The Social Security and Child Support (Decisions and Appeals) (Miscellaneous Amendments) Regulations 2002

Made: 15th May 2002

Coming into force: 20th May 2002

Whereas a draft of this Instrument was laid before Parliament in accordance with section 80(1) of the Social Security Act 1998 and approved by resolution of each House of Parliament;

Now, therefore, the Secretary of State for Work and Pensions except in relation to working families’ tax credit and disabled person’s tax credit, and the Commissioners of Inland Revenue in relation to those credits and to regulations 1 to 4, 7, 9 to 11 and 13 to 21 only, in exercise of powers conferred by the enactments set out in the Schedule to this Instrument and now vested in them, and of all other powers enabling them in that behalf, with the concurrence of the Lord Chancellor in so far as these Regulations are made under section 6(3) of the Social Security Act 1998, and after consultation with the Council on Tribunals in accordance with section 8 of the Tribunals and Inquiries Act 1992, and after agreement by the Social Security Advisory Committee that proposals to make these Regulations should not be referred to it, and so far as they concern housing benefit and council tax benefit after consultation with organisations appearing to the Secretary of State to be representative of the authorities concerned, hereby make the following Regulations:

Citation, commencement and interpretation

1

• (1) These Regulations may be cited as the Social Security and Child Support (Decisions and Appeals) (Miscellaneous Amendments) Regulations 2002 and shall come into force on 20th May 2002.

• (2) In these Regulations—

• (a) “the Housing Benefit (Decisions and Appeals) Regulations” means the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 ; and

• (b) unless the context otherwise requires, a reference to a numbered regulation, paragraph or Schedule is a reference to the regulation, paragraph or Schedule bearing that number in the Social Security and Child Support (Decisions and Appeals) Regulations 1999 .

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

2

In regulation 1(3) (interpretation)—

• (a) for the definition of “official error” there shall be substituted—

“official error” means an error made by— (a) an officer of the Department for Work and Pensions or the Board acting as such which no person outside the Department or the Inland Revenue caused or to which no person outside the Department or the Inland Revenue materially contributed; (b) a person employed by a designated authority acting on behalf of the authority, which no person outside that authority caused or to which no person outside that authority materially contributed, but excludes any error of law which is shown to have been an error by virtue of a subsequent decision of a Commissioner or the court;

and

• (b) after the definition of “panel member with a disability qualification” there shall be inserted—

“partner” means— (a) where a person is a member of a married couple or an unmarried couple, the other member of that couple; or (b) where a person is polygamously married to two or more members of his household, any such member;

3

In regulation 3 (revision of decisions)—

• (a) in paragraph (1) for sub-paragraphs (a) and (b) there shall be substituted the following sub-paragraphs—

(a) he or they commence action leading to revision within one month of the date of notification of the original decision; or (b) an application for a revision is received by the Secretary of State or the Board or an officer of the Board at the appropriate office— (i) subject to regulation 9A(3), within one month of the date of notification of the original decision; (ii) where a written statement is requested under paragraph (1)(b) of regulation 28 and is provided within the period specified in head (i), within 14 days of the expiry of that period; (iii) where a written statement is requested under paragraph (1)(b) of regulation 28 and is provided after the period specified in head (i), within 14 days of the date on which the statement is provided; or (iv) within such longer period as may be allowed under regulation 4.

• (b) after paragraph (4) there shall be inserted the following paragraph—

(4A) Where there is an appeal against an original decision (within the meaning of paragraph (1)) within the time prescribed in regulation 31, or in a case to which regulation 32 applies within the time prescribed in that regulation, but the appeal has not been determined, the original decision may be revised at any time.

• (c) after paragraph (5) there shall be inserted the following paragraph—

(5A) Where— (a) the Secretary of State or the Board or an officer of the Board, as the case may be, makes a decision under section 8 or 10, or that decision is revised under section 9, in respect of a claim or award (“decision A”) and the claimant appeals against decision A; (b) decision A is superseded or the claimant makes a further claim which is decided (“decision B”) after the claimant made the appeal but before the appeal results in a decision by an appeal tribunal (“decision C”); and (c) the Secretary of State or the Board or an officer of the Board, as the case may be, would have made decision B differently if he or they had been aware of decision C at the time he or they made decision B, decision B may be revised at any time.

• (d) after paragraph (7) there shall be inserted the following paragraph—

(7A) Where a decision as to a claimant’s entitlement to a disablement pension under section 103 of the Contributions and Benefits Act is revised by the Secretary of State, or changed on appeal, a decision of the Secretary of State as to the claimant’s entitlement to reduced earnings allowance under paragraph 11 or 12 of Schedule 7 to that Act may be revised at any time provided that the revised decision is more advantageous to the claimant than the original decision.

and

• (e) in paragraph (11)—

• (i) in sub-paragraph (a) for the words “Department of Social Security or the Department for Education and Employment” there shall be substituted the words “ Department for Work and Pensions ”; and

• (ii) in sub-paragraph (c) for the words “Department of Social Security” there shall be substituted the words “ Department for Work and Pensions ”.

4

After regulation 9 there shall be inserted the following regulation—

(9A) (1) Accidental errors in a decision of the Secretary of State or an officer of the Board under a relevant enactment within the meaning of section 28(3), or in any record of such a decision, may be corrected by the Secretary of State or an officer of the Board, as the case may be, at any time. (2) A correction made to, or to the record of, a decision shall be deemed to be part of the decision, or of that record, and the Secretary of State or an officer of the Board shall give a written notice of the correction as soon as practicable to the claimant. (3) In calculating the time within which an application can be made under regulation 3(1)(b) for a decision to be revised, or the time within which an appeal may be brought under regulation 31(1), there shall be disregarded any day falling before the day on which notice was given of a correction of the decision or to the record thereof under paragraph (2).

5

In regulation 11A (issues for decision by officers of Inland Revenue) in paragraph (2)—

• (a) in sub-paragraph (b) after the word “supersession” there shall be inserted the words “ or an appeal ”; and

• (b) in sub-paragraph (c) for the words “consideration of the application” there shall be substituted the words “ receipt of the application or appeal ”.

6

After regulation 14 there shall be inserted the following regulation—

(14A) (1) This regulation applies in a case where an award of income support or a jobseeker’s allowance (“the existing benefit”) exists in favour of a person and, if that award did not exist and a claim was made by that person or his partner for a jobseeker’s allowance or, as the case may be, income support (“the alternative benefit”), an award of the alternative benefit would be made on that claim. (2) In a case to which this regulation applies, if a claim for the alternative benefit is made the Secretary of State may bring to an end the award of the existing benefit if he is satisfied that an award of the alternative benefit will be made on that claim. (3) Where, under paragraph (2), the Secretary of State brings an award of the existing benefit to an end he shall do so with effect from the day immediately preceding the first day on which an award of the alternative benefit takes effect. (4) Where an award of a jobseeker’s allowance is made in accordance with the provisions of this regulation, paragraph 4 of Schedule 1 to the Jobseekers Act (waiting days) shall not apply.

7

In regulation 25 (other persons with a right to appeal) before paragraph (a) there shall be inserted the following paragraphs—

(ai) any person who has been appointed by the Secretary of State or the Board under regulation 30(1) of the Claims and Payments Regulations (payments on death) to proceed with the claim of a person who has made a claim for benefit and subsequently died; (aii) any person who is appointed by the Secretary of State to claim benefit on behalf of a deceased person and who claims the benefit under regulation 30(5) and (6) of the Claims and Payments Regulations; (aiii) any person who is appointed by the Secretary of State to make a claim for reduced earnings allowance or disablement benefit in the name of a person who has died and who claims under regulation 30(6A) and (6B) of the Claims and Payments Regulations;

8

In regulation 29(5) (further particulars required relating to certificate of recoverable benefits appeals or applications) for the words “Department of Social Security” there shall be substituted the words “ Department for Work and Pensions ”.

9

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10

In regulation 32 (late appeals)—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) for paragraph (4) there shall be substituted the following paragraph—

(4) An application for an extension of time shall not be granted unless— (a) the panel member is satisfied that, if the application is granted, there are reasonable prospects that the appeal will be successful; or (b) the panel member, the Secretary of State or the Board, as the case may be, are satisfied that it is in the interests of justice for the application to be granted.

• (c) in paragraph (5)—

• (i) after the words “panel member” there shall be inserted the words “ , the Secretary of State or the Board, as the case may be, ”; and

• (ii) for the words “application to be made” there shall be substituted the words “ appeal to be made ”;

• (d) in paragraph (6)(a) for the word “spouse” there shall be substituted the word “ partner ”; and

• (e) in paragraph (7), for the words “the panel member shall have regard” there shall be substituted the words “ regard shall be had ”.

11

In regulation 33 (making of appeals and applications)—

• (a) in paragraph (2)—

• (i) in sub-paragraphs (a) and (c) for the words “Department of Social Security” there shall be substituted the words “ Department for Work and Pensions ”;

• (ii) in sub-paragraph (b) for the words “Department of Social Security or of the Department for Education and Employment” there shall be substituted the words “ Department for Work and Pensions the address of which was indicated on the notification of the decision which is subject to appeal ”; and

• (iii) in sub-paragraph (e) for the words “Department of Social Security” there shall be substituted the words “ Department for Work and Pensions the address of which was indicated on the notification of the decision which is subject to appeal ”;

• (b) for paragraph (7) there shall be substituted the following paragraph—

(7) Where a person to whom a form is returned, or from whom further particulars are requested, duly completes and returns the form or sends the further particulars, if the form or particulars, as the case may be, are received by the Secretary of State or the Board within— (a) 14 days of the date on which the form was returned to him by the Secretary of State or the Board, the time for making the appeal shall be extended by 14 days from the date on which the form was returned; (b) 14 days of the date on which the Secretary of State’s or the Board’s request was made, the time for making the appeal shall be extended by 14 days from the date of the request; or (c) such longer period as the Secretary of State or the Board may direct, the time for making the appeal shall be extended by a period equal to that longer period directed by the Secretary of State or the Board.

and

• (c) the following paragraph shall be substituted for paragraph (10) —

(10) The Secretary of State or the Board may discontinue action on an appeal where the appeal has not been forwarded to the clerk to an appeal tribunal or to a legally qualified panel member and the appellant or an authorised representative of the appellant has given written notice that he does not wish the appeal to continue.

12

In regulation 38A(1) (appeals raising issues for decision by officers of Inland Revenue)—

• (a) for the words “, on consideration of any appeal, it appears to an appeal tribunal” there shall be substituted the words “ a person has appealed to an appeal tribunal and it appears to the appeal tribunal, or a legally qualified panel member, ”; and

• (b) after the words “that tribunal” there shall be inserted the words “ or legally qualified panel member, as the case may be, ”.

13

Regulation 47 (reinstatement of struck out appeals) shall be renumbered paragraph (2) of regulation 47 and immediately before the renumbered paragraph (2) the following paragraph shall be inserted as paragraph (1)—

(1) The clerk to the appeal tribunal may reinstate an appeal which has been struck out in accordance with regulation 46(1)(c) where— (a) the appellant has made representations to him or, as the case may be, further representations in support of his appeal with reasons why he considers that his appeal should not have been struck out; (b) the representations are made in writing within one month of the order to strike out the appeal being issued; and (c) the clerk is satisfied in the light of those representations that there are reasonable grounds for reinstating the appeal but if the clerk is not satisfied that there are reasonable grounds for reinstatement a legally qualified panel member shall consider whether the appeal should be reinstated in accordance with paragraph (2).

14

In regulation 49 (procedure at oral hearings)—

• (a) for paragraph (6) there shall be substituted the following paragraph—

(6) An oral hearing shall be in public except where the chairman, or in the case of an appeal tribunal which has only one member, that member, is satisfied that it is necessary to hold the hearing, or part of the hearing, in private— (a) in the interests of national security, morals, public order or children; (b) for the protection of the private or family life of one or more parties to the proceedings; or (c) in special circumstances, because publicity would prejudice the interests of justice.

• (b) for paragraph (7) there shall be substituted the following paragraph—

(7) At an oral hearing— (a) any party to the proceedings shall be entitled to be present and be heard; and (b) the following persons may be present by means of a live television link— (i) a party to the proceedings or his representative or both; or (ii) where an appeal tribunal consists of more than one member, a tribunal member other than the chairman, provided that the person who constitutes or is the chairman of the tribunal gives permission and the appellant consents.

• (c) in paragraph (9)—

• (i) in sub-paragraph (b) the word “panel” shall be omitted; and

• (ii) in sub-paragraph (d) the words “and the consent of every party to the proceedings actually present,” shall be omitted;

• (d) for paragraph (10) there shall be substituted the following paragraph—

(10) Nothing in paragraph (9) affects the rights of— (a) any person mentioned in sub-paragraphs (a) and (b) of that paragraph where he is sitting as a member of a tribunal or acting as its clerk; or (b) the clerk to the tribunal, and nothing in this regulation prevents the presence at an oral hearing of any witness or of any person whom the chairman, or in the case of an appeal tribunal which has only one member, that member, permits to be present in order to assist the appeal tribunal or the clerk.

and

• (e) after paragraph (12) the following paragraph shall be added—

(13) In this regulation “live television link” means a live television link or other facilities which allow a person who is not physically present at an oral hearing to see and hear proceedings and be seen and heard by those physically present.

15

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16

In regulation 53 (decisions of appeal tribunals), for paragraph (4) there shall be substituted the following paragraph—