Section 35: Payment of housing benefit

Currently under section 126 of the Administration Act, and the housing benefit rules, housing benefit in the social sector must take the form of a rent rebate where the Housing Executive is the landlord. In other cases, it must take the form of a rent allowance. Both rent rebates and rent allowances can be paid by way of rebate to, or by payment to, the claimant (which includes someone on his behalf), or by a combination of rebate and payment. Where the Housing Executive is the landlord it has an effective choice as to the manner of payment. Where the Housing Executive is not the landlord it cannot rebate the claimant's rent account and has to pay the claimant or someone on his behalf (such as a landlord, or a third party). Regulations set out the circumstances in which payment must or may be made to someone other than the claimant.

Section 35 replaces section 126(2) of the Administration Act with new subsections (2), (2A) and (2B) to allow for regulations to be made specifying the manner in which payment must be made. This would, for example, enable secondary legislation to prescribe when payment is to be made directly to the claimant, or to someone on his behalf or in respect of the liability the claimant has; or by rebating the claimant's rent account; or by a combination of these methods. This will ensure that the Department could ensure that payments were made to claimants, even where the Housing Executive was the landlord.

Section 36: Directions by Department

Under the present powers, when the Department receives a report under section 128C of the Administration Act, it may invite the Housing Executive to consider the report and respond setting out its proposals for improving performance or remedying failings. Section 36(2) amends section 128D(2) of that Act to allow the Department to require the Housing Executive to submit its proposals for improvement. Subsection (3) further enables the Department to specify the information (and the format and timescales for the information) it requires from the Housing Executive, to fully inform a decision on possible directions. This would not prevent the Housing Executive submitting other information it thinks relevant to the Department's considerations. To ensure that sufficient time is given to the Housing Executive to consider its response, the Department would be required to give the Housing Executive not less than one month to respond and could extend this, for example, where there were reasonable grounds for doing so following a request from the Housing Executive.

Subsection (4) allows the Department to also take into account any other relevant information it thought appropriate. This might include, for example, past statistical trends, or evidence of the Housing Executive's commitment to, and success in, the delivery of improvement. It also provides the Department with the power to direct the Housing Executive to take any action the Department thought necessary or expedient to improve the Housing Executive's performance and the timescales within which it must do so. The current powers, which allow the Department to specify the standards it expects the Housing Executive to attain and the timescales within which the Department expects it to attain them, remain by virtue of new subsection (3A). Where there are serious concerns in respect of a benefits administration matter, but a standard cannot be specified, the provision in the new subsection (3B) enables the Department to give a direction on that matter. The power allows it, for example, to require the Housing Executive to draw up a counter fraud strategy policy for benefits where none existed, or to review and make detailed proposals for improving a particular operational process about which there were serious concerns.

Subsection (5) is a consequential change to take into account the change in subsection (4) and allows the Department to continue to make recommendations to the Housing Executive about the actions it could take to attain the standards set out in a direction.

Subsection (6) places a requirement on the Department, before giving a direction, to give the Housing Executive an opportunity to make representations about the directions to it. However, subsection (6) permits the Department to issue directions without consulting the Housing Executive about their content if the Department considered it a matter of urgency. In such an urgent case, the Department is required to inform the Housing Executive in writing of its reasons for not inviting representations from it before giving the directions.

Subsection (7) inserts a new section 128DA into the Administration Act, enabling the Department to vary or revoke a direction when it thinks it necessary to do so. It would be able to do so where it had received representations from the Housing Executive; to rectify an omission or error; or where there had been a material change of circumstances. For example, it might vary or end a direction where a change in legislation means that the direction was no longer relevant or needed to be changed in a material aspect. This subsection also requires the Department to write to the Housing Executive giving its reasons for making the variation and offer it the opportunity to make representations about the proposed variation.

PART 3: Social security administration: General

Sharing of social security information

Section 38: Social security information

Section 38 inserts a new section 5B into the Administration Act to provide for the use by a "relevant authority" of social security information in connection with the administration and promotion of claims for benefit and amends section 5A of that Act which deals with the receipt by relevant authorities of claims for benefit and the collection and verification of evidence relating to claims. These measures support joint working arrangements and are intended to improve the take-up and delivery of benefits and other services administered by the Department and relevant authorities.

Currently section 5A of the Administration Act allows regulations to be made which enable the Department and relevant authorities administering housing benefit to perform certain functions on behalf of one another. It enables claims for prescribed benefits administered by the Department to be made to a relevant authority, and claims for housing benefit to be made to the Department. It also allows the Department and relevant authorities to collect and forward information and evidence for each other's respective benefits as prescribed. Current powers do not expressly permit relevant authorities to verify claims-related evidence and information on behalf of other relevant authorities.

Specific provisions in the Contributions and Benefits Act impose a duty on authorities administering housing benefit to promote the take up of housing benefit. Section 38, through the inclusion of a new section 5B in the Administration Act, enables relevant authorities to promote the take up of benefits administered by the Department. For example, the new section will enable a relevant authority to use information obtained on a claim for housing benefit to pre-populate a claim form for pension credit (which is administered by the Department). This partly completed form could then be submitted to the claimant to encourage him to apply for pension credit.

New section 5B(1) enables a relevant authority to use for a relevant purpose, any social security information which it holds. Subsection (3) clarifies that a relevant purpose is activity intended to encourage a claim which is made or could be made for a specified benefit. This power broadens the boundaries governing authorities' use of the information that it holds. The Department has existing powers under section 3 of the Social Security Act 1998 to use information that it holds for one of its functions for another of its functions.

New section 5B(2) allows regulations to specify the procedure to be followed by a relevant authority where it receives information and evidence that has already been used or verified and forwarded by another relevant authority. The purpose of this provision is to reduce claims processing times and the incidences of duplicate requests for information. Regulations under section 5B could ensure that information and evidence that has already been used by the Department, for example, must, subject to certain safeguards, be accepted as correct by the receiving authority for purposes connected with another benefit claim. Without this provision, receiving authorities could opt to continue as before by requesting and verifying the evidence from scratch, thereby duplicating information requests.

Section 5B defines the term "social security information" as covering information relating to social security (including child support and war pensions data), and also evidence obtained in connection with any claims or awards relating to these areas and clarifies that a "specified benefit" (in respect of which this section applies) is to be prescribed in regulations, to provide maximum flexibility in developing these provisions.

Section 39: Information relating to certain benefits

Since April 2003, support services, which assist vulnerable persons to live independently, have been managed by the Housing Executive under the Supporting People programme. Those in receipt of certain income-related benefits automatically qualify under the Supporting People means-test to receive assistance with charges for these services. The Act will enable the Department to confirm to the Housing Executive Supporting People team whether a person is in receipt of one of these benefits, without the Supporting People team having first to obtain that person's consent. It would also enable the Supporting People team to provide certain information to assist with the administration of housing benefit, for example to help identify where it would be appropriate to make payments of housing benefit to the landlord rather than to a claimant. These information exchanges would only be permissible for limited purposes. If a person is a certain person within the Supporting People team or a Supporting People service provider, he would commit a criminal offence if he discloses, without lawful authority, information supplied to him by virtue of one of these powers.

The Supporting People team administers grants paid by the Housing Executive 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. Article 4 of the HSS Order provides a power by which these grants can be paid.

Article 6 of that Order allows information relating to income support and income-based jobseeker's allowance administered by the Department to be supplied to the Supporting People team for purposes connected with applying a grant made under Article 4 towards housing support services. Article 7 of that Order creates an offence concerning disclosure without, lawful authority, of information which was supplied by virtue of Article 6.

Article 6 of the HSS Order enables the supply of information by the Department to the Supporting People team of the Housing Executive. There is presently no power for information to be supplied by the Supporting People team to the Department. Subsection (1) would enable a two-way supply of information between the Department and the Supporting People team. Specifically, the subsection would enable the Supporting People team to contact the Department when it receives an application for support services. In common with what presently occurs, this subsection would enable the Department to confirm whether a certain income-related benefit (including the new income-related employment and support allowance) is in payment. This information would 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 would enable the Department to inform the Supporting People team when payment of a certain income-related benefit (and hence automatic entitlement to full support) ceased.

As grants to support welfare services could in future be made under powers in addition to Article 4 of the HSS Order, to support any shift in funding arrangements, subsection (1) creates a freestanding provision that would enable the supply of information concerning grant paid under a relevant statutory provision specified by order under subsection (7).

Subsection (2) will enable certain information held for prescribed purposes by the Supporting People team or by housing benefit teams to be supplied to the other teams 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 would 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 knowing whether the claimant is receiving Supporting People assistance because of a disability and, if so, whether that disability may indicate a level of vulnerability, would contribute to the decision-making process.

Certain information supplied to the Supporting People team could be passed to the welfare service providers when required under subsection (5). This mirrors the provision currently in Article 6(3) of the HSS Order.

The information sharing powers provided for within this section and the offence of unlawful disclosure in section 40 replace those contained in Articles 6 and 7 of the HSS Order, which are omitted.

Section 40: Unlawful disclosure of certain information

Article 7 of the HSS Order makes it an offence for a person to disclose without lawful authority information supplied by virtue of Article 6 of that Order. Section 40 will create a similar unlawful disclosure provision in relation to information received by virtue of section 39.

Subsection (2) sets out that the Supporting People team and those providing welfare services are included within the provision of this section. Relevant persons in the Department are not covered by this provision as there is an existing unlawful disclosure provision which applies to them (section 117 of the Administration Act).

This section complements section 117 of the Administration Act and subsections (3) to (5) of this section follow the wording of that section.

Overpayment recovery

Section 41: Recovery of overpaid benefit

A Social Security Commissioner in Great Britain decided that benefit overpayments caused by errors made in the direct credit transfer system can be recovered only where a decision to revise the award and a decision that the overpayment is recoverable are made at the same time.

Section 41 amends section 69 of the Administration Act to ensure that overpayments of benefit are recoverable where a decision to revise the award and a decision that the overpayment is recoverable are made separately.

Benefit fraud

Sections 42 and 43: Housing Executive powers to investigate and prosecute benefit fraud

At present, section 104A of the Administration Act allows the Housing Executive to investigate fraud against housing benefit. However, significant doubt has arisen as to whether this allows it to investigate fraud in connection with benefits administered by the Department. In particular, the doubt exists where benefit entitlement means that a claimant automatically satisfies some eligibility conditions to housing benefit. This reduces the scope for effective joint working between the Housing Executive and the Department to investigate and prosecute fraud cases that involve more than one benefit.

Most cases of benefit fraud will continue to be investigated by the Department. However, the Act provides the Housing Executive with clear powers to investigate and prosecute offences in relation to benefits, where they already have power to investigate and prosecute offences concerning housing benefit.

Section 42 sets out the scope of the new provisions which give the Housing Executive a wider power to investigate benefit fraud and extends its powers permitting it to obtain information from persons such as employers, pension providers, financial service companies, utilities and educational organisations.

This brings the investigative powers of the Housing Executive generally into line with those available to the Department and allows the Housing Executive to obtain information relating to other social security benefits in addition to housing benefit. However, the Housing Executive 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.

Subsection (3) gives the Department power to prescribe in regulations that certain conditions must be satisfied in order for the Housing Executive to make use of these powers. These "prescribed conditions" enable the Department to limit the powers in a way that ensures that only certain benefit offences may be investigated and to provide safeguards against misuse.

Section 43 creates a new power for the Housing Executive to prosecute offences concerning "relevant social security benefits" as defined in section 115CA of the Administration Act, by inserting a new section 110A into that Act.

Subsection (3) of new section 110A gives the Department power to prescribe in regulations that certain conditions must be satisfied before the Housing Executive can prosecute offences against the additional benefits. These conditions allow safeguards to be put in place to ensure that the Housing Executive's powers are not misused and permit the Department to prevent the prosecution in certain cases on an individual basis.

Section 44: Housing Executive functions relating to benefit: information

Section 44 provides for a number of changes to the information sharing provisions contained in the Administration Act by giving the Housing Executive access to information relating to benefit offences as well as allowing the Department to obtain information from the Housing Executive 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.

Currently, section 116C of the Administration Act permits the Department to disclose information to the Housing Executive for purposes relating to the administration of, and offences against, housing benefit. Restricted in such a way, the Housing Executive will not have access to information and evidence held by the Department relating to benefit offences. Subsection (1) amends section 116C so as to allow the Department to disclose to the Housing Executive information relating to benefit fraud investigations and prosecutions. This extension applies to the investigation and prosecution of benefit offences only, and does not extend its power to supply information to the Housing Executive 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.

Section 116D of the Administration Act allows the Department to require the Housing Executive to provide it with certain information relating to social security. Subsection (2) amends section 116D so as to permit the Department to require the Housing Executive to provide information it had obtained during the investigation or prosecution of a benefit offence.

Subsection (3) makes a consequential amendment to section 119A(8) of the Administration Act so that it reflects the provisions of section 116D as amended by subsection (2).

Section 45: Loss of benefit for commission of benefit offences

Section 45(1) amends section 6 of the Social Security Fraud Act (Northern Ireland) 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 he commits a benefit offence, of which he is later convicted, within five years of a conviction for a previous benefit offence.

Subsection (2) provides that this amendment should be disregarded when considering whether an offence committed before the date that this section comes into operation was committed within the relevant period. Where an offence was committed before the date this section comes into operation the relevant period will remain three years.

Part 4: Miscellaneous

Benefits for bereaved persons

Section 46: Widowed mother's allowance

Broadly, in order to be entitled to widowed mother's allowance, a widow must be entitled to child benefit in respect of a child. 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.

At present, section 37 of the Contributions and Benefits Act 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. Section 46 removes this requirement.

Section 47: Widowed parent's allowance

Section 47 amends section 39A of the Contributions and Benefits Act in respect of widowed parent's allowance in the same way that section 46 amends the provisions about widowed mother's allowance.

Disability living allowance: age conditions

Section 48: Care component of disability living allowance: persons under the age of 16

Section 48 amends section 72 of the Contributions and Benefits Act, 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.

Section 49: Mobility component of disability living allowance: persons under the age of 16

Section 49 amends section 73 of the Contributions and Benefits Act, 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.

Social fund

Section 50: Matters to which regard must be had in awarding budgeting loans

Section 136 of the Contributions and Benefits Act 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.

"Appropriate officers" determine applications for social fund payments in accordance with the provisions in primary legislation, principally section 136 of the Contributions and Benefits Act, and directions and guidance issued by the Department. Section 136(1) sets out factors relevant to decisions on crisis loans and community care grants and section 136(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 136(1A) are unnecessary. Section 50 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 136(1)(c) and (1A)(b)). The reference in section 136(1A) to budgeting loan criteria other than the applicant's personal circumstances which may be specified by the Department in directions are removed, as the directions no longer contain such criteria.

Section 51: Allocations from the social fund

Under section 147 of the Administration Act the Department allocates money out of which social fund payments may be made under section 134(1)(b) of the Contributions and Benefits Act.

The money available is limited. There is one budget for loans and one for grants. The budgets are currently allocated to 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 Department to make a single allocation from which loans may be made. The amendments to section 147 by section 51 will give that clarity and flexibility.

Compensation for pneumoconiosis etc.

Section 52: Relevant employer

The conditions of entitlement to a payment in the case of a person suffering from a disease to which the Pneumoconiosis Order applies are set out in Article 3(3) of that Order. One of the conditions of entitlement is that every 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 ("relevant employers") have ceased to carry on business. If there are no relevant employers, a payment is made.

Section 52 inserts a definition of "relevant employer" as set out in Schedule 6 which would allow a claim to be made where the employment was a long time in the past or only lasted for a short period of time.

Section 53: Dependant

A "dependant" of a person who, immediately before his death, suffered from a relevant disease can bring a claim under the Pneumoconiosis Order. Article 5 of that Order sets out the meaning of a "dependant" and sets out an order of priority for determining which dependant may bring a claim in each case.

Section 53 amends that Article so that 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".