§ The Parliamentary Under-Secretary of State for Health and Social Security (Mr. Nicholas Lyell)
I beg to move,That the draft Social Security (Payments on Account, Overpayment and Recovery) Regulations 1987, which were laid before this House on 4th February, be approved.
These regulations replace those which were laid by negative instrument on 17 December last. For reasons which are somewhat detailed and related to part II of the Social Security Act 1986, the regulations should have been laid as affirmative measures. This has now been done. That is why we are here tonight. The previous instrument was on sale for only four days. Arrangements have been made to ensure that anyone who bought a copy will be entitled to receive a copy of the final instrument without further charge.
On the matters of substance, I know that the House will welcome this opportunity to debate the several advances in principle and practice which have been achieved by means of this instrument. The first and most important of these advances is in the important area of harmonisation. One of our primary objectives has been to seek ways in which one can make life a little easier for the average claimant to find his way through the benefits wood.
The first objective has to be to identify rules which could be made common to all benefits and to combine the several tracks which have been carved out of the wood by means of the piecemeal introduction of individual benefits over the years. These regulations bring together in a single instrument various items of legislation that had previously been scattered across a wide range of instruments. The House will observe from the number of regulations, from previous enactments that we have been able to revoke in part I of the schedule to these regulations, that we have achieved considerable success in our pursuit of harmonisation. An assortment of about 15 regulations from four different Acts have been combined in one set of regulations under the 1986 Act.
Secondly, our aim has been to simplify, in a complex system of benefits such as has evolved in this country over a long period, a person's rights and obligations. Those rights and duties under one set of benefit rules may conflict with those which apply to some other benefit to which a beneficiary may also be entitled.
This is typified by the differences betwen the tests for recoverability of overpayments under the Supplementary Benefits Act 1976 and the Social Security Act 1975. The differences exist for largely historical reasons. Under the 1975 Act, the test applied by the adjudicating authorities is whether the claimant exercised due care and diligence in obtaining the benefit. For supplementary benefits, the adjudication officer must find that the person misrepresented or failed to disclose a material fact. Both tests have their own case law and where overpayments occur involving two benefits — for instance unemployment benefit and supplementary benefit — the application of different tests is confusing and may produce different results.
There is now to be a single test, and the argument for a single test is, I think, overwhelming. The test is to be the one now applied to supplementary benefit—that is, of misrepresentation or failure to disclose, and the provision 878 of the test by way of section 53 of the Social Security Act 1986 was debated fully at the time that the Bill passed through the House. It was chosen as a single test for three reasons. First, it is less subjective and easier to understand and operate than the alternative test of due care and diligence. Secondly, it is the far more commonly used test — local offices deal with eight times as many supplementary benefit overpayments as the combined total of overpayments of other benefits. Finally, while use of the failure to disclose test provides some small savings from additional benefit recovered and rather more by way of staff time and other administrative costs, adoption of the due care and diligence test would result in substantial additional costs arising from extra staff time and administrative expenses.
No other changes arise from the adoption of the common test. Appeal rights remain unchanged. My right hon. Friend the Secretary of State will continue to exercise his discretion sympathetically in considering the extent to which recovery should be pursued. In considering how and whether to effect recovery, my right hon. Friend the Secretary of State will, as now, give due weight to factors such as the age and health of the beneficiary and the general financial circumstances of the family.
Turning to matters of individual regulations, the items which I shall be covering in detail are: interim payments, the sterling equivalents of payments made by foreign social security organisations, the diminution of capital, the recovery of one overpaid benefit from another benefit and changes arising from equal treatment of male and female claimants to benefit.
Regulations 2 to 4 deal with interim payments. Hitherto, interim payments have been made on an extra-statutory basis and, with these regulations, we have taken the opportunity to spell out the circumstances in which they can be made when we are unable to process and pay benefit in the usual way.
§ Mr. Lyell
As a European enthusiast, the hon. Gentleman will recognise that.
The need for a provision in the 1986 Act arose from a social security commissioner's decision. We have provided a solution which avoids any sophisticated calculations relating to exchange rates and making assessments of what would have been obtained by shopping around the banks —the sterling equivalent will be the actual net amount of sterling actually received by the claimant from the bank after paying any charges. This, then, will be the amount which is taken into account for offsetting purposes when calculating supplementary benefit entitlement under part IV of these regulations. That will be welcomed, even in Ross and Cromarty.
§ Mr. Lyell
879 Regulation 15 relates to a subject which was debated in Committee on the Bill when the hon. Member for Oldham, West (Mr. Meacher) tabled amendments on the assessment of diminution of capital. For the benefit of those less well versed in the darker corners of social security, the context is a person who has been overpaid supplementary benefit because he or she has failed to declare some or all of the capital assets. In calculating the overpayment, we assume that if we had not paid the benefit, the capital would have been eroded by similar amounts. Where the result would have taken the capital below £3,000, there would have been no overpayment and thus the amount repayable is limited.
In Committee, my hon. Friend the then Minister of State—the hon. Member for Braintree (Mr. Newton)—said that we would substitute for the present week-by-week recalculation of capital, which arose from case law, a regulation which provided for annual calculation. In the event, we thought that recalculation at yearly intervals would be unduly harsh and have made it a quarterly calculation. It will save a great deal of time working out the sum each week. It will affect very few people. Only when the overpayment period ends with a number of weeks less than 13 will the capital not be calculated as diminishing. But this will only have an effect on the much smaller number of cases where, during those few weeks, the capital would have fallen to below £3,000. So we only use this estimate of diminishing capital where it was not disclosed in the first place, and that is the reason for the overpayment. The solution that we have provided gives officials some respite from very detailed weekly calculation. The effect on those who have been overpaid will be negligible. Recovery of one overpaid benefit from another benefit is dealt with by regulation 16, which ensures, generally, that an overpayment of one benefit incurred by a person can be recovered from another benefit payable to him, except when it is paid to him on behalf of a child.
Finally, perhaps appropriately, in the context of this evening's earlier debate, equal benefit treatment of male and female claimants is covered by regulation 18. Regulation 18 is a consequence of equal treatment changes which enable partners to choose who shall be the head of the household for the purposes of claiming supplementary benefit or FIS. This regulation provides that, if partners switch eligibility in that way, any obligation to repay an overpayment will be similarly switched. The regulation is confined to supplementary benefit and FIS and does not provide for recovery from other benefits payable to the other partner.
I have tried to highlight some of the regulations that have attracted earlier attention during the passage of the 1986 Act from which they derive. The change to a single test for recoverability and the dropping of the due care and diligence provision created a number of interesting discussions in committee. The principle was, however, accepted and these regulations simply put the recovery process into context against the background of the single test which section 53 (1) of the Act provides.
For the rest, we have largely gathered together some scattered provisions relating to individual benefits. In the process we have tried, where possible, to present the regulations in plainer English, insofar as the powers in the Act permit. I commend the regulations to the House for approval.
§ Mrs. Margaret Beckett (Derby, South)
I listened with interest to the Minister's recitation. It is not always given to the Opposition to see chickens come home to roost so speedily and thoroughly. This time last year, and for many weeks thereafter, we consistently warned the Government of the dangers of passing an enormous and unwieldy enabling Act, such as the Social Security Act 1986. Over and over again the Under-Secretary benefited by being absent from that Committee. We warned the Government over and over again of the dangers of leaving as much detail and policy as they were doing to the regulations, rather than submitting them to the greater scrutiny of the Standing Committee and of another place.
Indeed, so concerned were we about the inadequacy of the procedures for the amount of material that the Government were trying to force through that we offered them, towards the end of the Committee stage, a solution which they rejected in haste, but which I suspect they will repent at leisure. Indeed, we will all repent at leisure. As the now Minister may remember, we offered him the idea of amendable regulations, which he dismissed rather contemptuously as being an outdated notion inappropriate to this measure.
It has long been clear that this Government, more than any other in living memory, need amendable regulations. Time after time the Government put effective regulations before the House, and although I congratulate the Under-Secretary on the smoothness with which he passed over it, time after time they put illegal regulations before the House, as they have on this occasion.
The first set of regulations that the Government put before the House were ultra vires and had to be replaced by the regulations that we are debating tonight. What is interesting is that although the Government rejected the thesis of having amendable regulations, they have, in effect, through their continued incompetence, devised their own weird method of introducing amendable regulations. The regulations that are before us tonight, although they replace the set that were ultra vires, have been amended —only in comparatively minor ways—and, presumably, as the Government see it, improved from the first draft that was put before the House in December. It is a rather strange method of proceeding to introduce one set of regulations which were ultra vires and then hastily introduce a fresh set which are improved as we go along.
I have bad news for the Government. We fear that this second set of regulations may be defective, and I have a number of questions to put to the Minister. [Interruption.] I hear the Minister say "Oh, God". Regulation 3 allows an interim payment to be deducted either from benefit calculated later to be due or from the payment later made. I should like to draw the Minister's attention to regulation 3(b), which appears to suggest that if an interim payment has been made, and if it has not been subtracted from the money calculated to be paid, it must be deducted—the regulation says, in so many words, that the Secretary of State "shall" deduct it from benefit when it is paid—or — this is the new rule that the Government have introduced in the amending regulations — when next benefit is paid, which is sub-paragraph (ii).
It seems to us that perhaps this means that if someone receives an interim payment but it is not reclaimed at once, whatever the reason for that, it will be reclaimed the next time that benefit is claimed and awarded, even though that 881 may be in five years time. It is certainly an alteration from the provision that the Government submitted to the House in the first place, and I would be grateful if the Minister could tell us why the change has been made, because it might cast some light on the way in which we read it now.
Regulation 4 deals with the repayment of any overpaid interim payments. It appears that the effect of regulation 4(2) is to apply to all overpayments of an interim or advance payment the same regulations which, in other circumstances, apply only to an overpayment due to misrepresentation, whether fraudulently or otherwise. In other words, only an overpayment which has an effect, semi-deliberately or without due care and attention, is subject to the test under normal circumstances, but every interim overpayment seems to be subject to this test, which rests on someone misinterpreting or failing to disclose a material fact. That seems to be a little harsh and perhaps to be particularly inappropriate. An interim payment by definition, is made before the claim is fully completed or determined at a time when a person may not realise that a particular fact is material and is less in a position to be accurate about the representations being made. Can the Minister give the assurance that in practice an overpaid interim payment will not be so recovered unless it is clear that the failure was deliberate and not a consequence of the fact that an interim payment was being claimed?
I deliberately asked whether the Minister can give the assurance, rather than whether he will just consider it, because the other thing that appears to be the case with regulation 4 is that it seems that sums recovered under this regulation are not, as the regulations are drafted, excluded or exempted from action under regulation 3. It has been suggested to me that the interaction of regulations 3 and 4 means that the Secretary of State could still be under an obligation under regulation 3 to deduct money which in practice has already been recovered under regulation 4. I leave that thought with the Minister.
Regulations 5 to 12 seem broadly to reproduce the existing provisions—
§ Mr. Frank Field
Do we not know the answer to that? Although the Minister, at great speed, may have confused the House by saying that he was bringing different parts of Acts together, what the Government are doing is codifying it on the Social Security Act 1986, which made a major change, in that it disadvantaged claimants as no other group in the country. The rest of us can plead, often successfully, in court that we are unaware that we are breaking the law, but from now on, under the 1986 Act, claimants cannot do that and can still be found guilty. That is now being extended to all the other parts of the legislation that are covered by these regulations. Presumably, to the interim payments the answer will be no, because the Government want the new rule to be applied in a universal way to poor people in a way that it is not applied to anybody else.
§ Mrs. Beckett
My hon. Friend may be right in respect of one of the questions that I have raised with the Minister, in that it may be deliberate policy to decide to apply the same stringent test to interim payments. However, as I hope I have argued, in that case it is particularly inappropriate and even more unsuitable than in normal circumstances. However, I am not entirely sure, if we are correct in the way in which we read the regulations and 882 there is an interaction of regulations 3 and 4, whether the Government had the intention that I have described, all the more so because they have amended regulations 3 and 4 between the regulations first being made in December and the second set being made in February. Clearly they were not happy with the regulations as first drafted. Whether they are happy with them as they have ended up is another matter, and one on which I am glad to say I do not have to pronounce.
Regulations 5 to 12 seem, as far as we can see, broadly to reintroduce the existing provisions. However, again I have a question for the Minister about regulation 13. Section 53(4) of the 1986 Act states that an overpayment is not recoverable unless the decision on which it was based has been revised, except where regulations provide. I presume that regulation 13 is that to which reference is made. In the regulation it says that that should not be the case exceptwhere the fact and circumstances of the misrepresentation or non-disclosure do not provide a basis for reviewing and revising the determination".It is not clear why this exemption is thought to be necessary or in what circumstances it could apply. If the Minister can give us information about that, it would help us to understand why that regulation has been so drafted.
In regulation 14 the Government seem to have decided to enshrine in statute the decision of a tribunal of commissioners, so that if both an overpayment and an underpayment have occurred, one can be offset against the other, except where a potential underpayment may have occurred through a potential entitlement under the urgent cases regulations. That seems to mean that someone who may not have an entitlement ordinarily, but who would have an entitlement under the urgent cases regulations, will lose. That seems to be unfair. If it is necessary to look at the regulations for the third time, as may be the case, will the Minister consider that question?
Apart from the queries about the interaction of regulations 3 and 4, it seems that regulation 15(3) has its problems. I welcome the regulation itself. The Minister rightly identified it as coming from the work on the treatment of capital done by both sides in Committee. In paragraph (3) the definition given to a quarter seems to apply only to the first quarter of any overpayment period. Therefore, I question whether that is what the regulation is supposed to say. I note that even the amended schedule, which the Minister quoted with such pride, includes further items on the second set of regulations, one of which is defective. I take it that it is a printing error in column (2) on The Supplementary Benefit (Determination of Questions) Regulations. Apart from that, I see no further problems with the regulations.
I should like to seek one last assurance from the Minister. He referred to codifying all these changes and having one rule for a whole series of benefits. Whatever our reservations about that may be. We understand that that is the Government's intention. My hon. Friend the Member for Birkenhead (Mr. Field) correctly identified that, unfortunately, the Government have chosen unquestionably the more stringent test, although we recognise, for the reasons that the Minister gave, that it is more widely used. I draw to the Minister's attention the report of efficiency study to his Department, which recommends that there should be one rule—this rule. However, the report also states: 883The main criticism of the test is that it is stringent and inflexible and takes no account of a beneficiary's personal circumstances.In other words, the regulations set out how a repayment may be made, but take no account of whether it is reasonable in all the circumstances to call for a repayment on the scale that may be decided. That could be taken into account in the alternative test.
The report continues:There is in fact provision to take a beneficiary's personal circumstances into account, it exists in the form of the Secretary of State's discretion on whether or not to recover an amount overpaid. This discretionary power is, in our view, not being exercised as fully as it ought to be.We endorse that. I hope the Minister can assure us that in view of the way in which these regulations are intended to have effect the Secretary of State's discretionary power will be recommended to offices and that they will be encouraged to take account of individual circumstances.
I end by quoting from a report by the National Association for the Care and Resettlement of Offenders on the "Enforcement of the Law Relating to Social Security" which draws attention to the fact that the claimanthas the right to review, on grounds of hardship, not only at the time but also later, while deductions continue … We believe, however, that some of the tests applied are too stringent.We endorse that and we understand the Government's wish, although we may be anxious about whether they have attained it in practice, to simplify this aspect of the operation of the social security system. We hope they recognise the difficulties that it will cause claimants and are prepared to encourage some ameliorative action.
§ Mr. Charles Kennedy (Ross, Cromarty and Skye)
I wish to make a brief contribution to the debate. I do not wish to disappoint the Minister, but I doubt whether people will be dancing in the streets of Ross, Cromarty and Skye as a result of these regulations. I listened with care to the Minister's complex and detailed speech, and I congratulate whoever was responsible for drafting it. It must have been a tortuous exercise.
The regulations, according to the original Green Paper, "Reform of Social Security", are intended to makesocial security legislation much more compact, clear and manageable.The problem facing the Minister was summed up in an article by Tony Lynes in New Society in 1985. That article, which appeared in the "Welfare Watch" column, entitled "Overpaid and under informed", stated:Ever since the ministries of health and social services were merged in 1968, the DHSS has looked and behaved more like two government departments than one. From a social security claimant's viewpoint, it can look more like seven or eight, each dealing with one part of the benefit system. And there is the added complication that the local unemployment benefit office does not belong to the DHSS but to the Department of Employment.
We should have some sympathy for Ministers when faced with that institution reality. but in many respects it is unsatisfactory. The regulations attempt to deal with some of the difficulties and confusions that result from the continued maintenance of the present system. That system goes against the stated intentions to simplify and clarify it.
When the Government, in their Green Paper, discussed their sensible desires to simplify the system, they said:the Government believe that more can be done to provide common rules for common, general purposes and that there is scope for greater consistency and overall simplification.884This will assist staff, by making it easier for decisions to be taken more quickly and correctly. It will help claimants, by removing many perplexing oddities between benefits. It will make it easier to computerise the benefit system.
The Minister has suggested that fuller computerisation is likely to reduce some of the genuine errors that occur. Given the reports about the chaotic events that have attended the attempts to computerise the Inland Revenue, what progress has been made to computerise the social security system?
Some years ago a committee examined the concept and practicality of integrating tax and benefits and computerising those systems. The gentlemen in charge of the Inland Revenue said that the crucial practical matter was the selection of the computer configuration. What configuration has been selected? The evidence of the committee suggested that if a certain configuration was adopted, it would be impossible to change it on a subsequent date. In view of the unsatisfactory nature of ministerial division of responsibility across this whole front, that would make it impossible for any subsequent Administration to carry out what might be a very desirable integration of tax and benefits. I should be grateful if the Minister would clarify that, because, although slightly tenuous, it is a very important point and germane to the issue before the House. I refer to the efficiency study of 1983 on the recovery of overpayments of benefits and the rule which has been adopted. The report from the scrutiny team states:The result is that the line between 'due care and diligence' and the exercise of discretion by the Secretary of State has become blurred. The position may be reasonably satisfactory from the beneficiary's point of view but from the point of view of the Adjudication Officer, it is not: the question whether there has been 'due care and diligence' presents him with a complicated legal test to apply to variable facts, many of them not easily ascertained.
Does the Minister think that tonight's resolution will help in resolving that particular problem?
§ Mr. Lyell
I congratulate the hon. Member for Ross, Cromarty and Skye (Mr. Kennedy) on the perspicacity of his observations, and the hon. Lady the Member for Derby, South (Mrs. Beckett) on the perspicacity of her questions.
I agree that no one will dance in any streets if they have to read these regulations. They do have a certain fascination, they are important, and I did take them fairly speedily because they did not seem to be gripping the mass of the House. Nevertheless, important questions have been raised and I shall do my best to answer them.
The hon. Member for Ross, Cromarty and Skye referred to the Department being divided up, in a sense, and said that the unemployment benefits officers act as our agents in the payment of benefits. That is well understood and has been working quite well in practice and does not give rise to difficulty.
The hon. Gentleman spoke about tax and social security benefits and computer configuration. I am venturing an answer off-the-cuff to some extent, but I fully understand the importance of these questions. I am responsible for what is known as the operational strategy for the computerisation of the entire system. I have had the pleasure and burden of looking in some detail into this issue, and the very question asked by the hon. Gentleman has been asked by me. As of this moment, and subject to correction, I have no reason to think that those, of 885 whatever party, who might wish to seek to make greater integration between tax and benefits will find themselves frustrated. The lines are open.
That leads me into something at the root of the hon. Lady's questions, but I may be entirely wrong. The lines of inquiry outlined in the hon. Lady's perspicacious questions seemed familiar. Dealing with them in order, the important point about regulation 3 is that it sets out more clearly the way that interim payments have been brought to account in the past. Either the adjudication officer will deduct such a payment from the actual award or the Secretary of State will deduct it from payment for the same period, or, where that is not possible, from a later payment arising from the same claim.
The point that I wish to make on regulation 4(2), which I think bears on the hon. Lady's question, is that an overpayment of an interim payment will be recoverable if the claimant fails to disclose, or misrepresents, a material fact. This contrasts with the recovery of an interim payment under regulation 2(2), whereby any correct interim payment is repayable. It is important to stress this, because nobody will have to make a repayment unless there has been a misrepresentation or a failure by him to disclose.
I am sad that the hon. Member for Birkenhead (Mr. Field) has had to leave the Chamber, because he raised an important question which, if it were misunderstood, might trouble people more than it need. He suggested that here, uniquely, one would be unable to plead ignorance of the law and that one would find oneself faced with a test that one finds nowhere else. There are two tests, and we had to make a choice between the two. I hope I can say with confidence that we made the logical choice which anybody would have made, although I can understand the arguments against it.
There is nothing unique about this. It is far less harsh than other tests that are applied elsewhere. As will be well understood, ignorance of the law is not an excuse. I shall not go more deeply into that. Perhaps more pertinently, we might consider the position of the Inland Revenue. Overpayments or underpayments of tax are dealt with on a wholly no fault basis. There is no question of there needing to be a misrepresentation or a failure to disclose. If a person has not paid what he is required to pay, he is required to pay it, and there it is. The treatment here is not so bare or broad brush. That ought to be understood.
§ Mrs. Beckett
I should like the hon. and learned Gentleman to come back to what he was saying a moment ago about the purpose of regulation 2(2). If I understood him correctly, he said that it is the Department's view that the overpayment will be recovered in these circumstances if there has been misrepresentation, which would put the recovery of the overpayment of an interim payment on the same footing as the overpayment of any other benefit. That was how we first read the regulation. On re-reading it, we came to the conclusion that while that may have been, as we assumed, the Department's intention, we do not believe it to be the effect of the regulation. I think I ought to put that on the record. We think that the effect of the regulation as it is drafted, as opposed to what was intended, is to subject all interim payments to recovery in the same circumstances as apply under section 53.
§ Mr. Patrick McLoughlin (Derbyshire, West)
This causes concern. I have a case to which I do not want to refer in detail because it has gone to appeal. The case that I have in mind involves the overpayment of a pension for some years before it was noticed by the Department. There is great concern about how much will be docked from the couple's pension. As I said, I do not want to refer to the details. At the end of the day I may bring it to the Minister's attention. It is accepted by everybody that no mis-information was given by the people, but that a genuine mistake was made. Now the old couple may have £6 or £7 per week taken from their pension for a considerable period. I hope that my hon. and learned Friend can reassure me that allowance can be made in such a situation.
§ Mr. Lyell
My hon. Friend will appreciate that the adjudicating and appellant authorities are entirely independent. Therefore, it would be inappropriate if I were to comment on a particular case, and he has rightly not done so. I shall refer back to one passage in my original speech which may be helpful to my hon. Friend. I referred to the fact that appeal rights will remain unchanged, and went on to say:The Secretary of State will continue to exercise his discretion sympathetically in considering the extent to which recovery should be pursued. In considering how and whether to effect recovery the Secretary of State will, as now, give due weight to factors such as the age and health of the beneficiary and the general financial circumstances of the family.I intend to be extremely careful not to say whether that applies to the case cited by my hon. Friend, but it falls within the context of my speech.
Turning to the questions raised by the hon. Lady, the point about regulation 13 is that, in general, an adjudication officer can consider an overpayment only when he is reviewing an award of benefit. Sometimes, however, there is nothing to review, but there is a need to consider misrepresentation or failure to disclose a material fact when a claimant has had an overpayment. This regulation simply provides for the adjudication officer to consider the overpayment question separately where the facts and circumstances do not allow for a review; for example, where the award had terminated at the time the overpayment came to light.
The key point to emphasise here is that no overpayment will be recovered, by definition, unless somebody has actually been overpaid; that is, paid something to which he had no entitlement. And it is not as bare and broad brush as that. Before there can be recovery of an overpayment, it must have happened, not because of a fault in the Department, but because there has been either misrepresentation or failure to disclose.
That is the position as it applies in the overwhelming majority of supplementary benefit cases and it is, in my submission, a reasonable test to apply and there are great benefits from commonality.
I commend the regulations to the House.
§ Question put and agreed to.
§ That the draft Social Security (Payments on account, Overpayment and Recovery) Regulations 1987, which were laid before this House on 4th February, be approved.