Office of Public Sector Information
PART I continued CHAPTER II continued
(1) In this section and section 38 below, “appropriate officer” means an officer of the Secretary of State who, acting under his authority, is exercising functions of the Secretary of State in relation to such payments out of the social fund as are mentioned in section 138(1)(b) of the Contributions and Benefits Act.
(2) The Secretary of State may nominate for an area an appropriate officer who shall issue general guidance to other such officers in the area about such matters relating to the social fund as the Secretary of State may specify.
(3) In relation to any decision of an appropriate officer, section 38 below shall apply in substitution for sections 9 and 10 above.
(1) There shall continue to be an officer known as “the social fund Commissioner”.
(2) The social fund Commissioner shall be appointed by the Secretary of State.
(3) The social fund Commissioner—
(a) shall appoint such social fund inspectors; and
(b) may appoint such officers and staff for himself and for social fund inspectors,
as he thinks fit, but with the consent of the Secretary of State as to numbers.
(4) Appointments under subsection (3) above shall be made from persons made available to the social fund Commissioner by the Secretary of State.
(5) It shall be the duty of the social fund Commissioner—
(a) to monitor the quality of decisions of social fund inspectors and give them such advice and assistance as he thinks fit to improve the standard of their decisions;
(b) to arrange such training of social fund inspectors as he considers appropriate; and
(c) to carry out such other functions in connection with the work of social fund inspectors as the Secretary of State may direct.
(6) The social fund Commissioner shall report annually in writing to the Secretary of State on the standards of reviews by social fund inspectors, and the Secretary of State shall publish his report.
(1) An appropriate officer—
(a) shall review a social fund determination, if an application for a review is made, within such time and in such form and manner as may be prescribed, by or on behalf of the person who applied for the payment to which the determination relates;
(b) may review such a determination on the ground that the person who applied for the payment to which the determination relates misrepresented, or failed to disclose, any material fact; and
(c) may review such a determination in such other circumstances as he thinks fit.
(2) The power to review a social fund determination conferred by subsection (1) above includes power to review a determination made on a previous review.
(3) A social fund determination which has been reviewed under subsection (1) above shall be further reviewed by a social fund inspector if an application is made, within such time and in such form and manner as may be prescribed, by or on behalf of the person who applied for the payment to which the determination relates.
(4) On a review under subsection (3) above a social fund inspector shall have the following powers—
(a) power to confirm the determination made by the appropriate officer;
(b) power to make any determination which an appropriate officer could have made;
(c) power to refer the matter to such an officer for determination.
(5) A social fund inspector may review a determination under subsection (3) above made by himself or some other social fund inspector.
(6) In making a determination on a review an appropriate officer or a social fund inspector need not consider—
(a) in the case of a determination on a review under subsection (1)(a) above, any issue that is not raised by the application;
(b) in the case of a determination on a review under subsection (1)(b) above, any issue that is not raised by the material fact;
(c) in the case of a determination on a review under subsection (1)(c) above, any issue that did not cause him to carry out the review.
(7) In making a determination on a review under subsection (1)(a) or (c) above an appropriate officer or a social fund inspector shall—
(a) subject to paragraphs (b) and (c) below, have regard to whichever of the following are applicable, namely—
(i) all the circumstances of the case and, in particular, the criteria specified in paragraphs (a) to (e) of subsection (1) of section 140 of the Contributions and Benefits Act;
(ii) the criteria mentioned in paragraphs (a) and (b) of subsection (1A) of that section; and
(iii) the criterion specified in directions issued by the Secretary of State under that subsection and the criteria mentioned in paragraph (b) of that subsection;
(b) act in accordance with any general directions issued by the Secretary of State under subsection (2) of that section, and any general directions issued by him with regard to reviews; and
(c) take account of any general guidance issued by the Secretary of State under that subsection or with regard to reviews.
(8) In making a determination on a review under subsection (1)(b) above an appropriate officer or a social fund inspector shall—
(a) act in accordance with any general directions issued by the Secretary of State; and
(b) take account of any general guidance issued by the Secretary of State.
(9) Any reference in subsection (6), (7) or (8) above to a determination on a review under a particular provision of subsection (1) above shall be construed, in relation to a social fund inspector, as a reference to a determination on a further review of a determination which has been reviewed under that provision.
(10) Directions under this section may specify—
(a) the circumstances in which a social fund determination is to be reviewed; and
(b) the manner in which a review is to be conducted.
(11) In making a determination on a review under subsection (1)(a) or (c) above an appropriate officer shall take account (subject to any directions or guidance issued by the Secretary of State under this section) of any guidance issued by the appropriate officer nominated for his area under section 36(2) above.
(12) A social fund inspector reviewing a social fund determination which has been reviewed under subsection (1)(a) or (c) above shall be under the same duties in relation to such guidance as the appropriate officer or social fund inspector who made the determination.
(13) In this section “social fund determination” means a determination made under the Contributions and Benefits Act by an appropriate officer.
(1) In this Chapter—
“appeal tribunal” means an appeal tribunal constituted under Chapter I of this Part;
“Commissioner” means the Chief Social Security Commissioner or any other Social Security Commissioner, and includes a tribunal of three or more Commissioners constituted under section 16(7) above;
“relevant benefit” has the meaning given by section 8(3) above.
(2) Expressions used in this Chapter to which a meaning is assigned by section 191 of the Administration Act have that meaning in this Chapter.
(3) Part II of the Administration Act, which is superseded by the foregoing provisions of this Chapter, shall cease to have effect.
For section 16 of the Child Support Act there shall be substituted the following section—
(1) Any decision of the Secretary of State under section 11, 12 or 17 may be revised by the Secretary of State—
(a) either within the prescribed period or in prescribed cases or circumstances; and
(b) either on an application made for the purpose or on his own initiative;
and regulations may prescribe the procedure by which a decision of the Secretary of State may be so revised.
(2) In making a decision under subsection (1), the Secretary of State need not consider any issue that is not raised by the application or, as the case may be, did not cause him to act on his own initiative.
(3) Subject to subsections (4) and (5) and section 28ZC, a revision under this section shall take effect as from the date on which the original decision took (or was to take) effect.
(4) Regulations may provide that, in prescribed cases or circumstances, a revision under this section shall take effect as from such other date as may be prescribed.
(5) Where a decision is revised under this section, for the purpose of any rule as to the time allowed for bringing an appeal, the decision shall be regarded as made on the date on which it is so revised.
(6) Except in prescribed circumstances, an appeal against a decision of the Secretary of State shall lapse if the decision is revised under this section before the appeal is determined.”
For sections 17 to 19 of the Child Support Act there shall be substituted the following section—
(1) Subject to subsection (2), the following, namely—
(a) any decision of the Secretary of State under section 11 or 12 or this section, whether as originally made or as revised under section 16;
(b) any decision of an appeal tribunal under section 20; and
(c) any decision of a Child Support Commissioner on an appeal from such a decision as is mentioned in paragraph (b),
may be superseded by a decision made by the Secretary of State, either on an application made for the purpose or on his own initiative.
(2) In making a decision under subsection (1), the Secretary of State need not consider any issue that is not raised by the application or, as the case may be, did not cause him to act on his own initiative.
(3) Regulations may prescribe the cases and circumstances in which, and the procedure by which, a decision may be made under this section.
(4) Subject to subsection (5) and section 28ZC, a decision under this section shall take effect as from the date on which it is made or, where applicable, the date on which the application was made.
(5) Regulations may provide that, in prescribed cases or circumstances, a decision under this section shall take effect as from such other date as may be prescribed.”
For sections 20 to 21 of the Child Support Act there shall be substituted the following section—
(1) Where an application for a maintenance assessment is refused, the person who made that application shall have a right of appeal to an appeal tribunal against the refusal.
(2) Where a maintenance assessment is in force—
(a) the absent parent or person with care with respect to whom it was made; or
(b) where the application for the assessment was made under section 7, either of them or the child concerned,
shall have a right of appeal to an appeal tribunal against the amount of the assessment or the date from which the assessment takes effect.
(3) Where a maintenance assessment is cancelled, or an application for the cancellation of a maintenance assessment is refused—
(a) the absent parent or person with care with respect to whom the maintenance assessment in question was, or remains, in force; or
(b) where the application for that assessment was made under section 7, either of them or the child concerned,
shall have a right of appeal to an appeal tribunal against the cancellation or refusal.
(4) A person with a right of appeal under this section shall be given such notice of that right and, in the case of a right conferred by subsection (1) or (3), such notice of the decision as may be prescribed.
(5) Regulations may make—
(a) provision as to the manner in which, and the time within which, appeals are to be brought; and
(b) such provision with respect to proceedings before appeal tribunals as the Secretary of State considers appropriate.
(6) The regulations may in particular make any provision of a kind mentioned in Schedule 5 to the Social Security Act 1998.
(7) In deciding an appeal under this section, an appeal tribunal—
(a) need not consider any issue that is not raised by the appeal; and
(b) shall not take into account any circumstances not obtaining at the time when the decision or assessment appealed against was made.”
After section 28 of the Child Support Act there shall be inserted the following sections—
(1) This section applies where—
(a) a decision by the Secretary of State falls to be made under section 11, 12, 16 or 17 in relation to a maintenance assessment; and
(b) an appeal is pending against a decision given in relation to a different maintenance assessment by a Child Support Commissioner or a court.
(2) If the Secretary of State considers it possible that the result of the appeal will be such that, if it were already determined, it would affect the decision in some way—
(a) he need not, except in such cases or circumstances as may be prescribed, make the decision while the appeal is pending;
(b) he may, in such cases or circumstances as may be prescribed, make the decision on such basis as may be prescribed.
(3) Where the Secretary of State acts in accordance with subsection (2)(b), following the determination of the appeal he shall if appropriate revise his decision (under section 16) in accordance with that determination.
(4) For the purposes of this section, an appeal against a decision is pending if—
(a) an appeal against the decision has been brought but not determined;
(b) an application for leave to appeal against the decision has been made but not determined; or
(c) in such circumstances as may be prescribed, an appeal against the decision has not been brought (or, as the case may be, an application for leave to appeal against the decision has not been made) but the time for doing so has not yet expired.
(5) In paragraphs (a), (b) and (c) of subsection (4), any reference to an appeal, or an application for leave to appeal, against a decision includes a reference to—
(a) an application for, or for leave to apply for, judicial review of the decision under section 31 of the [1981 c. 54.] Supreme Court Act 1981; or
(b) an application to the supervisory jurisdiction of the Court of Session in respect of the decision.
(1) This section applies where—
(a) an appeal (“appeal A”) in relation to a decision falling within section 20(1) or (3), or an assessment falling within section 20(2), is made to an appeal tribunal, or from an appeal tribunal to a Child Support Commissioner; and
(b) an appeal (“appeal B”) is pending against a decision given in a different case by a Child Support Commissioner or a court.
(2) If the Secretary of State considers it possible that the result of appeal B will be such that, if it were already determined, it would affect the determination of appeal A, he may serve notice requiring the tribunal or Child Support Commissioner—
(a) not to determine appeal A but to refer it to him; or
(b) to deal with the appeal in accordance with subsection (4).
(3) Where appeal A is referred to the Secretary of State under subsection (2)(a), following the determination of appeal B and in accordance with that determination, he shall if appropriate—
(a) in a case where appeal A has not been determined by the tribunal, revise (under section 16) his decision which gave rise to that appeal; or
(b) in a case where appeal A has been determined by the tribunal, make a decision (under section 17) superseding the tribunal’s decision.
(4) Where appeal A is to be dealt with in accordance with this subsection, the appeal tribunal or Child Support Commissioner shall either—
(a) stay appeal A until appeal B is determined; or
(b) if the tribunal or Child Support Commissioner considers it to be in the interests of the appellant to do so, determine appeal A as if—
(i) appeal B had already been determined; and
(ii) the issues arising on appeal B had been decided in the way that was most unfavourable to the appellant.
In this subsection “the appellant” means the person who appealed or, as the case may be, first appealed against the decision or assessment mentioned in subsection (1)(a).
(5) Where the appeal tribunal or Child Support Commissioner acts in accordance with subsection (4)(b), following the determination of appeal B the Secretary of State shall, if appropriate, make a decision (under section 17) superseding the decision of the tribunal or Child Support Commissioner in accordance with that determination.
(6) For the purposes of this section, an appeal against a decision is pending if—
(a) an appeal against the decision has been brought but not determined;
(b) an application for leave to appeal against the decision has been made but not determined; or
(c) in such circumstances as may be prescribed, an appeal against the decision has not been brought (or, as the case may be, an application for leave to appeal against the decision has not been made) but the time for doing so has not yet expired.
(7) In this section—
(a) the reference in subsection (1)(a) to an appeal to a Child Support Commissioner includes a reference to an application for leave to appeal to a Child Support Commissioner; and
(b) any reference in paragraph (a), (b) or (c) of subsection (6) to an appeal, or to an application for leave to appeal, against a decision includes a reference to—
(i) an application for, or for leave to apply for, judicial review of the decision under section 31 of the [1981 c. 54.] Supreme Court Act 1981; or
(ii) an application to the supervisory jurisdiction of the Court of Session in respect of the decision.
(8) Regulations may make provision supplementing that made by this section.”
After section 28ZB of the Child Support Act there shall be inserted the following sections—
(1) Subject to subsection (2), this section applies where—
(a) the effect of the determination, whenever made, of an appeal to a Child Support Commissioner or the court (“the relevant determination”) is that the adjudicating authority’s decision out of which the appeal arose was erroneous in point of law; and
(b) after the date of the relevant determination a decision falls to be made by the Secretary of State in accordance with that determination (or would, apart from this section, fall to be so made)—
(i) with respect to an application for a maintenance assessment (made after the commencement date);
(ii) as to whether to revise, under section 16, a decision (made after the commencement date) with respect to such an assessment; or
(iii) on an application under section 17 (made after the commencement date) for a decision with respect to such an assessment to be superseded.
(2) This section does not apply where the decision of the Secretary of State mentioned in subsection (1)(b)—
(a) is one which, but for section 28ZA(2)(a), would have been made before the date of the relevant determination; or
(b) is one made in pursuance of section 28ZB(3) or (5).
(3) In so far as the decision relates to a person’s liability in respect of a period before the date of the relevant determination, it shall be made as if the adjudicating authority’s decision had been found by the Commissioner or court not to have been erroneous in point of law.
(4) Subsection (1)(a) shall be read as including a case where—
(a) the effect of the relevant determination is that part or all of a purported regulation or order is invalid; and
(b) the error of law made by the adjudicating authority was to act on the basis that the purported regulation or order (or the part held to be invalid) was valid.
(5) It is immaterial for the purposes of subsection (1)—
(a) where such a decision as is mentioned in paragraph (b)(i) falls to be made; or
(b) where such a decision as is mentioned in paragraph (b)(ii) or (iii) falls to be made on an application under section 16 or (as the case may be) section 17,
whether the application was made before or after the date of the relevant determination.
(6) In this section—
“adjudicating authority” means the Secretary of State, or a child support officer;
“the commencement date” means the date of the coming into force of section 44 of the Social Security Act 1998; and
“the court” means the High Court, the Court of Appeal, the Court of Session, the High Court or Court of Appeal in Northern Ireland, the House of Lords or the Court of Justice of the European Community.
(7) 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.
(8) Regulations made under subsection (7) may include provision—
(a) for a determination of a higher court to be treated as if it had been made on the date of a determination of a lower court or a Child Support Commissioner; or
(b) for a determination of a lower court or a Child Support Commissioner to be treated as if it had been made on the date of a determination of a higher court.
(1) Regulations may make provision with respect to—
(a) the correction of accidental errors in any decision or record of a decision given under this Act; and
(b) the setting aside of any such decision in a case where it appears just to set the decision aside on the ground that—
(i) a document relating to the proceedings in which the decision was given was not sent to, or was not received at an appropriate time by, a party to the proceedings or a party’s representative or was not received at an appropriate time by the body or person who gave the decision; or
(ii) a party to the proceedings or a party’s representative was not present at a hearing related to the proceedings.
(2) Nothing in subsection (1) shall be construed as derogating from any power to correct errors or set aside decisions which is exercisable apart from regulations made by virtue of that subsection.”
After section 3 of the Vaccine Damage Payments Act there shall be inserted the following section—
(1) Subject to subsection (2) below, any decision of the Secretary of State under section 3 above or this section, and any decision of an appeal tribunal under section 4 below, may be reversed by a decision made by the Secretary of State—
(a) either within the prescribed period or in prescribed cases or circumstances; and
(b) either on an application made for the purpose or on his own initiative.
(2) In making a decision under subsection (1) above, the Secretary of State need not consider any issue that is not raised by the application or, as the case may be, did not cause him to act on his own initiative.
(3) Regulations may prescribe the procedure by which a decision may be made under this section.
(4) Such notice as may be prescribed by regulations shall be given of a decision under this section.
(5) Except as provided by section 5(4) below, no payment under section 1(1) above shall be recoverable by virtue of a decision under this section.
(6) In this section and sections 4 and 8 below “appeal tribunal” means an appeal tribunal constituted under Chapter I of Part I of the Social Security Act 1998.”
For section 4 of the Vaccine Damage Payments Act there shall be substituted the following section—
(1) The claimant may appeal to an appeal tribunal against any decision of the Secretary of State under section 3 or 3A above.
(2) Regulations may make—
(a) provision as to the manner in which, and the time within which, appeals are to be brought; and
(b) such provision with respect to proceedings before appeal tribunals as the Secretary of State considers appropriate.
(3) The regulations may in particular make any provision of a kind mentioned in Schedule 5 to the Social Security Act 1998.
(4) In deciding an appeal under this section, an appeal tribunal shall consider all the circumstances of the case (including any not obtaining at the time when the decision appealed against was made).”
After section 7 of the Vaccine Damage Payments Act there shall be inserted the following section—
(1) Regulations may make provision with respect to—
(a) the correction of accidental errors in any decision or record of a decision under section 3, 3A or 4 of this Act; and
(b) the setting aside of any such decision in a case where it appears just to set the decision aside on the ground that—
(i) a document relating to the proceedings in which the decision was given was not sent to, or was not received at an appropriate time by, a party to the proceedings or a party’s representative or was not received at an appropriate time by the body or person who gave the decision; or
(ii) a party to the proceedings or a party’s representative was not present at a hearing related to the proceedings.
(2) Nothing in subsection (1) shall be construed as derogating from any power to correct errors or set aside decisions which is exercisable apart from regulations made by virtue of that subsection.”
Social Security Act 1998