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
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
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
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
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.
16th December 1997
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.
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(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".
Welfare Rights Worker
- Parliamentary Officer
19th December 1997