The Social Security, Child Support and Tax Credits (Miscellaneous Amendments) Regulations 2005

Amendment of the Social Security and Child Support (Decisions and Appeals) Regulations 1999

2.—(1) The Social Security and Child Support (Decisions and Appeals) Regulations 1999(1) shall be amended in accordance with this regulation.

(2) In regulation 3 (revision of decisions)—

(a) after paragraph (7)(2) (award of another relevant benefit) insert —

“(7ZA) Where—

(a) the Secretary of State makes a decision under section 8 or 10 awarding income support or state pension credit to a claimant (“the original award”);

(b) the claimant has a non-dependant within the meaning of regulation 3 of the Income Support Regulations or a person residing with him within the meaning of paragraph 1(1)(a)(ii), (b)(ii) or (c)(iii) of Schedule I to the State Pension Credit Regulations (“the non-dependant”);

(c) but for the non-dependant—

(i) a severe disability premium would be applicable to the claimant under regulation 17(1)(d) of the Income Support Regulations; or

(ii) an additional amount would be applicable to the claimant as a severe disabled person under regulation 6(4) of the State Pension Credit Regulations; and

(d) after the original award the non-dependant is awarded benefit which—

(i) is for a period which includes the date on which the original award took effect; and

(ii) is such that a severe disability premium becomes applicable to the claimant under paragraph 13(3)(a) of Schedule 2 to the Income Support Regulations or an additional amount for severe disability becomes applicable to him under paragraph 2(2)(a) of Schedule I to the State Pension Credit Regulations,

the Secretary of State may revise the original award.”,

(b) after paragraph (7A)(3) insert—

“(7B) A decision under regulation 22A(4) of the Income Support Regulations (reduction in applicable amount where the claimant is appealing against a decision which embodies a determination that he is not incapable of work) may be revised if the appeal is successful.

(7C) Where a person’s entitlement to income support is terminated because of a determination that he is not incapable of work and he subsequently appeals the decision that embodies that determination and is entitled to income support under regulation 22A of the Income Support Regulations, the decision to terminate entitlement may be revised.”, and

(c) in paragraph (9)(a)(5) after “since the decision had effect” insert “or, in the case of an advance award under regulation 13(6), 13A or 13C(7) of the Claims and Payments Regulations, since the decision was made, ”.

(3) In regulation 4(8) (late application for a revision), in paragraph (3)(b) after “revised” add—

“, but if the applicant has requested a statement of the reasons in accordance with regulation 28(1)(b) the 13 month period shall be extended by—

(i) if the statement is provided within one month of the notification, an additional 14 days; or

(ii) if it is provided after the elapse of a period after the one month ends, the length of that period and an additional 14 days.”.

(4) In regulation 6 (supersession of decisions)—

(a) in paragraph (2)(a)(i)(9) after “since the decision had effect” insert “or, in the case of an advance award under regulation 13(10), 13A or 13C(11) of the Claims and Payments Regulations, since the decision was made”,

(b) after paragraph (2)(e)(12) insert—

“(ee) is an original award within the meaning of regulation 3(7ZA) and sub-paragraphs (a) to (c) and (d)(ii) of regulation 3(7ZA) apply but not sub-paragraph (d)(i);”,

(c) after paragraph (2)(m)(13) add—

“(n) is a decision by an appeal tribunal confirming a decision by the Secretary of State terminating a claimant’s entitlement to income support because he no longer falls within the category of person specified in paragraph 7 of Schedule 1B to the Income Support Regulations (persons incapable of work) and a further appeal tribunal subsequently determines that he is incapable of work.”, and

(d) omit paragraph (6)(b) (person in receipt of income support or a jobseeker’s allowance temporarily absent from a nursing home or residential care home).

(5) In regulation 7 (date from which a decision superseded under section 10 takes effect)—

(a) in paragraph (2)(14), after “since the decision had effect” insert “or, in the case of an advance award, since the decision was made”,

(b) after paragraph (6) insert—

“(6A) Where—

(a) there is a decision which is a relevant determination for the purposes of section 27 and the Secretary of State makes a benefit decision of the kind specified in section 27(1)(b);

(b) there is an appeal against the determination;

(c) after the benefit decision payment is suspended in accordance with regulation 16(1) and (3)(b)(ii); and

(d) on appeal a court, within the meaning of section 27, reverses the determination in whole or in part,

a consequential decision by the Secretary of State under section 10 which supersedes his earlier decision under sub-paragraph (a) shall take effect from the date on which the earlier decision took effect.”,

(c) in paragraph (7)(15) after “6(2)(e)” and “6(2)(e)(ii)” insert “or (ee)”, and

(d) after paragraph (33)(16) add—

“(34) A decision which supersedes a decision specified in regulation 6(2)(n) shall take effect from the effective date of the Secretary of State’s decision to terminate income support which was confirmed by the decision specified in regulation 6(2)(n).”.

(6) In regulation 28 (notice of decision against which appeal lies), in paragraph (2) after “request” add “or as soon as practicable afterwards.”.

(7) In regulation 30 (appeal against a decision which has been replaced or revised), in paragraph (2) after sub-paragraph (d) add—

“(dd) it reverses a decision under section 29(2) that an accident is not an industrial accident;”.

(8) In regulation 31(2)(17) (time within which an appeal is to be brought) for the words “or 3A(1)” in both places where they occur substitute “, 3A(1) or regulation 17(1)(a) of the Child Support (Maintenance Assessment Procedure) Regulations 1992(18)”.

(9) In regulation 49 (procedure at oral hearings), in paragraph (7)(b)(19) omit “and the appellant consents”.

(10) In regulation 53 (decisions of appeal tribunals)—

(a) in paragraph (3), omit “prepared in accordance with paragraphs (1) and (2)”,

(b) in paragraph (4)(20) before “A party to the proceedings may apply” insert “Subject to paragraph (4A),”, and

(c) after paragraph (4) insert—

“(4A) Where—

(a) the decision notice is corrected in accordance with regulation 56; or

(b) an application under regulation 57 for the decision to be set aside is refused for reasons other than a refusal to extend the time for making the application,

the period specified in paragraph (4) shall run from the date on which notice of the correction or the refusal of the application for setting aside is sent to the applicant.” .

(11) In regulation 54 (late applications for a statement of reasons of tribunal decision)—

(a) in paragraph (1) for “paragraph 13” substitute “regulation 53(4A)”, and

(b) omit paragraph (13)(21).

(12) In regulation 55 (record of tribunal proceedings), for paragraph (2) substitute—

“(2) The clerk to the appeal tribunal shall preserve—

(a) the record of proceedings;

(b) the decision notice; and

(c) any statement of the reasons for the tribunal’s decision,

for the period specified in paragraph (3).

(3) That period is six months from the date of—

(a) the decision made by the appeal tribunal;

(b) any statement of reasons for the tribunal’s decision;

(c) any correction of the decision in accordance with regulation 56;

(d) any refusal to set aside the decision in accordance with regulation 57; or

(e) any determination of an application under regulation 58 for leave to appeal against the decision,

or until the date on which those documents are sent to the office of the Social Security and Child Support Commissioners in connection with an appeal against the decision or an application to a Commissioner for leave to appeal, if that occurs within the six months.

(4) Any party to the proceedings may within the time specified in paragraph (3) apply in writing for a copy of the record of proceedings and a copy shall be supplied to him.”.

(13) In regulation 56(22) (correction of accidental errors)—

(a) in paragraph (1), for “any decision, or the record of any such decision,” substitute “the notice of any decision”, and

(b) for paragraph (2) substitute—

“(2) A correction made to a decision notice shall be deemed to be part of the decision notice and written notice of the correction shall be given as soon as practicable to every party to the proceedings.”.

(14) In regulation 57(23) (setting aside decisions on certain grounds) after paragraph (4) insert—

“(4A) Where a legally qualified panel member refuses to set aside a decision he may treat the application to set aside the decision as an application under regulation 53(4) for a statement of the reasons for the tribunal’s decision, subject to the time limits set out in regulation 53(4) and (4A).”.

(15) In regulation 57A(24) (provisions common to regulation 56 and 57) omit paragraph (1).

(16) After regulation 57A insert—

“Service of decision notice by electronic mail

57AA.   For the purposes of the time limits in regulations 53 to 57, a properly addressed copy of a decision notice sent by electronic mail is effective from the date it is sent.”.

(17) For regulation 57B(25) substitute—

“Interpretation of Chapter V

57B.— (1) In Chapter V, except in regulations 58 and 58A—

“Commissioner” includes Child Support Commissioner;

“decision” includes a determination on a referral.

(2) In Chapter V—

“decision notice” has the meaning given in regulation 53(1) and (2).”.

(18) In regulation 58(26) (application for leave to appeal to a Commissioner from an appeal tribunal)—

(a) in paragraph (1)(27)—

(i) before “An application for leave” insert “Subject to paragraph (1A),”, and

(ii) for sub-paragraph (b) substitute—

“(b) be in writing and signed by the applicant or, where he has given written authority to a representative to make the application on his behalf, by that representative;

(c) contain particulars of the grounds on which the applicant intends to rely;

(d) contain sufficient particulars of the decision of the appeal tribunal to enable the decision to be identified; and

(e) if the application is made late, contain the grounds for seeking late acceptance.”,

(b) after paragraph (1) insert—

“(1A) Where after the written statement of the reasons for the decision has been sent to the parties to the proceedings—

(a) the decision notice is corrected in accordance with regulation 56; or

(b) an application under regulation 57 for the decision to be set aside is refused for reasons other than a refusal to extend the time for making the application,

the period specified in paragraph (1)(a) shall run from the date on which notice of the correction or the refusal of the application for setting aside is sent to the applicant.”, and

(c) in paragraph (5) after “(1)(a)” insert “or (1A)”.

(19) In Chapter V of Part V, after regulation 58 insert—

“Appeal to a Commissioner by a partner

58A.   A partner within the meaning of section 2AA(7) of the Administration Act(28) (full entitlement to certain benefits conditional on work-focused interview for partner) may appeal to a Commissioner under section 14 from a decision of an appeal tribunal in respect of a decision specified in section 2B(2A) and (6)(29) of the Administration Act.”.

(20) In Schedule 3 (qualifications of persons appointed to the panel)—

(a) in paragraph 2 (medical qualifications)—

(i) omit “Fully”,

(ii) for sub-paragraph (a) substitute—

“(a) the practitioner is a citizen of an EEA state and his name appears on a medical specialist register maintained in an EEA state in accordance with the Medical Directive, or he is a Swiss citizen with equivalent qualifications; or”,

• and

(iii) for sub-paragraph (c) substitute—

“(c) the practitioner does not satisfy the requirements of sub-paragraph (a) or (b) above, but has not less than 10 years experience in clinical practice, or as a medical disability analyst in disciplines which are the same or similar to those undertaken by practitioners to whom those sub-paragraphs apply.”,

• and

(b) in paragraph 3, in the definition of “Medical Directive” after “1997” add “, or any directive which replaces Directive 93/16/EEC”.

(21) In Schedule 3A(30) (date on which change of circumstances takes effect in certain cases where a claimant is in receipt of income support or jobseeker’s allowance)—

(a) in the Schedule heading for “on which change of circumstances takes effect in certain cases” substitute “from which superseding decision takes effect”,

(b) omit paragraphs 3(c) and 8(c) (cases where the claimant or his partner enters a nursing home or residential care home for not more than 8 weeks),

(c) in paragraph 5—

(i) in sub-paragraph (a) after “change of circumstances” insert “or change specified in paragraphs 12 and 13”, and

(ii) in sub-paragraph (b) after “prescribed in” insert “paragraph 12 or”,

(d) in paragraph 11—

(i) after “Where a relevant change of circumstances” insert “or change specified in paragraphs 12 and 13”, and

(ii) after “accordance with” insert “paragraph 12 or”, and

(e) after paragraph 11 add—

“Changes other than changes of circumstances

12.   Where an amount of income support or jobseeker’s allowance payable under an award is changed by a superseding decision specified in paragraph 13 the superseding decision shall take effect—

(a) in the case of a change in respect of income support, from the day specified in paragraph 1(a) or (b) for a change of circumstances; and

(b) in the case of a change in respect of jobseeker’s allowance, from the day specified in paragraph 7 for a change of circumstances.

13.   The following are superseding decisions for the purposes of paragraph 12—

(a) a decision which supersedes a decision specified in regulation 6(2)(b) to (ee); and

(b) a superseding decision which would, but for paragraph 12, take effect from a date specified in regulation 7(5) to (7), (12) to (16), (18) to (20), (22), (24) and (33).”.

(1)

S.I. 1999/991.

(2)

Paragraph (7) was substituted by S.I.2002/428.

(3)

Paragraph (7A) was inserted by S.I. 2002/1379.

(4)

Regulation 22A was inserted by S.I. 1996/206 and was amended by S.I. 1999/2422 and 3109, 2000/590 and 2001/3767.

(5)

Paragraph (9) was substituted by S. I. 1999/2677 and amended by S.I. 2003/1050.

(6)

Regulation 13 was amended by S. I. 1991/2284 and 2741, 1992/247, 1994/2319, 1999/2422, 2572 and 3178 and 2002/3019.

(7)

Regulations 13A and 13C were inserted by S. I. 1991/2741 and amended by S.I. 1999/2860 and 3178.

(8)

Relevant amendments to regulation 4 were made by S.I. 2000/3185.

(9)

Sub-paragraph (a)(i) was amended by S.I. 2003/1050.

(10)

Regulation 13 was amended by S. I. 1991/2284 and 2741, 1992/247, 1994/2319, 1999/2422, 2572 and 3178 and 2002/3019.

(11)

Regulations 13A and 13C were inserted by S. I. 1991/2741 and amended by S.I. 1999/2860 and 3178.

(12)

Sub-paragraph (e) was substituted by S.I. 2000/1596 and amended by S.I. 2002/428.

(13)

Sub-paragraph (m) was inserted by S.I. 2003/2274.

(14)

Paragraph (2) was amended by S.I. 1999/1623 and 3178, 2000/1596, 2002/3019 and 2003/1050.

(15)

Paragraph (7) was substituted by S.I. 2002/428.

(16)

Paragraph (33) was added by S.I. 2003/1050.

(17)

Relevant amendments were made to paragraph (2) by S.I. 2002/1204.

(18)

S.I. 1992/1813; regulation 17(1)(a) was made under section 16 of the Child Support Act 1991 (c. 48) before that section was amended by the Child Support, Pensions and Social Security Act 2000 (c. 19), section 8.

(19)

Paragraph (7) was substituted by S.I. 2002/1379.

(20)

Paragraph (4) was substituted by S.I. 2002/1379.

(21)

Paragraph (13) was inserted by S.I. 2002/1379.

(22)

Regulation 56 was amended by S.I. 2000/1596.

(23)

Regulation 57 was amended by S .I. 2002/1379.

(24)

Regulation 57A was inserted by S.I. 2000/1596 and substituted by S.I. 2002/1397.

(25)

Regulation 57B was inserted by S.I. 2000/1596.

(26)

Relevant amendments to regulation 58 were made by S .I. 2002/1379.

(27)

Paragraph (1) was amended by S.I. 2002/1379.

(28)

Section 2AA was inserted by the Employment Act 2002 (c. 22), section 49.

(29)

Section 2B was inserted by the Welfare Reform and Pensions Act 1999 (c. 30), section 57; subsection (2A) was inserted by the Employment Act 2002, Schedule 7, paragraph 9(4).

(30)

Schedule 3A was inserted by S.I. 2000/1596.