|Child Support, Pensions And Social Security Bill - continued||House of Lords|
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630. In April 1999, independent consultants working with the War Pensions Agency (WPA) published a report A Review of Decision Making and Appeals Process. The report recommended a variety of measures including the extension of appeal rights and changes to appeal time limits. The House of Commons Social Security Select Committee welcomed the review. Representatives of ex-service organisations have received the report and members of the Central Advisory Committee on War Pensions were able to address this matter at their meetings, with the Parliamentary under Secretary, in June and December 1999. The WPA has since completed a feasibility study that concluded that almost all of the proposals identified in the report were both desirable and achievable.
The Measures in the Bill
Extension of Appeal Rights
631. This provision will enable the Secretary of State to increase the scope of appeal rights through a power to permit the creation of new appeal rights, by affirmative regulations, and the repeal of a provision that prohibits appeals related to service before 3 September 1939.
632. The intention is to use this provision to provide appeal rights that are similar to those provided in the Social Security scheme. For example, certain war pensions supplementary allowances do not have appeal rights whereas similar social security benefits already carry a right of appeal.
633. Appeals relating to the new appeal rights will be heard by the PATs. There is also a provision for these decisions to be set aside or to be appealed beyond the PAT to the High Court, as with certain other types of appeal.
Appeal Time Limits
634. All appeals will now be subject to a statutory 6-month appeal time limit, except for interim assessment appeals where the existing statutory 3-month time limit will be retained. There is also a power to make regulations providing for the grounds upon which a PAT may hear a late appeal, which is defined in clause 57(2) of this Bill as being an appeal received in the 12 month period after the relevant statutory appeal time limit has expired. Transitional protection is provided in those areas where the appeal time limit is to be reduced. This will have the effect demonstrated in the example below.
Interim assessments will not be affected. They will retain their current 3-month appeal time limit.
Assume for this example only that the commencement date of new provisions is 1 July 2001, and that regulations may have been made bringing in the "late" appeal time limit.
Jurisdiction of Tribunals
635. The tribunal will not be required to consider issues that have not been raised by the appellant or the Secretary of State. Additionally the tribunal will only take into account matters that occurred up to the date the decision that is under appeal was made. Any changes in circumstances that occur after a decision is made should be notified to the Secretary of State who may review the original decision and issue a further notification which may provide a further appeal right. These provisions are similar to those in the Social Security Act 1998*.
Composition of Tribunals
636. This section provides for a President and a Deputy President to be appointed for each part of the United Kingdom. The President will be able to issue directions and will be responsible for deciding the appropriate composition of appeal tribunals either on a case-by-case basis or according to the type of case. All tribunals will be required to include a legally qualified member. But, because of the reducing pool of people with relevant expertise, eg Civilian Defence Volunteers, the requirement for them to include a "service" member of the same gender and rank as the appellant will be removed. Instead, the Lord Chancellor will have the power to appoint lay members with particular regard to people with experience of service or disability.
Composition of the Central Advisory Committee on War Pensions
637. The number of War Pensions Committees continues to reduce. The Secretary of State will no longer be required to appoint twelve war pensions committee chairmen to the CAC, but may select an appropriate number provided at least one chairman is appointed.
COMMENTARY ON CLAUSES
Clause 56: Rights of Appeal
638. This clause provides the scope for the Secretary of State to give further appeal rights to war pensioners.
639. Subsection (1) inserts a new section 5A into the Pensions Appeal Tribunals Act 1943. Section 5A provides for new appeal rights in areas where they do not currently exist.
New section 5A: Appeals in other cases
640. New section 5A(1) provides that where a "specified decision" (defined in new section 5A(2) below) is made in connection with a claim made under sections 1, 2 or 3 of the 1943 Act, the claimant will be notified of the decision and that decision will carry a right of appeal to the PAT. Section 1 refers to members of the naval, military or air forces, section 2 refers to mercantile mariners, pilots etc, and section 3 refers to civil defence volunteers and certain civilians.
641. (Sections 4 and 5 of the 1943 Act (which provide appeal rights where an award is withheld or reduced on grounds of serious negligence or misconduct, and against interim and final assessments) have been excluded, as no additional appeal rights are required in these areas).
642. New section 5A(2) defines a "specified decision" as one that is specified in regulations made by the Secretary of State. It is to be a different type of decision to that already envisaged in the current sections 1 to 5 of the 1943 Act.
643. New section 5A(3) provides that the regulations specifying the decisions will be affirmative, that is, subject to the approval of both Houses of Parliament.
644. Subsection (2) of clause 56 provides for the appellant or the Secretary of State to progress the appeal, with leave of the tribunal or the nominated Judge, to the High Court if the party bringing the appeal believes the decision of the tribunal to have been erroneous in point of law. This provision already applies to appeals made under sections 1 to 4 (entitlement appeals) of the 1943 Act and will apply to a section 5A appeal.
645. Subsection (3) provides that the tribunal's decision on section 5A appeals is capable of being set aside on a joint application of the parties, in certain circumstances. The original appeal will be heard again by the tribunal. This provision already applies to appeals made under sections 1 to 4 (entitlement appeals) of the 1943 Act.
646. Subsection (4) repeals section 1(2) of the Pensions Appeal Tribunals Act 1949 that amended the 1943 Act by prohibiting appeals about pension matters due to service before 3rdSeptember 1939. This will provide appeal rights for groups such as those who served in the inter-war years.
Clause 57: Time limits for appeals
647. This clause amends the current provision and provides for a uniform time limit of 6 months in all areas, other than interim assessments, which retain their present 3-month time limit. The effect is to reduce the time limit in some areas and to introduce a time limit in others. This clause also provides for transitional protection for decisions made before the new provision is commenced.
648. Subsection (1) amends the time limits so that appeals against interim assessments remain subject to a 3-month time limit but in all other cases, including the "new" section 5A appeals, there will be a uniform 6-month appeal time limit from the date the decision or assessment is notified. This is achieved by amending the 1943 Act so that section 8(1) reads:
"No appeal shall be brought under any provision of this Act except subsection (1) of section five unless notice of that appeal is given, in such manner as may be prescribed by rules made under the Schedule to this Act, not later than six months after the date on which the decision or assessment is notified to the claimant".
649. Subsection (2) inserts three subsections after section 8(3) of the 1943 Act.
650. New section 8(4) enables the Secretary of State to make regulations revising the new appeal time limits of 6 or 3 months for submitting an appeal, either up or down. At present there are no plans to use this provision.
651. New section 8(5) enables the Secretary of State to prescribe in regulations when a PAT can admit a late appeal. In any event, the ability of the PAT to hear a late appeal is not available for those appeals made more than 12 months after the expiry of the statutory appeal time limit (3 or 6 months as appropriate). The current provision which allows late appeals if there was a reasonable excuse for the delay is repealed.
652. New section 8(6) provides that the regulations in either subsection (4) or (5) will be subject to the approval of both Houses of Parliament.
653. The provisions in subsection (2) (the new section 8(4), 8(5) and 8(6)) will apply to all decisions and assessments from the day of commencement regardless of when the decision or assessment was made.
654. Subsection (3) provides that the new appeal time limits in subsection (1) of this clause will not apply to entitlement decisions under sections 1 to 4 of the 1943 Act, nor to final assessments under section 5(2) made before the day of commencement. Paragraph (a) refers to entitlement decisions and paragraph (b) to final assessments.
655. Subsection (4) amends section 8(1) of the 1943 Act to provide that people who have been notified of a pre-commencement entitlement decision as set out in subsection (3)(a) of this clause will have 12 months from the commencement date of section 57(1) of this Act in which to bring an appeal. Section 8(1) in such cases will read:
"No appeal shall be brought under any provision of this Act except subsection (1) of section five unless notice of that appeal is given, in such manner as may be prescribed by rules made under the Schedule to this Act, not later than twelve months after the day on which section 57(1) of the Child Support, Pensions and Social Security Act 2000 comes into force".
656. Subsection (5) provides that the time within which an appeal may be brought under section 6(1) of the War Pensions Act 1921 (First World War claims) will be amended from 12 months to 6 months, to ensure parity with the other time limit provisions.
657. Subsection (6) provides that the amendment to section 6(1) of the War Pensions Act 1921 does not apply to decisions made before subsection (5) comes into force.
Clause 58: Matters relevant on appeal to Pensions Appeal Tribunal
658. This clause inserts a new section 5B in the 1943 Act. Section 5B will provide clarification of the jurisdiction of the tribunal. The provision is similar to that in section 12(8) of the Social Security Act 1998.
659. New section 5B(a) states that it is not necessary for the tribunal to consider issues that have not been raised by the appellant or the Secretary of State in relation to the appeal. 5B(b) requires the tribunal to take no account of circumstances that did not exist when the decision, that is the subject of the appeal, was made.
Clause 59: Constitution and procedure of Pensions Appeal Tribunals
660. This clause makes provision in relation to members of the Tribunal, provides for the appointment of a President and a Deputy President for each part of the United Kingdom and gives the President power to make directions and decide the appropriate composition of appeal tribunals.
661. Subsection (1) inserts the word "allowances" into sub-paragraph (2) of paragraph 2 of the Schedule to the 1943 Act to make it clear that expenses as well as remuneration may be paid to Tribunal members.
662. Subsection (2) enables appropriate terms of appointment to be specified for each category of Tribunal member.
663. Subsection (3) inserts paragraph 2A, which provides for the qualifications that tribunal members should hold. The legal and medical provisions do not differ from the current requirements but the qualifications required by other members have been both simplified and extended. The service requirement is less specific in that the tribunal member need not be of the same gender and similar rank with similar service history. Instead, the Lord Chancellor will have the power to appoint lay members, including those with a knowledge or experience of various parts of the armed forces and/or knowledge or experience of disability. The President should take account of their experience in deciding who should sit on tribunals hearing different types of cases.
664. This subsection also inserts paragraph 2B, which provides for the appointment of the President and a Deputy President for England and Wales, Scotland and Northern Ireland. This section addresses who will appoint the President, the qualification required and who carries out the duties when the President is temporarily indisposed.
665. Subsection (4) replaces paragraph 3 of the Schedule to the 1943 Act with new paragraphs 3 to 3C. Paragraph 3 provides that the members of the Tribunal must always have a legally qualified member, and that the chairman must be a legally qualified member. Paragraph 3A provides powers for the President to give directions as to the composition of the tribunals in relation to particular appeals, types of appeal or appeals generally. Paragraph 3B provides the power for the President to give directions as to the practice and procedure of the Tribunals. Paragraph 3C provides powers for the Lord Chancellor etc. to exercise the power under paragraphs 3A and 3B if there is no President or Deputy President in post. There is also a power to revoke past directions.
666. Subsection (5) provides for full time members of the Pensions Appeal Tribunals to be included in Schedule 11 to the Courts and Legal Services Act 1990 which bars them from legal practice.
Clause 60: Composition of Central Advisory Committee
667. This clause enables the Secretary of State to appoint fewer than twelve, but at least one, chairmen of a War Pensions Committee to the Central Advisory Committee on War Pensions. The Secretary of State intends to use this provision to ensure that there is a suitable balance in the number of chairmen appointed to the CAC.
PART III: SOCIAL SECURITY ADMINISTRATION
LOSS OF BENEFIT
The current position
668. A person who is found guilty of certain criminal offences may be the subject of a community sentence* imposed by the court. Community sentences include probation orders, community service orders and combination orders.
669. If the terms of the sentence are not met, the Probation Service (or, in Scotland, the Procurator Fiscal) will refer the matter to court. The court will decide whether the offender has breached the order, and, if so, what further penalty should be imposed for the breach, or if the order should be revoked and the offender re-sentenced for the original offence.
670. About 130,000 offenders are sentenced to probation orders, community service orders and combination orders each year in England and Wales, of whom currently about 30,000 are returned to court as a result of breach proceedings. In Scotland, in 1998, about 12,400 people were sentenced to community service orders or probation orders, and around 4,000 of these were subject to proceedings for breach.
The measures in the Bill
671. 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 breaching such a community sentence. Court powers in respect of breach cases will not be affected by these proposals.
672. The measures in respect of Social Security benefits, which are a matter reserved to Westminster, cover Great Britain. The payment of training allowances is a devolved matter for Scotland. The provisions in this Bill relating to Training Allowances apply in England and Wales only, and the Bill provides that such allowances paid by Scottish Ministers will not be withdrawn under these measures.
673. In the first instance, the measure will be piloted in separate areas in England and Wales to test the links between Social Security offices and the Probation Service within a single criminal justice system, and to assess the behavioural impact on offenders. For the duration of the pilots, the sanction period will be set at four weeks, and will apply in respect of probation orders, community service orders and combination orders.
674. During the pilot phase, the scheme will cover people aged between 18 and 59. The benefits that will be affected are Jobseeker's Allowance* (JSA), Income Support* (IS) and also the JSA-equivalent element of certain training allowances* (TAs).
675. For recipients of both contributory and income-based JSA, the benefit will be withdrawn for the period of the sanction. Housing Benefit, and any other "passported" benefit entitlements, will not be affected. For example, a JSA recipient aged 25, with no dependants or housing costs, would normally be entitled to £51.40 per week (the April 1999 rate of personal allowance for a single adult aged over 25). If he was referred to court for breaching a community sentence, the full amount - £51.40 - would be withdrawn for four weeks. Circumstances will be prescribed in which, after two weeks, he could be entitled to a reduced payment of JSA (a "hardship payment") of £30.85 per week. Entitlement to a hardship payment would depend on his personal circumstances, taking into account any income or capital which he may possess.
676. If a JSA claimant falls into a vulnerable group, he could apply for hardship payments from the first day of the 4-week period. This is in line with the current provisions for hardship payments arising from employment condition sanctions. The term "vulnerable group" refers to the group of people specified in regulation 140(1) of the Jobseeker's Allowance Regulations 1996 and includes, among others, those responsible for a child or young person and those where either the claimant or partner would be entitled to a disability-related premium.
677. There will be slightly different arrangements in place to deal with JSA claims made under the "joint claim" arrangements. If either of the couple are found to be in breach of a community sentence, benefit will not be payable in respect of that member of the couple. This is referred to in more detail in the commentary on clauses (clause 62).
678. For IS claimants, the effect of the sanction will be to reduce the amount of benefit in payment, rather than to withdraw the benefit in its entirety. The effect of this measure on a lone parent with one child aged under 11, receiving Income Support, would be to reduce benefit entitlement by 40% of the single adult rate - a reduction of £20.55 per week at April 1999 rates. This means that for a period of 4 weeks, weekly benefit of £71.50 would be payable, instead of the full rate of £92.05.
679. The Secretary of State will not be able to extend the measure to other benefits or to other types of community sentence without making regulations which would need to be passed by resolution of both Houses of Parliament (the affirmative procedure).
COMMENTARY ON CLAUSES
680. These clauses contain provisions to remove or reduce the benefit or, in England and Wales, the training allowance of offenders who have not fulfilled their responsibilities in relation to specified community sentences.
Clause 61: Loss of benefit for breach of community order.
681. This clause provides for benefit to be reduced (in respect of Income Support) or withdrawn (in respect of JSA or TAs) where an offender is in breach of a community sentence.
682. The provisions are triggered when the probation service (or, in Scotland, the Procurator Fiscal) decides that an offender should be referred back to court for breaching the terms of their sentence.
683. Subsection (1) states that these provisions apply when the Secretary of State is notified that information has been laid before a court that an offender has failed to comply with the terms of his community sentence and the offender is, or becomes entitled to, a relevant benefit. The laying of information is the first step in summoning a person to attend court.
684. Subsection (2) introduces a "prescribed period", which is the time for which the benefit will be reduced or withdrawn. Initially, regulations will provide for the prescribed period to be 4 weeks. Subsection (7) (below) sets an overriding maximum period of 26 weeks.
685. Subsection (3) provides for IS to be paid at a reduced rate for the prescribed period rather than withdrawn completely. Details of the reduction will be set out in regulations. The broad aim is that the reduction regime will be similar to that which will apply in JSA cases where hardship is established.
686. Subsection (4) enables regulations to be made to provide that JSA recipients will be eligible for a reduced rate of benefit during the prescribed period, providing they satisfy certain conditions. These conditions will be similar to the hardship provisions which currently apply in JSA. If hardship is established and the claimant satisfies the other conditions of entitlement, the claimant will be awarded a reduced payment of income-based JSA. 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 someone in the claimant's family is seriously ill or pregnant the reduction is 20%.
687. Subsection (5) provides that payments made under section 2 of the Employment and Training Act 1973 to participants on certain training schemes and employment programmes shall not be payable for the prescribed period except to the prescribed extent. It is intended that the element of any TA which equates with the participant's underlying JSA entitlement will be withdrawn. Any additional premium, top-up or payment of expenses will remain payable, subject to continued participation in the scheme or programme.
688. The basic element of a TA is equal to the amount of JSA which the participant would be entitled to if he were not engaged in the training scheme or employment programme. In addition, he may receive a training premium or top-up, whose amount depends on the scheme concerned, and payment of certain expenses. It is intended that the sanction will apply only to the basic element. For example, a young single person participating in the Voluntary Sector option of the New Deal for Young People receives an allowance consisting of a basic element of £40.70 a week (at 1999/2000 rates), plus a weekly top-up of £15.38. The sanction would mean that the £40.70 would not be paid for 4 weeks, but the £15.38 would remain in payment (provided the young person continued to participate in New Deal). Some types of payments under section 2 of the Employment and Training Act 1973 - such as those payable in Employment Zones - will be excluded from these provisions.
689. The decision on whether a person has, or has not, breached a community sentence is a matter for the courts. Subsection (6) provides that in the event of the information being withdrawn before the court hearing, or if the court finds that there has not been a breach, or there is a reasonable excuse for it, then all payments which would have been made but for the sanction are to be made.
690. Subsection (7) sets a maximum length of 26 weeks for the "prescribed period". The intention for the pilot exercises is that the period will be for 4 weeks only. Regulations will be made specifying when the period of the restriction will commence. This will usually be the first full benefit week after the decision to impose a restriction is made. This avoids the need to calculate part-week payments.
691. Subsection (8) provides that regulations can be made so that these provisions will not apply if the starting date of the sanction falls outside a specified period (to be prescribed in regulations) since the informations were laid. The effect of this provision is to give powers to limit the period after which the informations are laid in which a sanction can be imposed. The expectation is that the sanction will be implemented very quickly. This safeguarding power will only be used if the pilots show that delays in processing are causing sanctions to be applied after unacceptably long periods, for example after community sentences have been completed.
692. Definitions of the terms used in this provision are set out in subsection (9).
693. Subsection (10) provides that where the "relevant benefit" is a TA then references in this section to "entitlement to benefit" also refer to cases where a TA is in payment. TAs are payable at the discretion of the Secretary of State under section 2 of the Employment and Training Act: technically there is no "entitlement" to an allowance.
694. Subsection (12) modifies the provisions of clause 49 so as to make them applicable to Scotland.
Clause 62: Loss of joint-claim jobseeker's allowance
695. This clause sets out how the Community Sentence provisions will apply to a couple claiming JSA under the "joint claim" provisions.
696. Schedule 7 to the Welfare Reform and Pensions Act 1999* introduced the concept of joint claims for JSA by couples. These provisions have not yet been commenced. The requirement to make a joint claim for JSA will impact on couples without children, where one or both partners is in the 18-24 years age range when the measure is introduced. Coverage will apply to those born on or after a certain date, so older couples without children will be included as time passes. Under joint claims, both members of the couple will have to claim JSA and both will have to meet JSA labour market conditions.
697. Subsection (1) provides for the provisions of subsections (2) and (3) to apply where there is entitlement, or there becomes entitlement, to JSA for a couple on the basis of the "joint claim" provisions and the community sentence sanction is applicable to at least one of the couple.
698. Subsection (2) provides that no joint claim JSA will be payable where both members of the couple are subject to community sentence sanctions, or where one member is subject to a community sentence sanction and the other is already subject to a sanction pursuant to section 20A of the Jobseekers Act 1995*. Section 20A provides for sanctions to apply to members of joint claim couples where they have unreasonably caused or prolonged their own unemployment.
699. Subsection (3) provides that where only one member of the couple is subject to a community sentence sanction and the other member is not subject to certain other sanctions, the amount of JSA payable will be reduced to an amount calculated in a prescribed way, and will be paid to the other member of the couple.
700. Subsection (4) prescribes that the reduced amount payable, referred to in subsection (3), above, will be calculated in the same way as described in section 20A of the Jobseekers Act 1995. The effect of this on a joint claim couple is that they will receive the normal couple applicable amount rate of £80.65 (April 1999 rate) and any premiums or housing costs where applicable. Taking the basic applicable amount as a starting point, if both members of the couple receive a community sentence sanction, the amount will be reduced to nil. If one person has a community sentence sanction the other person will be paid the equivalent of the single persons rate (ie. £40.70 if he or she is aged 18 to 24 or £51.40 if she is in the 25 plus age range). Any relevant income and capital of the couple will be deducted from this.
701. Subsections (5), (6) and (7) mirror the provisions for other JSA claimants who are not classed as "joint-claim couples", set out in clause 49. Subsection (9) contains relevant definitions.
702. Subsection (8) adapts the provisions to enable their operation in Scotland.
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