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Reirospective Effect Of Section I 65A Of The Principal Act

Volume 170: debated on Wednesday 28 March 1990

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'(1) The following section shall be inserted after section 165A of the principal Act—

"Retrospective effect of section 165A.

165AA.—(1) This section applies where a claim for benefit is made or treated as made at any time on or after 2nd September 1985 (the date on which section 165A above, as originally enacted, came into force) in respect of a period the whole or any part of which falls on or after that date.

(2) Where this section applies, any question arising as to—

(a) whether the claimant is or was at any time (whether before, on or after 2nd September 1985) entitled to the benefit in question, or to any other benefit on which his entitlement to that benefit depends, or
(b) in a case where the claimant's entitlement to the benefit depends on the entitlement of another person to a benefit, whether that other person is or was so entitled,

shall be determined as if section 165A above, as in force at the time of the claim referred to in subsection (1) above, and any regulations made under or referred to in that section as so in force, had also been in force, with any necessary modifications, at all times relevant for the purpose of determining the entitlement of the claimant, and, where applicable, of the other person, to the benefit or benefits in question (including the entitlement of any person to any benefit on which that entitlement depends, and so on).

(3) In any case where—

(a)a claim for benefit was made or treated as made (whether before, on or after 2nd September 1985, and whether by the same claimant as the claim referred to in subsection (1) above or not), and benefit was awarded on that claim, in respect of a period falling wholly or partly before that date, but
(b) that award would not have been made had the current requirements applied in relation to claims for benefit, whenever made, in respect of periods before that date, and
(c) entitlement to the benefit claimed as mentioned in subsection (1) above depends on whether the claimant or some other person was previously entitled or treated as entitled to that or some other benefit,

then, in determining whether the conditions of entitlement to the benefit so claimed are satisfied, the person to whom benefit was awarded as mentioned in paragraphs (a) and (b) above shall be taken to have been entitled to the benefit so awarded, notwithstanding anything in subsection (2) above.

(4) In subsection (3) above "the current requirements" means—

(a) the provisions of section 165A above, as in force at the time of the claim referred to in subsection (1) above, and any regulations made under or referred to in that section as so in force, with any necessary modifications; and
(b) subsection (1) (with the omission of the words following "at any time") and subsection (2) above.

(5) Any reference in any enactment to section 165A of this Act (but not a reference to any specific provision of that section) shall be taken to include a reference to this section.

(6) This section shall be taken to have come into force on 2nd September 1985."

(2) In Schedule 20 to the principal Act (glossary of expressions) in the second column of the entry relating to "entitled" and cognate expressions, for the words "section 165A" there shall be substituted the words "sections 165A and 165AA".

(3) Section 32(4) of the Social Security Act 1985 (which made similar provision to that made by subsection (3) of the section inserted by subsection (1) above) shall be deemed never to have been enacted.

(4) In paragraph 48 of Schedule 10 to the 1986 Act (which applies sections 87 and 165A(1) of the principal Act to income-related benefits) in paragraph (b), for the words "section 165A(1)" there shall be substituted the words "sections 165A(1) and 165AA".

(5) The amendments made by subsections (2) and (4) above shall be taken to have come into force on 2nd September 1985.'.— [Mrs. Gillian Shephard.]

Brought up, and read the First time.

The Parliamentary Under-Secretary of State for Social Security
(Mrs. Gillian Shephard)

I beg to move, That the clause be read a Second time.

With this it will be convenient to discuss Government amendments Nos. 24, 25, 84, 67, 85 and 26.

I shall have to be extremely brief if I am to give even the gist of the Government's intention in the new clause and the amendments.

The new clause amends various provisions of the Social Security Acts 1975 and 1985 to re-establish the accepted policy that, generally speaking, a person shall not be regarded as entitled to benefit for any period unless a claim has been made within the prescribed time limits.

Hon. Members will recall that it had always been our understanding that the law achieved that effect—until a judgment in the House of Lords in November 1984 in the case of a Miss Margaret McCaffrey, when their Lordships held that entitlement to benefit could exist even where no claim had been made.

Although that judgment referred specifically to noncontributory invalidity pension, the decision had much wider implications across the social security front. It was decided that the effects of McCaffrey should be nullified, and section 165A was inserted in the Social Secrity Act 1975 to achieve that, with effect from 2 September 1985, or so we thought.

In June of last year, a social security commissioner held, in the case of a Mr. Cartwright, that the word "entitled" where relating to an event before 2 September 1985 meant "entitled" in the McCaffrey sense—that is, without requiring that a claim must be made for the benefit.

The effect is that, contrary to the policy intention, an understanding that has existed through Administrations of both parties at least back to the start of the national insurance scheme in 1948—

It being Nine o'clock, MADAM DEPUTY SPEAKER proceeded, pursuant to the Order this day, to put forthwith the Question already proposed from the Chair.

Question agreed to.

Clause read a Second time, and added to the Bill.