HOUSE OF LORDS
Secondary Legislation Scrutiny Committee
30th Report of Session 2016–17
Non-Domestic Rating (Alteration of Lists
and Appeals) (England) (Amendment)
Regulations 2017
Valuation Tribunal for England (Council
Tax and Rating Appeals) (Procedure)
(Amendment) Regulations 2017
Social Security (Restrictions on Amounts
for Children and Qualifying Young
Persons) Amendment Regulations 2017
Child Tax Credit (Amendment)
Regulations 2017
Includes 5 Information Paragraphs on 5 Instruments
Ordered to be printed 28 March 2017 and published 30 March 2017
Published by the Authority of the House of Lords
HL Paper 148
Secondary Legislation Scrutiny Committee
The Committee was established on 17 December 2003 as the Merits of Statutory Instruments
Committee. It was renamed in 2012 to reflect the widening of its responsibilities to include the
scrutiny of Orders laid under the Public Bodies Act 2011.
The Committee’s terms of reference are set out in full on the website but are, broadly, to
scrutinise —
(a) every instrument (whether or not a statutory instrument), or draft of an instrument,
which is laid before each House of Parliament and upon which proceedings may be, or might
have been, taken in either House of Parliament under an Act of Parliament;
(b) every proposal which is in the form of a draft of such an instrument and is laid before
each House of Parliament under an Act of Parliament,
with a view to determining whether or not the special attention of the House should be drawn to
it on any of these specified grounds:
(a) that it is politically or legally important or gives rise to issues of public policy likely to be
of interest to the House;
(b) that it may be inappropriate in view of changed circumstances since the enactment of the
parent Act;
(c) that it may inappropriately implement European Union legislation;
(d) that it may imperfectly achieve its policy objectives;
(e) that the explanatory material laid in support provides insufficient information to gain a
clear understanding about the instrument’s policy objective and intended implementation;
(f) that there appear to be inadequacies in the consultation process which relates to the
instrument.
The Committee may also consider such other general matters relating to the effective scrutiny
of secondary legislation as the Committee considers appropriate, except matters within the
orders of reference of the Joint Committee on Statutory Instruments.
Members
Baroness Andrews
Lord Bowness
Lord Goddard of Stockport
Lord Haskel
Lord Hodgson of Astley Abbots
Baroness Humphreys
Rt Hon. Lord Janvrin
Baroness O’Loan
Lord Rowlands
Baroness Stern
Rt Hon. Lord Trefgarne (Chairman)
Registered interests
Information about interests of Committee Members can be found in the last Appendix to this
report.
Publications
The Committee’s Reports are published on the internet at www.parliament.uk/
seclegpublications
The National Archives publish statutory instruments with a plain English explanatory
memorandum on the internet at http://www.legislation.gov.uk/uksi
Information and Contacts
Any query about the Committee or its work, or opinions on any new item of secondary
legislation, should be directed to the Clerk to the Secondary Legislation Scrutiny Committee,
Legislation Office, House of Lords, London SW1A 0PW. The telephone number is 020 7219
8821 and the email address is [email protected].
Thirtieth Report
INSTRUMENTS DRAWN TO THE SPECIAL ATTENTION OF
THE HOUSE
Non-Domestic Rating (Alteration of Lists and Appeals) (England)
(Amendment) Regulations 2017 (SI 2017/155)
Date laid: 17 March 2017
Parliamentary procedure: negative
Valuation Tribunal for England (Council Tax and Rating Appeals)
(Procedure) (Amendment) Regulations 2017 (SI 2017/156)
Date laid: 17 March 2017
Parliamentary procedure: negative
The Department for Communities and Local Government has laid these two sets of
Regulations which, it says, serve the policy aim of delivering a more efficient business
rates appeals system, based on reforms which introduce a three-stage system: Check,
Challenge, Appeal. In August 2016 the Department set out the intention to lay
these Regulations before Parliament “towards the end of 2016”. In the event, the
instruments were laid on 17 March 2017, to come into force on 1 April 2017.
It is clear that many business ratepayers continue to have serious concerns about the
nature of the reforms to the business rates appeals system made by these Regulations.
We understand the sequence of events that preceded the laying of the Regulations,
but we find it very regrettable that the Government have curtailed the opportunity
for effective Parliamentary scrutiny in order to salvage their own timetable.
We draw these instruments to the special attention of the House on
the ground that they give rise to issues of public policy likely to be of
interest to the House.
1.
The next revaluation of all properties for business, or non-domestic, rates
takes effect from 1 April 2017. As the Department for Communities and
Local Government (DCLG) explains in the Explanatory Memorandum
(EM) to these Regulations, where a ratepayer disagrees with the rateable
value shown in a business rating list, they may challenge the accuracy of the
rateable value by proposing an alteration to the list to the Valuation Office
(VO). If there is a disagreement between the ratepayer and the VO about the
proposed alteration, the ratepayer can appeal to the Valuation Tribunal for
England (VTE).
Business rates appeals—reforms
2.
DCLG says that there is widespread agreement that the system for business
rates appeals is in need of reform:
•
too many rating appeals are made with little supporting evidence or
evidence provided late in the process; and
•
many appeals are made as a matter of routine, and do not result in
either an appeal hearing or a change to the rating list.
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SECONDARY LEGISLATION SCRUTINY COMMITTEE
The Department states that businesses need to be confident that valuations
are correct and, where this is not the case, it needs to be put right more
quickly. The Government intend to deliver a more efficient business rates
appeals system, based on reforms which introduce a three-stage system:
Check, Challenge, Appeal. The reformed system is designed to manage the
flow of cases through the system in a structured and transparent way which
will allow ratepayers to make an informed decision about how to proceed.
These two instruments serve these policy aims and will have effect in relation
to non-domestic rating lists compiled on or after 1 April 2017.
Non-Domestic Rating (Alteration of Lists and Appeals) (England) (Amendment)
Regulations 2017 (SI 2017/155)
3.
SI 2017/155 amends the provisions about who may make a proposal
(“Challenge”) and sets out details of the pre-proposal steps (the “Check”
stage) which must be completed before a proposal may be made. It also
places requirements on the parties to share evidence and arguments early in
the process and provides for time limits at each stage, to keep cases moving
forward, and “trigger points” at the Check and Challenge stages, so that
the ratepayer can feel confident that they can progress the case even if no
decision is made by the VO. The Regulations amend the procedure to:
•
•
•
be followed after a proposal is made;
provide for grounds for making an appeal to the VTE; and
introduce fees for making an appeal.
Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure)
(Amendment) Regulations 2017 (SI 2017/156)
4.
SI 2017/156 prescribes the evidence and matters which are not to be taken
into account by the VTE, in order to limit the introduction of new matters
at Appeal stage and to reinforce the incentive for all parties to engage fully at
the Check and Challenge stages. DCLG says that the changes will not rule
out new evidence and arguments being brought forward, where the evidence
was not known and could not reasonably have been acquired by the appellant
at an earlier stage.
Consultation
5.
Section 8 of the EM explains that a first consultation on proposals for a
three-stage approach to resolving business rates appeals was carried out
between 30 October 2015 and 4 January 2016. In July 2016 (six months after
the consultation closed), the Government response was published.1 This
stated that, while the overwhelming majority of the total of 214 responses
received recognised the need for change, responses from businesses and
rating agents were generally sceptical about the extent to which the proposals
would achieve the aims of reform.
6.
Between 16 August and 11 October 2016, DCLG carried out a follow-up
consultation, seeking views on draft Regulations, and also on some specific
further elements of the reform package that remained outstanding. In the August
2016 consultation document, DCLG stated that “the Government intends,
1See: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/535295/
Reforming_business_rates_appeal_-_govt_response.pdf
SECONDARY LEGISLATION SCRUTINY COMMITTEE
3
towards the end of 2016, to lay before Parliament regulations implementing the
agreed approach. Subject to Parliamentary approval, the reformed system will
come into force from 1 April 2017, to coincide with the national revaluation of
rateable values”.2 In the EM, DCLG says that a total of 287 responses were
received to the follow-up consultation. It notes that businesses and rating
agent respondents remained concerned, in particular that changes would not
provide sufficient transparency, and that there were unwelcome limitations
on the introduction of new evidence after the submission of a proposal. The
Government response to the consultation was published in March 2017
(five months after the consultation closed).3 On timing, it stated that “the
Government’s intention is to implement the regulations as soon as possible”.
Timing
7.
As noted above, in August 2016 DCLG set out the intention to lay these
Regulations before Parliament “towards the end of 2016”. In the event, the
instruments were laid on 17 March 2017, to come into force on 1 April 2017.
In the EM, DCLG states:
“We regret to inform the Committee that in order to bring these
Regulations into force in time for the implementation of the new appeals
framework from 1 April 2017 it has become necessary to breach the 21
day rule. There has been a very high level of scrutiny of the business
rates system over February and March, resulting mainly from significant
concerns raised across the business sector in relation to the business
rates revaluation coming into effect on 1 April. The Government
announced some specific additional measures on business rates at the
8 March Budget, in part as a response to some of the concerns raised.
In the context of the wider scrutiny of the business rates system, the
Department considered it necessary to carefully consider the views and
issues raised before finalising the Regulations”.
Comments from rating specialists
8.
2
We received a joint submission of comments on the Regulations from three
surveyors firms, and a firm of solicitors, all with specialist rating practices.4
The submission, which we are publishing on our website,5 makes a number
of criticisms, and states that, “the current proposal as to grounds of appeal
is unlawful and inadequately drafted.” and that, “the Minister has no legal
power to abandon the principle that the rating list must be accurate”. The
Earl of Lytton has told us that he wishes to be associated with the submission.
We obtained a response to this submission from DCLG (also published
on our website), in which the Department states in particular that, while
the rating specialists’ submission “suggests that the policy is intended to
distinguish between an accurate valuation and a reasonable valuation, such
that a ratepayer would unfairly continue to pay rates based on a valuation
that is inaccurate but considered reasonable … [t]he Government does not
agree that this is the intent or effect of the policy”.
See para. 39 of document, at: https://www.gov.uk/government/uploads/system/uploads/attachment_
data/file/546100/Business_rates_appeals_reforms_consulation_draft_regs.pdf
3See:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/597609/CCA_
Government_Response.pdf
4 The signatory firms are Gerald Eve LLP, GL Hearn, Daniel Watney LLP, and Berwin Leighton
Paisner LLP.
5See: http://www.parliament.uk/business/committees/committees-a-z/lords-select/secondarylegislation-scrutiny-committee/publications/
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SECONDARY LEGISLATION SCRUTINY COMMITTEE
9.
We note in particular that, in their joint submission, the rating specialists
say that, while the Regulations were still in draft, they wrote a letter to the
Joint Committee on Statutory Instruments endorsed by 13 leading trade
organisations,6 objecting to any clause which could prevent inaccurate
assessments being corrected; and also that the Government have not made
all responses to the consultation available and have refused Freedom of
Information requests for their disclosure. In response, DCLG states that
responses were initially withheld on the grounds of a Section 31 exemption
(ongoing policy); and that this position is being reviewed following the
finalisation of the policy approach and publication of the Government
response to the consultation. In our view, now that the Regulations have
been laid before Parliament, the Department should make all the
consultation responses available.
Conclusions
10. It is clear that many business ratepayers continue to have serious concerns
about the nature of the reforms to the business rates appeals system made by
these Regulations, despite the consultation processes which the Department
for Communities and Local Government has pursued over the last 18 months.
The degree of controversy about these reforms may well explain why the
Department was unable to lay the Regulations by the end of last year, as it
undertook to do seven months ago, and indeed why it considered it necessary
to allow only two weeks between the dates of laying and coming into force.
We understand the sequence of events that preceded the laying of
the Regulations, but we find it very regrettable that the Government
have curtailed the opportunity for effective Parliamentary scrutiny
in order to salvage their own timetable.
6
Including the Federation of Small Businesses, the Confederation of British Industry and the British
Retail Consortium.
SECONDARY LEGISLATION SCRUTINY COMMITTEE
5
Social Security (Restrictions on Amounts for Children and Qualifying
Young Persons) Amendment Regulations 2017 (SI 2017/376)
Date laid: 15 March 2017
Parliamentary procedure: negative
Child Tax Credit (Amendment) Regulations 2017 (SI 2017/387)
Date laid: 15 March 2017
Parliamentary procedure: negative
Sections 13 and 14 of the Welfare Reform and Work Act 2016 restrict to two the
number of children or qualifying young persons for whom the Child Element in
Universal Credit and the individual Child Element of Child Tax Credit is payable.
The new rules will apply to any children that join a family or are born after 6 April
2017. Four exceptions to this restriction were announced during the passage of the
Bill and in the Summer Budget 2015. These two sets of Regulations set out how
eligibility for those exceptions is to be assessed and also the arrangements for the
transitional phase.
We have received over a hundred emails on this issue, which express particular
concern about the effect of these changes on child poverty, the unequal effect of how
similar families will be treated because of the order of their children and the types of
decisions that families may make in order to have enough to live on. By far the most
attention is devoted to questions on how the assessment of non-consensual conception
will be handled sensitively.
We share the belief that guidance, or at least easily accessible information, should
have been available sufficiently in advance so that benefit claimants contemplating
a child to be born after 6 April 2017 were fully informed about the consequential
effects.
The first three exceptions are straightforward and based on facts, the fourth relating
to non-consensual conception is much more difficult to assess and the Department
for Work and Pensions (DWP) does not yet appear to have made adequate
arrangements for doing so. We note the financial and ethical concerns of both the
local authorities and the charities which DWP expects to be conducting the third
party assessments, and that it is unclear where the burden of proof will lie in such
assessments. Particular issues relating to Northern Ireland will need to be resolved
before equivalent regulations can be made. DWP’s responses to these questions are
given in our Report but a number of the answers cast doubt on whether
the system will be fully set up by 6 April when the legislation takes
effect and on whether the exception relating to non-consensual
conception can ever be made to work. We intend to write to the Minister to
seek clarification on these points.
These Regulations are drawn to the special attention of the House on
the ground that they may imperfectly achieve their policy objective.
11. The Social Security (Restrictions on Amounts for Children and Qualifying
Young Persons) Amendment Regulations 2017 (SI 2017/376) (“the Social
Security Regulations”) have been laid by the Department for Work and
Pensions (DWP) principally under the Welfare Reform and Work Act 2016
and are accompanied by an Explanatory Memorandum (EM). The Child
Tax Credit (Amendment) Regulations 2017 (SI 2017/387) were laid under
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SECONDARY LEGISLATION SCRUTINY COMMITTEE
the Tax Credits Act 2002 Act and also accompanied by an EM. We have
received over a hundred emails on this issue, the eight key submissions are
published on our webpage in full7 and the other 95 emails of support are
summarised in the text below. Responses from DWP to the questions raised
are incorporated into this Report.
Background
12. Sections 13 and 14 of the Welfare Reform and Work Act 2016 (the “2016
Act”) restrict to two the number of children or qualifying young persons
for whom the Child Element in Universal Credit and the individual Child
Element of Child Tax Credit is payable. The new rules will apply to any
children that join a family or are born after 6 April 2017. Four exceptions
to this restriction were announced during the passage of the Bill and in the
Summer Budget 2015. These two sets of Regulations set out how eligibility
for those exceptions is to be assessed and also the arrangements for the
transitional phase.
The Social Security Regulations
13. The Social Security (Restrictions on Amounts for Children and Qualifying
Young Persons) Amendment Regulations 2017, laid by DWP and relate to
various social security benefits. The provisions of these Regulations have the
following effects:
•
Under amended regulation 24(b) the oldest two children under 16
are eligible for benefit when the household makes a claim, this may
be extended up to age 19 where the child is in education or training
(“qualifying young person”). After the oldest exceeds the age limit any
third, younger sibling, would become entitled to the benefit, the sum
would only reduce if there were no younger sibling.
•
•
The current higher amount for the first child will be phased out.
•
People with more than two children will not be able to make a new
claim for Universal Credit between 6 April 2017 and 31 October 2018,
they will be directed to an alternative benefit such as Child Tax Credits
or Jobseeker’s Allowance. (This is an administrative issue to do with
the roll-out of Universal Credit).
•
Housing Benefit will be aligned with the two child limit. “The
Regulations prescribe that the local authority will use the Child Tax
Credit decision to base their decision on whether to include a third or
subsequent child in the Housing Benefit applicable amount… For the
case in which a person does not claim Child Tax Credit, the regulations
provide for a default rule, which is that a maximum of two amounts for
children will be included in the applicable amount”.
There will be no sudden cut-off at 6 April 2017—those currently
receiving benefit for more than two children will continue to receive it
until after the end of the interim period, 31 Oct 2018, or when a change
of circumstances is declared (EM para 29).
7See: http://www.parliament.uk/business/committees/committees-a-z/lords-select/secondarylegislation-scrutiny-committee/publications/
SECONDARY LEGISLATION SCRUTINY COMMITTEE
7
The Child Tax Credit Regulations
14. The Child Tax Credit (Amendment) Regulations 2017 have been laid by
HM Revenue and Customs (HMRC) to prescribe exceptions to the new
general rule that an award of Child Tax Credit (CTC) must not include
the individual element of that tax credit in respect of third or subsequent
children born on or after 6 April 2017. The individual element of CTC is
£2,780 in the current tax year 2016–17 in respect of a child or qualifying
young person who is not disabled.
Effect on Housing Benefit
15. Generally these new conditions will apply only to new claims or children
born or adopted after 6 April 2017. However, in relation to the Housing
Benefit element DWP states: “New claims to Housing Benefit on or after
6th April will be affected, but if the claimant’s child tax credit assessment
includes more than two children/young people, then even in these cases,
Housing Benefit will shadow what has happened in Child Tax Credit”.
16. Once the new Housing Benefit conditions do apply, if a claimant has six
children all six will be considered in the calculation of the size of house
needed but the claimant will only get two payments of “the HB applicable
amount” for those children. DWP explained that:
“In Housing Benefit the “applicable amount” comprises a number
of personal allowances in respect of the claimant (and partner if they
have one), children, young people and premiums (the latter designed
to recognise extra needs such as those relating to disabilities). Where a
person’s income is below or equal to the applicable amount, or they are in
receipt of another qualifying income-related benefit, they will normally
receive maximum available Housing Benefit. Once a claimant’s income is
above their applicable amount, Housing Benefit is gradually withdrawn
at the rate of 65 pence in every £1 above the applicable amount.
… This means that the applicable amount for families with more than
two children will be lower than it would have been were the reforms
not to take place. Therefore, the tapering away of Housing Benefit
entitlement might start at a lower level of income than it would have
done were the reforms not to be made. However, there are a number of
matters to bear in mind. As Child Tax Credit will be limited in a similar
way, then there will also be less tax credit income to take into account
in the Housing Benefit assessment. In turn, if HMRC allows more than
two children in the Child Tax Credit assessment, then Housing Benefit
will shadow that. Those claimants getting other income-related benefits
such as Income Support, income-based Jobseeker’s Allowance, incomerelated Employment and Support Allowance or the guarantee element
of Pension Credit will be unaffected, as entitlement to those benefits
provide linked entitlement to full eligible Housing Benefit”.
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SECONDARY LEGISLATION SCRUTINY COMMITTEE
The Exceptions
17. The exceptions apply to both Regulations. Additional children may be taken
into account for benefit or CTC purposes if they are:
•
•
•
•
the result of a multiple birth;
adopted;
in kinship arrangements, that is, living long-term with friends or family; or
born as a result of non-consensual conception or if the parent did not
have the freedom or capacity to agree by choice. A condition is attached
that the claimant must not be living at the same address as the other
party to that intercourse.
18. Supplementary information from DWP clarified that the exception for
adopted children does not apply to foster children as they are regarded as still
under the care of the Local Authority. Also claimants will still be entitled to
an additional amount in respect of any disabled children, regardless of the
total number of children in the household.
19. It should also be noted that Child Benefit is separate, is not limited to a
maximum of two children and will continue to be paid regardless of family
size. DWP states: “Child Benefit is taken into account when dependants’
allowance is being paid, consequential changes are made in these Social
Security Regulations to disregard Child Benefit when the disabled child
premium, but not dependants allowance, is being paid, to avoid unfairness.”
Correspondence
20. There have been strong objections to way some of these exceptions are
to be implemented: we have received eight substantive submissions and
emails expressing a view from a further 95 individuals. The eight main
submissions are from: the Association of Directors of Childrens’ Services
and the Association of Directors of Adult Social Services (ADAS); the Child
Poverty Action Group (CPAG); Gary Dunion; Engender—and two other
Scottish charities dealing with women’s issues; Isabelle Kerr from Glasgow
Rape Crisis Centre; the National Alliance of Women’s Organisations UK
(NAWO); Alison Thewliss MP and; the Women’s Aid Federation Northern
Ireland (“Women’s Aid”). They are all published on our website.8
21. These submissions express particular concern about the overall effect of these
changes on child poverty and the unequal effect of how similar families will
be treated under the exemptions because of the order of their children, and
the types of decisions that families may make in order to have enough to live
on. By far the most attention is devoted to questions on how the assessment
of non-consensual conception will be handled sensitively.
22. Submissions from ADAS, Engender and Ms Kerr draw attention to the new
demands that the Regulations will put on rape centres and local authority
social services to act as a third party in providing evidence for the kinship
and rape exceptions, and the lack of additional resources to provide for that
work. They also, with Ms Thewliss, query whether sufficient training has
been given to those required to arbitrate on the question of whether a child
is the result of non-consensual sex.
8See: http://www.parliament.uk/business/committees/committees-a-z/lords-select/secondarylegislation-scrutiny-committee/publications/
SECONDARY LEGISLATION SCRUTINY COMMITTEE
9
23. Of the other 95 emails:
•
83 took issue with the Regulations forcing women to “prove” that they
were raped and 17 were concerned with the way in which DWP aim to
assess beyond reasonable doubt, using third party groups, whether a
child was a result of rape.
•
28 correspondents argued that there would be a negative impact on
families particularly through poverty or stigmatisation. 7 correspondents
also claimed that these Regulations would particularly affect ethnic
minority and refugee families with 2 arguing that it would actually cost
more to implement these regulations.
•
6 correspondents argue that these Regulations break international
conventions on human rights with 3 suggesting that this legislation is
evidence of the Government controlling family size.
•
10 emails questioned why there had been no Impact Assessment or
Equality Analysis with a further 4 correspondents claiming that the
consultation period was not long or detailed enough and was held at an
inappropriate time.
•
18 emails pointed out that these [negative] instruments would not be
automatically debated and felt that such a significant change should
fully be discussed in Parliament [and, therefore, should have been
subject to the affirmative procedure].
Non-consensual conception
24. Paragraph 19 of the EM says eligibility for the non-consensual exception will
normally be determined by using evidence from a third party. DWP explains
that this will not be required where there has been a conviction for the criminal
offence of rape or controlling or coercive behaviour in an intimate or family
relationship, or a relevant criminal injuries compensation award.
25. We asked what would happen if someone claims the exception but has no
evidence. DWP responded:
“DWP recognises that this is a very sensitive matter. The final decision
on whether an exception applies will be made by DWP. Staff will not be
asking for details of the incident but will instead refer the individual to an
approved third party, such as a health care professional, a social worker
or a specialist sexual or domestic violence charity. The process was
deliberately designed in such a way that DWP staff would be excluded
from making their own value judgements about the credibility of the
claimant or as to the likelihood or otherwise of conception being nonconsensual. The intention had been to be helpful to claimants and it was
felt important that the test should not be placed so high as to limit it to
a requirement that there had been a criminal conviction in cases of nonconsensual conception. The list of third party professionals to whom
the circumstances surrounding the non-consensual conception can be
reported has been kept deliberately tight to ensure that they would be
accustomed to dealing with the kinds of incidents and relationships
likely to feature in many of the narratives”.
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SECONDARY LEGISLATION SCRUTINY COMMITTEE
This does not clarify where the burden of proof will lie and whether, if
persuaded to accept a weak case, the assessor might be deemed party
to benefit fraud.
26. We also asked what appeal process there is for someone who is denied a rape
exception on the grounds that the third party did not believe them. DWP
says that, because the decision regarding entitlement to the exception would
be for DWP, the decision itself would be subject to the same appeal rights as
other award decisions. We do not see how DWP could reconsider a case
without asking intimate details of the applicant.
27. Several submissions also expressed concern about the condition that, to
receive benefit on these grounds, the woman must not be living at the same
address as the other party (reg 5(b)(ii)). Isabelle Kerr of the Rape Crisis
Centre in Glasgow states that:
“We have more than 30 years of empirical evidence that tells us that
the most dangerous time for a woman and her children is at the point
of leaving an abuser. In the UK a woman is murdered every three days
by a partner or ex-partner. Yet a woman would be forced to make that
choice, perhaps knowing the level of danger she faces, in order to have
enough money to feed and clothe her family”.
We share this concern.
Third party assessors
28. The ADAS submission estimates that 200,000 to 300,000 children are
being brought up under informal kinship care arrangements, states that
many of these families will not have previously been involved with social
services and that those claiming benefits will now need third party evidence
thus increasing the workload on social workers. Local authorities will have to
carry out additional functions to confirm kinship care arrangements or that
conception was non-consensual but no additional funding has been allocated
under the New Burdens arrangement. DWP responded that:
“the exception will only apply to third or subsequent children in the
household claiming Universal Credit or Child Tax Credit, and as such,
we expect the numbers of children in informal caring arrangements
who will be affected to be very low, particularly initially when it will only
apply to new births—all children born before 6 April 2017 will receive
Child Tax Credit without needing to claim an exception. Nevertheless,
HMRC are currently undertaking a new burdens assessment in order to
ensure that Local Authorities receive any additional funding required”.
This will reassure ADAS but it is concerning that they had not already
been made aware that this assessment is taking place.
29. The CPAG submission drew attention to evidence that police officers underreport allegations of rape as crimes, indicating that they do not believe the
complainant. This would make them unsuited to be used as assessors. DWP
responded that police officers will not appear on the list of approved third
parties: that list has been compiled through discussions with a broad range
of stakeholders and will include health professionals, social workers and
specialist sexual and domestic violence charities. We note however that the
NAWO submission states that some “professional bodies and agencies that
SECONDARY LEGISLATION SCRUTINY COMMITTEE
11
appeared to be proposed by the DWP as ‘third party assessors’ have yet to
hear from the UK Government on this”.
30. We also asked what the arrangements will be for third party assessors in
Scotland where the main voluntary groups do not wish to endorse a system
that they object to. The DWP states it is for voluntary organisations to
decide to become a listed third party and that the Department is continuing
to discuss implementation with third parties. This seems to be leaving
matters unresolved rather close to the date on which the Regulations
come into effect and takes no account of the training that may be
necessary for the assessors eventually chosen.
Other questions from the submissions
31. We asked DWP for responses to a number of questions included in the
submissions:
32. What about “accidents”? All contraception has a failure rate even when used
correctly. What about the not infrequent event of the surprise third child to a
mature couple? DWP responded: “The regulations have introduced exceptions
to the child element restriction that were considered fair and which provided
applicants with evidence requirements that can be reasonably met”.
33. Should there not be a transitional period for children conceived before
the Regulations were laid but who will be born after 6 April 2017? DWP
responded: “The policy was announced in the Summer Budget 2015
and brought into statute in the Welfare Reform and Work Act 2016. In
implementing the policy from 6 April 2017, the Government has given
people sufficient notice to be able to plan for the changes”. This appears to
us an unrealistic expectation: the average person does not follow politics that
closely and therefore, clear messages should have appeared on the Universal
Credit website, and on material given to current claimants.
34. Some felt the legislation unfair in the way it addresses the order of children.
•
A couple who take on kinship care of (typically) younger siblings before
having a child of their own will not receive benefit for that child. The
Regulations only permit an exception for a third child who is adopted,
not for a third child in a family that has adopted.
•
There is a similar inconsistency with a child as a result of rape: if a
women has a child as a result of rape and subsequently marries she
will only be able to obtain benefit for one child of that marriage, that is
two in total. If, conversely, she has two children and is then raped she
would be able to claim for a total of three children.
DWP responded:
“It is correct that the exceptions only apply to the third or subsequent
child or qualifying young person in the household as determined by
the ordering rules. In the scenario where a household is already caring
for two children before having a third of their own, the child element
would only be paid for that new child if an exception applied. In the
scenarios described, the claimant would have the choice to have a child
of their own. The new rules mean that households will need to think
carefully about whether they are financially prepared to support a new
child without relying on Universal Credit”.
12
SECONDARY LEGISLATION SCRUTINY COMMITTEE
Privacy issues
35. There are privacy issues: if someone receives money for a third child it will
become obvious to family members and certain authorities that she has been
raped at some point thus reviving the trauma. DWP stated:
“We have been thorough in taking data protection issues into account
and the Departments’ lawyers are satisfied that the process does not
breach the Data Protection Act. Award notices will not state the reason
for the exception. We do accept that an inference may be drawn as to
the reason for an exception being in place, this risk is unavoidable, given
the limited range of exceptions in place but we believe that this risk is
outweighed by the financial benefit to the claimant in being granted the
exception”.
36. Women’s Aid point out that in Northern Ireland, private declarations of
rape or coercion to a third party assessor will be contrary to the law. In
Northern Ireland it is a criminal offence subject to a prison sentence for an
organisation or support service to fail to declare a crime to the police if they
become aware of it. This will put both the applicant and the assessor in an
invidious position. The practicalities of applying these requirements
in Northern Ireland will need to be fully thought through before the
equivalent regulations are brought forward.
Child poverty
37. Some were concerned women will be forced into abortion because of
economic factors. They also noted the difficult position of women with a
religious conviction against abortion or those in Northern Ireland unable
to obtain it. DWP stated that it had been in touch with the Department
for Communities in Northern Ireland and various religious organisations
about those issues. “The Government does not have a policy on how many
children a family should have and it is important to emphasise that Child
Benefit is available regardless of the number of children in the family”.
38. Citing that 34% of children in poverty in 2014–15 were in families of three
or more children, many felt that these Regulations will act against the
Government’s wider policy on reducing child poverty. DWP responded:
“The Prime Minister has set out clearly that she is committed to building
a country that works for everyone—not just the privileged few. Tackling
child poverty and disadvantage is a priority for this Government. To do
this, we need to focus on the root causes of poverty and disadvantage.
This is why we have introduced two statutory measures of parental
worklessness and children’s educational attainment—to drive action on
the two areas that can make the biggest difference to children’s outcomes.
We will make a number of announcements in the coming weeks. Work
is the best route out of poverty and our welfare reforms make sure that
work always pays, providing opportunity for all those who can work and
a safety net for those who can’t work. There will be no cash losers as a
direct result of this policy and Child Benefit will also continue to be paid
regardless of family size, as the basis of the Government’s contribution
towards the cost of bringing up a child”.
SECONDARY LEGISLATION SCRUTINY COMMITTEE
13
Equality?
39. Several felt these changes contravene the UK’s obligations under the
European Convention on Human Rights (ECHR), on women’s rights to
reproduce and under the Convention on the Elimination of all forms of
Discrimination Against Women (CEDAW). DWP stated that its position is
that this policy is compliant with the Government’s obligations under both
ECHR and CEDAW.
“As it relates solely to benefit entitlement, it does not interfere with any
person’s rights to reproduce. The restriction on entitlement to support
for children was implemented through primary legislation and therefore
its impacts were considered fully by Parliament. Any purported
interference with other human rights is proportionate and justified
by the legitimate aims of the policy. The exceptions to the restriction
introduced by these regulations further reduce the impact of the policy
in particular circumstances”.
40. Since these changes seem most likely to impact on women, several
correspondents asked why is there no Equality Assessment to show the
comparative impact on different social groups. DWP responded:
“The Government has assessed the impact on equality of the policies
introduced by the Summer Budget 2015 and the Welfare Reform and
Work Act 2016, thus meeting its obligations in the Public Sector Equality
Duty. The Government set out its assessment of that impact when the
Bill was introduced to Parliament in July 2015.9 It also took account
of that duty during the formulation of the policy on the exceptions.
All families, regardless of their background and beliefs, need to think
carefully and ensure that they can afford to provide for a new child in
their household. It is fair that families on benefits have to make the
same financial decisions as those families supporting themselves solely
through work”.
We accept the point that the requirement to consider their means before
deciding to have another child will apply to all families on benefits but
this does not allow for cultural or religious views which do not allow for
contraception. Nor are we convinced on the equality point, as we do
not foresee any men being subject to distressing interviews in order
to obtain benefits.
Financial Impact
41. The Committee queried the statement in the EM about how the impact on
the public sector is estimated to be an increase of £170 million in payments
when the effect of the Regulations is to restrict the numbers to which these
benefits will be paid. DWP explained that the restriction was given effect by
the Welfare Reform and Work Act 2016 and the savings were calculated for
that Act. These Regulations introduce exceptions, transitional arrangements
and savings with regards to the restriction, the effect of which is to reduce
the savings anticipated by the restriction in the Act.
9
http://www.parliament.uk/documents/impact-assessments/IA15-006E.pdf.
14
SECONDARY LEGISLATION SCRUTINY COMMITTEE
Guidance
42. Several submissions mentioned that there is currently no information about
the changes to Universal Credit on the Gov.uk website and questioned
how staff and advisory bodies such as Citizens Advice were to be trained,
given that the guidance is not available two weeks in advance of the date the
legislation takes effect. DWP stated that:
“High level messaging was placed on Gov.uk at the time the policy was
announced with further detail published as part of the consultation in
October 2016 and the response to the consultation in January 2017. In
addition we have had ongoing discussions regarding the policy with
stakeholders as part of our regular meetings. The changes are being
communicated to operational staff through implementation updates,
learning and development products, and updates to operational
guidance in advance of the implementation date. In line with the date
the policy comes into effect we will, on 6 April, publish detailed UC
claimant guidance regarding the policy along with detailed guidance for
stakeholders”.
43. We have raised this same issue with DWP recently: where operational
guidance informs decisions about a person’s benefit, it should be available
at the time the Regulations are before Parliament for scrutiny. Even more
importantly such guidance, or at least easily accessible information,
should have been available sufficiently in advance so that benefit
claimants contemplating a child to be born after 6 April 2017 were
fully informed about the consequential effects.
Consultation
44. The consultation period was short for both Regulations. The EM for the
Child Tax Credits as originally laid provided only perfunctory information
about the consultation carried out prior to the laying of the Regulations
and we have asked HMRC to revise it. We also asked DWP why the
consultation period on such a contentious matter was limited to one month.
DWP stated that they considered the period to be sufficient, given earlier
informal engagement with a wide range of stakeholders, including charities,
Government departments, and groups involved in supporting victims of
rape. We note that they have provided a detailed summary of the responses
that they received and how they have amended the proposals as a result.
Following our inquiry into consultation practice we gave the view that
six weeks should be the minimum for a public consultation exercise.
The extent of the correspondence that we have received suggests
that the public feel that they have not had a sufficient opportunity to
comment on this controversial subject.
Conclusion
45. The first three exceptions are straightforward and based on facts, the fourth
relating to non-consensual conception is much more difficult to assess and
DWP do not yet appear to have made adequate arrangements for doing so. We
note the financial and ethical concerns of both the local authorities and the
charities which DWP expect to be conducting the third party assessments,
and that it is unclear where the burden of proof will lie in such assessments.
The particular issues relating to Northern Ireland will need to be resolved
before equivalent regulations can be brought forward. DWP’s responses to
SECONDARY LEGISLATION SCRUTINY COMMITTEE
15
these questions are given in our Report but a number of the answers cast
doubt as to whether the system will be fully set up by 6 April when the
legislation takes effect and on whether the exception relating to nonconsensual conception can ever be made to work. We intend to write to
the Minister to seek clarification on these points.
16
SECONDARY LEGISLATION SCRUTINY COMMITTEE
INSTRUMENTS OF INTEREST
Agreement between the Government of the United Kingdom of
Great Britain and Northern Ireland and the Government of Japan
concerning Reciprocal Provision of Supplies and Services between the
Armed Forces of the United Kingdom of Great Britain and Northern
Ireland and the Self-Defense Forces of Japan (Cm 9442)
46. The Government have a number of Mutual Logistic Support Arrangements
(MLSA) with other states, which support the Ministry of Defence’s objective
of improving logistic support to the UK Armed Forces overseas, including
supplies, ease of access and over-flight. This Agreement establishes such an
arrangement with Japan. Reciprocal arrangements allow the UK to provide
the supplies and services to the Self-Defense Forces of Japan necessary
for exercises and training, United Nations Peacekeeping Operations,
internationally coordinated peace and security operations and humanitarian
relief, including operations to cope with large-scale disasters in the territory
of either Party or a third country.
Statement of Changes in Immigration Rules (HC 1078)
47. These changes include a new requirement that individuals applying for
entry clearance under the Tier 2 General route, to work in the education,
health and social care sectors, must provide a criminal record certificate
from any country in which they have lived for 12 months or more in the
previous ten years. This requirement will also apply to the partners of Tier
2 migrants. The Home Office states that this requirement already applies
to Tier 1 applicants and their adult dependents and is part of a phased
implementation. Following a review by the Migration Advisory Committee
the salary threshold for experienced workers in Tier 2 is being increased
to £30,000 for new applicants. This earnings provision does not apply
to professions on the shortage list such as nurses, paramedics and maths
teachers. Other provisions amend Tiers 4 and 5 and the reentry ban which
is applied to overstayers.
Universal Credit (Reduction of the Earnings Taper Rate) Amendment
Regulations 2017 (SI 2017/348)
48. These Regulations apply the change to the Earnings Taper rate announced
in the Chancellor’s Autumn Statement of November 2016. From 10 April
2017 the rate is to be reduced from 65% to 63% meaning that for every
additional £1 earned, a claimant receiving Universal Credit will retain 37p,
that is, 2p more than at present. This means that anyone claiming Universal
Credit earning less than £26,000 will be better off, and a further 90,000
households, whose income would previously been too high to claim, might
now become eligible.
Childcare (Miscellaneous Amendments) Regulations 2017
(SI 2017/361)
49. The Department for Education (DfE) has laid these Regulations with an
Explanatory Memorandum (EM) and Impact Assessment. DfE explains
that the Regulations introduce an updated Early Years Foundation Stage
(EYFS) statutory framework (“the Document”), which sets the standards
that all early years providers must meet to ensure that children learn and
develop well and are kept healthy and safe.
SECONDARY LEGISLATION SCRUTINY COMMITTEE
17
50. Among the changes made is a new requirement in respect of Paediatric First
Aid (PFA) qualifications: from 1 April 2017, all new entrants to the early
years workforce with full and relevant level 2 or level 3 qualifications must
also have either a full PFA or an emergency PFA certificate before they can
be included in the required staff to child ratios in an early years setting.
Newly qualified entrants who started work between 30 June 2016 and 2
April 2017 must have either a full PFA or an emergency PFA certificate by
2 July 2017. The current legal requirement in the Document is that at least
one person who has a current PFA certificate must be on the premises at all
times. DfE says that the aim is to embed PFA training into the qualification
requirements for new entrants to the early years workforce and over time
significantly increase the number of staff trained in PFA.
51. DfE refers to consultation which it carried out between 15 October and 10
December 2015. In the consultation document,10 DfE stated: “Following the
tragic death in 2012 of Millie Thompson in a nursery class, the coroner for
the case wrote to the Secretary of State stating that all nursery staff should
have PFA training. The Government wants to take account of the coroner’s
report …”. There were 377 consultation responses. 91% of respondents
thought that the PFA requirements should be changed or strengthened; and
84% said that the Government should introduce a mandatory requirement
for newly qualified early years staff, as these Regulations do. A summary of
responses has been published.11
Riot Compensation Regulations 2017 (SI 2017/371)
52. The Riot Compensation Act 2016 (“the 2016 Act”) repeals and replaces
the Riot (Damages) Act 1886 which was found to be cumbersome and
ill-suited to modern circumstances when it was last used in 2011. These
Regulations set out the procedure and basis for making claims under the
2016 Act, for the handling of claims and for decision-making by the claims
authorities. The 2016 Act limits any claim to a maximum of £1 million and
regulation 16 sets out circumstances in which an award may be reduced
(along the lines of contributory negligence). The 2016 Act provides for
temporary accommodation to be paid for, where someone’s home has been
left uninhabitable by a riot, but regulation 15 limits this provision to 132
days. Following consultation the Regulations also amend section 2(3) of
the Act to allow riot compensation claims to be made for business contents
in qualifying motor vehicles and their trailers and other attachable devices.
Although these Regulations come into force on 6 April 2017, they cannot be
used until needed. Separate Regulations will be prepared to provide for the
creation of a riot claims bureau under section 6 of the 2016 Act and held in
readiness to be laid before Parliament in the event of widespread riots.
10See:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/468408/
Paediatric_first_aid_amendments_-_consultation.pdf
11See:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/532503/PFA_
Consultation_findings_and_response.PDF
18
SECONDARY LEGISLATION SCRUTINY COMMITTEE
INSTRUMENTS NOT DRAWN TO THE SPECIAL ATTENTION OF
THE HOUSE
Draft instruments subject to affirmative approval
Combined Authorities (Finance) Order 2017
Domestic Renewable Heat Incentive Scheme (Amendment)
Regulations 2017
Government Resources and Accounts Act 2000 (Audit of Public
Bodies) Order 2017
Immigration Act 2016 (Consequential Amendments)
(Biometrics and Legal Aid) Regulations 2017
International Headquarters and Defence Organisations
(Designation and Privileges) Order 2017
Misuse of Drugs Act 1971 (Amendment) Order 2017
Renewable Heat Incentive Scheme Regulations 2017
Instruments subject to annulment
Cm 9442
Agreement between the Government of the United Kingdom
of Great Britain and Northern Ireland and the Government of
Japan concerning Reciprocal Provision of Supplies and Services
between the Armed Forces of the United Kingdom of Great
Britain and Northern Ireland and the Self-Defense Forces of
Japan
HC 1078
Statement of Changes in Immigration Rules
SI 2017/279
Harbour Directions (Designation of Harbour Authorities)
Order 2017
SI 2017/287
Social Security Revaluation of Earnings Factors Order 2017
SI 2017/294
Road Traffic Offenders (Additional Offences) Order 2017
SI 2017/324
Pension Protection Fund (Modification) (Amendment)
Regulations 2017
SI 2017/325
Freight Containers (Safety Convention) Regulations 2017
SI 2017/329
Social Security (Scottish Infected Blood Support Scheme)
Regulations 2017
SI 2017/342
Equality Act 2010 (Taxis and Private Hire Vehicles) (Passengers
in Wheelchairs–Notices of Exemption) Regulations 2017
SI 2017/348
Universal Credit (Reduction of the Earnings Taper Rate)
Amendment Regulations 2017
SI 2017/349
Social Security Benefits Up-rating Regulations 2017
SI 2017/354
Occupational Pension Schemes and Social Security (Schemes
that were Contracted-out and Graduated Retirement Benefit)
(Miscellaneous Amendments) Regulations 2017
SI 2017/361
Childcare (Miscellaneous Amendments) Regulations 2017
SECONDARY LEGISLATION SCRUTINY COMMITTEE
19
SI 2017/365
Planning (Hazardous Substances) (Amendment) Regulations
2017
SI 2017/366
Insolvency (England and Wales) (Amendment) Rules 2017
SI 2017/367
Rent Repayment Orders and Financial Penalties (Amounts
Recovered) (England) Regulations 2017
SI 2017/368
Energy Performance of Buildings (England and Wales)
(Amendment) Regulations 2017
SI 2017/369
Insolvency (England and Wales) Rules 2016 (Consequential
Amendments and Savings) Rules 2017
SI 2017/371
Riot Compensation Regulations 2017
SI 2017/373
Social Security (Miscellaneous Amendments No. 2) Regulations
2017
SI 2017/375
State Pension Debits and Credits (Revaluation) Order 2017
SI 2017/378
Housing and Planning Act 2016 (Consequential Provisions)
(England) Regulations 2017
SI 2017/386
Social Security (Invalid Care Allowance) (Amendment)
Regulations 2017
SI 2017/389
Judgments Enforcement (Northern Ireland) (Amendment)
Order 2017
SI 2017/390
Road Traffic Act 1988 (Motor Racing) (England) Regulations
2017
SI 2017/391
Town and Country Planning (General Permitted Development)
(England) (Amendment) Order 2017
SI 2017/392
Town and Country Planning (Compensation) (England)
(Amendment) Regulations 2017
SI 2017/396
Tax Credits (Definition and Calculation of Income)
(Amendment) Regulations 2017
SI 2017/401
Deregulation Act 2015 (Birmingham City Council Act 1985)
(Repeal) Regulations 2017
SI 2017/404
Pollution Prevention and Control (Fees) (Miscellaneous
Amendments) Regulations 2017
SI 2017/407
Water Environment (Water Framework Directive) (England and
Wales) Regulations 2017
SI 2017/408
National Health Service (Charges for Drugs and Appliances
and Dental Charges) (Amendment) Regulations 2017
SI 2017/409
Tobacco Products and Herbal Products for Smoking (Fees)
Regulations 2017
SI 2017/411
Licensing Act 2003 (Miscellaneous Amendments) Regulations
2017
SI 2017/412
Guardian’s Allowance Up-rating Regulations 2017
SI 2017/413
Family Procedure (Amendment) Rules 2017
20
SECONDARY LEGISLATION SCRUTINY COMMITTEE
SI 2017/416
Social Security (Contributions) (Re-rating) Consequential
Amendment Regulations 2017
SI 2017/417
Pensions Increase (Review) Order 2017
SI 2017/418
Pensions Increase (Modification) Regulations 2017
SI 2017/422
Pensions Act 2014 (Consequential, Supplementary and
Incidental Amendments) Order 2017
SI 2017/426
Oil and Gas Authority (Fees and Petroleum Licensing)
(Amendment) Regulations 2017
SR 2017/50
Employment and Support Allowance (Exempt Work &
Hardship Amounts) (Amendment) Regulations (Northern
Ireland) 2017
SR 2017/51
Employment and Support Allowance (Consequential
Amendments and Transitional and Savings Provisions)
Regulations (Northern Ireland) 2017
SECONDARY LEGISLATION SCRUTINY COMMITTEE
21
Appendix 1: INTERESTS AND ATTENDANCE
Committee Members’ registered interests may be examined in the online Register
of Lords’ Interests at www.publications.parliament.uk/pa/ld/ldreg.htm. The
Register may also be inspected in the Parliamentary Archives.
For the business taken at the meeting on 28 March 2017, a Member declared the
following interest:
Road Traffic Act 1988 (Motor Racing) (England) Regulations 2017 (SI
2017/390)
Lord Trefgarne
Trustee Emeritus of Brooklands Museum.
Attendance:
The meeting was attended by Baroness Andrews, Lord Bowness, Lord Goddard of
Stockport, Lord Haskel, Baroness Humphreys, Lord Janvrin, Baroness O’Loan,
Lord Rowlands, Baroness Stern and Lord Trefgarne.