APPEALS (Hansard, 18 November 1970)

§ Mr. Peter Archer
I do not wish to delay the Committee unduly at this late hour, but there is one matter to which I invite the sympathetic attention of the Secretary of State. It is a problem which is admittedly not of his making, but he has the power to mitigate some of the hardships which might arise. It arises on some of the appeals which will no doubt lie under the Clause.
An appeals procedure is pointless if it is incomprehensible to those who are pursuing the appeals. The difficulties arose in the first instance, I think, because we insisted on having our social welfare provisions within the framework of the ultra vires doctrine. It all began with the desire to ensure that we limited the power of officials to interfere in the lives of individuals. Although that is understandable, it also ensured that it limited their power to help individuals.
We cannot have it both ways. If we insist that officials remain within the rules, we cannot complain when they do. If then there are objections about red tape, these all flow from this decision. But there it is. We have taken the decision now and the framework of our welfare legislation and regulations lies within it. But the effect is that they are drafted as legal terminology. The whole method is a legal method, and we have created a sphere of law where those unfortunate enough to be involved require the maximum guidance.
Judging from previous experience, the claimant who makes use of the machinery of appeals will hear mysterious references to Section 1(1)(b) and to Regulation 47. He will no doubt wonder what it all has to do with paying his grocer's bill. He may receive a sympathetic hearing, but I would be surprised if it is comprehensible to him. If his claim is disallowed, he may 1354 be left feeling that it has been disallowed for reasons which he did not understand. The connection between what the appeal tribunal was talking about and what matters to him will, at the lowest, not be obvious.
The ideal solution would be to make legal aid and advice available in these tribunals. I appreciate that that does not lie within the right hon. Gentleman's province, and, clearly, I shall be out of order in pursuing that point. But there is a way whereby the right hon. Gentleman might mitigate some of the difficulties which arise.
At the moment, even for social workers, trade union officials, and lawyers to intervene in this sphere is rather like navigating a completely unfamiliar water without a chart and without instruments. So far as I am aware, there is virtually no practitioners' textbook on the subject. There are some relatively good indices, but few libraries have them—even legal libraries. There are volumes of regulations and previous decisions, but they are hoarded like gold by the authorities, and it is difficult even for counsel appearing at the tribunals to find them. If there are these difficulties for trade unionists, social workers and lawyers, we can only guess how it must appear for the individual claimant, unassisted, who is trying to find his way through this maze of legislation, regulations and decisions.
I wonder whether the right hon. Gentleman could assist by making available the Act, the regulations and the volumes of decisions to all who want to use and are capable of using them. I am not suggesting that the right hon. Gentleman should make a free presentation copy to everybody concerned, but if he places them where they are easily available—in the offices of whoever administer these matters—it would be a real contribution. I am not asking for a firm commitment this evening. I ask the right hon. Gentleman only to undertake to give it his serious consideration.

§ Mr. Meacher
I am grateful for the opportunity of taking a little further the argument about appeals, so ably introduced by my hon. Friend the Member for Rowley Regis and Tipton (Mr. Peter Archer), by raising in particular the legal 1355 framework or otherwise in which the Bill will be couched.
I understand that my Amendments were not called because their being germane to the whole purpose of the Clause, it was felt that they could be discussed as easily on the Question, "That the Clause stand part of the Bill". Therefore, I am glad to look at the question of appeals with a special eye to the alternative structure for appeals envisaged in the Amendments.
Clause 7(3) lays down: The Appeal Tribunal … shall be … constituted in accordance with the provisions of Schedule 3 to the Ministry of Social Security Act, 1966". That Schedule governs appeals concerning entitlement to supplementary allowances and pensions.
For several reasons I believe that it would be entirely inappropriate to transpose the appeals procedure governing supplementary benefits to the question of entitlement under the Bill. The central reason is that the supplementary benefits appeal tribunals are largely concerned with the exercise of discretion. By contrast, F.I.S. is clearly a matter of legal entitlement and the only Question that will arise are matters of fact and of law. For this reason, this F.I.S. scheme gives no discretionary powers to the commission or to the appeal tribunals, and therefore it is unsuitable that appeals under this scheme should go before these tribunals.
F.I.S. has far more in common with national insurance than with supplementary benefits. I might add, in case this is alleged against the statement that I am making, that the fact that F.I.S. is not an insurance benefit is not relevant, since family allowances, which are equally not insurance benefits, are also dealt with under national insurance tribunals. In this respect one might do well to look at F.I.S. as a kind of supplementary family allowance.
More positively, there are several definite advantages to be derived from putting questions relating to F.I.S. before the National Insurance tribunal. One is that the chairman is more likely than in the case of a supplementary benefits tribunal to be legally qualified, which seems to be more suitable for dealing with explicitly legal matters.
1356 Another advantage is that the insurance tribunals are already exercised in the knotty problems of the definition of what exactly constitutes a family, or household or cohabitation, or indeed wiht such intricacies as exactly what is a "part child". Clause 1(1,c) refers to: the child or children whose requirements have to be provided for, in whole or in part …". I wonder what a supplementary benefits appeals tribunal is likely to make out of that. How does that relate to a child in local authority care? It is precisely these esoteric matters that insurance tribunals dealing with family allowances are already well versed in.
Third, why duplicate the existing appeals machinery? There has been such a burgeoning of tribunals that what is needed is rationalisation rather than any unnecessary proliferation.
My second main reason for disagreeing with the Clause is that the decision of supplementary benefits tribunals is final. This has certain crucial implications. First, there is no system of precedents, and every case is dealt with on its merits. The inevitable result of this will be to encourage the multiplication of appeals, and surely that is not what the Government really intend.
Second, under the Clause numerous points of law which are bound to arise in the early days of the scheme will have to be taken to the Divisional Court, and there will have to be the lengthy and costly procedure of applying for one of the prerogative orders, whether an order of mandamus or certiorari. The Secretary of State may be disinclined to believe that that will happen. If so, I assure him that with the increasing number of lawyers who are concerned with the whole aspect of welfare rights, with the undercurrents flowing very strongly at the moment towards the formation of a welfare rights movement, a citizens' rights office, call it what one will, all the signs point in the direction that that is precisely what will happen.
Third, and this is very important, if appeals are dealt with by the national appeals tribunals there will be a further right of appeal to the National Insurance Commissioner who, by Statute, must be an advocate or barrister of at least 10 years' standing, and in effect could be 1357 said to have the standing of a High Court judge.
That, I submit, has several important advantages. Most obviously, from what I have already said, it will relieve the Divisional Court from the burden of processing endless appeals. More particularly, it will establish a firm system of precedents, and it will enable precise and definite judgements to be formed about such surprisingly nebulous concepts as what exactly is "family" or "cohabitation", based on past judgments clearly revealed in the volumes of the Commissioner's decisions.
I therefore ask the Secretary of State, both because of the clear and important advantages to be derived from setting F.I.S. within the appeals system of the National Insurance tribunals, and also because of the equally clear dysfunction of leaving F.I.S. with regard to appeals where it stands under the Clause, to give the proposed change the very closest scrutiny and, I hope, his sympathy.

§ Mr. Dean
The two hon. Members who have spoken have to some extent been talking at cross purposes. The hon. Member for Rowley Regis and Tipton (Mr. Archer) made the valid point that we want the simplest procedure, because we want the people to understand what this is about. The hon. Member for Oldham, West (Mr. Meacher), on the other hand, put forward powerful arguments—his arguments are always powerful—suggesting an appeals procedure that would tend to legalise and make more difficult, remote and forbidding to the individual the procedure that we are proposing.
The hon. Member for Rowley Regis and Tipton asked what steps we proposed to take to try to make the understanding of the scheme as simple as possible to those who were likely to benefit. We intend to have a take-up campaign which will be extremely carefully planned, with the intention of getting the maximum possible uptake of this benefit. We attach the greatest importance to that, and we shall be using the various media of communications and the various methods available to us, including our local offices and, we hope, the good offices of local authorities, voluntary bodies, and so on.
1358 But we are prepared to go one step further than the hon. Member asked; we are prepared to consider publishing something on lines similar to the supplementary benefits handbook. Hon. Members on both sides of the Committee will agree that that handbook has been immensely useful not only to them, in their constituency work, but to many outside people who are concerned in the running of our welfare services. I hope that the hon. Member will appreciate that we are seriously considering the possibility of doing something on those lines.
I now come to the points made by the hon. Member for Oldham, West. He suggested that the more satisfactory appeal machinery would be the National Insurance machinery rather than the Supplementary Benefits Commission machinery. I want to explain why we feel that the latter machinery would be better—and some of the arguments put forward by the hon. Member for Rowley Regis and Tipton were valid in this connection. Under the National Insurance Act a large part of the adjudication consists of interpreting in precise, legal terms, and with due regard to commissioners' case law, the substantial and complex body of Acts and regulations that make up the National Insurance system.
The National Insurance appeal procedure also deals with appeals concerning family allowances. The local proceedings are always presided over by legally-qualified chairmen, and inevitably their procedures are somewhat more formal than those of the supplementary benefits appeal tribunal. I should have thought that the more formal procedure that is necessary for the National Insurance scheme is not desirable for a scheme of this kind; that the less formal and more friendly—in the best sense of that term—procedure that can be adopted under the supplementary benefits system is more suitable for a scheme of this kind.
There is also the point that this scheme—as the supplementary benefits scheme—will be concerned primarily with questions of fact, such as a claimant's normal gross income, and very much more the sort of question that is now determined under the supplementary benefits appeal procedure rather than the national insurance procedure. It is largely for 1359 those reasons that we feel that the objectives so effectively outlined by the hon. Member for Rowley Regis and Tipton are more likely to be achieved through the procedure laid down in this Clause than under the procedure suggested by the hon. Member for Oldham, West.