HL Deb 27 June 1990 vol 520 cc1691-702

7.9 p.m.

The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley)

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Lord Henley.)

On Question, Motion agreed to.

Schedule 5 [Minor and consequential amendments]:

Baroness Seear moved Amendment No. 63: Page 58, line 9, leave out paragraph 7.

The noble Baroness said: My Lords, in the unavoidable absence of my noble friend Lord Russell, I wish to move the amendment standing in his name. It is to delete paragraph 7 in the schedule. The amendment raises issues of importance which are rather wider than the mere question that arises in the schedule.

As I understand the schedule, where a claimant who believes that he has been unfairly dealt with appeals against the decision and the commissioner or court decides in favour of the claimant, the claimant will get his benefit not only from the date of judgment but back to the point of time at which he raised the issue. Under the schedule as it stands that will apply only to the actual claimant. It is likely that if one claimant raises the issue other people similarly placed who believe that they have been wrongly dealt with will wish to have the original decision reversed. In ordinary common justice, where the commissioner or court decides in favour of the original claimant and makes it clear that an error has been made by the department, that error should be corrected not only for the person who has actually made the claim but for all the other claimants who are in the queue waiting to have their, as they see it, injustice dealt with. That is a matter of simple justice to those claimants. That in itself is important.

However, there is an equally important matter of a different order. If the paragraph stands, only the claimant who brings the case will receive payment back to the date at which the claim was originally made. If all the other claimants who have followed in the queue because of the lead given by the original claimant are denied those payments it will appear that the department's decision is more important than the decision of the court or commissioner. That would be an extremely dangerous principle to admit. The decision of a court or commissioner should override the decision of the department and nothing the department says should stand in the way of the claimant getting the full benefit of the commissioner's or court's decision.

We have pointed out on many occasions that there is a tendency for the Executive to override the position of Parliament. This is another example of the Executive taking extreme powers. They are overriding the decision of the commissioner or the court. This is a matter of even greater importance than the immediate issue of justice for the claimants concerned. I beg to move.

Lord Carter

My Lords, I am pleased to support this important amendment, as indeed I did in Committee. Perhaps the only thing to do is to repeat the remarks that I made then. With this clause and without the amendment the Government are seeking to overturn the effects of rulings by social security commissioners, the Court of Appeal, the House of Lords acting in its judicial capacity and the European Court of Justice. As I said in Committee, I continue to be surprised by the Government's lack of ambition in this matter.

Lord Henley

My Lords, I have also read back through our debates in Committee on the amendment. I did not quite understand what the noble Lord, Lord Carter, was saying on that occasion. I still do not understand what he is saying.

Paragraph 7 is not, as the noble Baroness appears to suggest, a sinister provision. The individual whose appeal results in re-interpretation of law will be unaffected by the new arrangements. He will be paid benefit in full accord with the decision of the commissioner or court. But it has always been the case—since, as far as I can make out, the war—that the payment of arrears is restricted to 12 months or a year. The Parliamentary Commissioner for Administration criticised the previous arrangements as being inequitable. We therefore brought forward this provision which will allow payment to all claimants back to the date of decision. Some claimants will find that they will now be able to get four, five, six or seven years arrears, going back to the date of decision. Obviously some will lose because they will pick this up in less than a year.

In the light of the criticisms made by the Parliamentary Commissioner for Administration we decided to introduce these new arrangements for equitable treatment of all gainers from a reinterpretation of the law. They provide a common starting date—the date of the judgment—for the payment of arrears. In the light of that explanation—I trust that I have made myself clear—I hope that the noble Baroness will feel prepared to withdraw her amendment.

Baroness Seear

My Lords, I realise that we are at Report stage but perhaps I may ask for further clarification. Will claimants who followed the lead of the claimant who won the case be treated on all fours and in exactly the same way as that claimant? That is the heart of the matter. That is what we are talking about.

7.15 p.m.

Lord Henley

My Lords, on most occasions that would not be the case. Payment would be made back to the date of judgment. In Committee I mentioned the specific point of test cases. Those tend to arise with mass redundancy where the facts are identical for all those involved. In most other cases the facts will not be identical and therefore the test case principle will not follow. With regard to those occasions I gave an assurance in answer to my noble kinsman Lord Russell. I said: As he may know, the department already has procedures which allow that where a question of entitlement to benefit involving a situation common to a number of persons arises, a test claim may with the agreement of these persons' representatives—for example, a trade union—be taken through the appeals system, with the ultimate decision on this one case providing the basis for the decisions on all others hanging on the result of the test claim. This means that all claimants will get the same benefit as if they themselves had been the test claimant. The Committee will wish to know that my officials will be developing arrangements to ensure that these procedures—which are mutually beneficial to both claimants and department alike—continue to ensure that all persons agreeing to have their claims await the result of a test claim will, if that claim is successful, not be caught by these new provisions".—[Official Report, 22/5/90; col. 886.] They would be on all fours only in the circumstances of a test case. On other occasions it would date back to the reinterpretation—the date of the judgment.

Baroness Seear

My Lords, they will not be on all fours except in the test cases.

Lord Henley

My Lords, that is correct.

Baroness Seear

My Lords, that is exactly the point with which we are trying to deal. They should be on all fours. I am afraid that I shall have to test the feeling of the House. It is such an empty House that it is difficult to test the feeling. But the principle is simply not established. We need to establish it. I beg to move.

7.18 p.m.

On Question, Whether the said amendment (No. 63) shall be agreed to?

Their Lordships divided: Contents, 29; Not-Contents, 67.

Airedale, L. Molloy, L.
Ardwick, L. Nicol, B.
Avebury, L. Oram, L.
Carmichael of Kelvingrove, Parry, L.
L. Phillips, B.
Carter, L. Pitt of Hampstead, L.
Dormand of Easington, L. Rea, L.
Falkland, V. Ross of Newport, L.
Galpern, L. Seear, B. [Teller.]
Graham of Edmonton, L. Shepherd, L.
[Teller.] Stoddart of Swindon, L.
Grey, E. Taylor of Gryfe, L.
Hooson, L. Turner of Camden, B.
Kilbracken, L. Walston, L.
Kirkhill, L. White, B.
McNair, L.
Allenby of Megiddo, V. Lawrence, L.
Alport, L. Long, V.
Balfour, E. Lucas of Chilworth, L.
Belstead, L. McColl of Dulwich, L.
Blatch, B. Macleod of Borve, B.
Bolton, L. Massereene and Ferrard, V.
Boyd-Carpenter, L. Merrivale, L.
Brabazon of Tara, L. Mountevans, L.
Brougham and Vaux, L. Mountgarret, V.
Buccleuch and Queensberry, Murton of Lindisfarne, L.
D. Nelson, E.
Carnegy of Lour, B. Norfolk, D.
Carnock, L. Norrie, L.
Colwyn, L. Orkney, E.
Cork and Orrery, E. Oxfuird, V.
Cox, B. Park of Monmouth, B.
Craigavon, V. Pearson of Rannoch, L.
Davidson, V. [Teller.] Pender, L.
Denham, L. [Teller.] Rankeillour, L.
Elles, B. Reay, L.
Elliott of Morpeth, L. Soulsby of Swaffham Prior,
Elton, L. L.
Faithfull, B. Stanley of Alderley, L.
Fraser of Carmyllie, L. Stodart of Leaston, L.
Gisborough, L. Strathclyde, L.
Haig, E. Thomas of Gwydir, L.
Hanson, L. Trefgarne, L.
Harmar-Nicholls, L. Trumpington, B.
Henley, L. Ullswater, V.
Hesketh, L. Wedgwood, L.
Hives, L. Whitelaw, V.
Hooper, B. Wise, L.
Killearn, L. Wolfson, L.
Kimball, L. Wyatt of Weeford, L.
Knutsford, V.

Resolved in the negative, and amendment disagreed to accordingly.

7.28 p.m.

Lord Carter moved Amendment No. 64: Page 64, line 1, at end insert: ("(1A) After paragraph 2(1) of that Schedule there shall be inserted the following sub-paragraph— (1A) No resettlement unit provided by the Secretary of State shall be closed unless he is satisfied that suitable alternative accommodation has been provided."").

The noble Lord said: This amendment deals with the adequate replacement of resettlement units. It is now five years since the Government announced plans to replace and close the 22 resettlement units. These large institutional hostels stand in the tradition of the Poor Law casual wards and, provide temporary accommodation for persons without a settled way of life"— in other words, homeless people.

The Government's thinking on replacement was applauded as it would lead to smaller schemes which would be based in the community. It was hoped that this would resettle substantially more people than had hitherto been the case. It provided an opportunity to rearrange the pattern of provision. The programme was conceived at the time as a "nil-cost" exercise. It was expected that the units would be replaced using only the money which was currently needed to run the units, plus the money saved through the closure of the re-establishment centres, which were often on the sites of the resettlement units.

We are advised that the Government's expectations of the programme have not been fulfilled and that only a handful of replacement beds have been produced so far. They have given a clear undertaking not to close any unit until "adequate replacements" are available. However, it is unclear whether that means that no closure will occur while there are still people staying in the units. Therefore, further clarification is needed as to what "adequate replacement" means. There is certainly a real worry that such closures will be premature because money will have to be released through rapid closures if the programme is to gain any momentum.

We understand that many people involved in the programme are unclear as to which unit costs should be used to plan replacement provision. Linked to that aspect is the uncertainty that many local authorities have experienced in trying to participate in the programme. It seems that it has been very difficult for them to find out how their willingness to spend departmental money on replacement facilities is likely to affect their overall capital expenditure commitments.

The purpose of the amendment is to give the Government the opportunity to restate their commitment as regards properly funded provision of a good standard for these people, as was intended five years ago. Of course, an injection of funds arising from the value of the resettlement unit sites, and a commitment not to close any units prematurely, would be a positive step forward. Moreover, all schemes which form a part of the replacement package should be fully operational before a unit is closed. I beg to move.

Baroness Seear

My Lords, we support the amendment. The Government have recently shown increasing anxiety, which we all share, about homelessness. If such units are shut before there is adequate provision to deal with people removed from them, that can only mean that homelessness will increase. In the interests of the cause, with which I believe all in the House agree, of cutting down the number of people living in cardboard boxes, I beg the Government to accept the amendment.

7.30 p.m.

Lord Henley

My Lords, I appreciate the thinking behind what I understand is a probing amendment. I hope that I can give the assurances that the noble Lord wants. The amendment is already reflected in our policy. Perhaps I may stress, first, that it is not part of our approach to reduce the facilities available to help people with, as the legislation puts it, an unsettled way of life". Nor is it, as the noble Lord, Lord Carter, rightly said, a cost-cutting exercise. The programme we have adopted in relation to the Department of Social Security resettlement units is not simply about closures. It is about providing new resettlement facilities.

Since 1985, we have been pursuing a policy aimed at replacing the present large and often elderly government-owned resettlement units, which are now managed by the Resettlement Agency on my right honourable friend's behalf. What we are aiming for instead is a network of small locally based facilities operated by local authorities and voluntary organisations. In working out our plans, which we do in conjunction with the new providers, it is our clear policy that no resettlement unit will close until suitable replacement facilities are available. In effect, residents of the unit being closed are given the opportunity of moving to the new facilities on offer.

It is the Resettlement Agency's job to implement that programme. Although Ministers will not become involved in day-to-day matters, we will take a close interest in the progress of the replacement programme. Specifically, closure proposals from the chief executive of the agency have to be agreed by Ministers. That requirement is explicit in the framework document which governs the operation of the agency. It says: The Chief Executive will make proposals to the Minister on the form and cost of replacement provision, and closure dates, providing a brief statement of Units to be closed and the new facilities, indicating the measure of agreement for the proposals". There is no prospect of the chief executive evading that obligation: he is, after all, a civil servant in the Department of Social Security, and responsible to my right honourable friend. Neither I nor my right honourable friend would agree to any proposal from the agency which had the adverse consequences envisaged by the noble Lord. To do otherwise would be a denial of the policy to which we are committed. I would not relish being told that I was responsible for having put people, some of them very vulnerable, out on to the streets.

I believe that the safeguards we have built into the procedures under which the Resettlement Agency must operate are wholly adequate to allay the concerns voiced by the noble Lord. Adding to the statute book a provision which would achieve little would do nothing for the Bill. I hope that in the light of these assurances the noble Lord will feel able to withdraw the amendment.

Lord Carter

My Lords, I am grateful to the Minister for that reply. The amendment was a probing one and was intended to put on the record the assurance that he has now been able to give. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carter moved Amendment No. 65:

Page 66, line 23, at end insert:


17A. In column (2) of Schedule 7 to the Income Support (General) Regulations 1987, for paragraph 8 there shall be substituted the following paragraph— 8. (a) Only the amount of any non-dependent deduction made in respect of him under paragraph 11 of schedule 3 or under regulation 61 of the Housing Benefit (General) Regulations 1987; (b) only that amount and such amount, if any, as may be applicable under regulation 17(1)(e)."").

The noble Lord said: My Lords, we discussed this amendment in Committee and the Government's reply then was, to say the least, unhelpful. The amendment relates to the problem which arises if a member of a household is in prison and there is a non-dependent deduction from household benefits. I believe that when we discussed the matter in Committee the noble Baroness, Lady Blatch, replied. One of the reasons the Government gave for rejecting the amendment was that it might be difficult to decide whether someone was normally resident in a household and the period of that person's temporary absence. As I pointed out at the time, it seems to me that prisoners are the one group in society whose period of temporary absence is clearly defined. I still find that explanation hard to understand. Perhaps the Minister will have another go at it when he replies.

As we know, the problem arises where a non-dependent is in prison bringing in no income to the household but with the claimant who is left in the household suffering a non-dependent deduction from income support or housing benefit. Non-dependent deductions are based on the premise that non-dependants will contribute towards housing costs, such as rent or mortgage payments. It is clear that prisoners cannot do that. I have re-read what was said in Committee, but I should like a better explanation. It seems unreasonable to assume a contribution towards household costs when clearly such a contribution cannot be made. I beg to move.

Lord Henley

My Lords, I am not sure that I can add much to what my noble friend Lady Blatch said on a previous occasion. As the noble Lord said, we discussed this matter previously. The noble Lord said that one knows how long someone will be in prison. There is a degree of uncertainty, because although someone may be serving a specific sentence, as the noble Lord is well aware people rarely serve the full length of the sentence. There is a great deal of remission, and so on. If one is sentenced to 10 years' imprisonment, one can be fairly sure of being out within five years if one behaves well.

The amendment, which proposes to compensate for any deduction by awarding an equivalent amount of benefit to the prisoner, does not seem an effective, efficient or logical way of helping the claimants remaining at home. Prisoners themselves do not have normal day-to-day living expenses as their needs are met by the prison. Non-dependants, by definition, do not have responsibility for housing costs. Therefore, the amendment would extend help to prisoners who are not actually liable for paying their housing costs, which is inconsistent with our aim of targeting help where it is most needed.

The measure proposed by the amendment would be difficult to administer and would introduce new complexities into the scheme which we have been attempting to simplify. Most importantly, there would be no way of ensuring that any income support paid to prisoners was actually handed over to the person responsible for meeting the housing costs. There is, in addition, a cost implication upon which I would rather not speculate but which could possibly be as much as £2 million. For those reasons, I urge the noble Lord to withdraw the amendment.

Lord Carter

My Lords, to deal with the first point made by the Minister, I meant that one tends to know when people are coming out of prison. They do not suddenly appear through the gates, so their period of temporary absence is clearly defined. I hear what the Minister says. His reply is no more satisfactory than the one we heard in Committee. It is clear that the Government do not intend to change their minds on the matter. I do not intend to divide the House, and so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Henley moved Amendment No. 66:

Page 66, line 35, at end insert:

("Housing benefit finance

18A.—(1) In section 30 of the 1986 Act (housing benefit finance), after subsection (2) there shall be inserted— (2ZA) Nothing in this section shall be taken to imply that any such addition or deduction as is mentioned in subsection (2)(a) or (b) above may not be determined by reference to—

  1. (a) an authority's expenditure in respect of any housing benefit, or in respect of any rebate or allowance within the meaning of the Social Security and Housing Benefits Act 1982, granted during any previous year; or
  2. (b) any subsidy under this section or that Act paid to an authority in respect of any previous year."
(2) In subsection (2A) of that section (things which the Secretary of State may do by reference to determinations of rent officers)—
  1. (a) after the words "the Secretary of State—" there shall be inserted—
  2. (b) in paragraph (a), for the words "paragraph (a) of subsection (2) above" there shall be substituted the words "that paragraph".").

The noble Lord said: My Lords, perhaps I may speak also to Amendments Nos. 67 and 69. Amendments Nos. 66 and 67 are technical in nature. Their purpose is to clarify existing powers so as to enable subsequent secondary legislation to be drafted in the simplest possible way, and to ensure that the provisions for community charge benefit subsidy match those for housing benefit subsidy as closely as possible.

More specifically, we are ensuring that the powers to safeguard public funds, which my right honourable friend the Secretary of State already has in respect of housing benefit subsidy, are extended to community charge benefit subsidy, as has always been intended. We are also making explicit my right honourable friend's powers to make adjustments to a particular year's subsidy in respect of previous years' payments. Those powers will apply equally to housing benefit and community charge benefit, and will avoid the need for unnecessarily complicated legislation in the future. In addition, we are providing for elements of housing benefit subsidy to be calculated in a more straightforward manner, which I am confident local authorities will find welcome and which will avoid unnecessarily complex drafting of the relevant legislation. I am sure that your Lordships will also welcome an opportunity to create simpler secondary legislation.

Amendment No. 69 is consequential upon the two amendments to which I have just spoken, and brings them into force on Royal Assent. I beg to move.

On Question, amendment agreed to.

Lord Henley moved Amendment No. 67:

Page 66, line 44, at end insert:

("Community charge benefit finance

19A.—(1) In section 31F of the 1986 Act, for subsection (3) (amount by reference to which community charge benefit subsidy is to be calculated) there shall be substituted— (3) Any calculation under subsection (2) above shall be made by reference to the total amount of the community charge benefits allowed by the authority during the year with any additions specified in the order but subject to any deductions so specified.

(2) After subsection (5) of that section there shall be inserted— (5A) Nothing in this section shall be taken to imply that any such addition or deduction as is mentioned in subsection (3) or (4) above may not be determined by reference to—

  1. (a) an authority's expenditure in respect of community charge benefits allowed during any previous year, or
  2. (b) any subsidy paid under this section to an authority in respect of any previous year."

(3) For subsection (6) of that section (conditions for payment of community charge benefit subsidy) there shall be substituted the following— (6) Subsidy under this section shall be payable by the Secretary of State at such time and in such manner as the Treasury may direct; and subsections (8A) to (8F) of section 30 above shall apply in relation to a charging authority or a levying authority and subsidy under this section as they apply in relation to a rating authority, a housing authority or a local authority and subsidy under that section.".").

On Question, amendment agreed to.

Baroness Seear moved Amendment No. 68: Page 71, line 31, at end insert: (".In section 17(1)(a) of the principal Act, at the end there shall be inserted the words "but a person shall not be required to be available to be employed in employed earner's employment as a condition of entitlement to unemployment benefit during a period of up to 14 days after an offer of such employment has been made to him and during which he is seeking to make alternative arrangements for the care of a child or children for whose care he is responsible and for whom he is caring, or at any time when, if such an offer were made to him, he would be able and willing to make such arrangements within 14 days of that offer, provided that he would be, or be deemed to be, available to be so employed if he were not caring for that child or those children." ".

The noble Baroness said: My Lords, I wish to move this amendment on behalf of my noble friend Lord Russell. It deals not with anything in this Social Security Bill but with a matter which arises under each annual social security Bill. The amendment harks back to an issue raised last year or perhaps even the year before. Noble Lords will recall that the issue was, and is, that if a person is offered employment he or she is expected to be available for it within a day. The case that we made previously is that, if a person is responsible for the care of children and is attempting to make arrangements for them to be looked after adequately, he or she is extremely lucky, to put it mildly, if it is possible to make those arrangements within a day.

We asked for this last year or the year before and all that we seek is that people should be allowed 14 days in which to make suitable child care arrangements. I do not suppose that the noble Lord, Lord Henley, or for that matter I myself, have ever had to try to find child care within a day.

Baroness Blatch

I have!

Baroness Seear

My Lords, the noble Baroness has the advantage of me in that. It is surely not easy, if one is an unemployed single parent or even just a parent and one wishes to find a suitable person, not just anyone, to take on the job of looking after the children.

I cannot believe that the Government wish people, in making arrangements for their children to be looked after while they go to work, to make just any kind of arrangement, however inadequate, in order to take up the job within the prescribed time. I cannot believe that the additional 14 days to enable them to make suitable arrangements would cost much or cause a great deal of inconvenience. I hope that the Government will think again on the matter. I beg to move.

Lord Carter

My Lords, I am glad to support the amendment from these Benches. We discussed the matter on the Bill last year and I well remember taking part in the discussions. I did not understand the rationale for the Government's answer then and I hope that the Minister will be able to give a satisfactory answer this evening to what seems to be an obvious injustice.

Lord Henley

My Lords, I am afraid that I cannot help the noble Baroness except in part on one item.

The Government feel that this amendment undermines the key concept of availability for employment. There is another important point. Lone parents claiming income support—and the noble Baroness mentioned them—are already exempt from the requirement to be available for employment. So the amendment would be of no benefit to this group, which would self-evidently have the most difficulty, as the noble Baroness rightly said, in making alternative arrangements for the care of the children. The amendment would benefit mainly two-parent families who have a joint responsibility for the care of their children and many more options available to them in making other arrangements.

Perhaps the noble Baroness does not accept that there should be a concept of availability, so I suspect that I shall not be able to persuade her that it is important. However, it is not a passive state. The legislation means being available for employment in the active, ongoing sense of making oneself available for work. Availability implies an active step by the claimant to draw attention to his availability. If one is to allow him to have 14 days' grace, I do not believe that one could argue that he was available for work.

I trust that that will be sufficient to persuade the noble Baroness to withdraw her amendment. I hope that the assurance that I have given her that lone parents claiming support are already exempt from the requirement to be available for employment goes some way towards meeting what she desires.

Baroness Seear

My Lords, I am glad to be reminded of the position of lone parents. However the noble Lord's answer is totally unrealistic. In the vast majority of cases it will be a woman who takes up the employment. I understand that the Government wish to encourage that. She may have a husband and, if we follow the noble Lord's argument, does he suggest that the husband should stay at home in order to look after the children so that the wife is available? If not, I cannot honestly see that the wife with a husband working will find it any easier to get someone to look after her children than will the lone parent.

The family may have lots of relations, the lone parent may have relations. However relations are not dependable when it comes to being willing to look after small children. It is well known that many grandmothers have taken jobs in order to avoid that liability. I see nothing whatever in the noble Lord's argument.

Of course I believe in availability for work, but the noble Lord cannot be suggesting that a woman who wishes to be in employment should put her children with a childminder, for whom she has to pay, or into a nursery—where she cannot find a place in any case—before she obtains a job in order that, having found the job, she will be able to attend the next morning. That is what the noble Lord is saying and it is totally unrealistic.

Because of the situation tonight I do not propose to press the amendment. However, I am totally unconvinced and I shall come back to this next year. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 28 [Short title, commencement and extent]:

Lord Henley moved Amendment No. 68A: Page 29, line 42, after ("paragraphs") insert ("5A").

The noble Lord said: My Lords, I spoke to this amendment on Monday night in moving Amendment No. 56. I beg to move.

On Question, amendment agreed to.

7.45 p.m.

Lord Henley moved Amendment No. 69: Page 29, line 44, after ("18") insert ("18A, 19A").

The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 66. I beg to move.

On Question, amendment agreed to.

Schedule 6 [Repeals]:

Lord Henley moved Amendment No. 70: Page 72, line 30, column (3), at beginning insert:

("In section 32(2B)(d)(i), the word "and".")

The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 56 on Monday. I beg to move.

On Question, amendment agreed to.

Baroness Blatch

My Lords, I beg to move that the House do now adjourn during pleasure until five past eight.

Moved accordingly and, on Question, Motion agreed to.

[The Sitting was suspended from 7.47 to 8.5 p.m. ]