Social Security (Miscellaneous Provisions No. 6) (Jersey) Order 2019

Made                                                                        12th March 2019

Coming into force                                    in accordance with Article 6

THE MINISTER FOR SOCIAL SECURITY, in pursuance of Articles 16, 18, 29, 33, 34, 34AA and 51 of the Social Security (Jersey) Law 1974[1], orders as follows –

1        Social Security (Determination of Claims and Questions) (Jersey) Order 1974 amended

In the Social Security (Determination of Claims and Questions) (Jersey) Order 1974[2] –

(a)     in the preamble for “Articles 29 and 33” there is substituted “Articles 29, 33 and 34AA”;

(b)     for Article 1(2) and (3) there is substituted –

“(2)    The determining officer shall give notice in writing of the determination, and of the reasons for it, to the claimant.

(3)     In the case of a determination which results in a change to a person’s classification for the purposes of Article 3 of the Law (a “classification change”), the determining officer shall give notice in writing of the determination, and of the reasons for it, to –

(a)     the person whose classification has changed (in sub-paragraph (b), the “first person”); and

(b)     where the change is one by virtue of which a second person –

(i)      becomes, or becomes treated as, the first person’s employer, or

(ii)      ceases to be or to be treated as the first person’s employer,

that second person.

(4)     Notice given to a person under paragraph (2) or (3) shall also contain a statement –

(a)     in the case of a determination by the first determining officer –

(i)      of the person’s right to have the matter reconsidered by a second determining officer in accordance with Article 1A, and

(ii)      that, if the right is not exercised, there is no further right of appeal;

(b)     in the case of a redetermination, of the person’s right to appeal to the Social Security Tribunal in accordance with Article 3.”;

(c)     for the text of Article 1A there is substituted –

“(1)    A person who has received notice of a determination under Article 1(2) or (3) and who is dissatisfied with that determination may request redetermination of the matter by a second determining officer.

(2)     A request under paragraph (1) shall be made –

(a)     in writing, stating the reasons for the request; and

(b)     within 21 days of receiving the notice of determination.

(3)     Where a request under paragraph (1) relates to a classification change, the second determining officer shall ensure that an affected person is given such opportunity as may be reasonable to make representations in relation to the redetermination.

(4)     For the purposes of this Article and Article 3, “affected person” means any person, other than the person who requested the redetermination, who is –

(a)     a person whose classification has changed as a result of the determination, or would change if the matter were redetermined;

(b)     a person who, by virtue of the classification change, becomes or becomes treated as, or ceases to be or to be treated as, an employer; or

(c)     a person who would, if the matter were redetermined, become or become treated as, or cease to be or to be treated as, an employer.”;

(d)     for the text of Article 3 there is substituted –

“(1)    The second determining officer shall give notice in writing, to the person who requested the redetermination and to any other affected person, of –

(a)     the second determining officer’s decision, and the reasons for it; and

(b)     subject to paragraph (3), the person’s right of appeal to the Social Security Tribunal.

(2)     An appeal against the redetermination may be made to the Social Security Tribunal by any person receiving a notice under paragraph (1).

(3)     No appeal against a redetermination may be made to the Social Security Tribunal on any question mentioned in Article 33(5) of the Law.”;

(e)     in Article 15(4) for “subject to appeal” there is substituted “subject to redetermination or appeal”;

(f)      in Article 17 –

(i)      for paragraph (1)(b) there is substituted –

“(b)    in the case of short term incapacity allowance, as from the date 10 days before the application for the review;

(ba)    in the case of long term incapacity allowance where a review is carried out on either of the grounds stated in Article 34D(2) of the Law, the medical board carrying out the review may direct that its decision has effect from the date beginning on which the aggravation is determined, by the medical board carrying out the review, to have occurred;

(bb)    in a case where a medical board does not so direct as described in sub-paragraph (ba) or in any other case of long-term incapacity allowance, as from the date 10 days before the application for the review; or”,

(ii)      for paragraph (2)(c) there is substituted –

“(c)    where the decision on review is based on a relevant change of circumstances which occurred after the date on which the original decision took effect or would have taken effect, the decision on review shall not have effect for any period preceding the date declared by the determining officer, the medical board or, as the case may be, the Tribunal to be the date on which that change of circumstances occurred.”;

(g)     after Article 18 there is inserted –

“18A Classification changes

Where a classification change is made –

(a)     any adjustment resulting from that change has effect from –

(i)      the first day of the month in which there first occurred the circumstances giving rise to the change, or

(ii)      if in any case the determining officer is satisfied there is good cause to set a later date for the adjustment to have effect, that later date; and

(b)     Articles 17 to 19 of the Social Security (Contributions) (Jersey) Order 1975[3] apply in relation to any contributions paid following the day on which the change has effect, where such contributions were, within the meaning of those Articles, paid in error or in excess.”;

(h)     in Article 20 after the definition “claimant” there is inserted –

“ “classification change” has the meaning given by Article 1(3);”.

2        Social Security (Determination of Disablement Questions) (Jersey) Order 1974 amended

In the Social Security (Determination of Disablement Questions) (Jersey) Order 1974[4] –

(a)     in the preamble for “Articles 34 and 51” there is substituted “Articles 34, 34AA and 51”;

(b)     in Article 1, paragraph (2) is deleted;

(c)     in Article 4 –

(i)      in paragraph (1) for “shall not proceed to determine the questions referred to it without the claimant’s consent.” there is substituted “may determine the questions referred to it in the absence of the claimant where –

(a)     due to exceptional circumstances, there was good cause for the failure to attend; and

(b)     to do so would not be adverse to the claimant’s interests.”,

(ii)      after paragraph (1) there is inserted –

“(1A) In a case of long term incapacity allowance –

(a)     paragraph (1) shall not be taken to apply so as to require the attendance of a claimant at the sitting of a medical board, where, in the opinion of the determining officer, such attendance would be precluded by the facts of the claimant’s physical or mental condition; and

(b)     where the determining officer notifies the medical board of his or her opinion such as described in sub-paragraph (a), the board may proceed to determine the questions referred to it in the absence of the claimant.

(1B)   For the avoidance of doubt, in any case where a medical board determines any question in the absence of a claimant, notice in writing of the determination, and the reasons for it, shall be given to the claimant in accordance with Article 5.”;

(d)     in Article 5(5) for “information about the claimant’s right to appeal against the decision in accordance with Article 7.” there is substituted –

“ –

(a)     information about the claimant’s right to apply, in accordance with Article 5A, for redetermination of the decision by a second medical board, and such information shall include a statement that, if the right is not exercised, there is no further right of appeal; or

(b)     following a redetermination, information about the claimant’s right to appeal, in accordance with Article 7, against the decision of a second medical board.”;

(e)     after Article 5 there is inserted –

“5A   Redetermination of decision of medical board

(1)     An application for redetermination of a decision of a medical board in relation to long term incapacity allowance shall be made by the applicant in writing within 21 days of receiving notice of the decision under Article 5(5).

(2)     An application under paragraph (1) shall set out the reasons for requiring the redetermination, and, where the applicant is the Minister, notice in writing of the application shall be sent to the claimant.

(3)     Reasonable notice of the time and place at which a medical board will sit (the “initial sitting”) for the redetermination of any decision shall be given in writing to the applicant and, where the applicant is the Minister, to the claimant.

(4)     In a case where the applicant is the claimant, if, after such notice as described in paragraph (3) has been given, the claimant fails to appear at –

(a)     the initial sitting; and

(b)     any alternative sitting of which, during a period of 4 weeks beginning with the date of the initial sitting, further reasonable notice has been given,

the application is to be treated as having been withdrawn and the claimant shall not be entitled to make any further application in respect of the same decision.”;

(f)      in Article 7 –

(i)      in paragraphs (1) and (2) for “medical board” in each place there is substituted “second medical board”,

(ii)      in paragraph (1) for “to the Registrar” there is substituted “in accordance with paragraph (4)”,

(iii)     in paragraph (3) after “Registrar” there is inserted “within 14 days of the Minister receiving notification of the decision of the second medical board”;

(g)     in Article 8(12), at the end the full stop is deleted and there is inserted “but he or she may appeal to the Royal Court on a point of law.”;

(h)     after Article 8 there is inserted –

“8A   Appeals and references to Royal Court

(1)     A person aggrieved by a decision of the Tribunal may, on a point of law only, appeal to the Royal Court.

(2)     An appeal under paragraph (1) may be made –

(a)     in the first instance, only with leave of the Tribunal; or

(b)     in the second instance, where the Tribunal has in the first instance refused leave to appeal, only with leave of the Royal Court.

(3)     If the Tribunal is unable to reach a decision as to whether or not to grant leave to appeal, the Tribunal shall refer the application in question to the Royal Court.

(4)     Subject to paragraph (5), an application for leave to appeal under paragraph (2)(a) must be made before the end of the period of 4 weeks beginning with the date of the Tribunal’s decision.

(5)     The Tribunal may extend the period specified in paragraph (4) if the Tribunal is satisfied that, in the circumstances of the case, it would be fair and just to do so.

(6)     An application for leave to appeal under paragraph (2)(b) must be made within such period as may be specified by Rules of Court (within the meaning of Article 13 of the Royal Court (Jersey) Law 1948[5]).

(7)     An application for leave to appeal under paragraph (2) may include an application to stay a decision of the Tribunal pending the determination of the appeal.

(8)     No appeal lies from a decision of the Tribunal refusing leave for the institution or continuance of, or the making of an application in, proceedings by a person who is the subject of an order under Article 1 of the Civil Proceedings (Vexatious Litigants) (Jersey) Law 2001[6].

(9)     The Tribunal or a determining officer may refer any point of law to the Royal Court.”;

(i)      in Article 10 –

(i)      in paragraph (1) for “question specified in Article 34A(1)” there is substituted “case referred under Article 34A(2)”;

(ii)      at the end there is inserted –

“(5)    Any notice, notification or other document sent under this Order is treated as duly sent to a person if sent to that person’s usual or last known address including any electronic address, but this paragraph does not limit the use of any other means of giving notice.”.

3        Social Security (Assessment of Long Term Incapacity) (Jersey) Order 2004 amended

In the Social Security (Assessment of Long Term Incapacity) (Jersey) Order 2004[7] –

(a)     in the preamble for “Article 16 and 51” there is substituted “Articles 16, 18 and 51”;

(b)     in Article 2(1)(b) after “involves” there is inserted “inability to work,”;

(c)     after Article 2(2) there is inserted –

“(3)    For the purposes of paragraph (1)(a), the period to be taken into account, in respect of each claim, by an assessment shall begin on –

(a)     the date on which there ended the last period for which the claimant was assessed as being entitled to long term incapacity allowance; or

(b)     if the claimant has not previously been so assessed –

(i)      the date of his or her claim, or

(ii)      if applicable, and earlier than the date of his or her claim, the date on which the claimant ceased under Article 15(2) of the Law to be entitled to short term incapacity allowance,

but in any event that period shall not begin before the date which is 3 months earlier than the date of the claim in respect of which the assessment is made, except in a case falling within Article 13(3) of the Social Security (Claims and Payments) (Jersey) Order 1974[8].”;

(d)     at the beginning of Article 3(2) for “The loss” there is substituted the “Subject to paragraphs (3) and (5), the loss”;

(e)     in Article 3(3) –

(i)      for “However, where” there is substituted “Where”, and

(ii)      for “under this Article of the loss of faculty suffered by the claimant as a result of the relevant disease or injury” there is substituted “of the degree of incapacitation suffered by the claimant”;

(f)      after Article 3(4) there is inserted –

“(5)    Where a medical board is required to assess a period of incapacitation prior to the date of the assessment, the degree of incapacitation suffered by the claimant shall be subject to such adjustment as is reasonable in the circumstances of the case.

(6)     An adjustment, under paragraph (3) or (5), of an assessment of the degree of incapacitation –

(a)     may specify different percentage degrees for different periods; and

(b)     may specify percentage degrees which are not specified in the second column of the Schedule.”.

4        Social Security (Incapacity Benefits) (Jersey) Order 2004 amended

In the Social Security (Incapacity Benefits) (Jersey) Order 2004[9] –

(a)     in Article 6(7) for “Every claimant” there is substituted “Subject to paragraph (8), every claimant”, and after that paragraph there is inserted –

“(8)    Where a person claiming long term incapacity allowance fails to attend a medical board in accordance with any prescribed procedures requiring him or her to do so, the determining officer may, if satisfied that, due to exceptional circumstances, there was good cause for the failure to attend, extend the period of assessment by no more than 2 weeks.”;

(b)     in Article 7 –

(i)      in the heading for “short term” there is substituted “receipt of”,

(ii)      in paragraphs (1) and (2) for “disqualified for” in each place there is substituted “disqualified from”, and

(iii)     for paragraph (3) there is substituted –

“(3)    A person shall not be disqualified under this Article for refusing to undergo a surgical operation that is not of a minor character.

(3A)   A person shall not be disqualified from receiving a short term incapacity allowance per day of incapacity for work, or an incapacity pension, for a period exceeding 13 weeks.”.

5        Citation

This Order may be cited as the Social Security (Miscellaneous Provisions) (No. 6) (Jersey) Order 2019.

6        Commencement

(1)     Except to the extent specified in paragraph (2), this Order comes into force on 1st May 2019.

(2)     The following provisions come into force on the day after the day on which this Order is made –

(a)     paragraphs (b) to (e), (g) and (h) of Article 1, so far as those provisions apply in relation to a classification change within the meaning given to that expression by Article 1(3) of the Social Security (Determination of Claims and Questions) (Jersey) Order 1974[10] as substituted by Article 1(b);

(b)     Article 5 and this Article.

deputy j.a. martin of st. helier

Minister for Social Security

 


 



[1]                                    chapter 26.900

[2]                                    chapter 26.900.28

[3]                                    chapter 26.900.24

[4]                                    chapter 26.900.30

[5]                                    chapter 07.770

[6]                                    chapter 04.240

[7]                                    chapter 26.900.32

[8]                                    chapter 26.900.06

[9]                                    chapter 26.900.38

[10]                                  chapter 26.900.28


Page Last Updated: 12 Mar 2019