HL Deb 16 December 1982 vol 437 cc718-28

3.30 p.m.

Lord Trefgarne

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Trefgarne.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Clauses 16 to 19 agreed to.

Schedule 8 [Social security adjudications]:

Lord Lyell moved Amendment No. 121: Page 60, line 46, leave out from ("from") to end of page 61, line 3 and insert ("the appropriate panel constituted under that Schedule").

The noble Lord said: I hope that your Lordships' Committee will permit me to speak to Amendments Nos. 121, 130, 131, and 133 together. These amendments are all related, and I would assure the Committee that they are purely drafting improvements to clarify in the Bill the provisions concerning the constitution of tribunal panels. Instead of specifying amendments to paragraph 1 of Schedule 10 to the Social Security Act 1978, there has been inserted a replacement paragraph, but I would assure the Committee that there are no substantive changes from the existing print. I beg to move.

On Question, amendment agreed to.

[Amendment No. 122 not moved.]

Lord Lyell moved Amendment No. 123: Page 61, line 4, leave out ("of social security appeal tribunals").

The noble Lord said: With the agreement of your Lordships' Committee, I shall speak to Amendments Nos. 123, 141, and 145 together. These three amendments provide a new definition of the word "president", and so avoid the need to refer to him at each point by his full title. The amendments also correct defective references on page 61, at line 4, and on page 63, at line 7. All of these are purely drafting changes. I beg to move.

On Question, amendment agreed to.

Lord Lyell moved Amendment No. 124: Page 61, line 12, leave out from ("as") to second ("chairmen") in line 13.

The noble Lord said: With the leave of your Lordships' Committee, I should like to speak to Amendments Nos. 124, 135. 136, and 142. All these amendments are intended to clarify the point that all appointments of regional chairmen will be full-time appointments. All these amendments are purely drafting changes. I beg to move.

On Question, amendment agreed to.

Lord Lyell moved Amendment No. 125: Page 61, line 15, at beginning insert ("Subject to regulations under paragraph 16 of Schedule 8 to the Health and Social Services and Social Security Adjudications Act 1982,").

The noble Lord said: The effect of this amendment is to make clear the requirement that part-time chairmen should be lawyers of at least five years' standing, and this will be subject to transitional regulations which will be made under paragraph 16(1) of the schedule. We propose in the regulations that existing chairmen of supplementary benefit appeal tribunals and national insurance local tribunals who are not legally qualified may be appointed by the Lord Chancellor, or the Lord President of the Court of Session, as chairmen of the new social security appeal tribunals for a transitional period from the commencement of the legislation. That will allow the existing lay chairmen to be retained for such period as may be specified. I beg to move.

On Question, amendment agreed to.

Lord Lyell moved Amendment No. 126: Page 61, line 16, after ("tribunal") insert ("under subsection (2C)(a) above").

The noble Lord said: This amendment, too, is intended to clarify a point, which is that the amended subsection 97(2D) of the Social Security Act 1975 applies only to subsection 91(2C)(a))—that is, in this particular case, to part-time chairmen. Full-time and regional chairmen are required to have longer experience than the five years that are here specified for part-time chairmen. I beg to move.

On Question, amendment agreed to.

Lord Lyell moved Amendment No. 127: Page 61, line 20, leave out ("by") and insert ("of").

The noble Lord said: I wish to speak to Amendments Nos. 127, 128, 134 and 153. These four amendments are purely drafting improvements, or corrections of minor drafting errors. Amendment No. 127 substitutes the conventional expression "decision by" by the expression "decision of", relating to an adjudication officer. Amendment No. 128 corrects the definite article, in this case the word "the". Amendment No. 134 omits a redundant provision, and Amendment No. 153 is a consequential amendment to the repeals schedule. I beg to move.

On Question, amendment agreed to.

Lord Lyell moved Amendment No. 128: Page 61, line 23, leave out ("the") and insert ("a").

The noble Lord said: I spoke to this amendment a moment ago. I beg to move.

On Question, amendment agreed to.

Lord Lyell moved Amendment No. 129:

Page 61, line 31, at end insert— ("4A. In section 115(2) of that Act (tribunals) for the word "local" there shall be substituted the words "social security appeal".").

The noble Lord said: With the leave of the Committee, I should like to speak to Amendments Nos. 129 and 146. These two amendments specifically provide that for the references to "local tribunals" in the provisions of the Social Security Act 1975 to which they relate there are substituted references to "social security appeal tribunals". I beg to move.

On Question, amendment agreed to.

The Chairman of Committees (Lord Aberdare)

Before calling the next amendment, I have to point out that if Amendment No. 131 is agreed to. I cannot call Amendment No. 132.

Lord Lyell moved Amendments Nos. 130 and 131:

Page 61, line 38, leave out ("In") and insert ("The following paragraph shall be substituted for"). line 39, leave out from beginning to ("below") at page 62, line 1, and insert—

  1. ("1.—(1) The panels referred to in section 97(2A) of this Act shall be constituted by the Secretary of State for the whole of Great Britain, and each panel shall act for such area as the Secretary of State thinks lit, and be composed of such persons as the Secretary of State sees fit to appoint.
  2. (2) The panel for an area shall be composed of persons appearing to the Secretary' of State to have knowledge or experience of conditions in the area and to be representative of persons living or working in that area.
  3. (3) Before appointing members to a panel, the Secretary of State may take into consideration any recommendations from such organisations or person as he considers appropriate.
  4. (4) The members of the panels shall hold office for such period as the Secretary of State may direct, but the Secretary of State may at any time terminate the appointment of any member of a panel.
  5. (5) Subject to sub-paragraph (6)").

The noble Lord said: I hope that I may have the permission of the Committee to move these two consequential amendments, Nos. 130 and 131, en bloc. They are both consequential upon Amendment No. 121, to which I spoke earlier. I beg to move.

On Question, amendments agreed to.

[Amendment No. 132 not moved.]

Lord Lyell moved Amendments Nos. 133 to 136: Page 62, line 4, leave out ("(5)") and insert ("(6)"). line 13, leave out ("qualified person to act as"). line 15, leave out ("qualified persons to act as regional chairmen and") and insert ("regional and other"). line 20, leave out ("regional chairman or a").

The noble Lord said: I hope that I have the permission of the Committee to move Amendments Nos. 133 to 136 en bloc, since I spoke to these amendments on Amendments Nos. 121, 124, and 128 respectively. I hope that it is in order to move the amendments en bloc. I beg to move.

On Question, amendments agreed to.

3.39 p.m.

Lord Kilmarnock moved Amendment No. 137: Page 62, line 36, leave out ("Secretary of State") and insert ("Lord Chancellor").

The noble Lord said: In moving Amendment No. 137 I should, with permission, like to speak also to Amendments Nos. 138 and 139. These amendments provide that the clerk to an appeals tribunal should be provided by the Lord Chancellor's office, rather than by the DHSS as provided in the schedule. In a recent case a social security commissioner stated that the clerk's role is, somewhat analogous to that of a clerk to magistrates. His position however differs from that of a magistrates' clerk in that, not having any legal qualifications, he should not tender any advice on the law".

Some clerks, not unnaturally, find this a rather frustrating position to be in and intervene, quite improperly, in proceedings. What is more, the clerk to social security appeals tribunals is increasingly drawn from the local office dealing with the case before the tribunal. It must surely be wrong for one party to the case to provide the clerk to the proceedings. This would be inconceivable in a magistrates' court. How can a tribunal be seen as impartial if the clerk comes from the department against whose decision the claimant is appealing? Ideally, in the long term, we should like clerks to be responsible to an independent body such as a much-strengthened Council on Tribunals. In the meantime, we feel that they must at least come from the Lord Chancellor's office. I beg to move.

Lord Trefgarne

I appreciate the noble Lord's concern to ensure the independence of the tribunal clerk, but I should explain that the role of the clerk, particularly clerks to SBATs, has changed greatly over the years. Since the publication of the Bell Report, in particular, they have not been expected to intervene or give advice during tribunal hearings. Their role is a purely administrative one—and the changes being made in the present Bill will emphasise this. The appointment of a president and regional chairman, and of legally-qualified chairmen, should ensure that the clerk's role is restricted to administrative matters. The president will be consulted on the appointment of clerks and may make representations concerning their dismissal if he thinks that necessary. Making the Lord Chancellor responsible for clerks would not improve these arrangements in any way.

The fact that in future all chairmen will be legally qualified will also help to ensure that in future clerks do not take any active part in the tribunal proceedings and, in particular, are not responsible for summarising the findings of the tribunal or recording their decisions except in a purely clerical capacity. I would point out that the Lord Chancellor's Department is a small one and it is not the normal practice for it to take over the responsibility for clerks for the wide number of tribunals in which the Lord Chancellor has an interest. A significant number of administrative staff would be required for these duties, and the DHSS provides an appropriate source for them. It could be likely to be difficult for the Lord Chancellor's Department to recruit and retain enough suitable candidates and to provide them with appropriate career opportunities. I would also emphasise that the changes we are proposing in the adjudication system will not be made overnight. It will take two or three years to implement them in full. It is our intention to review the arrangements when they have been operating for a few years to ensure that they are working satisfactorily. That, I suggest, would be an appropriate time to consider whether the changes suggested by the noble Lord will be appropriate. I hope that, in the meantime, he will agree to withdraw his amendment.

Lord Kilmarnock

I am grateful to the noble Lord. I take the point about the relative smallness of the Lord Chancellor's Department. The noble Lord has given the Committee an assurance that the clerks will be involved purely in administrative matters—that is, as amanuenses—and that the department plans a review of the new system after two or three years. I think that two or three years may be a little long, and those of us who are interested in these matters will certainly want to keep an eye on how the system is working. In the meantime, in the light of what the noble Lord has said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 138 and 139 not moved.]

The Chairman of Committees

I have to point out that, if Amendment No. 140 is agreed to, I cannot call Amendments Nos. 141 and 142.

Lord Banks moved Amendment No. 140: Page 63, line3, leave out from second ("a") to end of line 16 and insert ("social security appeal tribunal as constituted under section 97 of and Schedule 10 to this Act")

The noble Lord said: I beg to move Amendment No. 140. This amendment would replace medical appeal tribunals with social security appeal tribunals. Medical appeal tribunals consist of a legally-qualified chairman and two doctors. We wonder whether the decisions currently made by medical appeal tribunals, which are on entitlement to certain disability benefits, could not just as well be made by social security appeal tribunals. Medical questions would, of course, still require medical judgment, but we wonder if this could not be achieved by way of a medical report in which a lay tribunal could judge. If this were possible, it would save significant amounts of money and there would be little diminution of standards. In other words, is it really necessary to have medical appeal tribunals as well as social security appeal tribunals? I beg to move.

Lord Trefgarne

I hear what the noble Lord says in connection with this amendment and I accept that, in principle, such a system might be feasible, but I very much doubt whether it would be either practical or desirable. It would mean that lay tribunals would have to determine medical questions on the basis of medical advice. Both the claimant and the department would probably have to field their own medical representatives, and the tribunal hearing would therefore become adversarial and the lay tribunal would sometimes be faced with having to decide between conflicting medical opinions. I think that such a system would be far less likely to be satisfactory than the existing, longstanding arrangements under which a legally-qualified chairman sits with two eminent medical consultants on the medical appeal tribunal, which is charged with looking at the facts impartially,

However, we are looking at the whole system of medical adjudication at present to consider what scope there may be for improvements, and the possibility of greater reliance on a lay adjudication system can and will be considered in that context. I would add that we should also, of course, be wanting to hear the views of the Council on Tribunals in regard to this matter. I hope that for these reasons the noble Lord will feel able to withdraw his amendment.

Lord Banks

I am grateful to the noble Lord for that reply and encouraged by the fact that the Government are going to review the possibility of greater reliance on lay tribunals. In view of what the noble Lord has said, I beg leave to withdraw the amendment.

Lord Renton

Before the noble Lord withdraws his amendment, may I ask my noble friend whether the Council on Tribunals has already been consulted upon this and other provisions of this schedule? It would seem to be much better that they should be consulted before rather than after we make the enactments.

Lord Trefgarne

We keep ourselves constantly informed of the views of the Council on Tribunals, if I may say so. At least one member of the council is also a Member of your Lordships' House and volunteers his views on these matters from time to time—to the great advantage of your Lordships. We are certainly aware of the views of the council on these matters.

Amendment, by leave, withdrawn.

Lord Lyell moved Amendments Nos. 141 and 142: Page 63, line 7, leave out ("of social security appeal tribunals") line 14, leave out from ("as") to ("chairmen") in line 15.

The noble Lord said: I beg to move Amendments Nos. 141 and 142 together. They are both consequential. I spoke to them on Amendments Nos. 123 and 124 respectively.

On Question, amendments agreed to.

Lord Trefgarne moved Amendment No. 143: Page 63, line 16, at end insert— ("(5) No person shall be appointed to the panel mentioned in sub-paragraph (4) above unless he is a barrister, advocate or solicitor of not less than 7 years' standing.")

The noble Lord said: This schedule already includes provisions which specify the qualifications and experience required of the president and regional and other full-time chairmen of SSATs and MATs, and of part-time chairmen of SSATs. The amendment makes similar provision for the chairmen of MATs. It specifies that they should have at least seven years' standing as lawyers. This puts them on an equal footing with regional and full-time chairmen. Chairmen of MATs preside over tribunals with two leading consultants as members, and it is therefore necessary that they should have appropriate seniority and experience. I beg to move.

Lord Winstanley

On a point on information, may I ask the noble Lord a question? I appreciate that it probably is wise to have this provision, and that the barrister, advocate or solicitor should be of not less than seven years' standing, but I wonder whether there is any provision as to the upper age limit—whether, perhaps, he should be of not more than 70 years' standing, for example.

Lord Trefgarne

When we say "of seven years' standing", we mean seven years' practice in the appropriate profession. Seventy years' standing in the appropriate profession would be a very long time indeed, but perhaps a mere bagatelle to some of your Lordships.

Lord Winstanley

And the upper age limit?

Lord Trefgarne

There is no upper age limit as far as I know.

On Question, amendment agreed to.

Lord Kilmarnock moved Amendment No. 144:

Page 63, line 16, at end insert— ("2A. Sections 105 and 106 of and Schedule 11 to the Social Security Act 1975 shall be repealed and for the reference to "Attendance Allowance Board" in section 37(2) of that Act there shall be substituted "adjudication officer".").

The noble Lord said: The object of this amendment is to abolish the Attendance Allowance Board and to shift the responsibility for adjudication to medical boards and medical appeals tribunals, thus simplifying the administration and appeals procedure of this important benefit. This is an amendment of some substance. The Attendance Allowance Board was established in the early 1970s to administer attendance allowance when this benefit was introduced; it was modelled on the Supplementary Benefits Commission, which has now been abolished. It is significant that when mobility allowance was introduced a few years later no quasi-independent administrative body was established. The DHSS established a mobility allowance unit. Decisions are taken by the Secretary of State and appeals are taken through medical boards and medical appeal tribunals.

Decisions on the attendance conditions for attendance allowance are taken at least in theory by the nine members of the Attendance Allowance Board. Seven are doctors, two are lay people. In fact, the vast majority of cases are decided on behalf of the board by delegated medical practitioners. However, the delegated medical practitioners rarely, if ever, see a claimant. This is done by a totally different examining medical officer. This seems to me to call into question the necessity of the DMS and indeed of the board itself.

In the first few years of the benefit's administration an unprecedented degree of intervention was required by the commissioners. From December 1971, when the allowance was first payable, to March 1974, 365 applicants were given leave to appeal to the commissioner on a point of law. This was an average of over 100 a year. Only 17 were unsuccessful. In more recent times, in 1979, 12,536 claimants received a rate of attendance allowance on review which they had initially been refused. The DHSS say that this figure cannot be broken down further to show the number of successful reviews excluding those simply due to worsening conditions. But even allowing generously for such a proportion of cases, a success rate on review of 75 per cent. requires some explanation.

It seems to me, frankly, that the Attendance Allowance Board is a cumbersome, bureaucratic structure with little to recommend it. The Government have shown a keen interest in both the demise of quangos and in the growth of self-certification by claimants. The easiest way of dealing with the adjudication process would surely be for initial assessment to be done by the claimant's general practitioner. The standard form of medical report required from each applicant's doctor asks a series of questions designed to establish the capacities of the applicant. It asks, for instance, if a person can, without assistance from another, get into bed, turn over in bed, walk, and so forth. These are all matters which could be decided by an insurance officer. Insurance officers might want medical assistance and evaluation, as they sometimes do in relation to a decision on entitlement to sickness benefit, but there is no very good reason why the decision itself as to entitlement to the benefit has to be made by a doctor or by a board of doctors.

I started and I end by saying that this is an important benefit. It is of vast assistance, quite disproportionate to its cost, in keeping elderly people together in their own homes when one of them is fit and the other needs constant care and attendance. Such an object is surely in accordance with the importance attached by the Government to care in the community which we have recently debated in your Lordships' House. Therefore, it seems fundamental to me that questions of eligibility and adjudication should be simplified and speeded up, and take-up improved. I beg to move.

Lord Trefgarne

The question whether someone is eligible for attendance allowance is mainly a medical one since the most difficult issue is whether the medical conditions for attendance allowance are satisfied. It requires skilled medical assessment to decide this, and lay adjudication officers would not be competent for example to interpret the medical advice that they receive where the case was not clear cut. I also believe that it would be a mistake to discount the accumulated wisdom of the Attendance Allowance Board which has been in existence for more than 10 years. However, as I mentioned earlier, the whole system of medical adjudication is under review at present and the future of the Attendance Allowance Board will be considered in that context. I hope that I need not go further than that and that the noble Lord will see fit to withdraw his amendment.

Lord Kilmarnock

I am not entirely happy with what the noble Lord has said. It seems to me that the procedure suggested by me would be perfectly adequate. I do not want it to be thought at all by the Committee that I am trying to interfere with the attendance allowance; in fact, I think its use should be extended and that is what I was striving to achieve. In view of what the noble Lord has said however on a review of the whole question of adjudication procedure, probably it is not necessary for me to press this amendment at the moment. I should like to read what he said and think about it, and possibly come back at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lyell moved Amendments Nos. 145 and 146:

Page 63, line 16, at end insert— ("8A. In paragraph 9(a) of Schedule 13 to that Act (procedure) for the word "local" there shall be substituted the words "social security appeal".")

line 16, at end insert—

("8B. In Schedule 20 to that Act the following definition shall be inserted at the appropriate point—

" "President." The President of social security appeal tribunals and medical appeal tribunals." ")

The noble Lord said: I beg to move Amendments Nos. 145 and 146. These are consequential and I spoke to them earlier. I beg to move.

On Question, amendments agreed to.

[Amendment No. 147 not moved.]

Lord Trefgarne moved Amendment No. 148: Page 64, line 35, leave out from ("In") to end of line 36 and insert ("subsection (1)(b) of section 15 of the Social Security Act 1980 (appeal to Social Security Commissioner) for the words "if he refuses leave." there shall be substituted the words "subject to and in accordance with regulations".")

The noble Lord said: This amendment provides for regulations to be made concerning the procedure for making applications for leave to appeal to the commissioners. The intention is to enable applications for leave to appeal which are in time to be made first to the chairman of the tribunal and, only if the chairman refuses leave, to the commissioners. Applications for leave to appeal which are out of time will be made direct to the commissioners. This will bring all the arrangements for leave to appeal into line with those which apply to appeals from medical appeal tribunals, and avoids placing an unnecessary burden on the commissioners. I beg to move.

On Question, amendment agreed to.

3.57 p.m.

Lord Kilmarnock moved Amendment No. 149: Page 64, line 43, leave out from ("determined" ") to end of line 44.

The noble Lord said: This amendment is designed to prevent the deletion of paragraph 8(4) of Schedule 2 to the Social Security and Housing Benefits Act, which only recently passed through your Lordships' House. The sub-paragraph which the Government now want to eliminate gives a right of appeal to an employee over the amount of supplementary benefit which he or she has been paid and is subsequently shown not to have been payable because the employer should have paid sickness pay. I shall be interested to hear from the noble Lord why the Government want to make this change so soon after the passing of this Act. Certainly a sufficient time cannot have passed to give a balanced view of the operation of this right of appeal. On the face of it, there seems no reason why it should not remain on the statute book to be exercised in circumstances where an employee feels there are grounds for doing so. I beg to move.

Lord Trefgarne

I think that I can satisfy the noble Lord on this matter because I believe his amendment is based on a misunderstanding. The repeal of paragraph 8(4) of Schedule 2 to the Social Security and Housing Benefits Act 1982, which is what this provision effectively achieves, does not alter the existing powers of review or rights of appeal of claimants in any way. The reason for repealing this provision is quite simply that it is no longer needed. We have taken equivalent powers elsewhere to provide appropriate powers of review and appeal. That is in the revised subsection (1) of Section 2 of the Supplementary Benefits Act 1976, which is revised by paragraph 9 of this schedule. Furthermore, we are also repealing in this Bill Section 14(2)(d) of the Social Security and Housing Benefits Act 1982 to which paragraph 8(4) of Schedule 2 refers. So I am afraid that the proposed amendment is in any case slightly-defective. I hope that in the light of what I have said earlier the noble Lord will feel able to withdraw his amendment.

Lord Kilmarnock

I am most grateful to the noble Lord for his detailed explanation of the Government's view on this matter. I shall read what he has said and if, on reading it, he convinces me in the same way as he did when he was on his feet, I shall be happy and shall not revert to the matter. But I reserve the right, obviously, to return to the matter on Report stage, subject to reading what the noble Lord has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Schedule 8. as amended, shall be agreed to?

Lord Renton

I do not wish to detain the Committee for long, but I must draw attention to the fact that this schedule has been an extremely difficult one to understand. I feel very sorry for the draftsman in view of the instructions that he must have been given. There are six pages of detailed legislation by reference, and a great many references to previous legislation. Without the help of the notes on clauses one could not possibly have understood it, and of course one has to face the fact that not everybody will have the notes on clauses when this Bill becomes law. I would have thought that with this schedule, as indeed with some of the earlier schedules to the Bill, it might have been helpful for us to have had keeling schedules. They would have been fairly long, but they would have enabled us to see exactly what was being done; and some of the amendments which have been tabled by noble Lords opposite might not have been necessary.

I must add one more general comment, and that is to express the hope that there will be consolidation of at any rate this Part of the Bill with previous legislation at the earliest opportunity after the Bill is passed into law.

I have one detailed comment which arises on page 60, where we find that the Social Security Act 1975, referred to on the previous page, and the Supplementary Benefits Act 1976, also referred to on the previous page, are to be read as referring to adjudication officers and social security appeal tribunals respectively, instead of to the references made in those earlier statutes. But, using reasonable diligence—and I have tried to do this thoroughly—I cannot find any consequential textual amendments which bring the texts of those previous Acts into line with what is proposed in subparagraph (3) (a) on page 60. It may be that this is a point which has escaped the notice of even my noble friend Lord Trefgarne, who is so very diligent in these matters. If he cannot give me an answer now I hope he will ask the draftsman to turn his mind to the matter.

Lord Trefgarne

My noble friend really asked me two things, following the strictures. He asked first for an assurance about consolidating legislation. I cannot give him an assurance in the terms in which he asked for it, but I hope that this will be possible, speaking personally, in the reasonably near future.

As to the final point made by my noble friend, I do not think it would be helpful if I expanded on all this at the present time. In any event, I should like to consider this more carefully in the light of what has been said by my noble friend. If he will allow me, I will write to him before the next stage, and if he remains dissatisfied he can then raise the matter on another occasion. Having said that. I hope he will allow the schedule to stand part of the Bill.

Schedule 8, as amended, agreed to.

The Earl of Swinton

I beg to move that the House do now resume for the Statement.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.