Office of Public Sector Information
225.Supporting People teams for local authorities in England and Wales administer grants from the Department for Communities and Local Government and the National Assembly for Wales to provide welfare services. These services provide support to assist vulnerable groups in society, including the elderly, people suffering from substance abuse and people with mental health or learning difficulties, to live in the community. Section 93 of the Local Government Act 2000 provides a power by which these grants can be paid. An equivalent to this grant-making provision exists in Scotland but is contained within Scottish legislation.
226.Section 94(1) to (3) of the Local Government Act 2000 allowed information relating to certain income-related benefits - housing benefit, income support, income-based jobseeker’s allowance and state pension credit, administered by the Department for Work and Pensions or local authorities - to be supplied to Supporting People teams for purposes connected with applying a grant made under section 93 towards welfare services. Section 95 of the Local Government Act 2000 created an offence concerning disclosure, without lawful authority, of information which was supplied by virtue of section 94.
227.Section 94 of the Local Government Act 2000 enabled the supply of information by the benefit teams of the Secretary of State or the local authorities to Supporting People teams. It gave no power for information to be supplied by the Supporting People teams to the benefit teams. Subsection (1) enables a two-way supply of information between benefit teams and Supporting People teams. Specifically, the subsection enables Supporting People teams to contact benefit teams when they receive an application for support services. In common with what previously occurred, this subsection enables the benefit team to confirm whether a certain income-related benefit (including the new income-related employment and support allowance) is in payment. This information will be used by the Supporting People team to determine whether the claimant meets the means test in determining the amount of assistance with service charges for the support services. Similarly, the subsection will enable benefit teams to inform Supporting People teams when payment of a certain income-related benefit – and hence automatic entitlement to full support – ceased.
228.It is intended that grants to support these welfare services would in future be made under powers in addition to section 93 of the Local Government Act 2000. To support this shift in funding arrangements, subsection (1) of this section creates a freestanding provision that enables supply of information concerning grants paid under enactments which will be specified by order as per subsection (7).
229.Subsection (2) of this section also enables certain information held for prescribed purposes by Supporting People teams or by housing benefit teams to be supplied to the other teams for use for prescribed purposes. The prescribed purposes are limited either to a purpose relating to housing benefit or to a purpose relating to welfare services (subsection (8)). This provision will be used, for example, to enable housing benefit teams to consider information relating to the vulnerability of a claimant or the probity of a landlord when considering whether to pay housing benefit to the claimant or to the landlord. For example, in considering whether a payment of housing benefit should be made to the claimant or to the landlord it would contribute to the decision-making process in housing benefit teams for them to know whether the claimant is receiving Supporting People assistance because of a disability and, if so, whether that disability may indicate a level of vulnerability.
230.Certain information supplied to Supporting People teams could be passed to the welfare service providers when required under subsection (5). This mirrors the provision in Section 94(4) of the Local Government Act 2000.
231.The information sharing powers provided for within this section and the offence of unlawful disclosure in section 43 replace those contained in sections 94 and 95 of the Local Government Act 2000, which are omitted.
232.Section 95 of the Local Government Act 2000 made it an offence for a person to disclose without lawful authority information supplied by virtue of section 94 of the Local Government Act 2000. Section 43 creates a similar unlawful disclosure provision in relation to information received by virtue of section 42.
233.Subsection (2) sets out to whom this section applies. It covers specified positions within Supporting People teams and those providing welfare services. Relevant persons in the Department for Work and Pensions or local authority benefit teams are not covered by this new section as there is an existing unlawful disclosure provision which applies to them, section 123 of the Social Security Administration Act 1992.
234.This section complements section 123 of the Social Security Administration Act 1992 and subsections (3) to (6) of this section follow the wording of that section.
235.This section amends section 71 of the Social Security Administration Act 1992 in relation to the recovery of overpayments of benefits.
236.Subsection (2) provides for the removal of section 71(5), which, according to a Social Security Commissioner’s decision, has the effect that benefit overpayments caused by errors made in the direct credit transfer system (which are recoverable in accordance with regulations under section 71(4)) can be recovered only where a decision to revise the award and a decision that the payment is recoverable were made at the same time.
237.Section 71(5A) provides that, where overpayments of benefits have arisen because a person has misrepresented facts, such overpayments are not recoverable unless there has been a decision to revise the award, e.g. on appeal. Subsection (3) amends section 71(5A) by widening its scope to include overpayments recoverable under section 71(4) so that the necessary decisions can be made separately.
238.This section provides for the same changes as section 44 in respect of child benefit and guardian’s allowance in Northern Ireland. Child benefit and guardian’s allowance are not devolved in Northern Ireland. Her Majesty’s Commissioners for Revenue and Customs administer these two benefits throughout the United Kingdom.
239.Section 110A of the Social Security Administration Act 1992 allows local authorities to investigate fraud against local benefits (i.e. housing benefit and council tax benefit). However, significant doubt has arisen as to whether this allows them to investigate fraud in connection with national benefits administered by the Department for Work and Pensions. In particular, the doubt exists where entitlement to a national benefit means that a claimant automatically satisfies some eligibility conditions to a local one. This reduces the scope for effective joint working between local authorities and the Department for Work and Pensions to investigate and prosecute fraud cases that involve more than one benefit. The Government estimates that around 50% of fraud against a local benefit also involves fraud against a national benefit.
240.On 10th March 2005, the Government published a consultation paper(8) setting out proposals to remove the doubt by using powers in the Regulatory Reform Act 2001. Forty eight responses were received, the overwhelming majority of which were in favour of the proposals. However it became clear that the use of a Regulatory Reform Order would not be able to deliver an effective set of powers for local authorities. Therefore the Government announced to Parliament in a written Ministerial statement on 18th July that it had decided not to proceed with the Regulatory Reform Order, and instead to seek to address the issue in this Act.
241.Most cases of national benefit fraud will continue to be investigated by the Department for Work and Pensions. However, the Act provides local authorities with clear powers to investigate and prosecute offences in relation to national benefits where they already have power to investigate and prosecute offences concerning local benefits.
242.While it is proposed that Scottish local authorities be allowed to investigate offences against national benefits, the power to prosecute would not apply in Scotland, where the Procurator Fiscal is responsible for the prosecution of all criminal offences.
243.Section 46 sets out the scope of the new provisions which give local authorities administering housing benefit or council tax benefit a wider power to investigate benefit fraud. The measures in this section permit them to investigate offences concerning social security benefits administered by the Department for Work and Pensions.
244.Section 46 extends the powers of local authority authorised officers to permit them to obtain information from persons such as employers, pension providers, financial service companies, utilities and educational organisations for "relevant purposes" that relate to:
the entitlement to social security benefits;
whether benefit legislation has been contravened; and
the prevention or detection of benefit offences.
245.This brings the investigative powers of local authorities generally into line with those available to the Department for Work and Pensions and allows them to obtain information relating to national social security benefits in addition to housing benefit and council tax benefit. However, local authorities will not be able to obtain information about the circumstances of accidents or injuries giving rise to claims for benefit, because such a power would be unnecessary for the investigation of benefit fraud. The measures will not add to the list of persons who may be required to provide information.
246.Subsection (3) gives the Secretary of State power to prescribe in regulations that certain conditions must be satisfied in order for an authority to make use of these powers. These "prescribed conditions" enable him to limit the powers in a way that ensures that only certain benefit offences may be investigated and to provide safeguards against misuse. Subsection (3) also gives the Secretary of State power to impose prescribed restrictions on the authorisation or to prescribe conditions in which an authorisation is invalid, again providing safeguards against misuse.
247.Section 47 creates a new power for local authorities administering housing benefit or council tax benefit to prosecute offences concerning "relevant social security benefits" as defined in section 121DA of the Social Security Administration Act 1992. It will do so by the insertion of a new section 116A into that Act.
248.Subsection (3) of new section 116A gives the Secretary of State power to prescribe in regulations that certain conditions must be satisfied before an authority can prosecute offences against national benefits. These conditions allow safeguards to be put in place to ensure that the authority's powers are not misused. The Secretary of State can also issue a direction preventing authorities from bringing prosecutions in certain types of cases, or directing a particular authority not to bring prosecutions (or a prosecution in a particular case) for example, where he considers that the authority has misused, or are likely to misuse, those powers. In situations where the local authority ceased to satisfy the prescribed conditions, or where he has issued a direction, the Secretary of State will have a power (see subsection (4)) to continue with the prosecution himself rather than see the charges dropped. Subsection (5) provides that, in exercising its prosecution powers under the new section 116A(2), a local authority must have regard to the Code for Crown Prosecutors.
249.Subsection (7) of new section 116A clarifies that the powers would apply in England and Wales only, because the Procurator Fiscal is responsible for the prosecution of all criminal activity in Scotland.
250.This section provides for a number of changes to the information sharing provisions contained in the Social Security Administration Act 1992 by giving local authorities access to information relating to national benefit offences as well as allowing the Secretary of State to obtain information from them relating to those offences. These changes are of a consequential nature, in that they are necessary to allow the new investigation and prosecution powers to function effectively.
251.Currently, section 122C of the Social Security Administration Act 1992 permits the Secretary of State to disclose information to local authorities for purposes relating to the administration of, and offences against, housing benefit and council tax benefit. Restricted in such a way, local authorities will not have access to information and evidence held by the Department for Work and Pensions relating to national benefit offences. Subsection (1) amends section 122C so as to allow the Secretary of State to disclose to local authorities information relating to national benefit fraud investigations and prosecutions. This extension applies to the investigation and prosecution of benefit offences only, and does not extend his power to supply information to local authorities for administrative purposes more generally. This information may include details about the award and payment of benefits as well as copies of claim forms and other signed declarations.
252.Section 122D of the Social Security Administration Act 1992 allows the Secretary of State to require an authority to provide him with certain information relating to social security or benefit policy. As a result of the measures in the Act, authorities will be able to obtain information relating to national benefit fraud investigations that would be relevant to the Secretary of State in preparing future policy and expenditure estimates for national benefits, but which the Secretary of State could not currently obtain. Subsection (2) amends section 122D so as to permit the Secretary of State to require a local authority to provide him with information it had obtained during the investigation or prosecution of a national benefit offence.
253.Section 122E of the Social Security Administration Act 1992 currently contains a power allowing local authorities to share information amongst them, so long as it is information relating to housing benefit and council tax benefit. Unless this restriction is removed, local authorities will not be able to share information relating to national benefit offences in the same way that they are permitted to share information relating to local benefit offences creating a number of anomalies for the way that local authorities investigate fraud. For example, local authorities could continue to conduct joint investigations into housing benefit fraud but could not work jointly to investigate national benefit offences because they would be prevented from sharing information relating to those offences. Subsection (3) amends section 122E so as to remove this restriction by extending the powers of local authorities to share information with other local authorities for purposes relating to benefit offences more generally. However, they will not be permitted to share such information for general administrative purposes. Subsection (4) makes a consequential amendment to section 126A(8) of the 1992 Act (power to require information from landlords and agents) so that it reflects the provisions of sections 122D and 122E as revised by subsections (2) and (3).
254.Subsection (1) would amend section 7 of the Social Security Fraud Act 2001, which enables benefit entitlement to be removed or reduced where a person is convicted of benefit fraud twice and the second offence was committed within three years of the date of conviction for the first offence. This amendment will extend the period between the date of conviction in the earlier proceedings and the date of commission of the offence in the later proceedings from three to five years. This will have the effect that a person’s benefit may be withdrawn or reduced if they commit a benefit offence, of which they are later convicted, within five years of a conviction for a previous benefit offence.
255.Subsection (2) provides that this amendment should be disregarded when considering whether an offence committed before the date that this section comes into force was committed within the relevant period. Where an offence was committed before the date this section comes into force, the relevant period will remain three years.
256.Broadly, in order to be entitled to widowed mother’s allowance, a widow must be entitled to child benefit in respect of a child.(9) A widow is entitled to child benefit in respect of a child if:
the child is living with her, or
the child is not living with her but she makes contributions to the cost of providing for the child at a rate which is not less than the rate of child benefit payable in respect of the child.(10)
257.At present, section 37 of the Social Security Contributions and Benefits Act 1992 provides that, where a widow is entitled to child benefit in respect of a child who is not living with her, she is not entitled to widowed mother’s allowance unless she also makes additional contributions to the cost of providing for the child at a rate which is not less than the rate of guardian’s allowance.(11) Section 50 removes this requirement.
258.This section amends the provisions of section 39A of the Social Security Contributions and Benefits Act 1992 in respect of widowed parent’s allowance in the same way that section 50 amends the provisions about widowed mother’s allowance.
259.This section amends section 72 of the Social Security Contributions and Benefits Act 1992, which sets out the entitlement conditions to the care component of disability living allowance (section 72(1)). The entitlement conditions are modified in the case of claims for a period in which the claimant is under the age of 16 (section 72(6)). This section removes subsection (6) and replaces it with new subsections (1A) and (2A). The new subsections apply the same modifications to the standard entitlement conditions for the care component (in section 72(1)) but only if a person is under the age of 16 on the date on which the award would begin and only in relation to any period up to and including the day before a person reaches the age of 16. Consequential amendments are also made.
260.This section amends section 73 of the Social Security Contributions and Benefits Act 1992, which sets out the entitlement conditions to the mobility component of disability living allowance (section 73(1)). The entitlement conditions are modified in the case of claims for a period in which the claimant is under the age of 16 (section 73(4)). This section removes subsection (4) and replaces it with new subsections (4A) and (9A). The new subsections apply the same modifications to the standard entitlement conditions for the mobility component (in section 73(1)) but only if a person is under the age of 16 on the date on which the award would begin and only in relation to any period up to and including the day before a person reaches the age of 16. Consequential amendments are also made.
261.Section 138 of the Social Security Contributions and Benefits Act 1992 provides for payments to be made out of the social fund in the form of budgeting loans, crisis loans and community care grants to give help to people on low incomes.
262.Certain officials at Jobcentre Plus (“appropriate officers”) determine applications for social fund payments in accordance with the provisions in primary legislation, principally section 140 of the Social Security Contributions and Benefits Act 1992, and directions and guidance issued by the Secretary of State (and guidance issued by the nominated appropriate officer for the area). Section 140(1) sets out factors relevant to decisions on crisis loans and community care grants and section 140(1A) does the same for budgeting loans. The system of decision-making in respect of budgeting loans has been simplified with the consequence that some of the provisions in section 140(1A) are unnecessary. Section 54 removes them. The possibility that a third party may meet the need under consideration will no longer be one of the factors relevant to decisions on budgeting loans (see section 140(1)(c) and (1A)(b)). The reference in section 140(1A) to budgeting loan criteria other than the applicant’s personal circumstances which may be specified by the Secretary of State in directions has been removed, as the directions no longer contain such criteria.
263.Under section 168 of the Social Security Administration Act 1992 the Secretary of State allocates money out of which Social Fund payments may be made under section 138(1)(b) of the Social Security Contributions and Benefits Act 1992.
264.The money available is limited. There is one budget for loans and one for grants. The budgets are currently allocated to Jobcentre Plus offices for the purpose of making payments of loans and grants to the customers in their geographical area. The intention is that there should be flexibility as to how allocations are made and, in particular, it should be clear that it is open to the Secretary of State to make a single allocation from which loans may be made nationwide, or to make an allocation for loans to be paid from a regional centre or in respect of a particular type of loan or grant. The amendments to section 168 in section 55 give that clarity and flexibility. There are other minor amendments to section 168, and an associated amendment to section 140 of the Social Security Contributions and Benefits Act, in paragraphs 2 and 3 of Schedule 7 to the Act (minor and consequential amendments).
265.Section 2(1)(a)(i) of the Vaccine Damage Payments Act 1979 provides that payments are normally only to be made under that Act in respect of vaccinations carried out in the United Kingdom or the Isle of Man. Section 2(5) of that Act currently provides that regulations shall specify cases where certain vaccinations given to members of Her Majesty’s Forces and their families abroad are treated as though they are given in England for the purpose of entitlement to a vaccine damage payment.
266.Subsection (2) of section 56 substitutes the regulation-making power currently in section 2(5) of the Vaccine Damage Payments Act 1979 with an order-making power in new subsections (5A) and (5B) of that section. The order-making power in new subsection (5A) specifies that the Secretary of State may provide that, in such circumstances as may be specified in an order, the condition of entitlement in section 2(1)(a)(i) of the Vaccine Damage Payments Act 1979 does not need to be met in the case of vaccinations given under arrangements made by or on behalf of Her Majesty’s forces, a specified government department, or any other body listed within the order. This means that the Secretary of State can provide that serving members of Her Majesty’s forces, specified Crown servants and other people posted abroad and members of their families will be entitled to claim a vaccine damage payment through the Vaccine Damage Payments Act 1979 for disablement resulting from vaccinations given under specified arrangements.
267.This section provides for appeals tribunals in Northern Ireland to hear vaccine damage payments cases in Northern Ireland.
268.Section 3A(6) of the Vaccine Damage Payments Act 1979 defines an appeal tribunal for the purposes of an appeal under that Act to mean appeal tribunals constituted under Chapter 1 of Part 1 of the Social Security Act 1998. Sections 4 to 7 of the Social Security Act 1998 establish and provide the constitution for appeal tribunals. These provisions do not extend to Northern Ireland, in relation to which parallel provisions were made by the Social Security (Northern Ireland) Order 1998 (SI. 1998/1506 (N.I. 10)).
269.Tribunals established under the Northern Ireland Order were not brought within the scope of the definition in section 3A(6) of the Vaccine Damage Payments Act 1979. The consequence of this omission is that appeal tribunals constituted under the Northern Ireland legislation cannot hear appeals under the Vaccine Damage Payments Act 1979, although the legislation does permit the hearing of Northern Ireland cases by a Great Britain tribunal.
270.Subsection (2) of section 57 provides that appeals under the Vaccine Damage Payments Act 1979 are to be made to “an appropriate tribunal”. It defines an appropriate tribunal as one constituted under the Social Security (Northern Ireland) Order 1998, where the claimant’s address is in Northern Ireland. In all other cases the appropriate tribunal will be continue to be an appeal tribunal constituted under the Social Security Act 1998.
271.Subsection (3) provides for making procedural rules for Northern Ireland tribunals in relation to such appeals.
272.Subsection (4) enables the Department for Social Development in Northern Ireland to make provision by regulations in relation to the correction of a Northern Ireland appeal tribunal’s errors and, where it appears reasonable, the setting aside of the tribunal decisions.
273.Subsection (5) provides that the Department for Social Development in Northern Ireland is to pay travel and related costs to those required to attend before a Northern Ireland appeal tribunal and, where appropriate, to those who accompany the disabled person to such an appeal tribunal.
274.The conditions of entitlement to a payment in the case of a person suffering from a disease to which the Pneumoconiosis etc. (Workers’ Compensation) Act 1979 applies are set out in section 2(1) of the Act. One of the conditions of entitlement is that all relevant employers have ceased to carry on business. “Relevant employer” is defined in section 2(3) as meaning any person by whom the person suffering from the disease was employed at any time during the period which he was developing the disease and against whom he might have or might have had a claim for damages in respect of the disablement. If there are no relevant employers, a payment is made.
275.Section 58 substitutes a new definition of “relevant employer” which is set out in Schedule 6. A relevant employer is any person by whom the person was employed in a prescribed occupation at any time during the period he was developing the disease and against whom he might have or might have had a claim for damages in respect of the disablement.
276.The following periods of employment would be disregarded for the purposes of determining whether there is a relevant employer:
those that ended more than 20 years before the date on which the employee’s claim for industrial injuries disablement benefit was determined (or, in the case of a claim from a dependant, where such a date does not exist, from the date of the death of the sufferer), and
in cases of diffuse mesothelioma only, any employment which began not more than 15 years before that date.
277.A person is not a relevant employer if, disregarding the periods of employment mentioned in the previous paragraph, the period during which he employed the person suffering from the disease:
did not exceed 12 months, and
did not exceed 5 years in total and does not represent more than 25% of the total period during which the person was employed in a prescribed occupation (or 7 years and not more than 20% of the total period employed in a prescribed occupation).
278.A “dependant” of a person who, immediately before his death, suffered from a relevant disease can bring a claim under the Pneumoconiosis etc. (Workers Compensation) Act 1979. Section 3 of that Act sets out the meaning of a “dependant”. Section 3(1) of that Act sets out an order of priority for determining which “dependant” may bring a claim in each case.
279.Section 59 amends the 1979 Act so that civil partners, children of civil partners, a person who was living with a sufferer as if husband and wife and a person who was living with a sufferer as if they were civil partners are included within the meaning of “dependant”.
280.Section 59(3) removes a provision which, in certain circumstances, prevents a person from bringing a claim as a “dependant” where he or she and a person suffering from a relevant disease were living together as husband or wife in Scotland.
281.Subsection (1) of this section replaces section 67(2) of the Social Security Contributions and Benefits Act 1992, to provide for payment of attendance allowance to be stopped, with new subsections (2) to (7).
282.New subsection (2) confers a power to make regulations providing for circumstances in which payment of attendance allowance may be withdrawn from those resident in a care home, namely where any of the costs of any qualifying services provided in a care home are borne out of public or local funds under a specified enactment.
283.New subsections (3) to (7) define what is meant by a “care home”, “qualifying services” and an “enactment” for these purposes.
284.Subsection (2) of this section replaces section 72(8) of the Social Security Contributions and Benefits Act 1992, to provide for the care component of disability living allowance to be stopped, with new subsections (8) to (13).
285.New subsections (8) to (13) confer a power to provide by regulations for circumstances in which payment of the care component of disability living allowance may be withdrawn from those resident in a care home.
286.This section amends the Disability (Grants) Act 1993 which provides for the making of grants by the Secretary of State for Work and Pensions and the Department for Social Development in Northern Ireland to the Independent Living (Extension) Fund, the Independent Living (1993) Fund and Motability. The current Independent Living Funds are being replaced by a new Trust called The Independent Living Fund (2006) and this section will update the names of the funds to allow the Secretary of State and the Department for Social Development in Northern Ireland to make grants to the new fund.
287.This section provides a power to make consequential amendments to subordinate legislation.
288.This section allows the Secretary of State and the eligible member of an appeal tribunal to refer a person to a health care professional for medical examination and report, rather than only allowing a referral to a medical practitioner. Such a reference can be made where considered necessary for the purpose of providing the Secretary of State with information for use in making a decision on entitlement to benefit or to aid the appeal tribunal’s determination of an appeal.
289.Section 62(4) also allows the eligible member of an appeal tribunal to specify the description of health care professional to whom a person is to be referred.
290.Section 62(5) inserts a definition of health care professional into section 39 of the Social Security Act 1998. It lists different types of regulated health care professions, together with a regulation-making power to add other regulated professions. Members of these professions, will, if they are approved by the Secretary of State, be health care professionals for the purposes of carrying out medical examinations.
291.The Northern Ireland Act 2000 enables legislation for Northern Ireland to be made by Order in Council while devolved government is suspended. This section enables such Orders in Council to be made by negative resolution procedure if they are made only for purposes corresponding to the purposes of the Act.
292.Such Orders in Council are normally made at the Privy Council following Royal Assent to a Bill, usually later the same month or the following month. This practice has been adopted in order to enable parity of content and also, as far as possible, parity of timing, between legislation for Great Britain and for Northern Ireland. On restoration of the Northern Ireland Assembly, this section will cease to have practical effect, and corresponding legislation for Northern Ireland would be by Bill of the Assembly.
293.This section gives effect to Schedule 8, which repeals certain existing legislation as a consequence of the measures in the Act.
294.Part 1 of this Schedule describes the conditions of entitlement to a contributory employment and support allowance relating to national insurance contributions. These are, in substance, the same as those that exist in relation to incapacity benefit now.
295.Part 2 of this Schedule provides for certain additional conditions for entitlement to an income-related employment and support allowance. These are similar, though not identical, to the conditions of entitlement that currently apply to income support. For example, as well as there being no entitlement if income exceeds the applicable amount, paragraph 6(1)(b) and (2) of the Schedule provide that there is no entitlement to an income-related allowance if the claimant and their partner together have capital assets in excess of a limit set out in regulations, which is expected to be £16,000, i.e. the same as that which applies for the purposes of income support.
296.Section 1(3) provides that there is no entitlement to either a contributory allowance or an income-related allowance if the claimant is entitled to income support or any type of jobseeker’s allowance. Paragraphs 6(1)(c) and (d) of this Schedule provide that there is no entitlement to an income-related employment and support allowance where the claimant is entitled to state pension credit or the claimant’s partner is entitled to income support, state pension credit or an income-based jobseeker’s allowance. This is to ensure that only one income-related benefit is paid to a household at any one time in order to prevent duplicate provision from public funds.
297.The Schedule further provides that there is no entitlement to an income-related employment and support allowance where a claimant or their partner is in paid (remunerative) work, as is the case with income support. Regulations will determine what amounts to remunerative work.
298.The Schedule also provides that there is no entitlement to an income-related allowance where a claimant is receiving education (paragraph 6(1)(g)). The Secretary of State may set out in regulations when a person is or is not to be treated as receiving education. The Secretary of State may also disapply this condition, so that, for example, certain disabled young people or disabled students may be entitled to an employment and support allowance (paragraph 6(4)).
299.Paragraph 6(7) provides a power for paragraph 6 of Schedule 1 to be modified where the claimant is a member of a polygamous marriage. This includes modifications in respect of how benefit, income and capital in respect of the second and any subsequent spouse will be aggregated for the purposes of determining entitlement to an employment and support allowance. It is intended that the modifications made in respect of an employment and support allowance would be based on the income support rules relating to polygamous marriages.
300.This Schedule contains additional provisions in respect of the employment and support allowance. Paragraph 1 confers powers to provide by regulations for claimants to be treated as having (or not having) limited capability for work, as well as to require capability for work to be determined afresh (or for the first time in the case of a person being treated as having limited capability for work, but who has never actually undergone an determination of capability for work). Paragraph 9 makes equivalent provision for treating claimants as having (or not having) limited capability for work-related activity, as well as making equivalent provision for determining capability for work-related activity afresh (or for the first time for claimants being treated as having limited capability for work-related activity, but who have never actually undergone such a determination).
301.Paragraph 2 provides that a person is not entitled to an employment and support allowance for a certain number of days at the beginning of a period of limited capability for work. It is intended that claimants will be required to wait for three days at the beginning of a period of limited capability for work, before becoming entitled to an employment and support allowance (as now under incapacity benefit). Paragraph 2 allows for exceptions whereby the waiting days do not need to be served, for example, where someone was previously entitled to another benefit, such as jobseeker’s allowance, regulations may disapply the waiting days requirement to ensure that the claimant would not have a break in benefit entitlement.
302.Paragraph 4 of this Schedule provides for periods of limited capability for work to be linked together and treated as one period of limited capability for work. Where periods are linked in this way then regulations can provide that a condition relating to an employment and support allowance that was satisfied in the earlier period of limited capability for work can be treated as satisfied in the later period of limited capability for work.
303.The Schedule also provides for regulations to prescribe circumstances where people are entitled to an employment and support allowance where they are not in Great Britain (for example, where they live abroad or are employed on a ship or oil rig) (paragraphs 5 to 8) and other additional matters.
304.Paragraph 1 amends the Social Work (Scotland) Act 1968 so that people in Scotland receiving income-related employment and support allowance will be exempted from liability to contribute towards the cost of their children being in care.
305.Paragraph 2 amends the Education (Scotland) Act 1980 so that for the purposes of qualifying for free school meals families receiving income-related employment and support allowance in Scotland are treated the same as those receiving income support or income-based jobseeker’s allowance.
306.Paragraph 3 amends the Transport Act 1982 so that people receiving income-related employment and support allowance will be reimbursed the costs of obtaining a medical certificate for the exemption from having to wear a seat belt on medical grounds.
307.Paragraph 4 amends the Legal Aid (Scotland) Act 1986 so that recipients of income-related employment and support allowance in Scotland will have the same entitlements to free legal advice and assistance as people receiving income support and income-based jobseeker’s allowance.
308.Paragraph 5 amends the Income and Corporation Taxes Act 1988 so that payments of sums in respect of maintenance made under section 23 will be treated the same way for tax liability purposes as other payments made under corresponding provisions for income support and jobseeker’s allowance.
309.Paragraph 6 amends the Children Act 1989 so that in England and Wales people receiving income-related employment and support allowance will be exempted from liability to contribute towards the costs of maintaining their children in care, services and assistance provided to children in need and their families and other provision and support.
310.Paragraph 7 amends the Child Support Act 1991 so that an income-related employment and support allowance will be treated the same way as income-based jobseeker's allowance and income support for the purposes of applications, reduced benefit decisions and fees under both the old child support scheme and the modified scheme introduced by the Child Support, Pensions and Social Security Act 2000 and calculation of child support maintenance in the old scheme.
311.Paragraph 8 amends the Criminal Justice Act 1991 so that the Secretary of State will be able to make regulations enabling fines or compensation orders imposed on an offender entitled to an income-related employment and support allowance to be deducted from that benefit.
Local Authority Investigative Powers Regulatory Reform Order: A consultation document on proposed changes to the powers of local authorities to investigate and prosecute benefit fraud, Department for Work and Pensions, March 2005. Back [8]
Section 37(1)(a) of the Social Security Contributions and Benefits Act 1992. A widow may also be entitled to widowed mother’s allowance where she is pregnant. Back [9]
Sections 141 and 143(1) of the Social Security Contributions and Benefits Act 1992. Back [10]
Sections 37(2) and 77(5) of the Social Security Contributions and Benefits Act 1992. This requirement was added by the Tax Credits Act 2002. It replaced a requirement to make contributions at not less than the amount of child dependency increases payable in respect of a child under section 81 of the Social Security Contributions and Benefits Act 1992. Child dependency increases were abolished by the Tax Credits Act 2002 (except for cases in respect of which transitional provision was made). Back [11]
Welfare Reform Act 2007