PREVENTION OF DOUBLE PAYMENTS AND RECOVERY OF OVERPAYMENTS (Hansard, 18 November 1970)

§ Mr. S. C. Silkin
I beg to move Amendment No. 48, in page 3, line 34, leave out from 'is' to end of line 38 and insert: 'proved to the satisfaction of a court of summary jurisdiction that any such sum would not have been paid if any person making a claim therefor had not knowingly failed to disclose material facts'. This is a probing Amendment, but in the sense that the existing provisions might attract a good deal of criticism. They say: Regulations may provide for the recovery of sums paid by way of family income supplement where it is found that the sums were not due and the persons by whom the sums were receivable cannot satisfy the Supplementary Benefits Commission or the Appeal Tribunal that they had disclosed all material facts. In other words, the burden is placed upon the person who has received a supplement. If he cannot prove that he has disclosed all material facts, even if his failure is not fraud but accidental and inadvertent failure, the sums can be recovered from him. That seems harsh.
The Amendment puts the matter the other way around and would provide that it would be for the Secretary of State to satisfy the court, where the person concerned might have legal aid, that the sum in question would not have been paid if the claimant had not only failed to disclose the material facts but had done so knowingly. There must be an element of fraud before the sum can be recovered.
The Secretary of State knows, because he has said this again and again, that the people we are talking about will not 1360 be well versed in the law or expert in completing documents. It is a real hardship if all the burden of establishing that they have made no mistake is placed on them. The means of these people are inevitably low: they would not come under the Bill otherwise.
Would the right hon. Gentleman reconsider this? I do not suggest that our wording is best, but we should like some reassurance.

§ Sir K. Joseph
I sympathise with the object of the hon. and learned Gentleman. I am impressed by the homework done by hon. Members opposite. What I am about to say is not a judgment on that homework, but the hon. and learned Gentleman is introducing the Amendment under a misapprehension. I can give him the reassurance he seeks.
The problem is not one of deciding whether the claimant has committed a crime of any sort. There is no question of an offence under this Clause. We come to questions of offence later, under Clause 12. We are considering whether a repayment is necessary or justified. The procedure we propose is precendented in all the main social security legislation—National Insurance and family allowance—and was included in the National Superannuation and Social Insurance Bill which was introduced by the last Government but did not become law because of the election. The same procedure for recovering repayments at the discretion of the Supplementary Benefits Commission or, on appeal, the appeals tribunal, was included. There is, therefore, no departure from precedent.
Courts are not involved, as no offence is involved. Courts are not equipped to decide whether a payment was made to a claimant on a statement that turned out to be false. There is no question of judging the claim to have been fraudulent.
With that reassurance, I hope that the hon. and learned Gentleman will feel reassured and able not to press the Amendment.

§ Mr. S. C. Silkin
First, may I give my reassurance to the right hon. Gentleman that the Amendment was not put down under any misapprehension? We were well aware that there were other provisions in the Bill dealing with criminal offences. What we were concerned about, 1361 however, was the manner in which recovery of over-payments could be made. When I said that we were not wedded to the precise way of accomplishing what we have in mind as expressed in the Amendment, I meant that we were not wedded to the court of summary jurisdiction procedure. The right hon. Gentleman will know that that is by no means confined to criminal matters. It deals with many others.
I hope that the right hon. Gentleman will look again at the main points and that he will not take it that provisions which have been followed in the past must never be looked at again.
The main point here is putting the burden upon the person who appears to the Commission to have been overpaid to satisfy the Commission that he has disclosed all material facts. That seems a harsh provision. If between now and Report the right hon. Gentleman can look at it again—never mind the manner in which it may be altered—the Opposition will be grateful.
I recognise that our proposal may not be a satisfactory way of accomplishing what we have in mind. I therefore beg to ask leave to withdraw the Amendment.