§ 6.20 p.m.
§ Earl Russell rose to move to resolve, That this House calls on Her Majesty's Government to withdraw the Social Security Amendment (No. 2) Regulations (1991) (1991 No. 1878, amended by No. 1950), and to reintroduce them with a commencement date which allows Parliament an opportunity to consider them.
§ The noble Earl said: My Lords, August is a bad month for governments. Indeed, one sometimes imagines that they experience a kind of rutting season—it becomes dangerous to go near them. What is done in August is particularly in need of parliamentary scrutiny. There is no scrutiny in this House during August. There is a great deal less scrutiny in the press than there usually is. By Parliament's wish, regulations may come into force without waiting for a parliamentary Session. In fact, in August we are not very far away from legislation by decree.
§ The regulations to which I draw the attention of the House were made on 19th August. That itself is ground for scrutiny. They were to come into effect on 11th September but on 30th August the Government suddenly announced that instead the regulations were to come into effect on 31st August—the next day. That is a fact to which the attention of this House must be drawn. I placed this Motion on the Order Paper in order to provide an opportunity for scrutiny.
§ This matter raises some highly complex issues with implications which go considerably beyond the regulations themselves. It has produced a very long and tangled story in which perhaps the only heroes are the Social Security Advisory Committee.
§ The rights and wrongs of the matter are by no means all on one side. In their present form the regulations are very much better than they were before they went before the Social Security Advisory Committee. I have brought the regulations before the House in the form of a Motion rather than of a Prayer for the sake of flexibility but it is not my present intention to push the matter to a Division.
I fear that I shall have to go back a little to explain the context of the issue because it is a long story and if I do not tell it I fear that I may be unfair. The story goes back to the Ministry of Social Security Act 1966 which created a duty, placed first on the Supplementary Benefit Commission and then transferred to the Secretary of State, to care for the welfare of a potential claimant. It said that they:
shall exercise the functions conferred on them by this Act in such manner as shall best promote the welfare of persons affected by the exercise thereof".
§ In fact, they were bound not merely to respond to claims but to find entitlement and to bring people's attention to their entitlements. That duty was brought to an end in 1988. We are arguing now about claims to arrears arising from the Secretary of State's alleged failure to discharge that duty before 1988.
§ At first, all such claims were caught by the rule that arrears were not paid beyond 52 weeks save only for the very cumbrous procedure of late appeal which is too cumbrous for many of the claimants concerned. In 1985 the Government were criticised on this subject by the Ombudsman and therefore in 1987 introduced Regulation 72, which the regulations before us today amend. The 1987 regulation introduced an unlimited right to arrears if those arrears were due to an error by the department or to a material fact which the claimant was not then in a position to cite—say, for example, the claimant was suffering from AIDS, which had not then been diagnosed.
That of course led to a good deal of work by welfare rights groups drawing people's attention to entitlements and asking them to put in claims. It was to be expected that that would be so. In their original submission to the Social Security Advisory Committee the Government described that as manipulation. It may perhaps have been so in some cases, but in general I prefer the description of the Social Security Advisory Committee itself:
the number of applications for review, whilst it creates additional work for local offices, may simply be a measure of use rather than 'manipulation' of the provision".
In other words, it may have been used because it was needed.
The Government proposed to deal with the situation in which welfare rights groups were putting forward claims by cutting out past entitlement to national assistance and supplementary benefit altogether from the scope of the regulation. The Social Security Advisory Committee, in an excellent report, was very firmly and quietly critical of that proposal. In paragraph 23 of its report it said that:
the numbers of reviews being sought is in itself not a valid reason for amending the regulation … this is likely to be an indication of the prevalence of such errors".
The Government retreated and offered us instead the regulations which are now before us. To summarise the effect of the regulations, in what I hope will be agreed words, I should like to use the words of the Secretary of State in his foreword and response to the Social Security Advisory Committee report. He said:
The effect of this amendment is to spell out clearly the specific situations in which unlimited arrears of benefit are payable. These circumstances are—where, at the time of making the decision under review, the adjudicating authority had before it specific evidence relevant to a claim but failed to take it into account; or, where a member of staff of the department failed to submit a document or record containing evidence to the adjudicating authority which determined the question; or, where the evidence on which the adjudicating authority would have relied to review and revise the decision was not produced at the time of review because it did not exist but it was produced as soon as practicable thereafter".
§ That is a change in the position but not nearly as 1052 great a change as the original regulations which were put before us. In effect, what it does in relation to the Secretary of State's discharge of his duty is to change the burden of proof. It places the burden of proof on to the claimant to show that the Secretary of State failed to discharge a duty which he could have discharged. It restricts the right to unlimited arrears, in effect mainly to cases that result from an error on a matter already on file. It does not deal with what used to be the duty to make the potential claimant aware of what he was entitled to claim.
§ That is perhaps particularly significant in the case of one category about which there has been a great deal of discussion, the category of mental patients, who are not always in a good position to understand and claim their rights. The Government say that their next friend might have done so. That is so. I do not know how many Members of the House have been next friend to a mental patient; it can be a rather stressful situation involving a certain amount of living from hand to mouth. Not everyone in that position is able to shoulder the burden of reading through large numbers of social security regulations, so there is a problem here.
That is where the matter rested until on 16th August Strathclyde Regional Council placed an advertisement in the Daily Record submitting a standard form which it invited claimants to send into the department. By leave of the House I should like to quote this because I think that, if I do not, my noble kinsman will do so and I think that we should stipulate it. The form states:
Please review the amount of Supplementary Benefit paid to me prior to 11 April 1988. Would you please review on the grounds that all additional requirements paid to me:- (i) Should have been paid at all times that I was in receipt of benefit, (ii) Should have been paid at higher rates. I also wish to be assessed for all additional requirements which could have been paid at all times".
And so it goes on. It is what Perry Mason would have described as a fishing expedition. It is a case of fairly extreme entitlement thinking, probably natural rights-based, without any specific attempt to show any specific claim. It runs rather as if to say, "I do not know what I am entitled to, but I am sure that I will fight for it anyway".
§ I can see why the Government were irritated, to put it no higher, by that advertisement. As I understand it, they said that there were 40,000 claims coming in under this. I do not know whether that is right or, if so, how that was known. I can see that this was a considerable burden on the local office, but whether Strathclyde's fault exonerates the Government from having brought the commencement date forward is another question. After all, "Give us back our 11 days" is a famous political slogan. It may perhaps be coming back.
§ It is a great number of claims, but it is no more than the number of people that present economic policies are putting out of work every two weeks. It is not enough to constitute a national emergency. Among those claims that were extinguished by the decision to bring forward the order, there may perfectly well have 1053 been some which were genuine and entitled to justice. So I do not defend Strathclyde Regional Council, but I do not defend the Government's response to it either.
§ We have here a clash between the irresponsible and the arbitrary. It is this area of the clash between the irresponsible and the arbitrary to which I want to draw the House's attention. There is a problem about how far the entitlement to arrears should go back. I noticed that the department stressed throughout that destruction of records was impeding payment of late arrears. I wonder whether this is a case of the tail wagging the dog. The preservation of records is a matter of considerable judicial importance. Although I appreciate that storage of records requires space and space costs money, if a policy of destruction of records interferes with the doing of justice it may need looking at.
§ I am also not entirely happy about the placing of the whole duty of putting forward a claim and discovering an entitlement on the claimant. It follows from the use of common law concepts in this field but, as the noble and learned Lord, Lord Scarman, argued in his Hamlyn lectures, it is a field in which it is difficult to use common law concepts. They do not always fit. I wonder how many of us here now are capable of advising accurately and off-the-cuff on everyone's entitlement to social security benefit. I am sure that I am not. Many of the people with whom we are dealing are not capable of undertaking that burden. I wonder whether there is a case for doing something about that.
§ By dealing with the matter in the framework of the claimant, the Government are going into a common law, adversarial framework—but then of course they are making themselves a party which makes it more unfortunate that they should be the sole judge. Welfare rights groups will inevitably have a role in this field. I wonder whether there is a case for something a little more bound by the concept of the officer of the court. Very tentatively, I ask us to think whether there is a case here for a figure perhaps on the lines of the Official Solicitor. There would be a good deal of work to be done. It might make justice easier to do.
§ I am also a good deal concerned by the question raised by Professor Ruth Lister in a letter to the Independent last Saturday; namely, by what constitutional principles the social security field is to be governed. It is difficult to introduce common law concepts. Because we depend almost entirely on statute and regulation, the powers of parliamentary sovereignty here are rather more unchecked than they are in many other places. In his Swinton lecture Mr. John Patten tells us that it is the duty of Parliament to control the Executive; but do we? I know that the Executive has made many concessions in this field. If you talk about control, you are talking about change following a government defeat. I can think of two in this field since 1987: the cost of residential homes and the Henry VIII clause in the Statutory Sick Pay Bill. It is not a glorious record. As my noble kinsman knows, I find Mr. Patten's view congenial. I have endeavoured to believe him, but that makes me feel like Matilda's aunt.1054
§ I wonder whether an adequate power of control exists here. If this power to bring forward the commencement date is improperly used in the middle of August, I do not see how Parliament is to control it. I appreciate that emergencies will happen in the middle of August and they must be reacted to. I should like to ask the House to consider whether, if the Government wish to bring in a regulation in August with less than the statutory 21 days' notice, the regulation should thereby automatically be made affirmative. The Government may have a case, in which case they would have to come here at the end of the Recess and tell us so. I beg to move.
§ Moved, That this House calls on Her Majesty's Government to withdraw the Social Security Amendment (No. 2) Regulations (1991) (1991 No. 1878, amended by No. 1950), and to reintroduce them with a commencement date which allows Parliament an opportunity to consider them.—(Earl Russell.)
§ 6.37 p.m.
§ The Countess of Mar
My Lords, I thank the noble Earl, Lord Russell, for asking your Lordships to consider the effects of the Social Security Amendment (No. 2) Regulations. They have the effect of limiting a claimant's valid title to benefits to a period of 52 weeks in arrears instead of from the time when the title arose. That seems to be yet another example of penny-pinching which will affect most those individuals who need most.
Although I understand the Government's objections to the activities of those welfare rights workers trawling for clients who may or may not be entitled to particular social security benefits, many late claimants are found by social workers and others concerned with welfare work in the course of their normal duties. Some 95 per cent. of late claims for severe disability premium are from people with mental handicap who are unable to act for themselves. Their handicap will have been of long standing and they will have failed to claim additional requirements under supplementary benefit rules. Some will not even have claimed supplementary benefit. Unless they happen by chance to be found by someone who is conversant with the social security minefield and who is willing to represent them, they have no means of recovering the benefits to which any reasonable person would say they have a valid claim, or of knowing to which benefits they are entitled. In many cases social security officers have failed to ensure that such claimants or their representatives are made aware of the benefits to which they may have a claim. In other instances material facts will have been withheld unwittingly by potential claimants.
I know of a mentally handicapped man who is now aged 39. He lives with his widowed mother who is Polish, as was his father. There is a language problem and his mother is understandably fearful of authority and of the power of DSS officials. She sees the department as part of the state machine. He was awarded non-contributory invalidity benefit which became severe disability allowance when he was 16 in 1968. His mother asked whether or not he was entitled to any other benefit and was told "no" by the social 1055 security officer. She did not challenge it as she was afraid that his SDA would be taken away. Thus, he has never received supplementary benefit or income support. The situation came to light when a social worker was talking to him at an adult training centre. Because his claim for arrears did not become apparent before the magic date of 30th August 1991 he will be entitled to only 52 weeks' arrears. The effect of this order is to prevent the correction of an accumulation of errors over a long period. The man and his mother cannot be blamed for the failure, and it would be difficult to pin any blame on the original social security officer. A mistake has been made and should be rectified. Would it not be fair and sensible to allow mental handicap as a continuous cause for late claim?
Very soon after the rules for the receipt of attendance allowance were changed last year to enable children between the ages of six months and two years to receive it, the legal basis of the previous restriction was challenged. The commissioner ruled that the restriction was unlawful. As a result there will be a number of claims for attendance allowance to be backdated. Some of the children concerned are now 15 or 16 years old. Are their claims to be disallowed as out of time because of these regulations? Similarly, I understand that the law was wrongly interpreted for some claims for severe disability premium from 11th April 1988. Surely, if the law is wrong that should be a valid reason for a late claim. I suspect that if such a favourable decision was awarded to those who pay income tax the Government would not step in to time-limit it.
I have read the report of the Social Security Advisory Committee on these regulations. It is of the opinion that… the proposed amendment would needlessly complicate the proper access to arrears for genuine cases …While it accepts that Regulation 72 of the Social Security (Adjudication) Regulations is not precise, this is not the way to amend regulations; it is a matter of adjudication.
I hope that the noble Lord the Minister will make the Secretary of State aware of the feelings of your Lordships and try to withdraw the regulations.
§ 6.42 p.m.
§ Lord Carter
My Lords, the House will be grateful to the noble Earl, Lord Russell, for bringing this important matter to the attention of the House, combining as it does concern about the welfare of claimants for social security benefits and concern about the constitutional propriety of the way in which the DSS and the Benefits Agency have behaved. The background has already been explained extremely well by the noble Earl.
I begin by recalling the words of the Prime Minister in March. The Prime Minister said that he wanted citizens to have support from within the state to ensure that users of public services received the rights and the quality of service to which they were entitled. That early glimpse of the Citizen's Charter did not last 1056 awfully long for the mentally handicapped and disabled people who have and will lose out because of these amended regulations.
I am thoroughly confused by the extraordinary business of the two press releases from the Department of Social Security, the first issued on 21st August. It was all very clear and straightforward. The heading was:New regulations on benefit backpayment after official error",and the press release explained the matter extremely well. It said it was intended to,amend the provisions for the payment of unlimited arrears of social security benefits where there has been an official mistake".It explained the circumstances in which this could happen—for example,where an adjudication officer has overlooked or misconstrued a provision in legislation or caselaw".Does this mean that mentally handicapped and disabled claimants such as those in Durham and elsewhere who have been paid substantial arrears of benefit will still be able to apply and receive those arrears and, if so, can the Minister explain the current procedure for them to do so?
The second press release on 30th August (nine days after the first one) carried the heading:Minister acts to prevent abuse of overpayment regulations".The Minister, Mr. Scott, said:We have decided to curtail the usual three weeks grace before the regulation becomes law to prevent widespread abuse of the system".He went on to state:The department has a duty to ensure that the proper delivery of service to those in need is not impeded by such irresponsible campaigns".Are the Government really saying that in nine days they have suddenly discovered the possibility of widespread abuse? Will the Minister in his reply be good enough to define that abuse—a kind of nine-day wonder—or was it perhaps invented for some other reason? It is a bit hard to follow.
In the Glasgow Herald of 29th August (only eight days after the first press release) it was reported:Strathclyde region's social work department has received the biggest response yet to a local authority welfare rights campaign in Britain … A spokesman for the DSS said that additional resources were being prepared to assist with the processing of the additional claims. He added, 'We generally welcome anything which assists our customers and there clearly is nothing wrong with what the region is doing'".That was a reference to Strathclyde's social work department, which, after all, is part of the public sector. Who was right—the DSS spokesman on 29th August or the Minister on the 30th?
The reasons advanced by the DSS are pretty thin. Mention has been made of the so-called abuse, and perhaps the Minister can tell us about that when he replies. We are told that case records have been destroyed. Perhaps the Minister can tell us how long the Inland Revenue keeps case records. We are also told that there will be insufficient expertise within the department in dealing with national assistance and supplementary benefit. If that is so, how will the proposed appeal system work? That point was put extremely well by the Social Security Advisory Committee in paragraph 22 of their report: 1057We agree with the representations that if enough evidence and expertise exists to deal with a late appeal, it must also be capable of dealing with a review. We do not think it is acceptable that appellants should be faced with the difficulty of making an appeal in order to receive the arrears to which they are entitled. This would be a return to the pre-1987 situation about which the Parliamentary Commission for Administration had expressed concern".One could also ask: if there is insufficient expertise to deal with these problems, what is the position of the people still receiving transitional protection under the 1986 Act? Presumably, the expertise exists—we hope it does—to deal with them.
The second and main point is the constitutional point about the Government's method of laying and amending the regulations. As we know, since March there have been consultations by the department. There was no need to delay the regulations in the recess, unless the department was thoroughly ashamed of them. There was certainly no need for the undignified scramble between 21st and 30th August. I fear that the scramble had one purpose only—to avoid the DSS being embarrassed by the revelation of its past mistakes. The effect was to prevent a substantial number of mentally handicapped and disabled people from obtaining the benefits to which they were entitled.
The other constitutional point is the role of the Benefits Agency. It now seems to be the practice of senior officials to make policy rather than interpret and administer it. We have the case of Mr. Michael Bichard of the Benefits Agency in his letter of 21st August and, more recently, the case of Mr. Duncan Nichol on the reform of the National Health Service. I should like to quote from the letter of 21st August from Mr. Bichard, chief executive of the Benefits Agency, because it seems to me to be a classic example of the bureaucratic mind at work. Referring to the change in the regulations, he writes:This is a major achievement for the Agency, working in co-operation with the Policy Group and the Office of the Chief Adjudication Officer, responding to the views of and pressures on local services faced with mounting requests for review following local take-up campaigns … I am sure that the news will be welcomed by all concerned within the Agency. I am especially pleased that the clear needs of local services have been met in such a way".There is not a single word in that letter about the effect of the changes on claimants.
I referred earlier to the Citizen's Charter. It is interesting to see what it says about the Benefits Agency. The very first sentence reads:The Agency was set up to improve radically the delivery of social security benefits".Do not tell that to the mentally handicapped and disabled people who will lose out because of this change in which the Benefits Agency rejoice.
I should also like to ask the Minister just how many people will be affected by these changes. Presumably the department has an estimate and it would be extremely helpful to the House to know it. I am afraid that this is yet another example of institutional meanness which now seems to be the departmental doctrine of the DSS.
The regulations and the change in the regulations are clearly intended to put the avoidance of inconvenience and embarrassment for the department before the needs of the mentally handicapped and 1058 people with disabilities. The Government have produced some tawdry and illogical reasons for the change. Welfare rights organisations and local authority and social services departments have been described as irresponsible for helping claimants to know their rights and exercise them. That is just one more reason why we so badly need a change of government.
§ 6.50 p.m.
§ The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley)
My Lords, perhaps I may start by saying that it has been a very interesting debate, as debates always are in these very complicated social security matters. However, it might be helpful for me to go into some detail, as did my noble kinsman, and explain first how Regulation 72 of the adjudication regulations initially came to be enacted and also how it operates in the administration of social security benefits.
Regulation 72 was originally introduced in April 1987 to provide for the unlimited payment of arrears of benefits in cases where an error in the determination of entitlement to benefit had been made by a departmental official. Until that time the only statutory means by which payments of arrears in excess of the then statutory limit of 12 months could be made was by means of a late appeal to a social security appeal tribunal. In his annual report for 1985, the Parliamentary Commissioner for Administration had criticised that situation, whereby claimants had to go through the cumbersome late appeals procedure to obtain the full arrears of benefit to which they were rightfully entitled, where these exceeded the statutory 12 month limit. The then permanent Secretary to the department, in giving evidence to the Select Committee of the PCA, agreed that this was not a situation which could be defended, particularly where the only reason that benefit was not paid originally was maladministration on the part of the department.
Accordingly, the Government's intention in enacting Regulation 72 was to facilitate the unlimited payment of arrears of benefits in cases of clear official error to which the claimant had not contributed or where fresh evidence relating to a particular decision had come to light more than 12 months after a decision had been made and this evidence was produced to an adjudication officer as soon as reasonably practicable. From 6th April 1987 Regulation 72 effectively redressed the balance between the respective positions on overpayments and underpayments.
In April 1988, supplementary benefit was replaced by a new benefit, income support, which was designed to target help more effectively at specific client groups, such as the elderly, the disabled, families and lone parents. It had long been apparent that supplementary benefit had become almost impossible to administer properly, based as it was on a composition of entitlements to separate additional requirements for items such as heating, laundry, dietary costs, and so on. All those additions had to be raised individually and entitlement to each established upon the satisfaction of a variety of regulations. During the 12 1059 months following the introduction of income support it was still possible for a claimant to establish entitlement to supplementary benefit additions under the normal review provisions. In some cases, this had the effect of increasing the amount of benefit due by way of transitional protection which was paid with income support. After that 12 month period had elapsed, any payment of arrears of supplementary benefit could only be made under the provisions of Regulation 72.
Some while after, it became apparent that welfare rights groups were being successful in convincing social security appeal tribunals to interpret Regulation 72 more widely than was originally intended, relying on the argument that it was the duty of the staff of the department, acting on behalf of my right honourable friend the Secretary of State—I shall return later to the question of the duty of the Secretary of State which my noble kinsman raised—to draw to a claimant's attention the possibility of entitlement to additional requirements to supplementary benefit. The Secretary of State discharged his responsibility in this respect by publicising in leaflets and handbooks the availability of benefit to potential customers.
Because this problem lay principally with supplementary benefit and its predecessor national assistance, it was decided originally that any amendment to the regulations should relate solely to those benefits. Therefore the draft amendment regulations which were put before the Social Security Advisory Committee—my noble kinsman's heroes in this saga—on 15th March 1991 proposed that supplementary benefit and national assistance be removed from the ambit of Regulation 72. The effect would have been effectively to preclude the payment of unlimited arrears for those two benefits—even in cases of official error, although such claimants could still receive full payment of arrears through the late appeals procedure.
Following consultation, the committee issued its report, in which it recommended that the amendment should not be proceeded with in its proposed format since it discriminated against genuine cases of official error and tipped the balance in favour of the department, which continued to be able to recover unlimited overpayments of benefit. Instead, the committee recommended that, if indeed an amendment were necessary, this could be better achieved by amending the wording of Regulation 72 to make it clearer which cases it was intended to cover.
The Government accepted those recommendations—my noble kinsman put it in a slightly less kind way and said that the Government retreated, but I would say accepted the recommendations, which the Government have every right to do—of the Social Security Advisory Committee and accordingly revised regulations were brought forward.
Those revised regulations were in somewhat different form from the original draft regulations sent to the Social Security Advisory Committee because they also addressed the question of whether or not Regulation 72 could operate retrospectively. Some doubt had been cast on this issue by several decisions 1060 of the social security commissioners who took the view that Regulation 72 could not provide for the payment of arrears of benefit relating to any decision made before the date on which the regulation itself became effective, that is, 6th April 1987. This was not the intention of Regulation 72 and would have prevented the department paying arrears in situations where it had originally intended that they should be paid. The revised amendment regulations were sent to the Social Security Advisory Committee who accepted that a further reference to them was unnecessary, since the revised amendment was a direct response to its earlier report and was not a proposal so different that it would have required a further reference.
The amendment regulations were therefore laid on 21st August together with the committee's report. They preserve the original policy intention of providing for unlimited payments of arrears of all benefits in cases of official error and they do not, as the noble Countess, Lady Mar, said, limit claims to 52 weeks. In addition, they make it clear that the new Regulation 64A is also wholly retrospective and applies all the way back to the first date on which an official error occurred. In simple terms, the regulation provides the facility for the department to correct official errors beyond the normal 12 month period to ensure that a claimant receives all the benefit that he should have received in the first place had an official error not been made.
In more specific terms, the new regulation provides for unlimited arrears to be payable in the following circumstances. Again, I hope that the House will bear with me if I quote the introduction of my right honourable friend the Secretary of State in his response to the Social Security Advisory Committee, as quoted by my noble kinsman. The circumstances are as follows: where, at the time of making the decision under review, the adjudicating authority had before it specific evidence relevant to a claim but failed to take it into account; or where a member of staff of the department failed to submit a document or record containing evidence to the adjudicating authority which determined the question; or where evidence on which the adjudicating authority would have relied to review and revise the decision was not produced at the time of the review because it did not exist but it was produced as soon as practicable thereafter; or where an adjudication officer has overlooked or misconstrued a provision in legislation or caselaw.
§ Lord Carter
My Lords, this point is central to the argument. If the officer at the time failed to tell the potential claimant that he was entitled to the additional payments for laundry, heating and so forth, is that an oversight or a misinterpretation and would the claimant therefore now be able to make the claim for arrears of benefit?
§ Lord Henley
My Lords, if the adjudication officer overlooked or misconstrued a provision in legislation or in case law, yes, that would be the case. But the noble Lord is trying to suggest that the duty on the officer at the time was to act in an inquisitorial manner in obtaining information. I shall refer to the duty of 1061 the Secretary of State to promote welfare. Obviously that duty is exercised by the Secretary of State's officers in the local offices.
Before I deal with that point I wish to say a little about the allegations by my noble kinsman that the regulations change the burden of proof. I do not believe that that is the case. Where a review is requested, the burden of proof always falls on the person seeking the review to show that the conditions for a review are satisfied. Even under the original Regulation 72 it was a requirement that neither the claimant nor anyone acting for him contributed in any way to the mistake or error.
I turn now to what will obviously be fundamental to my noble kinsman. It is the question of the Secretary of State's welfare role and his exact duties. My noble kinsman correctly referred to the obligation to act—I believe that he stated that it was in the 1966 Act; my advice is that it was in the 1976 Act—in such a manner as shall best promote the welfare of persons affected by the exercise of those functions. Our interpretation of that was that it requires the Secretary of State or his officers to provide a prompt, accurate, courteous and humane income maintenance service. That includes assisting a minority of claimants in the management of their finances and, wherever possible, offering to claimants who appear to have personal, social or health problems advice on an appropriate agency from which they might obtain help or to which referral might be made on their behalf, normally with their agreement.
I do not understand that—and that is why I used the word "inquisitorial"—as requiring the officers of the department to act in an inquisitorial manner. They were expected to relate to situations as presented to them and to the needs for prescribed additional requirement additions. I suspect that the noble Lord, Lord Carter, will not accept what I have said, but I do not understand the duty as going as far as he claims.
I have explained what we have done in bringing forward the existing provisions of the previous legislation, Regulation 72, in a more specific format. I believe that it makes the position on unlimited payment of arrears clearer for claimants and in particular for those adjudicating on requests for reviews of earlier claims.
I know that concern has been expressed about the comparative positions between arrears and overpayments. I believe—I am sure that even the noble Lord, Lord Carter, will accept this—that the amendment puts both issues on the same footing. An overpayment of benefit can be recovered only from the earliest date from which there is evidence to support the overpayment decision. Equally, the amendment provides that unlimited arrears of benefit shall be payable from the earliest date from which there is evidence to support there having been an official error which affected entitlement to benefit.
Finally—because there has been some feeling expressed on the matter—I must explain the circumstances about the regulations being laid in August. I do not take the point of my noble kinsman that possibly we should sit into August in order to prevent all governments ever issuing—
§ Earl Russell
My Lords, with the leave of the House, I did not make that point. I am a little more reasonable than that, I hope.
§ Lord Henley
My Lords, I accept that my noble kinsman has no desire whatever to sit into August. The reason that the amendment regulations were originally laid in August is that they were ready then. As your Lordships know we originally put some provisions to the Social Security Advisory Committee in March. Those were not acceptable to that committee and, as my noble kinsman put it, we retreated, or, as I put it, we reviewed our position and put forward a further set of regulations which were finally ready in August.
The original regulations that we laid on 21st August would have become operative on 11th September. As has been pointed out, they were revoked and relaid on 30th August to come into effect the following day. Even before the original amendment regulations were laid, the Benefits Agency had become aware of campaigns launched across the country, although mainly in Scotland and the North East. My noble kinsman mentioned an advertisement from Strathclyde Council. I am grateful for his quotations from what he described as a fishing expedition. Those campaigns encouraged claimants to submit general applications for review of their entitlement to supplementary benefit back to the first date of entitlement without specifying any grounds for review or details as to the nature of the purported official error.
Each application for review has to be considered in depth, which in itself is a time consuming process, in particular with the numbers involved. Furthermore, since supplementary benefit was a highly complex benefit with which, with the passage of time, few staff are now familiar, only the most experienced staff are properly equipped to determine whether people applying for a review of their entitlement to benefit have been underpaid and if so by how much.
The House should appreciate that the resources available to the Benefits Agency are finite. The large number of non-specific requests was already threatening managers' ability to provide an adequate service for all their customers in certain parts of the country. A further flood of applications would prove very difficult to handle. Accordingly, it was decided that, to ensure that the Benefits Agency continued to provide an acceptable service to all people on benefit, the step should be taken of revoking and relaying the amendment regulations on 30th August to come into effect from 31st August. I should point out that any requests for review which have arrived in local offices after 30th August would fall to be decided under the provisions of new Regulation 64A. However, I cannot stress enough that all genuine cases of official error, whether with regard to the mentally handicapped in Durham—as referred to by the noble Lord, Lord Carter—or wherever else, will still receive full payment of arrears under the new provisions as set out in Regulation 64A.
Lastly, I refer to the allegations made by the noble Lord, Lord Carter, that Mr. Michael Bichard, the chief executive of the Benefits Agency, was making 1063 policy and that it should properly have been Ministers making policy. I totally refute what the noble Lord said. Perhaps I may quote from a letter sent only yesterday, 14th October, to the noble Lord's honourable friend, Mr. Michael Meacher. It was sent by my right honourable friend the Secretary of State. The penultimate paragraph on the second page states:You refer to a letter from the Chief Executive of the Benefits Agency. The Agency and its Chief Executive do have a responsibility to draw the attention of DSS Headquarters and Ministers to operational problems which have policy implications. This responsibility is clearly set out in the Agency's Framework Document (paragraphs 4.7 and 4.8) and the Chief Executive behaved entirely properly. His subsequent letter to staff drew attention to the fact that the operational concerns of local offices had been heeded".I can only stress that the decision to change the regulations and to bring them in on 30th August, having effect from 31st August, was made quite properly by Ministers. It is Ministers who take responsibility for that. Although my noble kinsman asked that such regulations should be affirmative, even under the negative resolution procedure he has found means by which we can debate them. We have had an interesting debate on that point and I hope that I have dealt with most of the matters raised.
There is little to be gained from revoking the amendment regulations. I hope I have made clear that we took full account of the recommendations—we did not retreat from them—of the Social Security Advisory Committee. Any official mistakes can still be made good where the evidence supports that. The treatment of underpayments is fully in line with that of overpayments. Accordingly, I hope that the noble Earl will not press the Motion.
§ Earl Russell
My Lords, I thank my noble kinsman for the care and thought which he put into that reply. This debate has been a search for a meeting of minds. We have gone a long way towards that. On a large proportion of the facts, we are able to stipulate, and I am encouraged by that.
However, there is still a significant difference in my noble kinsman's underlying outlook and approach and my own. That was demonstrated during the rather interesting and technical debate about the meaning of the original Regulation 72. My noble kinsman said it dealt only with clear official error and he did not see it as applying also to cases of neglect of duty. I do not wish to press my view on that because the point is complicated. As I understand it, commissioners' decisions have been on both sides.
I found interesting the difference of approach here. The noble and learned Lord, Lord Scarman, drew attention to that difference of approach in social security matters. He said that the administrator has an administrative purpose, the citizen, a legal objective. My noble kinsman has an administrative purpose which he attempted so far as possible to pursue with benevolence and reason. It is not quite the same thing. There is a real difficulty in securing a meeting of minds. For example, my noble kinsman mentioned finite resources, which is a real point. I do not often hear finite resources invoked as a reason for not doing 1064 justice. The fact that my noble kinsman invoked that illustrates that he sees what he is doing as administration rather than justice.
I said that I would not press the point about the meaning of Regulation No. 72. However, I am interested in the reactions when it comes into question. My noble kinsman said that the regulation had been interpreted more widely than was originally intended. Therefore it was proposed to alter that because that was not the Government's intention. That is not exactly a legal plea. It illustrates the extent to which we are moving away from legal thinking and the degree to which the department is insisting on its original intention rather than allowing a body of case law to be built up by which decisions may be controlled.
My noble kinsman had a transparent assumption that the Government's intention would prevail rather than a legal construction of the words of the regulation. Listening to my noble kinsman, I believe that Acton exaggerated. My noble kinsman is clearly not corrupted absolutely but I begin to wonder whether he has absolute power and whether that is good. Nevertheless, I beg leave to withdraw the Motion.
§ Motion, by leave, withdrawn.