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

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

7.—(1) The Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999(1) shall be amended in accordance with paragraphs (2) to (20).

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

(a) after paragraph (7)(2) there shall be inserted the following paragraph –

“(7ZA) Where –

(a) the Department makes a decision under Article 9 or 11 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 1 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 from 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 1 to the State Pension Credit Regulations,

the Department may revise the original award.”;

(b) after paragraph (7A)(3) there shall be inserted the following paragraphs –

“(7B) A decision under regulation 22A of the Income Support Regulations 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)(4) after “had effect” there shall be inserted “or, in the case of an advance award under regulation 13, 13A or 13C of the Claims and Payments Regulations, since the decision was made,”.

(3) In regulation 4(3)(b) (late application for a revision) at the end there shall be added

“, 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) where the statement is provided within one month of the notification, an additional 14 days, or

(ii) where 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) –

(i) in sub-paragraph (a)(i)(5) after “had effect” there shall be inserted “or, in the case of an advance award under regulation 13, 13A or 13C of the Claims and Payments Regulations, since the decision was made”,

(ii) after sub-paragraph (e)(6) there shall be inserted the following sub-paragraph –

“(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;”,

(iii) after sub-paragraph (l)(7) there shall be added the following sub-paragraph –

“(m) is a decision by an appeal tribunal confirming a decision by the Department 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 and a further appeal tribunal subsequently determines that he is incapable of work.”; and

(b) in paragraph (6) sub-paragraph (b) shall be omitted.

(5) In regulation 7 (date from which a decision superseded under Article 11 takes effect) –

(a) in paragraph (2)(8) after “had effect” there shall be inserted “or, in the case of an advance award, since the decision was made”;

(b) after paragraph (6) there shall be inserted the following paragraph –

“(6A) Where –

(a) there is a decision which is a relevant determination for the purposes of Article 27 and the Department makes a benefit decision of the kind specified in Article 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 Article 27, reverses the determination in whole or in part,

a consequential decision by the Department under Article 11 which supersedes its earlier decision under sub-paragraph (a) shall take effect from the date on which the earlier decision took effect.”;

(c) in paragraph (7)(9) –

(i) after “6(2)(e)” there shall be inserted “or (ee)”, and

(ii) for “that sub-paragraph” there shall be substituted “regulation 6(2)(e)(ii) or (ee)”; and

(d) after paragraph (32)(10) there shall be added the following paragraph –

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

(6) In regulation 28(2) (notice of decision against which appeal lies) at the end there shall be added “or as soon as practicable afterwards”.

(7) In regulation 30(2) (appeals against decisions which have been replaced or revised) after sub-paragraph (d) there shall be added the following sub-paragraph –

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

(8) In regulation 31(2)(11) (time within which appeals are to be brought) for “or 3A(1)”, in both places where it occurs, there shall be substituted “, 3A(1) or regulation 16(1)(a) of the Child Support (Maintenance Assessment Procedure) Regulations (Northern Ireland) 1992”.

(9) In regulation 49(7)(b)(12) (procedure at oral hearings) the words “and the appellant consents” shall be omitted.

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

(a) in paragraph (3) the words “prepared in accordance with paragraphs (1) and (2)” shall be omitted;

(b) in paragraph (4)(13) at the beginning there shall be inserted “Subject to paragraph (4A),”; and

(c) after paragraph (4) there shall be inserted the following paragraph –

“(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 statement of reasons for tribunal decision) –

(a) in paragraph (1)(14) for “, subject to paragraph (12A),” there shall be substituted “, subject to regulation 53(4A),”; and

(b) paragraph (12A)(15) shall be omitted.

(12) In regulation 55 (record of tribunal proceedings) for paragraph (2) there shall be substituted the following paragraphs –

“(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) The period referred to in paragraph (2) is a period of 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 Commissioners and Child Support Commissioners in connection with an appeal against the decision, or an application to a Commissioner or, as the case may be, a Child Support Commissioner for leave to appeal, if that occurs within 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 (correction of accidental errors) –

(a) in paragraph (1)(16) for “any decision, or the record of any such decision,” there shall be substituted “the notice of any decision”; and

(b) for paragraph (2) there shall be substituted the following paragraph –

“(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 (setting aside decisions on certain grounds) after paragraph (4) there shall be inserted the following paragraph –

“(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(17) (provisions common to regulations 56 and 57) paragraph (1) shall be omitted.

(16) After regulation 57A there shall be inserted the following regulations –

“Service of decision notice by electronic mail

57B.   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 on which it is sent.

Interpretation of Chapter V

57C.   In this Chapter –

“decision”, except in regulations 58 and 58A, includes a determination on a referral;

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

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

(a) in paragraph (1) –

(i) at the beginning there shall be inserted “Subject to paragraph (1A),”, and

(ii) for sub-paragraph (b) there shall be substituted the following sub-paragraphs –

“(b) be in writing and signed by the applicant or, where he has provided 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) there shall be inserted the following paragraph –

“(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)” there shall be inserted “or (1A)”.

(18) After regulation 58 there shall be inserted the following regulation –

“Appeal to a Commissioner by a partner

58A.   A partner, within the meaning of section 2AA(7) of the Administration Act, may appeal to a Commissioner under Article 15 from a decision of an appeal tribunal in respect of a decision specified in section 2B(2A) and (6) of that Act.”.

(19) In paragraph 2 of Schedule 2 (qualifications of persons appointed to the panel) –

(a) in sub-paragraph (1) –

(i) the word “Fully” shall be omitted,

(ii) for head (a) there shall be substituted the following head –

“(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;”, and

(iii) for head (c) there shall be substituted the following head –

“(c) the practitioner does not satisfy the requirements of head (a) or (b), 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 heads apply.”; and

(b) in sub-paragraph (2), in the definition of “Medical Directive”, after “1997” there shall be inserted “, or any directive which replaces Directive 93/16/EEC”.

(20) In Schedule 2A(19) (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 heading for “on which change of circumstances takes effect in certain cases” there shall be substituted “from which superseding decision takes effect”;

(b) in paragraphs 3 and 8 sub-paragraph (c) shall be omitted;

(c) in paragraph 5 –

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

(ii) in sub-paragraph (b) after “prescribed in” there shall be inserted “paragraph 12 or”;

(d) in paragraph 11 –

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

(ii) after “accordance with” there shall be inserted “paragraph 12 or”; and

(e) after paragraph 11 there shall be added the following paragraphs –

“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 in 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 (32).”.

(1)

S.R. 1999 No. 162; relevant amending regulations are S.R. 1999 No. 408, S.R. 2000 No. 215, S.R. 2002 Nos. 67, 164 and 189 and S.R. 2003 Nos. 224 and 421

(2)

Paragraph (7) was substituted by regulation 3(2) of S.R. 2002 No. 67

(3)

Paragraph (7A) was inserted by regulation 2(3)(d) of S.R. 2002 No. 189

(4)

Paragraph (9) was substituted by regulation 3(2)(b) of S.R. 1999 No. 408 and amended by regulation 3(3) of S.R. 2003 No. 224

(5)

Sub-paragraph (a)(i) was amended by regulation 3(4)(a) of S.R. 2003 No. 224

(6)

Sub-paragraph (e) was substituted by regulation 6(4) of S.R. 2000 No. 215 and amended by regulation 3(3) of S.R. 2002 No. 67

(7)

Sub-paragraph (l) was added by regulation 5(2) of S.R. 2003 No. 421

(8)

Paragraph (2) was amended by regulation 3(6)(b) of S.R. 2003 No. 224

(9)

Paragraph (7) was substituted by regulation 3(4) of S.R. 2002 No. 67

(10)

Paragraph (32) was added by regulation 3(6)(e) of S.R. 2003 No. 224

(11)

Regulation 31(2) was amended by regulation 6(5) of S.R. 2002 No. 164

(12)

Paragraph (7) was substituted by regulation 2(13)(a) of S.R. 2002 No. 189

(13)

Paragraph (4) was amended by regulation 6(15)(b) of S.R. 2000 No. 215 and regulation 2(15) of S.R. 2002 No. 189

(14)

Paragraph (1) was amended by regulation 6(16)(a) of S.R. 2000 No. 215

(15)

Paragraph (12A) was inserted by regulation 6(16)(b) of S.R. 2000 No. 215 and amended by regulation 2(16)(a) of S.R. 2002 No. 189

(16)

Regulation 56(1) was amended by regulation 6(17) of S.R. 2000 No. 215

(17)

Regulation 57A was inserted by regulation 6(19) of S.R. 2000 No. 215 and amended by regulation 2(18) of S.R. 2002 No. 189

(18)

Regulation 58 was amended by regulation 2(19) of S.R. 2002 No. 189

(19)

Schedule 2A was inserted by regulation 6(22) of, and the Schedule to, S.R. 2000 No. 215