is pending in a lead case for the purposes of this paragraph. The regulations provided for would cover cases where an appeal has not been brought, or an application for appeal has not been made, but the time limit for doing so has not expired. This would cover the situation where the local authority has received a decision of an appeal tribunal or a Commissioner and is considering whether they should seek leave to appeal.

389.  Paragraph 17(9) provides that regulations maybe introduced to supplement the other provisions in this paragraph for appeals involving issues that arise on appeal in other cases. This power would allow the provisions for operating the "staying" process to be refined or clarified if necessary in the light of experience. It has not yet been necessary to use the similar provisions provided under the Social Security Act 1998 for other benefits.

390.  Paragraph 18(8) provides that regulations may be introduced to prescribe how the date of the relevant determination is to be determined. This will cover the circumstances where the outcome of an appeal overturns the understanding of the law previously applied, which means that decisions in other cases are wrong and now need to be reconsidered.

391.  Paragraph 18(9) provides that the regulations would include provision for the determination of a higher court to be treated as if it had been made on the date of a determination by a lower court or Commissioner; or for a determination of a lower court, or of a Commissioner to be treated as if it had been made on the date of the determination of the higher court.

392.  Paragraph 19(1)(a) and (b) is an enabling power for regulations to correct accidental errors in a decision or the record of a decision, and the setting aside of any such decision on the ground that papers relating to the proceedings were not sent, or not received, at an appropriate time by a party to the proceedings. The regulations may also provide that if a party to the proceedings, or their representative, was not present at a hearing the decision may be set aside.

393.  Paragraph 20(1) provides that the Lord Chancellor Department (and Ministers in the Scottish Parliament for Scotland) would make regulations involving proceedings before Commissioners and that all the other regulations provided for in the Schedule would be made by the Secretary of State.

394.  Paragraph 20(2) provides that regulations may provide for different provision for different areas or different relevant authorities. This provision will provide reserve flexibility for possible future changes. These may become apparent once the scheme outlined in the Schedule has been allowed a period of time to bed down. For example, in the future, we may want to pilot different process procedures in different areas in order to make a comparison before introducing a change to the national scheme.

395.  Paragraph 20(3) provides that the powers to make sub-ordinate legislation contained in subsections 4-7 of Section 79 of the 1998 Act will apply to this Schedule as they do to those to make regulations under that Act. This would bring Housing Benefit and Council Tax Benefit in line with other benefits already covered by these subsections of section 79. Subsection 4 in Section 79 provides that any power to make regulations may be exercised in relation to all the cases to which the power extends, or to specified cases; and may make full or any less provision, either unconditionally or subject to specific condition. It provides that same or different provisions may be applied for different purposes to cases to which the power extends; and that where a power is said to be exercisable for alternative purposes, it may be exercised in relation to the same case for any or all of those purposes. Subsection 5 sets out that power to make regulations for the purposes of any one provision in the Act are without prejudice to powers to make regulations for the purposes of any other provision. Subsection 6 provides that a power to make regulations includes power to make incidental, supplementary, consequential or transitional provision. Subsection 7 sets out that power to make regulations include the power to provide for a person to exercise a discretion when dealing with any matter.

396.  Paragraph 20(4) provides that any regulations made under paragraphs 6(2)(e) or (4) (any changes to those decisions that are not subject to appeal and those that would give a right of appeal in relation to a prescribed decision or against a determination embodied in the final decision) shall be by affirmative resolution and subject to debate by both Houses.

397.  Paragraph 20(5) provides that all the other regulations provided for under this Schedule shall be by negative resolution by either House.

398.  Paragraph 23 provides that regulations may be made specifying the circumstances in which a person is or is not to be treated as a person affected by any decision of a relevant authority. The intention would be to ensure that in some circumstances the person making the claim for benefit is not the only person affected by a decision. For example, currently the Housing Benefit regulations prescribe the circumstances in which a landlord may be treated as a person affected by a decision made by the local authority to make payments of benefit directly to the landlord rather than to the claimant.

CLAUSE 68 - DISCRETIONARY FINANCIAL ASSISTANCE WITH HOUSING.

399.  Subsection 1 of clause 68 provides the framework for the Secretary of State to introduce regulations to enable local authorities to make payments to people are entitled to housing benefit or council tax benefit, but who appear to require some further financial assistance ("discretionary housing payments") in order to meet their housing costs.

400.  The intention is to provide local authorities with the means to support people who require more help than is available to them from the Housing Benefit scheme. Subsection (1) is an enabling power for regulations to provide local authorities with the power to make payments under the "discretionary housing payments" arrangements:

401.  Subsection (2) provides that regulations may make the following provisions;

402.  (2)(a): for the circumstances in which payments are to be made: we propose to use the power to set out what type of cases could be helped. These will be those where the rent used to calculate Housing Benefit falls to be determined under the rent restriction rules, and where the maximum Council Tax Benefit or Housing Benefit is lessened as a result of non-dependant deductions or income.

403.  (2)(b): conferring a discretion on a local authority as to whether (i) payments are appropriate in a particular case and (ii) to the amount of payment and the period for which each payment is made. It is intended that this power will be used so any discretionary payment made will have the effect of alleviating hardship or cater for unforeseen circumstances which are beyond the claimant's control; and to give the authority the freedom as to the amount it would pay by way of additional payments.

404.  (2)(c): impose a limit on the amount of the discretionary payment in a particular case. It is proposed to use this power to limit the maximum amount that could be paid under (b) above so that the additional payment does not exceed the eligible rent or the maximum Council Tax Benefit.

405.  (2)(d): to restrict the period for which discretionary payment may be made. It is intended to use this power to give local authorities the flexibility to decide on the length of time they feel is appropriate for them to make discretionary payments taking account of the particular merits of the case.

406.  (2)(e): the form and manner in which claims for these payments must be made and the procedures for dealing with them. It is intended to use the power to require claimants to ask for discretionary payments, or for local authorities to consider making these payments where they are already in possession of relevant information to enable them to do so, and for local authorities to make timely decisions, and for those decisions to be notified to claimants.

407.  (2)(f): imposing conditions on the person making a claim for a discretionary housing payment to provide such information as may be necessary. It is proposed to use this power to require claimants to provide such information as is reasonably required by the authority to enable it to make a decision on the request for additional payment by a specified time.

408.  (2)(g): enabling that the local authority may in prescribed circumstances cancel further payments or recover payments already made. It is intended that this provision will cover situations where discretionary payments have been made and it is later found that entitlement to the benefit which underpins the need for the discretionary payment no longer exist, or there was no entitlement in the first place.

409.  (2)(h): require that authority may review a decision about making, cancelling or recovery of discretionary payments. It is intended that this provision will be used to give claimants a right to seek a review of any decision made in respect of a request for a discretionary housing payment, and to require the authority to deal with such a request timeously.

410.  Subsection (3) provides that regulations made under this section are to be made by statutory instrument subject to negative resolution by either House.

411.  Subsection (4) provides that the powers to make subordinate legislation contained in subsections 4-6 of section 189 of the Administration Act 1992 will apply to the power to make regulations in this section as they do to those to make regulations under that Act. (Section 189 provides the general rules under which subordinate legislation is made. Subsections 4-6 provide that any power provided by the Act for an Order of the Council, regulations or an order may be exercised either for all cases, cases subjected to specified exceptions, or specified cases or classes of case.

412.  It also provides that different provision may be exercised for different cases and for different provision to be made for same cases or classes of cases. Subsection 5 provides the power to make incidental, supplementary, consequential or transitional provision as appears expedient. Finally subsection 6 provides the power to provide for a person to exercise a discretion in dealing with any matter.)

413.  Subsection (5) provides the flexibility to make regulations for different areas or different relevant authorities. For example we may need to introduce regulations in the future which take account of the devolved government in Scotland and Wales or to enable us to pilot changes to the scheme.

CLAUSE 69 - GRANTS TOWARDS COST OF DISCRETIONARY HOUSING PAYMENTS

414.  This clause provides that the Secretary of State may make such payments, from funds provided by Parliament, as he thinks fit to relevant authorities in respect of the discretionary housing payments.

415.  Subsection (2) applies the provisions of subsections (1), (3), (4), (5)(b), (7)(b) and (8) of section 140B of the Social Security Administration Act 1992 and these are enabling powers for the calculation of the amount of subsidy payable to authorities administering housing benefit or council tax benefit.

416.  Subsection (3) provides that the Secretary of State may by order make provision to impose a limit on the total expenditure in any year incurred by the relevant authority making discretionary housing payments. He may also make provision to impose a subsidiary limit on the expenditure that may be incurred in any year by a relevant authority in making discretionary payments in circumstances specified in the order.

417.  Subsection (4) provides that an Order imposing a limit made under subsection (3) may fix the limit by specifying the amount of the limit or by providing for the means by which it is to be determined.

418.  Subsection (5) provides that an order under this section will be made by statutory instrument subject to negative resolution by either House.

419.  Subsection (6) provides that the powers to make subordinate legislation contained in subsections 4-6 of section 189 of the Administration Act 1992 will apply to the power to make regulations in this section as they do to those to make regulations under that Act. (Section 189 provides the general rules under which subordinate legislation is made. Subsections 4-6 provide that any power provided by the Act for an Order of the Council, regulations or an order may be exercised either for all cases, cases subjected to specified exceptions, or specified cases or classes of case.

420.  It also provides that different provision may be exercised for different cases and for different provision to be made for same cases or classes of cases. Subsection 5 provides the power to make incidental, supplementary, consequential or transitional provision as appears expedient. Subsection 6 provides the power to provide for a person to exercise a discretion in dealing with any matter.)

421.  Subsection (7) provides that any power to make an order made under this section will include the power to make different provision for different areas or different relevant authorities.

CLAUSE 70 - RECOVERY OF HOUSING BENEFIT

422.  Clause 70 makes provision to amend section 75(3) to the Social Security Administration Act 1992. Section 75(3) currently provides for the recovery of a Housing Benefit overpayment to be made in all cases from the person to whom it was paid or in prescribed circumstances from such other person as may be prescribed. Landlords and their agents fall under the first category as the person to whom benefit is paid. The new clause will allow for exceptions to be made in regulations to the provision that overpayments are recoverable from the person to whom benefit was paid.

423.  Subsection (3)(a) of the new section 75(3) allows for regulations to provide for exceptions to be made in prescribed circumstances to the provision allowing for recovery of the overpayment from the person to whom benefit was paid. The Department intends to set out in regulations an exception in the case where a landlord or their agent has reported suspected tenant fraud, and subsequent investigations have found no evidence to indicate the landlord or their agent had acted maliciously or had been in collusion with the fraudulent tenant. In such circumstances the overpayment can only be recovered from the tenant.

424.  The regulations will prescribe the circumstances in which the overpayment will not be recoverable from the landlord or their agent. The regulations will not alter the landlord or their agent's existing obligations to report changes in their tenants' circumstances that they could reasonably be expected to know. Regulations already set out the detailed conditions determining from whom an overpayment is recoverable. By prescribing the new conditions in regulations it will allow the flexibility to refine the details in the light of operational experience.

425.  Subsection (3) (b) of the new section 75 (3) replicates the existing regulation-making power. Regulations already provide that in addition to the person to whom benefit was paid, recovery can also be sought from the claimant, or such other person who misrepresented or failed to disclose a material fact that resulted in an overpayment of benefit. The Department's intention is to replicate the existing regulations.


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2000