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The Social Security (Northern Ireland) Order 1990

Status:

This is the original version (as it was originally made).

Restrictions on entitlement to benefit in certain cases of error

5.—(1) In section 104 of the principal Act (reviews), after the subsection (6) inserted by Article 8(3) insert the following subsections—

(7) Subsection (8) below applies in any case where—

(a)on the determination, whenever made, of a Commissioner or the court (the “relevant determination”), a decision made by an adjudicating authority is or was found to have been erroneous in point of law, and

(b)in consequence of that determination, any other decision—

(i)which was made before the date of that determination, and

(ii)which is referable to a claim made or treated as made by any person for any benefit,

falls (or would, apart from subsection (8) below, fall) to be revised on a review carried out under subsection (1A) above after the coming into force of this subsection.

(8) Where this subsection applies, any question arising on the review referred to in subsection (7)(b) above, or on any subsequent review of a decision which is referable to the same claim, as to any person’s entitlement to, or right to payment of, any benefit—

(a)in respect of any period before the date of the relevant determination, or

(b)in the case of widow’s payment, in respect of a death occurring before that date,

shall be determined as if the decision referred to in subsection (7)(a) above had been found by the Commissioner or court in question not to have been erroneous in point of law.

(9) In determining whether a person is entitled to benefit in a case where his entitlement depends on his having been entitled to the same or some other benefit before attaining a particular age, subsection (8) above shall be disregarded for the purpose only of determining the question whether he was so entitled before attaining that age.

(10) For the purposes of subsections (7) to (9) above—

(a)“adjudicating authority” and “the court” have the same meaning as they have in section 154D below;

(b)any reference to—

(i)a person’s entitlement to benefit, or

(ii)a decision which is referable to a claim,

shall be construed in accordance with subsection (5) of that section; and

(c)the date of the relevant determination shall, in prescribed cases, be determined in accordance with any regulations made under subsection (6) of that section..

(2) After the section 154C of that Act inserted by Article 8(2) insert the following section—

Restrictions on entitlement to benefit in certain cases of error.

154D.(1) This section applies where—

(a)on the determination, whenever made, of a Commissioner or the court (the “relevant determination”), a decision made by an adjudicating authority is or was found to have been erroneous in point of law; and

(b)after both the coming into force of this section and the date of the relevant determination, a claim which falls, or which would apart from this section fall, to be decided in accordance with the relevant determination is made or treated under Article 52(1)(i) of the Social Security (Northern Ireland) Order 1986 as made by any person for any benefit.

(2) Where this section applies, any question which arises on, or on the review of a decision which is referable to, the claim mentioned in subsection (1)(b) above and which relates to the entitlement of the claimant or any other person to any benefit—

(a)in respect of a period before the relevant date, or

(b)in the case of a widow’s payment, in respect of a death occurring before that date,

shall be determined as if the decision referred to in subsection (1)(a) above had been found by the Commissioner or court in question not to have been erroneous in point of law.

(3) In determining whether a person is entitled to benefit in a case where—

(a)his entitlement depends on his having been entitled to the same or some other benefit before attaining a particular age, and

(b)he attained that age—

(i)before both the date of the relevant determination and the date of the claim referred to in subsection (1)(b) above, but

(ii)not before the earliest day in respect of which benefit could, apart from this section, have been awarded on that claim,

subsection (2) above shall be disregarded for the purpose only of determining the question whether he was entitled as mentioned in paragraph (a) above.

(4) In this section—

“adjudicating authority” means—

(a)

an adjudication officer, the Attendance Allowance Board, a social security appeal tribunal or a medical appeal tribunal;

(b)

any of the following former bodies or officers, that is to say, the National Assistance Board for Northern Ireland, the Supplementary Benefits Commission for Northern Ireland, a benefit officer, an insurance officer or a supplement officer; or

(c)

any of the officers who, or tribunals or other bodies which, in Great Britain correspond to those mentioned in paragraph (a) or (b) above;

“the court” means the High Court, the Court of Appeal, the Court of Sessions, the High Court or Court of Appeal in England, the House of Lords or the Court of Justice of the European Community;

“the relevant date” means whichever is the latest of—

(a)

the date on which the relevant determination was made;

(b)

the date which falls twelve months before the date on which the claim referred to in subsection (1)(b) above is made or treated under Article 52(1)(i) of the Social Security (Northern Ireland) Order 1986 as made; and

(c)

the earliest date in respect of which the claimant would, apart from this section, be entitled on that claim to the benefit in question.

(5) For the purposes of this section—

(a)any reference in this section to entitlement to benefit includes a reference to entitlement—

(i)to any increase in the rate of a benefit, or

(ii)to a benefit, or increase of benefit, at a particular rate; and

(b)any reference to a decision which is “referable to” a claim is a reference to—

(i)a decision on the claim,

(ii)a decision on a review of the decision on the claim, or

(iii)a decision on a subsequent review of the decision on the review,

and so on.

(6) The date of the relevant determination shall, in prescribed cases, be determined for the purposes of this section in accordance with any regulations made for that purpose..

(3) In paragraph 32 of Schedule 9 to the 1986 Order (which applies sections 87 and 154A(1) of the principal Act to income-related benefits), at the end of sub-paragraph (b) add

; and

(c)section 154D (restrictions on entitlement in certain cases of error).

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