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The Victims' Payments Regulations 2020 in Wales

S.I. 2020/103 · Made 31 January 2020 · Extends to United Kingdom

Up to date with all changes known to legislation.gov.uk, revised to 25 July 2023.

Payment Scheme

Disabled Persons

Made at 11.20 a.m. on 31st January 2020

Laid before Parliament at 2.30 p.m. on 31st January 2020

Coming into force in accordance with regulation 1

The Secretary of State makes these Regulations in exercise of the powers conferred by sections 10 and 11 of the Northern Ireland (Executive Formation etc) Act 2019 M1.

The Secretary of State has had regard to advice given by the Commission for Victims and Survivors for Northern Ireland in accordance with section 10(10) of that Act.

Annotations to the whole text

Marginal citations

M1

2019 c. 22.

Contents

  1. Part
  2. Part 1: Preliminary
  3. 1Citation and commencement and extent
  4. 2Interpretation
  5. Part 5: Payments
  6. 26Disregard of payments and lump sums for certain purposes
  7. 28Invalidity of assignment and bankruptcy
  8. Part 6: Information and disclosure
  9. 29Power to require information by notice
  10. 31Confidentiality of personal data
  11. Signature
  12. Explanatory note

1Citation and commencement and extentI1

(1)

These Regulations may be cited as the Victims' Payments Regulations 2020.

(2)

The following provisions come into force on the 24th February 2020—

(a)

regulation 1;

(b)

regulation 3;

(c)

Schedule 1;

(d)

paragraph 4(1) of Schedule 2, and regulation 15(8) so far as it relates to that paragraph;

(e)

paragraphs 1, 4 and 5 of Schedule 3, and regulation 53 so far as it relates to that paragraph.

(3)

The remaining provisions of these Regulations come into force on 29th May 2020.

(4)

Except as provided by paragraphs (5) to (7), these Regulations extend to Northern Ireland only.

(5)

Regulations 1, 2, 26, 28, 29 and 31 extend to England and Wales, Scotland and Northern Ireland.

(6)

The amendments made by paragraph 2 of Schedule 3 extend to England and Wales only.

(7)

Any other amendment made by these Regulations has the same extent as the provision it amends.

2InterpretationI1

(1)

In these Regulations—

  • “appeal panel” means a panel appointed by the President of the Board under regulation 35(1);

  • “the Board” means the Victims' Payments Board established by regulation 3(1);

  • “the Executive Office” means the Executive Office in Northern Ireland;

  • “the data protection legislation” has the same meaning as in the Data Protection Act 2018 M1 (see section 3 of that Act).

  • “degree of disablement” means the degree of disablement assessed in accordance with regulation 15 and “assessed” is to be construed accordingly;

  • “the deceased” has the meaning given in regulation 10(1);

  • “degree of relevant disablement” means—

    1. (a)

      the degree of permanent disablement, or

    2. (b)

      in a case where an interim assessment has been made, the degree of disablement of a person during an interim period;

  • “the Department” means the Department designated under paragraph 2(1) of Schedule 1;

  • “disablement” means damage, disfigurement and loss of physical or mental capacity resulting from injury, and “disabled” shall be construed accordingly;

  • “health care professional” means—

    1. (a)

      a registered medical practitioner;

    2. (b)

      a registered nurse;

    3. (c)

      an occupational therapist or physiotherapist registered with a regulatory body established by an Order in Council under section 60 of the Health Act 1999 M2, or

    4. (d)

      a member of such other profession regulated by a body mentioned in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002 M3;

  • “interim assessment” has the meaning given by regulation 14(1)(b);

  • “interim period” has the meaning given by regulation 14(1)(a);

  • “legal member” means a member of the Board appointed under paragraph 3(1)(a) of Schedule 1;

  • “medical member” means a member of the Board appointed under paragraph 3(1)(b) of Schedule 1;

  • “ordinary member” means a member of the Board appointed under paragraph 3(1)(c) of Schedule 1;

  • “panel” means a panel appointed by the President of the Board (other than an appeal panel);

  • “permanent”, in relation to disablement, means where, following appropriate clinical management of adequate duration, an injury has reached a steady or stable state at maximum medical improvement;

  • “personal data” means data within the meaning of section 3(2) of the Data Protection Act 2018 except that it also includes data relating to a deceased individual where the data would be personal data within the meaning of that section if it related to a living individual;

  • “relevant incident” means a Troubles-related incident determined by a panel under regulation F112(3)(b) or 12(3)(c) to be an incident in relation to which the applicant is entitled to victims' payments;

  • “review panel” means a panel appointed by the President of the Board under F2regulation 43(3).

(2)

The Scheme established by these Regulations is to be known as the Troubles Permanent Disablement Payment Scheme.

26Disregard of payments and lump sums for certain purposesI1

(1)

A payment of victims' payments or a lump sum is to be disregarded—

(a)

from the calculation of a person's income or capital when determining entitlement to a relevant social security benefit;

(b)

for the purposes of an assessment of a person's ability to pay under regulations made under Article 36(6) or 99(5) (cost of providing residential accommodation) of the Health and Personal Social Services (Northern Ireland) Order 1972 M1;

(c)

for the purposes of determining whether a person should repay (either fully or in part) an award of criminal injuries compensation where the application for that award was determined before these Regulations come into force.

(2)

In paragraph (1)—

  • “criminal injuries compensation” means compensation under a scheme established under the Criminal Injuries Compensation Act 1995 M2 or the Criminal Injuries Compensation (Northern Ireland) Order 2002 M3;

  • “relevant social security benefit” means any of the following—

    1. (a)

      employment and support allowance under—

      1. (i)

        Part 1 of the Welfare Reform Act 2007 M4 as it has effect apart from the amendments made by Schedule 3, and Part 1 of Schedule 14, to the Welfare Reform Act 2012 M5 (to remove references to an income-related allowance);

      2. (ii)

        Part 1 of the Welfare Reform Act (Northern Ireland) 2007 M6 as it has effect apart from the amendments made by Schedule 3, and Part 5 of Schedule 12, to the Welfare Reform Order (Northern Ireland) 2015 M7 (to remove references to an income related allowance);

    2. (b)

      housing benefit under—

      1. (i)

        Part 7 of the Social Security Contributions and Benefits Act 1992 M8, or

      2. (ii)

        Part 7 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 M9;

    3. (c)

      income support under—

      1. (i)

        Part 7 of the Social Security Contributions and Benefits Act 1992, or

      2. (ii)

        Part 7 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992;

    4. (d)

      jobseeker's allowance under—

      1. (i)

        the Jobseekers Act 1995 M10 as it has effect apart from the amendments made by Part 1 of Schedule 14 to the Welfare Reform Act 2012 (to remove references to an income-based allowance);

      2. (ii)

        the Jobseekers (Northern Ireland) Order 1995 M11 as it has effect apart from the amendments made by Part 1 of Schedule 12 to the Welfare Reform Order (Northern Ireland) 2015 (to remove references to an income-based allowance);

    5. (e)

      state pension credit under—

      1. (i)

        section 1 of the State Pension Credit Act 2002 M12, or

      2. (ii)

        section 1 of the State Pension Credit Act (Northern Ireland) 2002 M13;

    6. (f)

      universal credit under—

      1. (i)

        Part 1 of the Welfare Reform Act 2012, or

      2. (ii)

        Part 2 of the Welfare Reform (Northern Ireland) Order 2015.

28Invalidity of assignment and bankruptcyI1

(1)

Subject to regulation 9, any assignment or charge, and any agreement to assign or charge, any payment to which a person is entitled under this Scheme is void.

(2)

On the bankruptcy of any person entitled to payments under these Regulations, no such payment, or entitlement to payments, is to pass to any trustee or person acting on behalf of the creditors.

29Power to require information by noticeI1

(1)

The Board may, by notice in writing, require any person to provide the Board with any specified records, documents or other information for the purpose of—

(a)

determining whether a person is eligible for victims' payments;

(b)

determining the amount of victims' payments payable to a person;

(c)

making a determination under regulation 10(3)(a);

(d)

a further assessment under regulation 33;

(e)

determining an appeal under regulation 37, or

(f)

reviewing a determination under regulation 43.

(2)

A notice under paragraph (1) may specify the date before which the notice must be complied with.

F1(2A)

A person to whom a notice under this paragraph is given may make a claim to the Board that—

(a)

the person is unable to comply with the notice, or

(b)

it is not reasonable in all the circumstances to require the person to comply with the notice.

(3)

A claim under paragraph F2(2A) must be considered on behalf of the Board by a panel appointed for this purpose.

(4)

On considering a claim under paragraph F3(2A), the panel may confirm, revoke or vary the notice.

(5)

A person who is required by a notice under this regulation to provide records or documents must, if doing so would disclose information about another person which is irrelevant to the determination of the application under this Part and the disclosure of which would breach an obligation of confidence, provide the records or documents in a redacted form.

(6)

A notice under this section has effect in spite of anything which would otherwise prohibit a person from complying with the notice.

(7)

But a requirement of a notice does not have effect if—

(a)

complying with the requirement would involve the disclosure of information which, although made in compliance with the requirement, would contravene the data protection legislation, or

(b)

the person would be entitled in proceedings before the High Court in Northern Ireland to refuse to comply with the requirement.

(8)

The duty to comply with a notice given under paragraph (1) is enforceable by civil proceedings by the President of the Board for an injunction or any other appropriate relief.

31Confidentiality of personal dataI1

(1)

Personal data provided to the Board by an applicant, or disclosed pursuant to a notice under regulation 29, may not be disclosed—

(a)

by the Board, or

(b)

by any other person who has received it directly or indirectly from the Board.

(2)

In the case of personal data which is not HMRC information or social security information, paragraph (1) does not apply to a disclosure—

(a)

which is required or permitted by any enactment (including these Regulations);

(b)

which is required by a retained EU obligation;

(c)

which is made in pursuance of an order of the court;

(d)

of information which has already lawfully been made available to the public;

(e)

which is made for the prevention or detection of crime;

(f)

which is made for the purposes of a criminal investigation,

(g)

which is made for the purposes of legal proceedings (whether civil or criminal);

(h)

which is a protected disclosure for any of the purposes of the Employment Rights Act 1996 M1 or the Employment Rights (Northern Ireland) Order 1996) M2;

(i)

consisting of the publication of information for the purposes of journalism, where the publication of the information is in the public interest;

(j)

which is made with the consent of the person to whom it relates, or

(k)

which is made for the purposes of—

(i)

preventing serious physical harm to a person;

(ii)

preventing loss of human life;

(iii)

safeguarding vulnerable adults or children;

(iv)

responding to an emergency, or

(v)

protecting national security.

(3)

In the case of HMRC information or social security information, paragraph (1) does not apply to a disclosure made with the consent of the relevant authority.

(4)

The duty imposed by paragraph (1) is enforceable by civil proceedings by the President of the Board for an injunction or any other appropriate relief.

(5)

In this regulation “HMRC information”, “social security information” and “the relevant authority” have the same meaning as in regulation 31.

Signature

Julian Smith

Secretary of State

Northern Ireland Office

Explanatory note

(This note is not part of the Regulations)

These Regulations establish the Troubles Permanent Disablement Payment Scheme under the law of Northern Ireland.

Regulation 3 establishes the Victims' Payments Board (“the Board”) and regulation 4 sets out principles that the Board must have regard to when exercising functions under these Regulations.

Part 3 of the Regulations makes provision for who is entitled to victims' payments, including the requirements that a person be permanently disabled as a result of injury caused by a Troubles-related incident. Regulation 6 makes provision for circumstances in which a person may, due to a conviction or other exceptional circumstances, not be entitled to victims' payments. Regulation 7 makes further provision about when injury may be said to be caused by a particular incident. A person entitled to victims' payments can nominate someone (their spouse, civil partner, cohabiting partner, or someone with regular and substantial caring responsibilities for them) to receive payments for ten years after their death. If no such person has been nominated, the Board has the power to decide if someone may apply to receive such payments.

Part 4 makes provision for the Board to determine whether someone is entitled to victims' payments and, if so, in relation to which particular incident. The determination is to be made on behalf of the Board by a panel, but the decision of the panel is subject to assessment by a medical health professional as to the degree the applicant has permanent disablement caused by the relevant incident. A health care professional may assess the applicant by considering information (such as medical records), carrying out an examination, or considering a report by another health care professional. In cases where the degree of permanent disablement cannot be assessed, regulation 14 provides for the degree of disablement to be assessed with reference to an interim period.

Part 5 makes provisions regarding payments. The amount of victims' payments a person is entitled to must be determined by the Board. This is done, as per regulation 18, using the table in Part 2 of Schedule 1 to The Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (S.I. 2006/606), as periodically updated, which sets out amounts of payments corresponding to particular degrees of disablement. Regulation 19 makes provision for this amount to be reduced in respect of other payments in respect of the same disablements, and regulation 20 allows the Board to adjust payments to reflect compensation received in the past and sets out factors the Board must have particular regard to in making such a decision. Regulation 21 provides that if a person applies in the period of three years beginning with the day applications are first advertised as possible, (or longer if the Secretary of State decides) the entitlement to victims' payments will be backdated to the date the applicant would have been entitled to victims' payments if the Scheme had existed since 23 December 2014. Regulation 24 provides that a person can opt to receive a lump sum equal to ten years of victims' payments, instead of regular payments, if they are 60 years old or terminally ill.

Part 6 makes provision regarding the obtaining and use of information by the Board. Regulation 29 allows the Board to require persons, by notice, to provide the Board with the information the Board needs in order to determine applications and appeals. Regulation 30 makes provision restricting the use by the Board of personal data obtained under notice or provided by an applicant and regulation 31 limits the circumstances in which such personal data can be discos disclosed by the Board or any person receiving the information from the Board.

Part 7 provides that determinations by the Board are final, subject to three exceptions. Regulation 33 makes provision for a situation in which a person's condition has worsened, allowing their degree of disablement to be reassessed by a health care professional. Regulation 34 sets out the circumstances in which a person can appeal against a determination or assessment. Regulation 35 provides that appeals are to be determined by an appeal panel of three members and regulation 36 provides that the appeal panel is to reconsider the determination or assessment. Regulation 37 confers on an appeal panel the ability to require that the appellant be reassessed by a health care professional for the purpose of determining the appeal. Regulation 38 provides that the appeal panel's powers include changing a determination or assessment and taking any action that a panel can take. Regulation 39 provides that a hearing can be held if the appellant reasonably requests one or if the Panel thinks it is necessary. Regulations 40, 41 and 42 make provisions for hearings, representation and case management. The third way a determination can be changed is set out in regulation 43, which allows a panel to review decisions in certain circumstances.

Part 8 makes miscellaneous provision. That includes, in regulations 44 and 45, that an applicant or appellant has the burden of proving matters on the balance of probabilities.

Schedule 1 makes provision regarding the Board. The Board is to be a body corporate, with administrative functions exercised on its behalf by a Northern Ireland Department which will also be responsible for providing the Board with staff and accommodation. The Board is to have a President, legal members, medical members and ordinary members and determinations will be taken by panels, consisting of those members, appointed by the President.

Schedule 2 sets out how a health care professional is to assess a person's degree of disablement. Disablement means the loss of physical or mental capacity caused by an injury or illness, whether mental or physical. It is assessed by comparing the person with the disablement with an average, healthy person of the same age and sex, ignoring such matters as occupation. The degree of disablement must be expressed as a percentage.

Schedule 3 makes consequential amendments.

A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sector is foreseen.