The Social Security and Child Support (Miscellaneous Amendments) Regulations (Northern Ireland) 2000

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

6.—(1) The Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999(1) shall be amended in accordance with paragraphs (2) to (22).

(2) In regulation 1(2) (interpretation)—

(a) after the definition of “disability determination”(2) there shall be inserted the following definition—

• ““family” has the same meaning as in section 133(1) of the Contributions and Benefits Act;”;

(b) in the definition of “incapacity benefit decision” after “relevant benefit” there shall be inserted “or relevant credit”;

(c) in the definition of “incapacity determination” for “all work test” there shall be substituted “personal capability assessment”;

(d) in the definition of “official error” after “materially contributed” there shall be added “, but excludes any error of law which is only shown to have been an error by virtue of a subsequent decision of a Commissioner or the court”; and

(e) after the definition of “referral” there shall be inserted the following definition—

““relevant credit” means a credit of contributions or earnings resulting from a decision in accordance with regulations made under section 22(5) of the Contributions and Benefits Act(3);”.

(3) In regulation 3 (revision of decisions) for paragraph (7) there shall be substituted the following paragraph—

“(7) A decision under Article 9 or 11 may be revised where—

(a) the Department, appeal tribunal or Commissioner has awarded a relevant benefit; and

(b) on the date on which entitlement to that benefit arises, the claimant or a member of his family becomes entitled to and is paid another relevant benefit or an increase in the rate of another relevant benefit.”.

(4) In regulation 6(2) (supersession of decisions) for sub-paragraph (e) there shall be substituted the following sub-paragraph—

“(e) is a decision where—

(i) the claimant has been awarded a relevant benefit, and

(ii) on a date after entitlement to that benefit arises, the claimant or a member of his family becomes entitled to and is paid another relevant benefit or an increase in the rate of another relevant benefit;”.

(5) In regulation 7(4) (date from which a decision superseded under Article 11 takes effect)—

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

“(a) is, except for paragraph (2)(b), subject to Schedule 2A; and”;

(b) in paragraph (2) after sub-paragraph (b) there shall be inserted—

“(bb) where the decision is advantageous to the claimant and is made on the Department’s own initiative, from the date on which the Department commenced action with a view to supersession; or”;

(c) for paragraph (5) there shall be substituted the following paragraph—

“(5) Where the Department supersedes a decision made by an appeal tribunal or a Commissioner on the grounds specified in regulation 6(2)(c), the decision under Article 11 shall take effect, in a case where, as a result of that ignorance of, or mistake as to, a material fact, the decision to be superseded was more advantageous to the claimant than it would otherwise have been and which either—

(a) does not relate to a disability benefit decision or an incapacity benefit decision where there has been an incapacity determination; or

(b) relates to a disability benefit decision or an incapacity benefit decision where there has been an incapacity determination, and the Department is satisfied that at the time the decision was made the claimant or payee knew or could reasonably have been expected to know of the fact in question and that it was relevant to the decision,

from the date on which the decision of the appeal tribunal or the Commissioner took, or was to take, effect.”;

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

“(7) A decision which falls to be superseded under regulation 6(2)(e) shall be superseded from the date on which the claimant or member of his family becomes entitled to and receives the relevant benefit or increase in benefit referred to in regulation 6(2)(e)(ii).”; and

(e) in paragraph (9)(a) for “the date of that decision” there shall be substituted “the date on which the Department commenced action with a view to supersession”.

(6) After regulation 12 (decisions of the Department relating to industrial injuries benefit) there shall be inserted the following regulation—

“Recrudescence of a prescribed disease

12A.— (1) This regulation applies to a decision made under sections 108 to 110 of the Contributions and Benefits Act where a disease is subsequently treated as a recrudescence under regulation 7 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations (Northern Ireland) 1986.

(2) Where this regulation applies Chapter II of Part II of the Order shall apply as if Article 9(2) were omitted.”.

(7) In regulation 16 (suspension in prescribed cases) for paragraph (4) there shall be substituted the following paragraph—

“(4) For the purposes of Article 21(3)(c) an appeal is pending where a decision of an appeal tribunal, a Commissioner or a court has been made and the Department—

(a) is awaiting receipt of that decision or, in the case of an appeal tribunal decision, is considering whether to apply for a statement of the reasons for it, or has applied for such a statement and is awaiting receipt thereof; or

(b) has received that decision or, in the case of an appeal tribunal decision, the statement of the reasons for it, and is considering whether to apply for leave to appeal, or, where leave to appeal has been granted, is considering whether to appeal,

and the Department shall give written notice of its proposal to make a request for a statement of the reasons for a tribunal’s decision, to apply for leave to appeal, or to appeal, as soon as reasonably practicable.”.

(8) In regulation 20(5) (making of payments which have been suspended)—

(a) in paragraph (1) sub-paragraph (c) shall be omitted; and

(b) for paragraphs (2) and (3) there shall be substituted the following paragraphs—

“(2) Where regulation 16(3)(b)(i) applies, payment of a benefit suspended shall be made where—

(a) the Department does not, in the case of a decision of an appeal tribunal, apply for a statement of the reasons for that decision within the period of one month specified in regulation 53(4);

(b) in the case of a decision of an appeal tribunal, a Commissioner or a court, an application for leave to appeal and, where leave to appeal is granted, the appeal is not made within the time prescribed for the making of such applications and appeals;

(c) an application for leave to appeal or the appeal is withdrawn; or

(d) leave to appeal is refused in circumstances where it is not open for the application for leave to be renewed or for a further application for leave to appeal to be made.

(3) Where regulation 16(3)(b)(ii) applies, payment of a benefit suspended shall be made where, in relation to the decision of a Commissioner or the court in a different case—

(a) an application for leave to appeal and, where leave to appeal is granted, the appeal is not made within the time prescribed for the making of such applications and appeals;

(b) an application for leave to appeal or the appeal is withdrawn; or

(c) leave to appeal is refused in circumstances where it is not open for the application for leave to be renewed or for a further application for leave to appeal to be made.”.

(9) In regulation 26 (decisions against which an appeal lies) after paragraph (b) there shall be added—

“or

(c) under Schedule 6 to the Contributions and Benefits Act in relation to sections 103 and 108 of that Act for the purposes of industrial injuries benefit under Part V of that Act.”.

(10) In regulation 33 (making of appeals and applications) after paragraph (8) there shall be added the following paragraph—

“(9) The Department may discontinue action on an appeal where the appeal has not been forwarded to the clerk to the appeal tribunal or to a legally qualified panel member and the appellant has given written notice that he does not wish the appeal to continue.”.

(11) In regulation 36(6) (composition of appeal tribunals)—

(a) in paragraph (1) “, including an appeal tribunal determining a misconceived appeal as a preliminary issue in accordance with regulation 48,” shall be omitted;

(b) in paragraph (2) for “paragraphs (3) to (5)” there shall be substituted “paragraphs (3) to (5), (8) and (9)”;

(c) in paragraphs (2)(a)(i) and (7) for “all work test” there shall be substituted “personal capability assessment”;

(d) in paragraph (2)(b)(i) after “appeal” there shall be inserted “(not being an appeal where the only issue is whether there should be a declaration of an industrial accident under Article 29(2))”;

(e) in paragraph (5) for “or (3)” there shall be substituted “, (3) or (9)”;

(f) in paragraph (6) for “a disability working allowance” there shall be substituted “a disabled person’s tax credit”; and

(g) after paragraph (7) there shall be added the following paragraphs—

“(8) A person shall not act as a medically qualified panel member of an appeal tribunal in any appeal if he has at any time advised or prepared a report on any person whose medical condition is relevant to the issue in the appeal, or has at any time regularly attended such a person.

(9) Subject to paragraph (5), an appeal tribunal determining a misconceived appeal as a preliminary issue in accordance with regulation 48 shall consist of a legally qualified panel member.”.

(12) In regulation 42 (non-disclosure of medical advice or evidence)—

(a) in paragraph (1)—

(i) “the consideration and determination of” and “before an appeal tribunal” shall be omitted, and

(ii) for “the chairman or, in the case of an appeal tribunal which has only one member, that member,” there shall be substituted “a legally qualified panel member ”; and

(b) in paragraph (2) for “the chairman or, in the case of an appeal tribunal which has only one member, that member,” there shall be substituted “a legally qualified panel member”.

(13) In regulation 47 (reinstatement of struck out appeals) for “48(2)” there shall be substituted “48”.

(14) In regulation 49(10) (procedure at oral hearings) after “any witness” there shall be added “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 clerk”.

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

(a) in paragraph (3)(b) at the beginning there shall be inserted “except in the case of an appeal under the Vaccine Damage Payments Act,”; and

(b) in paragraph (4)—

(i) “a copy of” shall be omitted, and

(ii) after “regulation 54” there shall be added “and following that application the chairman or, as the case may be, that member shall record a statement of the reasons and a copy of that statement shall be sent or given to every party to the proceedings as soon as may be practicable”.

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

(a) in paragraph (1)—

(i) “a copy of” shall be omitted, and

(ii) after “are satisfied, but” there shall be inserted “, subject to paragraph (12A),”; and

(b) after paragraph (12) there shall be inserted the following paragraph—

“(12A) In calculating the time specified for applying in writing for the statement of the reasons for the tribunal’s decision there shall be disregarded any day which falls before the day on which notice was given of—

(a) a correction of a decision or the record thereof pursuant to regulation 56; or

(b) a determination that a decision shall not be set aside following an application made under regulation 57.”.

(17) In regulation 56(1) (correction of accidental errors) for “, where the clerk refers the matter to a legally qualified panel member, that member,” there shall be substituted “a legally qualified panel member”.

(18) In regulation 57 (setting aside decisions on certain grounds)—

(a) for paragraph (3) there shall be substituted the following paragraph—

“(3) An application under this regulation shall—

(a) be made within one month of the date on which—

(i) a copy of the decision notice is sent or given to the parties to the proceedings in accordance with regulation 53(3), or

(ii) the statement of the reasons for the decision is sent or given in accordance with regulation 53(4),

whichever is the later;

(b) be in writing and signed by a party to the proceedings or, where the party has provided written authority to a representative to act on his behalf, that representative;

(c) contain particulars of the grounds on which it is made; and

(d) be sent to the clerk to the appeal tribunal.”; and

(b) after paragraph (5) there shall be added the following paragraphs—

“(6) The time within which an application under this regulation must be made may be extended by a period not exceeding one year where the conditions specified in paragraphs (7) to (11) are satisfied.

(7) An application for an extension of time shall be made in accordance with paragraph (3)(b) to (d), shall include details of any relevant special circumstances for the purposes of paragraph (9) and shall be determined by a legally qualified panel member.

(8) An application for an extension of time shall not be granted unless the panel member is satisfied that—

(a) if the application is granted there are reasonable prospects that the application to set aside will be successful; and

(b) it is in the interests of justice for the application for an extension of time to be granted.

(9) For the purposes of paragraph (8) it is not in the interests of justice to grant an application for an extension of time unless the panel member is satisfied that—

(a) the special circumstances specified in paragraph (10) are relevant to that application; or

(b) some other special circumstances exist which are wholly exceptional and relevant to that application,

and as a result of those special circumstances, it was not practicable for the application to set aside to be made within the time limit specified in paragraph (3)(a).

(10) For the purposes of paragraph (9)(a) the special circumstances are that—

(a) the applicant or a spouse or dependant of the applicant has died or suffered serious illness;

(b) the applicant is not resident in the United Kingdom; or

(c) normal postal services were disrupted.

(11) In determining whether it is in the interests of justice to grant an application for an extension of time, the panel member shall have regard to the principle that the greater the amount of time that has elapsed between the expiry of the time within which the application to set aside is to be made and the making of the application for an extension of time, the more compelling should be the special circumstances on which the application for an extension is based.

(12) An application under this regulation for an extension of time which has been refused may not be renewed.”.

(19) After regulation 57 there shall be inserted the following regulation—

“Provisions common to regulations 56 and 57

57A.— (1) In calculating any time specified for appealing to a Commissioner or, as the case may be, a Child Support Commissioner from a decision of an appeal tribunal there shall be disregarded any day falling before the day on which notice was given of a correction of a decision or the record thereof pursuant to regulation 56 or on which notice was given of a determination that a decision shall not be set aside following an application made under regulation 57, as the case may be.

(2) There shall be no appeal against a correction made under regulation 56 or a refusal to make such a correction or against a determination given under regulation 57.

(3) Nothing in this Chapter shall be construed as derogating from any power to correct errors or set aside decisions which is exercisable apart from these Regulations.”.

(20) In regulation 58(6) (application for leave to appeal to a Commissioner from an appeal tribunal) after “that member,” there shall be inserted “or if the President considers it necessary or expedient for the purpose of supervising panel members or in the monitoring of decision-making by panel members,”.

(21) In Schedule 1 (decisions against which no appeal lies)—

(a) in paragraph 5 sub-paragraph (b) shall be omitted; and

(b) in paragraphs 11 and 17(3) “which embodies a determination” shall be omitted.

(22) After Schedule 2 (qualifications of persons appointed to the panel) there shall be inserted as Schedule 2A the Schedule set out in Schedule 1 to these Regulations.

(1)

S.R. 1999 No. 162; relevant amending rules are S.R. 1999 Nos. 267, 271 (C. 22) and 472 (C. 36) and S.R. 2000 No. 3

(2)

The definitions of “disability determination”, “incapacity benefit decision” and “incapacity determination” were inserted by regulation 2(2) of S.R. 1999 No. 267

(3)

Section 22(5) was amended by paragraph 5 of Schedule 2 to the Jobseekers (Northern Ireland) Order 1995 (S.I. 1995/2705 (N.I. 15))

(4)

Paragraphs (1) and (2) were amended by Article 17 of S.R. 1999 No. 472 (C. 36) and paragraph (9) was substituted by regulation 2(2) of S.R. 2000 No. 3

(5)

Regulation 20 was amended by regulation 2(7) of S.R. 1999 No. 267

(6)

Regulation 36 was amended by regulation 2 of S.R. 1999 No. 242 and regulation 2(4) of S.R. 1999 No. 473