Social Security Act 1989 (c. 24)

(The document as of February, 2008)

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(b) who has been the employer of such a person at any time during the relevant period,

shall furnish the Secretary of State with the prescribed information relating to the payment of statutory sick pay in respect of that person.

(4) In sub-paragraph (3) above "employer" has the same meaning as it has in Part I of the 1982 Act.

(5) Any person furnishing information under this paragraph shall do so in the prescribed manner, at the prescribed place and within the prescribed time.

Applications for certificates of total benefit

14 (1) If at any time before he makes the compensation payment in question the compensator applies to the Secretary of State in accordance with paragraph 3 above for a certificate of total benefit relating to the victim in question--

(a) the Secretary of State shall furnish him with such a certificate before the end of the period of 4 weeks, or such other number of weeks as may be prescribed, following the day on which the application is, or is deemed in accordance with regulations to be, received; and

(b) any certificate so furnished shall, in particular, specify for the purposes of paragraph 3(2)(a) above a date not earlier than the date of the application.

(2) Where the Secretary of State furnishes any person with a certificate of total benefit, he shall also provide the information contained in that certificate to the person who appears to him to be the victim in relation to the compensation payment in question.

(3) The victim may apply to the Secretary of State for particulars of the manner in which any amount, rate or period specified in a certificate of total benefit has been determined.

Liability of compensator unenforceable if certificate not issued within time limit

15 (1) The liability of the compensator to make the relevant deduction and payment relating to the first compensation payment after the default date shall not be enforceable if--

(a) he has made a request under paragraph 14(1) above which--

(i) accurately states the prescribed particulars relating to the victim and the accident, injury or disease in question; and

(ii) specifies the name and address of the person to whom the certificate is to be sent;

(b) he has in his possession a written acknowledgment, sent to him in accordance with regulations, of the receipt of the request; and

(c) the Secretary of State does not, within the time limit referred to in paragraph 14(1) above, send the certificate to the person specified in the request as the person to whom the certificate is to be sent, at the address so specified;

and accordingly, where those liabilities cease to be enforceable, nothing in the recoupment provisions shall prevent the compensator from making that compensation payment.

(2) In any case where--

(a) the liability to make the relevant deduction and payment becomes unenforceable by virtue of this paragraph, but

(b) the compensator nevertheless makes that deduction and payment,

he shall be treated for all purposes as if the liability had remained enforceable.

(3) Where the compensator, in reliance on this paragraph, does not make the relevant deduction and payment, then--

(a) he shall within fourteen days of the default date give the Secretary of State notice of that fact together with such other particulars as may be prescribed; and

(b) in determining the amount of the relevant deduction and payment to be made in connection with any subsequent compensation payment made by the same or any other compensator, the amount which, apart from this paragraph, would have fallen to be deducted and paid by him shall continue to form part of the total benefit and shall not be treated as if it had been paid.

(4) If, in the opinion of the Secretary of State, circumstances have arisen which adversely affect normal methods of communication--

(a) he may by order provide that no liability shall become unenforceable by virtue of this paragraph during a specified period not exceeding three months; and

(b) he may continue any such order in force for further periods not exceeding three months at a time.

(5) In this paragraph "the default date" means the date on which the time limit mentioned in sub-paragraph (1)(c) above expires.

Review of certificates of total benefit

16 (1) The Secretary of State may review any certificate of total benefit if he is satisfied that it was issued in ignorance of, or was based on a mistake as to, some material fact or that a mistake (whether in computation or otherwise) has occurred in its preparation.

(2) On any such review the Secretary of State may either--

(a) confirm the certificate, or

(b) issue a fresh certificate containing such variations as he considers appropriate,

but he shall not so vary the certificate as to increase the total benefit.

(3) In any case where--

(a) one or more relevant payments have been made, and

(b) in consequence of a review under this paragraph, it appears that the aggregate amount so paid exceeds the amount that ought to have been paid,

the Secretary of State shall pay the intended recipient an amount equal to the excess.

Appeals

17 (1) An appeal shall lie in accordance with this paragraph against any certificate of total benefit at the instance of the compensator, the victim or the intended recipient, on the ground--

(a) that any amount, rate or period specified in the certificate is incorrect, or

(b) that benefit paid or payable otherwise than in consequence of the accident, injury or disease in question has been brought into account.

(2) No appeal shall be brought under this paragraph until--

(a) the claim giving rise to the compensation payment has been finally disposed of; and

(b) the relevant payment, or where more than one such payment may fall to be made, the final relevant payment, has been made.

(3) Notwithstanding sub-paragraph (2) above, where--

(a) an award of provisional damages has been made under section 32A of the [1981 c. 54.] Supreme Court Act 1981 or section 12 of the [1982 c. 53.] Administration of Justice Act 1982, and

(b) the relevant payment or, where more than one such payment falls to be made, the final relevant payment in relation to the provisional damages so awarded has been made,

an appeal may be brought under this paragraph against any certificate of total benefit by reference to which the amount of that relevant payment, or any of those relevant payments, was made.

(4) Regulations may--

(a) make provision as to the manner in which, and the time within which, appeals under this paragraph are to be brought, and

(b) make provision for the purpose of enabling any such appeal to be treated as an application for review under paragraph 16 above,

and regulations under paragraph (b) above may, in particular, provide that the circumstances in which such a review may be carried out shall not be restricted to those specified in paragraph 16 above.

(5) If any of the medical questions arises for determination on an appeal under this paragraph, the Secretary of State shall refer that question to a medical appeal tribunal, whose determination shall be binding, for the purposes of the appeal, on any social security appeal tribunal to whom a question is referred under sub-paragraph (7) below.

(6) A medical appeal tribunal, in determining any of the medical questions, shall take into account any decision of any court relating to the same, or any similar, issue arising in connection with the accident, injury or disease in question.

(7) If any question concerning any amount, rate or period specified in the certificate of total benefit arises for determination on an appeal under this paragraph, the Secretary of State shall refer that question to a social security appeal tribunal, but where any medical questions arising on the appeal have been referred to a medical appeal tribunal--

(a) he shall not refer any question to the social security appeal tribunal until he has received the determination of the medical appeal tribunal on the questions referred to them; and

(b) he shall notify the social security appeal tribunal of the determinations of the medical appeal tribunal.

(8) On a reference under sub-paragraph (7) above a social security appeal tribunal may either--

(a) confirm the amounts, rates and periods specified in the certificate of total benefit; or

(b) specify any increases, reductions or other variations which are to be made on the issue of the fresh certificate under sub-paragraph (9) below.

(9) When the Secretary of State has received the determinations of the tribunals on the questions referred to them under sub-paragraphs (5) and (7) above, he shall in accordance with those determinations either--

(a) confirm the certificate against which the appeal was brought, or

(b) issue a fresh certificate.

(10) Regulations may make provision with respect to the procedure for the reference under this paragraph of questions to medical appeal tribunals or social security appeal tribunals.

(11) An appeal shall lie to a Commissioner at the instance of the compensator, the victim or the intended recipient from a decision of a medical appeal tribunal or a social security appeal tribunal under this paragraph on the ground that the decision was erroneous in point of law; and for the purposes of appeals under this sub-paragraph--

(a) section 101(5), (5A) and (5B) of the principal Act shall apply in relation to an appeal from the decision of a social security appeal tribunal; and

(b) section 112(3) of that Act shall apply in relation to an appeal from the decision of a medical appeal tribunal.

(12) In this paragraph "the medical questions" means--

(a) any question whether, as the result of a particular occurrence, a person suffered an injury, sickness or disease;

(b) any question as to the period for which a person suffered any injury, sickness or disease.

Recovery in consequence of an appeal

18 (1) Where it appears, in consequence of an appeal under paragraph 17 above, that the aggregate amount of the relevant payment or payments actually made exceeds the amount that ought to have been paid, the Secretary of State shall pay the intended recipient an amount equal to that excess.

(2) Where it appears, in consequence of such an appeal, that the aggregate amount of the relevant payment or payments actually made is less than the amount that ought to have been paid, the intended recipient shall pay the Secretary of State an amount equal to the deficiency.

(3) Without prejudice to any other method of enforcement, an amount payable under sub-paragraph (2) above may be recovered by deduction from any benefits which are prescribed benefits for the purposes of section 53 of the 1986 Act (recovery of overpayments).

Recovery of relevant payment in cases of default

19 (1) This paragraph applies in any case where the compensator has made a compensation payment but--

(a) has not requested a certificate of total benefit in respect of the victim, or

(b) if he has done so, has not made the relevant payment within the time limit imposed by paragraph 2 above.

(2) Where this paragraph applies, the Secretary of State may--

(a) if no certificate of total benefit has been issued to the compensator, issue to him such a certificate and a demand for the relevant payment to be made forthwith, or

(b) if a certificate of total benefit has been issued to the compensator, issue to him a copy of that certificate and such a demand,

and that relevant payment shall, to the extent that it does not exceed the amount of the compensation payment, be recoverable by the Secretary of State from the compensator.

(3) Any amount recoverable under this paragraph shall--

(a) if the compensator resides or carries on business in England and Wales and a county court so orders, be recoverable by execution issued from the county court or otherwise as if it were payable under an order of that court; or

(b) if the compensator resides or carries on business in Scotland, be enforced in like manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

(4) A document bearing a certificate which--

(a) is signed by a person authorised in that behalf by the Secretary of State, and

(b) states that the document, apart from the certificate, is a record of the amount recoverable under this paragraph,

shall be conclusive evidence that that amount is so recoverable; and a certificate purporting to be signed as aforesaid shall be deemed to be so signed unless the contrary is proved.

(5) Where this paragraph applies in relation to two or more connected compensators, the Secretary of State may proceed against them as if they were jointly and severally liable for an amount equal to the difference between--

(a) the total benefit determined in accordance with the latest connected certificate of total benefit issued to any of them, and

(b) the aggregate amount of any connected relevant payments previously made.

(6) Nothing in sub-paragraph (5) above authorises the recovery from any person of an amount in excess of the compensation payment by virtue of which this paragraph applies to him (or, if there are two or more such payments which are connected, the aggregate amount of those payments).

(7) In sub-paragraphs (5) and (6) above, "connected" means relating to the same victim and the same accident, injury or disease.

Inspection

20 (1) Section 58 of the 1986 Act (inspection) shall be amended in accordance with the following provisions of this paragraph.

(2) In subsection (2) (powers of inspector to enter, examine and enquire), for sub-paragraph (ii) of paragraph (b) there shall be substituted--

" (ii) for investigating the circumstances in which any accident, injury or disease which has given or may give rise to a claim for industrial injuries benefit, or for any benefit which is a relevant benefit for the purposes of the recoupment provisions, occurred or may have occurred, or was or may have been received or contracted; " .

(3) In paragraph (c) of that subsection, after sub-paragraph (ii) there shall be inserted--

" (iii) a compensation payment or a relevant payment, within the meaning of the recoupment provisions; " .

(4) In subsection (3) (premises which are liable to inspection) after paragraph (c) there shall be inserted--

" (d) any person--

(i) who is the compensator, within the meaning of the recoupment provisions, in relation to any such accident, injury or disease as is referred to in subsection (2)(b)(ii) above, or

(ii) on whose behalf any such compensator has or may have made, or may make, a compensation payment, within the meaning of those provisions,

carries on business or is to be found; " .

(5) In subsection (6) (persons to furnish information required for ascertaining whether certain sums are or have been paid or payable) in paragraph (a), after sub-paragraph (ii), there shall be inserted--

" (iii) any compensation payment or relevant payment, within the meaning of the recoupment provisions; " .

(6) In subsection (7) (persons who are under a duty to provide information) at the end of paragraph (e) there shall be added the words "or to make any compensation payment or relevant payment, within the meaning of the recoupment provisions".

(7) After subsection (9) there shall be added--

" (10) In this section "the recoupment provisions" means section 22 of, and Schedule 4 to, the Social Security Act 1989 (recovery from damages etc of sums equivalent to benefit paid). "

Part IV Miscellaneous

Foreign compensators: duties of intended recipient

21 (1) Where, immediately before the making of the compensation payment, the compensator is not resident and does not have a place of business in Great Britain, any deduction, payment or other thing which would, apart from this paragraph, fall to be made or done under the recoupment provisions by the compensator shall instead be made or done by the intended recipient and references to the compensator shall be construed accordingly.

(2) The Secretary of State may by regulations make such provision as he considers expedient for the purpose of modifying the recoupment provisions in their application in such a case.

Modification of Law Reform (Personal Injuries) Act 1948

22 (1) In section 2 of the [1948 c. 41.] Law Reform (Personal Injuries) Act 1948, in subsection (1) (which requires that, in assessing damages, half of certain benefits shall be brought into account against loss of profits or earnings)--

(a) after the word "contract)," there shall be inserted the words "where this section applies";

(b) for the words from "against any loss" to "from the injuries" there shall be substituted the words "against them"; and

(a) any of the relevant benefits, within the meaning of section 22 of the Social Security Act 1989, or

(b) any corresponding benefits payable in Northern Ireland,

for the five years beginning with the time when the cause of action accrued. "

(2) After that subsection there shall be inserted--

" (1A) This section applies in any case where the amount of the damages that would have been awarded apart from any reduction under subsection (1) above is less than the sum for the time being prescribed under paragraph 4(1) of Schedule 4 to the Social Security Act 1989 (recoupment of benefit: exception for small payments). "

(3) Subsection (2) of that section (disregard of increase for constant attendance) shall cease to have effect.

Modification of Bankruptcy (Scotland) Act 1985

23 In section 31 of the [1985 c. 66.] Bankruptcy (Scotland) Act 1985 (vesting of debtor's estate at date of sequestration) in subsection (8) after the words "subsection (9) below" there shall be inserted the words "and to paragraph 8(2) of Schedule 4 to the Social Security Act 1989."

Section 23.

SCHEDULE 5 Employment-related Schemes for Pensions or other Benefits: Equal Treatment for Men and Women

Part I Compliance by Schemes

Schemes to comply with the principle of equal treatment

1 Every employment-related benefit scheme shall comply with the principle of equal treatment.

The principle

2 (1) The principle of equal treatment is that persons of the one sex shall not, on the basis of sex, be treated less favourably than persons of the other sex in any respect relating to an employment-related benefit scheme.

(2) Sub-paragraphs (3) to (6) below have effect, where applicable, for the purpose of determining whether a scheme complies with the principle of equal treatment.

(3) Where any provision of the scheme imposes on both male and female members a requirement or condition--

(a) which is such that the proportion of persons of the one sex ("the sex affected") who can comply with it is considerably smaller than the proportion of persons of the other sex who can do so, and

(b) which is not justifiable irrespective of the sex of the members,

the imposition of that requirement or condition shall be regarded as less favourable treatment of persons of the sex affected.

(4) No account shall be taken of--

(a) any difference, on the basis of the sex of members, in the levels of contributions--

(i) which members are required to make, to the extent that the difference is justifiable on actuarial grounds, or

(ii) which the employer makes, to the extent that the difference is for the purpose of removing or limiting differences, as between men and women, in the amount or value of money purchase benefits;

(b) any difference, on the basis of sex, in the amount or value of money purchase benefits, to the extent that the difference is justifiable on actuarial grounds;

(d) any permitted age-related differences;

(e) any difference of treatment in relation to benefits for a deceased member's surviving husband, wife or other dependants;

(f) any difference of treatment in relation to any optional provisions available; or

(g) any provisions of a scheme to the extent that they have been specially arranged for the benefit of one particular member of the scheme;

but where the scheme includes any unfair maternity provisions, it shall to that extent be regarded as according less favourable treatment to women on the basis of sex.

(5) Where the scheme treats persons of the one sex differently according to their marital or family status, that treatment is to be compared with the scheme's treatment of persons of the other sex who have the same status.

(6) The principle of equal treatment applies in relation to members' dependants as it applies in relation to members.

(7) If any question arises whether a condition or requirement falling within sub-paragraph (3)(a) above is or is not justifiable irrespective of the sex of the members, it shall be for those who assert that it is so justifiable to prove that fact.

(8) In this paragraph--

"money purchase benefits" has the meaning given by section 84(1) of the 1986 Act, but with the substitution for references to a personal or occupational pension scheme of references to an employment-related benefit scheme;
"optional provisions available" means those provisions of a scheme--

(a) which apply only in the case of members who elect for them to do so; and

(b) whose purpose is to secure for those members--

(i) benefits in addition to those otherwise provided under the scheme; or

(ii) a choice with respect to the date on which benefits under the scheme are to commence; or

(iii) a choice between any two or more benefits;

"permitted age-related difference" means any difference, on the basis of sex, in the age--

(a) at which a service-related benefit in respect of old age or retirement commences; or

(b) at which, in consequence of the commencement of such a benefit, any other service-related benefit either ceases to be payable or becomes payable at a reduced rate calculated by reference to the amount of the benefit so commencing.

(9) For the purposes of this paragraph--

(a) any reference to a person's family status is a reference to his having an unmarried partner or any dependants; and

(b) a person "has an unmarried partner" if that person and some other person to whom he is not married live together as husband and wife.

Non-compliance: compulsory levelling up

3 (1) To the extent that any provision of an employment-related benefit scheme does not comply with the principle of equal treatment, it shall be overridden by this Schedule and the more favourable treatment accorded to persons of the one sex shall also be accorded to persons of the other sex.

(2) Where more favourable treatment is accorded to any persons by virtue of sub-paragraph (1) above, that sub-paragraph requires them, in accordance with the principle of equal treatment--

(a) to pay contributions at a level appropriate to the treatment so accorded; and

(b) to bear any other burden which is an incident of that treatment;

but persons of either sex may instead elect to receive the less favourable treatment and, in accordance with the principle of equal treatment, pay contributions at the level appropriate to that treatment and bear the other burdens incidental to it.

(3) Where any provision of a scheme is overridden by sub-paragraph (1) above, nothing in this Schedule shall affect any rights accrued or obligations incurred during the period before the date on which that provision is so overridden.

(4) Sub-paragraph (1) above is without prejudice to the exercise, in compliance with the principle of equal treatment, of any power to amend the scheme.

Modification of schemes by the Occupational Pensions Board

4 (1) On an application made to them in respect of an employment-related benefit scheme, other than a public service scheme, by persons competent to make such an application, the Occupational Pensions Board (the "Board") may make an order modifying, or authorising the modification of, the scheme, for the purpose--

(a) of making provision implementing the principle of equal treatment otherwise than as provided by sub-paragraph (1) of paragraph 3 above; or

(b) of reflecting in the rules of the scheme any changes consequential upon the operation of that sub-paragraph.

(2) In relation to any employment-related benefit scheme, the persons competent to make an application to the Board under this paragraph are--

(a) the trustees or managers of the scheme;

(b) any person other than the trustees or managers who has power to alter the rules of the scheme;

(d) such other persons as regulations may specify, in relation to any category of schemes into which the scheme falls, as being proper persons to make an application for the purposes of this paragraph in respect of a scheme of that category.

(3) The Board shall not entertain an application for an order by them under this paragraph unless they are satisfied that the modification of the scheme in question--

(a) cannot be achieved otherwise than by means of such an order; or

(b) can only be achieved in accordance with a procedure which is liable to be unduly complex or protracted, or involves the obtaining of consents which cannot be obtained, or can only be obtained with undue delay or difficulty.

(4) Subject to sub-paragraph (3) above, the Board may on an application under this paragraph make (with the consent of the applicants) an order under sub-paragraph (1) above and may exercise their powers under this paragraph from time to time; and the extent of their powers under this paragraph is not limited, in relation to any purposes for which they are exercisable, to the minimum necessary to achieve those purposes.

(5) An order of the Board under sub-paragraph (1) above authorising the modification of a scheme shall be framed so as to confer the power of modification on such persons as the Board think proper (including persons who were not parties to the application made to the Board) and shall include such directions as the Board think appropriate indicating the modifications which they consider to be desirable.

Unfair maternity provisions

5 (1) In this Schedule "unfair maternity provisions", in relation to an employment-related benefit scheme, means any provision--

(a) which relates to continuing membership of, or the accrual of rights under, the scheme during any period of paid maternity absence in the case of any woman who is (or who, immediately before the commencement of such a period, was) an employed earner and which treats such a woman otherwise than in accordance with the normal employment requirement; or

(b) which requires the amount of any benefit payable under the scheme to or in respect of any such woman, to the extent that it falls to be determined by reference to her earnings during a period which included a period of paid maternity absence, to be determined otherwise than in accordance with the normal employment requirement.

(2) In the case of any unfair maternity provision--

(a) the more favourable treatment required by paragraph 3(1) above is treatment no less favourable than would be accorded to the women in accordance with the normal employment requirement;

(b) paragraph 3(2) above does not authorise the making of any such election as is there mentioned; and

(c) paragraph 4(1)(a) above does not authorise the making of any modification which does not satisfy the requirements of paragraph (a) above;

but, in respect of a period of paid maternity absence, a woman shall only be required to pay contributions on the amount of contractual remuneration or statutory maternity pay actually paid to or for her in respect of that period.

(3) In this paragraph--

(a) "period of paid maternity absence" means any period--

(i) throughout which a woman is absent from work due to pregnancy or confinement; and

(ii) for which her employer (or, if she is no longer in his employment, her former employer) pays her any contractual remuneration or statutory maternity pay;

(b) "the normal employment requirement" is the requirement that any period of paid maternity absence shall be treated as if it were a period throughout which the woman in question works normally and receives the remuneration likely to be paid for doing so.

Unfair family leave provisions

6 (1) Where an employment-related benefit scheme includes any unfair family leave provisions (irrespective of any differences on the basis of sex in the treatment accorded to members under those provisions), then--

(a) the scheme shall be regarded to that extent as not complying with the principle of equal treatment; and

(b) subject to sub-paragraph (3) below, this Schedule shall apply accordingly.

(2) In this Schedule "unfair family leave provisions" means any provision--

(a) which relates to continuing membership of, or the accrual of rights under, the scheme during any period of paid family leave in the case of any member who is an employed earner and which treats such a member otherwise than in accordance with the normal leave requirement; or

(b) which requires the amount of any benefit payable under the scheme to or in respect of any such member to the extent that it falls to be determined by reference to earnings during a period which included a period of paid family leave, to be determined otherwise than in accordance with the normal leave requirement.

(3) In the case of any unfair family leave provision--

(a) the more favourable treatment required by paragraph 3(1) above is treatment no less favourable than would be accorded to the members in accordance with the normal leave requirement;

(b) paragraph 3(2) above does not authorise the making of any such election as is there mentioned; and

(c) paragraph 4(1)(a) above does not authorise the making of any modification which does not satisfy the requirements of paragraph (a) above;

but, in respect of a period of paid family leave, a member shall only be required to pay contributions on the amount of contractual remuneration actually paid to or for him in respect of that period.

(4) In this paragraph--

(a) "period of paid family leave" means any period--

(i) throughout which a member is absent from work for family reasons; and

(ii) for which the employer pays him any contractual remuneration;

(b) "the normal leave requirement" is the requirement that any period of paid family leave shall be treated as if it were a period throughout which the member in question works normally but only receives the remuneration in fact paid to him for that period.

Meaning of "employment-related benefit scheme" etc.

7 In this Schedule--

(a) "employment-related benefit scheme" means any scheme or arrangement which is comprised in one or more instruments or agreements and which has, or is capable of having, effect in relation to one or more descriptions or categories of employments so as to provide service-related benefits to or in respect of employed or self-employed earners--

(i) who have qualifying service in an employment of any such description or category, or

(ii) who have made arrangements with the trustees or managers of the scheme to enable them to become members of the scheme,

but does not include a limited scheme;

(b) "limited scheme" means--

(i) any personal scheme for employed earners to which the employer does not contribute;

(ii) any scheme which has only one member, other than a personal scheme for an employed earner to which his employer contributes;

(iii) any contract of insurance which is made for the benefit of employed earners only and to which the employer is not a party;

(c) "personal scheme" means any scheme or arrangement which falls within paragraph (a) above by virtue of sub-paragraph (ii) of that paragraph (or which would so fall apart from paragraph (b) above);

(d) "public service scheme" has the meaning given by section 51(3)(b) of the 1973 Act;

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