Office of Public Sector Information

Section 51: Appeal to Social Security Commissioner

422.This section provides a right of appeal to a Social Security Commissioner against any decision of an appeal tribunal under section 50, on the ground that the decision was wrong in law.

423.Subsection (2) states that an appeal to the Commissioner may be made by the Secretary of State, or by the person who brought the appeal under section 50.

424.Subsection (3) provides that section 14(7) to (12) of the Social Security Act 1998 apply to an appeal under this section, as they apply to an appeal under that section.

Section 52: Minors and people who lack capacity

425.Section 52 concerns how lump sum payments are to be made to a person under the age of 18, or a person who lacks capacity within the meaning of the Mental Capacity Act 2005 (or, in Scotland, who is incapable within the meaning of the Adults with Incapacity (Scotland) Act 2000) in relation to financial matters.

426.Subsection (2) provides for a lump sum payment in respect of these persons to be made to any trustees appointed by the Secretary of State.

427.Subsection (3) provides for those trustees to hold the lump sum payment in trust, or in Scotland, under the conditions and for the purposes that the Secretary of State may declare.

Section 53: Regulations: Part 4

428.Section 53 provides power to the Secretary of State to make regulations by statutory instrument, which includes power to make such incidental, supplementary or transitional power as the Secretary of State thinks fit.

429.Subsection (3) provides that any regulations made under section 46 of this Part must be subject to the affirmative resolution procedure. Subsection (4) provides that the first regulations made under section 47 of this Part must be subject to the affirmative resolution procedure.

430.Subsection (5) provides that any other regulations made under any other provision of this Part will be subject to the negative resolution procedure.

Recovery of mesothelioma and other lump sum payments

Section 54: Amendment of Social Security (Recovery of Benefits) Act 1997

431.This section inserts a new section 1A into the Social Security (Recovery of Benefits) Act 1997, which provides the Secretary of State with powers to make regulations providing for the recovery of lump sum payments made under the Pneumoconiosis etc. (Workers’ Compensation) Act 1979, the new scheme or those made on an extra-statutory basis following the rejection of a claim made under that Act.

432.Subsection (1) of newsection 1A sets out that the Secretary of State may by regulations make provision about the recovery of a lump sum payment to which subsection (2) applies, where:

• a compensation payment is made to, or in respect of a person to whom, or in respect of whom, a lump sum payment has been made or is likely to be made; and

• the compensation payment is made in respect of the same disease as the lump sum payment.

433.Subsection (2) applies to:

• a payment made in accordance with the Pneumoconiosis etc. (Workers’ Compensation) Act 1979;

• an extra-statutory payment following the rejection of a claim made under the 1979 Act; or

• a payment made under the new scheme.

434.Subsection (3) sets out that regulations made under newsection 1A may in particular:

• make provision about the recovery of the lump sum payment made to, or in respect of a dependant of the person with mesothelioma;

• make provision enabling the recovery of a lump sum payment from a compensation payment (including provision enabling the recovery of an amount that reduces the compensation payment to nil);

• enable the amount of lump sum payment made before commencement to be recovered from a compensation payment made after commencement;

• make provision about certificates in respect of lump sum payments;

• apply any provision of the Social Security (Recovery of Benefits) Act 1997, with or without modifications.

435.Subsection (4) provides that reference in subsection (1) to a payment in consequence of a disease are references to a payment made by or on behalf of a person who is, or is alleged to be, liable to any extent in respect of the disease.

436.Subsection (5) sets out definitions for the purposes of new section 1A. In particular, commencement means the date on which the section comes into force.

Part 5 - General

Section 55: Regulations and orders: general

437.This section has effect in relation to regulations under this Act, except Part 4 which relates to lump sum payments. It provides that, where the Secretary of State is empowered to make regulations, these are to be made by statutory instrument.

438.Subsection (3) provides that such regulations may include power to make incidental, consequential, transitional or saving provisions.

439.Subsection (4) provides that power to make regulations under this Act may be exercised:

• in relation to all cases to which it extends, in relation to those cases but subject to specified exceptions, or in relation to any specified cases or classes of case;

• to make full provision for which it extends, the same or different provision for different cases or classes of case, or different provision for the same case or class of case. Provisions can be unconditional or subject to any specified conditions; and

• to provide for a person to exercise discretion in dealing with any matter.

440.Subsection (5) provides that any regulations made under section 6(1)or 6(4), which relate to fees, the first regulations made under paragraphs 2(1), 3(1), 5(1) or (2), 6(1) or (3) or 7 of Schedule 5 which relate to transfer of cases onto the new calculation rules, or any order made under section 11(6) which relates to the review of the status of the Commission, are subject to the draft affirmative resolution procedure.

441.Subsection (6) provides that any regulations not subject to the affirmative resolution procedure will be subject to the negative resolution procedure.

Section 56: General interpretation

442.This section sets out definitions for the purposes of the Act. Subsection (1) defines the ‘Commission’, for the purposes of this Act, as a body corporate to be known as the Child Maintenance and Enforcement Commission.

443.Subsection (2) sets out that for the purposes of amendments or repeals, where the Child Support Act 1991 has been amended by the Child Support, Pensions and Social Security Act 2000, for limited purposes only, the amendment will apply to both versions of the Act unless otherwise stated.

Section 57: Minor and consequential amendments

444.Section 57 gives effect to Schedule 7, which contains minor and consequential amendments, as a consequence of the measures in the Act.

445.Subsection (2) provides regulation-making powers to the Secretary of State to make consequential provisions on this Act in subordinate legislation.

Section 58: Repeals

446.This section gives effect to the repeals set out in Schedule 8.

Section 59: Transition

447.Subsection (1) provides that until the functions of the Secretary of State are transferred to the Commission, all references to the Commission included in the Child Support Act 1991 will be treated as if they were references to the Secretary of State.

448.Subsection (2) gives the Secretary of State the power to make regulations to modify the textual amendments made in Schedule 3 as necessary during any transitional period between the functions being transferred to the Commission and the repeal of section 6 (applications by those claiming or receiving prescribed benefit) and section 46 (reduced benefit decision) of the Child Support Act 1991.

449.Subsection (3) gives the Secretary of State power to make regulations modifying the effect of sections 6 and 46 before they are repealed. This is to enable changes to be made in preparation for the removal of compulsion for benefit claimants.

450.Subsections (4) and (5) ensure that some of the new provisions which the Act inserts into the Child Support Act 1991 will apply in relation to cases under the CSA ‘old scheme’.

451.Subsection (4) provides that new sections 20(5A), 32A, 32E, 32F, 32J, 32L, 32M, 41C to 41E, 43A, 49A, 49B and 49D of the Child Support Act 1991 will have effect as if references to child support maintenance included maintenance due under an old scheme assessment.

452.Subsection (5) provides that new sections 20(7A), 32A, 32C, 32E, 32F, 32J, 32L, 32M, 39B, 39H, 40, 40A, 40Band 49B of the Child Support Act 1991 will have effect as if references to maintenance calculations included assessments made under the old scheme.

453.Subsection (6) provides that sections 35, 36, 38, 39B, 39H, 39K, 40, 40B and 49D of the Child Support Act 1991 will have effect as if orders made under section 33 of that Act had been made under section 32M of that Act. This ensures that any references to the liability orders in the 1991 Act include an administrative liability order made by the court after section 32Mcomes into force.

454.Subsection (7) enables an administrative liability order to be made in respect of unpaid child support maintenance, even though the time within which an application to the courts for a non-administrative liability order has expired.

455.Subsection (8) is a general power enabling the Secretary of State to make transitional provision or savings in relation to the coming into force of any provision under this Act.

Section 60: Financial provisions

456.Section 60 provides that there shall be paid out of money provided by Parliament:

• any expenditure incurred by the Secretary of State or a government department in consequence of this Act; and

• any increase attributable to this Act in the sums payable out of money so provided under any other enactment.

457.Subsection (2) provides that there shall be authorised the extinguishing in consequence of this Act of liabilities owed to the Crown under the Child Support Act 1991.

Section 61: Extent

458.This section sets out the territorial extent of the Act. The provisions of the Act extend to England, Wales and Scotland only, apart from the sections below which will also extend to Northern Ireland:

• Sections 55, 57(2), 62 and 63;

• Paragraphs 4 to 6 of Schedule 6, andsection 44 so far as relating to those paragraphs;

459.Any amendment or repeal made by the Act has the same extent as the enactment to which it relates.

Section 62: Commencement

460.Sections 55, 59(8), 61 and 63, come into force on Royal Assent. Section 35 regarding Registered Maintenance Agreements: Scotland come into force on the day after the day of Royal Assent. The remaining provisions of the Act come into force on such days as the Secretary of State may by order appoint, apart from an order commencing section 39 in England and Wales which may only be made with the consent of the Lord Chancellor. A commencement order may include such transitional provision or savings as the Secretary of State considers necessary or expedient in connection with bringing any provision of this Act into force.

Section 63: Citation

461.The Act may be cited as the Child Maintenance and Other Payments Act 2008.

Schedule 1: The Commission

462.This Schedule makes more detailed provision about the Commission including its structure and how appointments will be made.

463.The table below summarises the appointment procedures for the Commission and its staff as set out in paragraphs 2 to 10 of this Schedule.

464.Paragraph 1sets out that the Commission shall consist of:

• a person appointed to chair the Commission;

• a chief executive of the Commission who will be known as the Commissioner for Child Maintenance;

• one or more executive directors, appointed from the staff of the Commission; and

• two or more non-executive directors, who must not be staff of the Commission.

465.Paragraphs 3(3)and (4) require that there are always more non-executive directors than executive directors.

466.Paragraphs 4 and 5 make provision for the tenure of members of the Commission.

467.Paragraph 5(2) states that an executive director will no longer be a member of the Commission if they cease to be a member of its staff.

468.Paragraph 5(3) states that the Chair or any non-executive member will cease to be a member of the Commission if they become a member of its staff.

469.Paragraph 6 stipulates that remuneration paid by the Commission to the Chair may be determined by the Secretary of State, as may any pension, allowances or gratuities paid to or in respect of the Chair.

470.Sub-paragraph (3) allows the Commission to pay compensation to the Chair upon early expiry of the appointment if the Secretary of State considers it appropriate.

471.Paragraph 7 stipulates that remuneration paid by the Commission to a non-executive director, may be determined by the Secretary of State, as may any pension, allowances or gratuities paid to or in respect of a non-executive director.

472.Sub-paragraph (3) allows the Commission to pay compensation to a non-executive director upon early termination of the appointment if the Chair considers it appropriate. The amount of any such payment will be determined by the Chair, with the approval of the Secretary of State.

473.Paragraph 8 requires the Chair to appoint one of the non-executive directors as a deputy chair.

474.Paragraph 9 provides that the Commission will have a chief executive who will be a civil servant. The Secretary of State will make the initial appointment of the Chief Executive, and determine the terms and conditions with approval of the Minister for the Civil Service. Subsequent appointments will be made by the Commission with approval of the Secretary of State, on terms and conditions determined by the Commission with the approval of the Secretary of State and the Minister for the Civil Service.

475.Paragraph 10 enables the Commission to appoint staff as it considers appropriate and determine their terms and conditions including remuneration with the approval of the Minister for the Civil Service.

476.Paragraph 11 enables the Commission to establish committees and sub-committees (in addition to the non-executive functions committee established under paragraph 20). Committees and sub-committees established under this paragraph may include or be entirely made up of people who are not members of the Commission or the Committee by which it is established.

477.Paragraph 12 enables the Commission to determine terms and conditions for committee members who are not Commission members or staff. This function will be exercised on behalf of the Commission by the non-executive functions committee.

478.Paragraph 13 enables the Commission to set its own procedure and procedure of its committees.

479.Paragraph 14 enables the Commission to authorise any member of the Commission, its staff or a committee member, to carry out its functions (apart from the non-executive functions) on its behalf.

480.Paragraph 15 enables the Chair to delegate their functions of determining the terms and conditions, including remuneration, of non-executive directors, to any executive member of the Commission, any member of staff of the Commission, or subject to sub-paragraph (2), any of its committees.

481.Sub-paragraph (2) prevents these functions from being delegated to any committee that has a non-executive director as a member, or if a committee is carrying out one of these functions on behalf of the Chair, the authority to do so must cease if a non-executive director becomes a member of the committee.

482.Paragraph 16 makes provisions relating to how the common seal is authenticated and provides that any document which appears to be executed under the Commission’s seal or signed on its behalf is to be presumed to be sealed or signed for the Commission unless it is proved otherwise. This provision does not apply in relation to Scotland.

483.Paragraph 17 makes provision for the Secretary of State to fund the Commission out of money provided by Parliament through a grant in aid. Sub-paragraph (2)allows the Secretary of State to make such funding subject to conditions

484.Paragraph 18 requires the Commission to keep proper accounts and produce an annual statement of accounts. A copy of each statement of accounts must be sent to the Secretary of State and the Comptroller and Auditor General. The Comptroller and Auditor General will report on, and certify, the statement which he will then return to the Secretary of State who will then lay the report and statement before Parliament.

485.Paragraph 19 requires the Commission to keep its internal financial controls under review. This function is to be carried out by the non-executive functions committee.

486.Paragraph 20 requires the Commission to establish a non-executive functions committee, and sets out the structure of, and functions that are to be carried out by, such a committee.

487.Sub-paragraph (1) of paragraph 20 lists the functions to be carried out by the non-executive functions committee. These are:

• to determine the terms and conditions of the chief executive, with approval of the Secretary of State;

• to determine the terms and conditions of the Commission’s executive directors;

• to determine the terms and conditions of committee or sub-committee members who are not members of the Commission or its staff; and

• to monitor and audit the Commission’s internal financial controls.

488.Sub-paragraphs (2), (3) and (4) stipulate that the non-executive functions committee must consist of at least three members who are non-executive members of the Commission, and that the Chair is prevented from being a chair of the non-executive functions committee.

489.Sub-paragraphs (5)and (6) require the non-executive functions committee to produce a report on its own functions to include within the Commission’s annual report to Secretary of State. The report should cover the same period as the Commission’s report.

490.Sub-paragraphs (7) to (10) provide for the non-executive functions committee to be able to set up sub-committees to carry out its monitoring and audit and report functions. Sub-committees may include people who are not members of the Commission but may not include executive members or staff of the Commission.

491.Paragraph 21 allows the Commission to do anything (other than borrow money) which is conducive or incidental to the carrying out of its functions. This would for example, enable the Commission to enter into contracts for supply of goods and services.

492.Paragraph 22 sets out that the Commission’s functions shall be exercised on behalf of the Crown. This effectively makes the Commission a Crown body. For the purposes of any civil proceedings arising out of those functions, sub-paragraph (2) makes provision for the Crown Proceedings Act 1947 and the Crown Suits (Scotland) Act 1857 to apply to the Commission. These Acts set out jurisdiction and procedure for legal proceedings involving the Crown, and the 1947 Act provides that the Crown may be liable in tort for the acts of its servants and agents.

493.Paragraph 23 enables the Commission to carry out its functions even if there is not a full board in place or there has been a defect in an appointment.

494..Paragraph 24 amends the Public Records Act 1958 to include the Commission so that records held by the Commission will fall within the definition of public records.

495.Paragraph 25 amends the Parliamentary Commissioner Act 1967, to include the Commission as a department or authority subject to investigation.

496.Paragraph 26 provides that the Commission will be required to fund the increased cost of providing pensions under section 1 of the Superannuation Act 1972 to its current or former staff.

497.Paragraph 27 amends the House of Commons Disqualification Act 1975, disqualify members of the Commission from being members of the House of Commons.

498.Paragraph 28 amends the Northern Ireland Assembly Disqualification Act 1975, to disqualify members of the Commission from being members of the Northern Ireland Assembly.

499.Paragraph 29 ensures that the Commission is subject to the Freedom of Information Act 2000.

500.Paragraphs 30 to 32 set out various definitions for the purposes of the Commission structure. Specifically that:

• executive members of the Commission are the Chief Executive and the executive directors;

• non-executive members are members of the Commission who are not executive members;

• references to staff of the Commission should be read as references to the Commissioner for Child Maintenance and other employees of the Commission

• committees of the Commission are:

  • the non-executive functions committee and any of its sub-committees; and

  • any other committee or sub-committee set up by the Commission.

Schedule 2: Transfer of functions under subordinate legislation

501.This Schedule lists the functions under subordinate legislation which will transfer to the Commission. The following table sets out what this legislation refers to.

Schedule 3: Transfer of child support functions

502.Part 1: makes the consequential amendments to the Child Support Act 1991 and the Social Security Act 1998, which are necessary as a result of provisions for the transfer of functions from the Secretary of State to the Commission.

503.Part 2: concerns transitional provision and savings.

504.Paragraph 55 makes provision to ensure continuity in the transfer of functions from Secretary of State to the Commission.

505.At the time the Commission comes into being, anything which Secretary of State is in the process of doing in relation to any of the transferred functions may be continued by the Commission.

506.Any acts of the Secretary of State for the purpose of, or in connection with, any of the transferred functions prior to the transfer will be treated as acts of the Commission where this is necessary to ensure their continuing effect.

507.Documents, legislation etc which refer to the Secretary of State will be treated as referring to the Commission where it is necessary to make sense of them after the transfer of functions.

508.No Secretary of State act prior to the transfer will be invalidated by virtue of the transfer. However, the Secretary of State will remain liable for any acts or omissions of the Secretary of State prior to the transfer.

Schedule 4: Changes to the calculation of maintenance

509.This Schedule amends Part 1 of Schedule 1 to the Child Support Act 1991, and concerns changes to the calculation of maintenance.

510.The table below summarises the changes