The Welfare Supplementary Payment (Amendment) Regulations (Northern Ireland) 2017

Made: 23rd January 2017

Coming into operation -

In accordance with Article 137(5) of that Order, a draft of these Regulations has been laid before and approved by a resolution of the Assembly.

PART 1 — INTRODUCTION

Citation and commencement

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• (1) These Regulations may be cited as the Welfare Supplementary Payment (Amendment) Regulations (Northern Ireland) 2017.

• (2) These Regulations come into operation on 6th February 2017.

Amendments to welfare supplementary payment regime

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These Regulations amend the welfare supplementary payment regime as follows—

• (a) Part 2 makes provision for the recovery of overpayments of welfare supplementary payments,

• (b) Part 3 makes amendments to welfare supplementary payments in respect of the benefit cap,

• (c) Part 4 makes amendments to welfare supplementary payments in respect of contributory employment and support allowance,

• (d) Part 5 makes amendments to welfare supplementary payments in respect of loss of disability-related premiums,

• (e) Part 6 makes amendments to welfare supplementary payments in respect of loss of carer payments, and

• (f) Part 7 makes amendments to welfare supplementary payments in respect of loss of disability living allowances.

Non-retrospective effect of provisions terminating or reducing welfare supplementary payment

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Where an amendment made by these Regulations would have the effect of terminating or reducing a welfare supplementary payment to which a person is entitled, that termination or reduction only has effect from the date on which the amendment comes into operation.

PART 2 — RECOVERY OF OVERPAYMENT OF WELFARE SUPPLEMENTARY PAYMENTS

Application of this Part

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• (1) This Part applies where welfare supplementary payments are paid in excess of what a person is entitled to (in this Part “an overpayment”).

• (2) In this Part “welfare supplementary payment” means—

• (a) welfare supplementary payment under the Welfare Supplementary Payments Regulations (Northern Ireland) 2016[^f00003],

• (b) welfare supplementary payment under the Welfare Supplementary Payment (Loss of Carer Payments) Regulations (Northern Ireland) 2016[^f00004],

• (c) welfare supplementary payment under the Welfare Supplementary Payment (Loss of Disability-Related Premiums) Regulations (Northern Ireland) 2016[^f00005],

• (d) welfare supplementary payment under the Welfare Supplementary Payment (Loss of Disability Living Allowance) Regulations (Northern Ireland) 2016[^f00006].

Interpretation of this Part

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In this Part—

• “the 1998 Order” means the Social Security (Northern Ireland) Order 1998[^f00007],

• “the 2015 Order” means the Welfare Reform (Northern Ireland) Order 2015,

• “outstanding amount”, see regulation 7,

• “overpayment” means welfare supplementary payment paid in excess of entitlement,

• “Overpayment Regulations” means the Social Security (Overpayments and Recovery) Regulations (Northern Ireland) 2016.

• “relevant social security benefit” has the same meaning as in section 115CA of the Administration Act[^f00008].

Circumstances in which overpayment may be recovered

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• (1) The Department may recover an amount of overpayment in each of the following four cases.

• (2) The first case is where—

• (a) a person, whether fraudulently or otherwise, misrepresents or fails to disclose a material fact in connection with the person’s welfare supplementary payment or the person’s claim for a relevant social security benefit, and

• (b) in consequence of that misrepresentation or failure, the person receives an overpayment.

• (3) The second case is where—

• (a) a person fails to provide notification of a change of circumstances affecting entitlement to welfare supplementary payment, or does so only after an unreasonable delay, and

• (b) in consequence of that failure or delay, the person receives an overpayment.

• (4) The third case is where—

• (a) a mistake, whether in the form of an act or omission, is made in a person’s case by the Department or by an officer or a person providing services to the Department, and

• (b) in consequence of that mistake, the person receives an overpayment.

• (5) The fourth case is where—

• (a) welfare supplementary payment is awarded in respect of a decision to reduce or remove entitlement to a relevant social security benefit,

welfare supplementary payment is awarded;

• (b) there is—

• (i) a revision of this decision under Article 10 of the 1998 Order[^f00009],

• (ii) a supersession of this decision under Article 11 of the 1998 Order[^f00010], or

• (iii) an appeal against this decision under Article 13 of the 1998 Order[^f00011],

an award of a relevant social security benefit is made or the amount of an award of a relevant social security benefit is increased (regardless of whether entitlement to the benefit is linked to the welfare supplementary payment);

• (c) on revision, supersession or appeal, the person is awarded that relevant social security benefit or the amount of the relevant social security benefit that the person is entitled to increases, and

the award includes an amount which represents back-dated benefit to which the person was entitled at a time when the person was receiving the welfare supplementary payment; and

• (d) in consequence, it transpires that the amount of welfare supplementary payment received was in excess of entitlement.

• (6) The first and second case apply whether or not there has been a right of appeal under Article 13(4) of the 1998 Order in respect of any relevant social security benefit, entitlement to which is linked to the welfare supplementary payment.

Means of recovery

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• (1) An amount recoverable may be recovered—

• (a) by means of deduction from certain supplementary payments under regulation 9,

• (b) in so far as the outstanding amount is not recovered under regulation 9, by means of deduction from benefits under regulation 10 or 10A,

• (c) in so far as the outstanding amount is not recovered under regulations 9 and 10 or under regulations 9 and 10A, by means of deduction from earnings under regulation 11, and

• (d) in so far as the outstanding amount is not recovered under regulations 9, 10 and 11 or under regulations 9, 10A and 11, by means of action taken in court under regulation 12.

• (2) In addition, where the Department may recover an overpayment by virtue of the fourth case in regulation 6, the amount recoverable may be recovered by means of deduction from back-dated payments awarded under regulation 13.

• (2A) In the application of this regulation to a case where regulation 11 does not apply by virtue of paragraph (A1) of that regulation, paragraph (1) of this regulation has effect as if sub-paragraph (c) and the references to regulation 11 in sub-paragraph (d) were omitted.

• (3) In this Part “the outstanding amount” means, in relation to an amount recoverable, the amount which for the time being remains to be recovered.

Persons from whom overpayments may be recovered

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• (1) This regulation applies where there has been an overpayment in respect of a person (A).

• (2) If payment is made to A, the amount recoverable is only recoverable from A.

• (3) If payment is made to a person appointed under regulation 33 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987[^f00012] the relevant appointment provision, then the amount recoverable is recoverable from—

• (a) A, and

• (b) the person appointed.

• (3A) In paragraph (3), “the relevant appointment provision” means—

• (a) regulation 33 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987;

• (b) regulation 52 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations (Northern Ireland) 2016.

• (4) If payment is made to a person that A has nominated under regulation 91(3) of the Housing Benefit Regulations (Northern Ireland) 2006[^f00013], then the amount recoverable is recoverable from—

• (a) A, and

• (b) the person nominated.

• (5) If payment is made to A’s landlord or A’s landlord’s agent, then the amount recoverable is only recoverable from the landlord or the landlord’s agent, as the case may be or, where there is a person appointed or nominated as mentioned in paragraph (3) or (4), from that person or from A.

• (6) In a case where payment is made to—

• (a) a joint-claim couple under regulation 14 or 15 of the Welfare Supplementary Payment (Loss of Disability-Related Premiums) Regulations (Northern Ireland) 2016, or

• (b) a joint claim: couples under regulation 28 of those Regulations,

the amount recoverable is recoverable from both members of that couple.

Deduction from certain supplementary payments

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• (1) The Department may, in the case of a person from whom an amount is recoverable, recover the outstanding amount by making deductions from—

• (a) such amounts of welfare supplementary payment as are still to be paid in that person’s case, and

• (b) in so far as the outstanding amount is not recovered by using the method under sub-paragraph (a), such amounts of housing supplementary payment as are still to be paid in that person’s case.

• (1A) In the case of welfare supplementary payment, a deduction under paragraph (1)(a) may, for any period for which it is payable in that person’s case, be made from the amount payable at a percentage rate not exceeding that specified at regulation 11(2)(a) of the Overpayment Regulations and it is for the Department in any given case to decide whether to act under this paragraph or under paragraph (2) or under both.

• (2) When acting under paragraph (1) in a case where the outstanding amount is less than the total of the amounts referred to in sub-paragraph (a) or (b) (as the case may be), the Department must may continue to pay the amounts in question until that total is equal to the outstanding amount.

• (3) In this regulation “housing supplementary payment” means a payment under Article 137A of the 2015 Order[^f00014].

Deductions from benefits

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• (A1) This regulation applies where an overpayment has been made in respect of a person who was not entitled to universal credit when the overpayment was made (even if the person has since become so entitled).

• (1) The Department may, in the case of a person from whom an amount is recoverable, recover the outstanding amount (subject to regulation 7(1)(b)) by making deductions from such amounts as are payable by way of relevant benefit in that person’s case.

• (2) Each of the benefits listed in Schedule 1 is a “relevant benefit”.

• (3) In the case of a relevant benefit which is income-related, a deduction under this regulation may, for any week for which the benefit is payable in that person’s case, be made at the rate of not more than 3 times 5% of the relevant personal allowance (see paragraph (6)).

• (4) In the case of a relevant benefit which is not income-related, a deduction under this regulation may, for any week for which the benefit is payable in that person’s case, be made at the rate of not more than one-third of the amount of the benefit that is applicable to that person.

• (5) Each of the following relevant benefits is “income-related”—

• (a) income support,

• (b) income-based jobseeker’s allowance,

• (c) contribution-based jobseeker’s allowance, in a case where if there were no entitlement to it there would be an entitlement to income-based jobseeker’s allowance,

• (d) income-related employment and support allowance,

• (e) contribution-related employment and support allowance, in a case where if there no entitlement to it there would be an entitlement to income-related employment and support allowance,

• (f) state pension credit.

• (6) “Relevant personal allowance” means the amount for the time being specified in paragraph 1(1)(e) of column (2) of Schedule 2 to the Income Support (General) Regulations 1987[^f00015]; and where 5% of that allowance is not a multiple of 5 pence, it is to be rounded up to the next higher multiple of 5 pence.

• (7) A reference to contribution-based or income-based jobseeker’s allowance is to be construed in accordance with the Jobseekers Order[^f00016].

• (8) A reference to contribution-related or income-related employment support allowance is to be construed in accordance with Part 1 of the Welfare Reform Act (Northern Ireland) 2007[^f00017].

• (9) A reference to state pension credit is to be construed in accordance with the State Pension Credit Act (Northern Ireland) 2002[^f00018].

• (10) A reference to income support is to be construed in accordance with section 122 of the Contributions and Benefits Act[^f00019].

Deduction from earnings

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• (A1) This regulation does not apply in the case of a person who is entitled to universal credit.

• (1) The Department may, in the case of a person from whom an amount is recoverable, recover the outstanding amount (subject to regulation 7(1)(c)) by means of deduction made by the person’s employer from the person’s earnings.

• (2) Schedule 2 makes further provision for the purposes of this regulation.

Court action

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• (1) The Department may, in the case of a person from whom an amount is recoverable, recover the outstanding amount (subject to regulation 7(1)(d)) by means of court action taken under this regulation.

• (2) The outstanding amount is, if a county court so orders, recoverable as if it were payable under an order of the court.

• (3) Any costs of the Department in recovering the outstanding amount under this regulation may be recovered by the Department as if those costs were themselves part of the outstanding amount.

Off-setting in the case of awards of benefit back-dated on appeal

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• (1) This regulation applies where the Department may recover an overpayment by virtue of the fourth case in regulation 6.

• (2) In addition to the means set out above, the Department may recover the outstanding amount by making deductions from that portion of the amount of relevant social security benefit awarded on the revision, supersession or appeal (as the case may be) which represents back-dated benefit to which the person was entitled.

PART 3 — AMENDMENTS TO WELFARE SUPPLEMENTARY PAYMENTS IN RESPECT OF THE BENEFIT CAP

Amendments to the Welfare Supplementary Payments Regulations

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The Welfare Supplementary Payments Regulations (Northern Ireland) 2016 are amended in accordance with this Part.

Amendment of the definition of welfare benefit

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In regulation 3(1), for the definition of “welfare benefit” substitute ““welfare benefit” has the same meaning as in Article 101(7) of the 2015 Order[^f00020];”.

Timing of payments

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For regulation 4(7) substitute—

(7) A welfare supplementary payment to which a person is entitled under this regulation must be paid— (a) in a case where the person’s landlord is the Northern Ireland Housing Executive, every four weeks, or as soon as is reasonably practicable after that, in arrears, (b) in any other case, every four weeks, at the time that housing benefit is paid to that person, in arrears.

Effective date of change in circumstances

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After regulation 4A[^f00021] insert—

(4B) (1) This regulation applies where, as a consequence of a change of circumstances as set out in regulation 4A(3), there is a change in the amount of welfare supplementary payment to which a person is entitled. (2) The effective date of that change of circumstances, for the purpose of calculating the person’s entitlement to welfare supplementary payment, is the date on which the change in the person’s award of housing benefit takes effect.

Persons to whom welfare supplementary payments may be made

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• (1) In regulation 4 omit paragraphs (8) and (9).

• (2) After regulation 4B insert—

(4C) (1) A welfare supplementary payment to which a person (A) is entitled under this Part must be paid to A, but this is subject to the following. (2) Payment may be made to A’s landlord if— (a) A’s housing benefit is paid to the landlord, and (b) the landlord is— (i) registered under regulation 3 of the Landlord Registration Scheme Regulations (Northern Ireland) 2014[^f00022], (ii) the Northern Ireland Housing Executive, or (iii) a housing association. (3) Payment may be made to A’s landlord’s agent if— (a) A’s housing benefit is paid to the agent, and (b) the landlord is registered under regulation 3 of the Landlord Registration Scheme Regulations (Northern Ireland) 2014. (4) Payment may be made to a person that A has nominated (other than A’s landlord, or A’s landlord’s agent) in accordance with regulation 91(3) of the Housing Benefit Regulations.

Termination of welfare supplementary payment if person ceases to be entitled to housing benefit

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After regulation 4C insert—

(4D) (1) This regulation applies where a person ceases to be entitled to housing benefit. (2) Welfare supplementary payment under this Part must cease to be paid from the day after the first payment of welfare supplementary payment following the date on which the person ceases to be entitled to housing benefit. (3) Provided that— (a) housing benefit only ceased before the date the new benefit cap is applied to the person, and (b) housing benefit does not cease after this date, this regulation does not prevent a person’s entitlement to welfare supplementary payment restarting if the person meets the eligibility conditions set out in regulation 4 on the date the new benefit cap is applied to the person.

Termination of welfare supplementary payment if person ceases to be affected by benefit cap

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After regulation 4D insert—