§ 3.34 p.m.
§ Report received.
§ Clause 1 [Applications for departure directions]:
§ Lord Carter moved Amendment No. 1:
§ Page 1, line 26, leave out from beginning to end of line 7 on page 2.
§ The noble Lord said: My Lords, in Committee I moved an amendment which dealt with the question of how applications for a departure direction made outside the 28-day time limit without good reason should be handled. 1247 The Minister kindly indicated that he was sympathetic towards the intention behind the amendment and agreed that we would be able to deal with it on Report.
§ The amendment achieves the effect which both the Minister and this side of the House agree is desirable; namely, that persons who apply for a departure direction outside the normal 28-day time limit without good cause can nevertheless have their applications considered from the date of their application. The Minister was kind enough to write to me to say that he has examined the question, has consulted parliamentary counsel and has been advised that the powers in new Section 28G(4) inserted by Clause 7 are sufficient to enable regulations to be made to achieve the results that we want and that subsection (4) of the new Section 28A inserted by Clause 1 can simply be removed, and that is the effect of the amendment.
§ It would be helpful if the Minister would give some commitment as to the content of the regulations under new Section 28G(4). One of the effects of the amendment would be to delete the reference in the amendment tabled in Committee to allow claims to be considered where there is good cause for their application. I understand from the Minister that that will be catered for in regulations. He was kind enough to send me an example of the existing regulations which makes it clear that that can be achieved.
§ I look forward to hearing the Minister's explanation as to the content of the regulations. I beg to move.
§ The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish)
My Lords, in Committee I listened carefully to the comments on this subject of the noble Lord, Lord Carter. I indicated then that I would reflect on what he said. I have decided that I find his arguments persuasive. Our purpose in including a time limit for applications for a departure direction was to reduce as far as possible the period of uncertainty which would exist for both the parent with care and the absent parent while there was a possibility that the amount of maintenance fixed by the formula assessment might be altered.
We were concerned that people should not delay making application, although of course if there were good cause for so doing we proposed that late applications should be accepted. We felt that it would be unfair to the other party if the absent parent or the person with care was able to let the matter slide but then ask, perhaps some time in the future, for a departure which would affect the amount due right back to the date when liability first started.
As I have said, on reflection I agree that it would be equally unfair to exclude someone from any chance of a departure because he or she had failed to act promptly. I am content to accept the proposal that an application made later than 28 days from the issue of a maintenance assessment should be considered but that any direction which results will not be backdated beyond the date of the application unless there was good cause for the delay.
In due course, we shall bring forward regulations to that effect, using the delegated power in subsection (4) of the new Section 28G as introduced by Clause 7. I am happy to recommend that the amendment be accepted.
§ Lord Carter
My Lords, I am extremely grateful to the Minister for his explanation and for the letter that he sent me. I hope that he finds this habit-forming as the day wears on—the evening, I suspect—and it is therefore with some confidence that I seek the opinion of the House.
§ On Question, amendment agreed to.
§ Clause 2 [Preliminary consideration]:
§ Baroness Hollis of Heigham moved Amendment No. 2:
Page 2, line 37, at end insert:
("(c) that the entitlement of a person with care to any maintenance disregard calculated in accordance with section 36(5) (bb) of the Social Security Contributions and Benefits Act 1992 would be lost or reduced.").
§ The noble Baroness said: My Lords, it may be for the convenience of the House if I speak also to Amendment No. 13. This is an amendment about the maintenance disregard—one of the most important issues in the Bill. We on this side support the principles of the Child Support Agency: that absent fathers should support their children and should do so by paying maintenance consistent with their means, thus allowing many first families to float off of benefit. We agree entirely with that. Where the father can pay, he should pay. It is not the taxpayers' job to pick up that bill and his responsibility. The trouble is that in paying maintenance most fathers will make their first families no better off. In many cases, they will make them worse off than if they had avoided their responsibilities and not paid. The amendment addresses that issue.
§ Why are first families no better off and often worse off on maintenance than they are on income support? Eighty pounds of maintenance would displace £80 of income support, which is what a lone parent with a couple of children might receive. In that situation, a lone parent with two children would be no better off but no worse off. However, when that same lone parent was receiving £80 per week from income support, the benefit carried with it a passport, a portfolio, of other benefits; for instance, free school dinners worth £10 a week for two children, access to the Social Fund for cold weather payments and budgetary loans, and even housing renovation grants.
§ A woman receiving the same sum from maintenance as from income support loses those passported benefits that are attached only to income support. She is therefore worse off. She received the additional benefits on income support because it was thought that at that level of income she was so poor that she needed additional support. Yet with no extra income, the same sum being paid by maintenance, that additional sum has been taken away from her.
§ Therefore, given that first families will be worse off if the absent father does his duty and pays maintenance why should those fathers willingly pay and why should mothers willingly co-operate with the CSA to make themselves poorer? The Child Support Agency has lacked consistency. We all know that, and the Minister has accepted it. It has lacked consistency because it has lacked legitimacy and it has been seen as unfair. Hence this amendment, which allows the mother to keep a 1249 modest fraction of the maintenance. We are talking about £5 to £10 per week—a disregard—before it is deducted pound for pound from her income support. That modest disregard would, roughly speaking, compensate her for the loss of passported benefits such as free school dinners which she would have received if she had stayed on income support. She would be no worse off for obeying the law. Surely that is what we want to see. Surely that is reasonable.
§ To what are the Government objecting? They have offered three reasons for objecting to the proposal. Their first argument was cost, their second was disincentive, and their third was that the Government were helping mothers anyway by a back-to-work bonus. None of those arguments is sufficiently persuasive to overturn the amendment.
§ As to cost, a modest disregard to the mother of, say, £5 per week would cost about £85 million after the back-to-work bonus had been netted off. I accept that that is not a small sum but it is almost exactly the sum which the Government have allocated to absent fathers to soften the effect of the CSA. When the Government allocated that £85 million they did not talk about additional costs but about reduced savings. I agree with them; we too are talking about reduced savings for the parent with care. Fewer savings will be flowing because some modest protection will be given to the mother with children in order that she is not worse off. I am sure that today the Minister will not wish to argue that £85 million given to fathers is reduced savings but that £85 million given to mothers is additional costs. I am sure that in all consistency he will wish to apply the same standard in an even-handed way to both parties.
§ The Government made more of their second argument that a modest disregard would deter lone parents from returning to work. I ask the House in all reasonableness whether a modest disregard of £5 to £10 per week will make a difference as regards a lone parent returning to work. Will £5 per week be the key determinant of whether a mother returns to work? Of course not—we know that that is not the case. Most lone parents want to work. They remain on benefit for an average of only two to three years until the youngest child is of school age. They usually then come off benefit and go back to work. They have been unable to return to work earlier because they have small children of one or two years of age and they do not wish and often cannot afford to find alternative child care for their infants. Are we really pressing reluctant mothers to leave tots of one to two-and-a-half years of age in the hands of others? Are we really saying that having lost their fathers they should now lose their mothers to work, against the wish of their mothers? And that from the party of the family!
§ What above all restricts women returning to work is child care on the one hand and the lack of available jobs on the other. But once the children are of school age, most lone parents find their way back into the labour market. Whether they do or not, I am sure that all noble Lords will acknowledge that a £5 or a £8 disregard will make no difference whatever. In any event, the Government have accepted that part of the maintenance will be rolled up and returned to the mother at the rate of £5 per week as a back-to-work bonus when she 1250 returns to work. Why? This is not a Jobseekers Bill; it is meant to be a Child Support Bill. Why then are we giving her a rolled up maintenance disregard, called a "back-to-work bonus", when she is returning to work and therefore has the prospect of being better off rather than when she has children who are dependent on her and when she cannot work and is poorer? That is deeply perverse.
§ The Government have accepted that with the back-to-work bonus women receive a modest fraction of the maintenance as a disregard. However, they give it to the mothers when they need it less rather than when they need it more. They give it to them when they are leaving their children to work rather than when they are staying at home to care for them. I call that wrong-headed. Lone parents on benefit are very poor. They are often ill-fed, ill-clothed, in poor health and in deep debt. Replacing income support with maintenance will make many of them poorer still.
§ At a time when the Government are aiding absent fathers—and quite rightly—it is not fair that they are ignoring the plight of mothers who are always much worse off than absent fathers, given the construction of the maintenance system. It is not fair. But we know that mothers with care will not go on strike; they will not desert their children; they will not defy the law; and they will not refuse to do what they are required to do. Whatever the price, they will look after, stay with, and care for their children and to that extent he law-abiding. We punish women for the fact that they obey the law and we have been rewarding the men who break it. I believe that that is unfair.
§ This amendment would be more even-handed. It would balance the situation between mothers and fathers. It is simple and it is not expensive. It would stop women being worse off by going from income support to maintenance and it would support what will always remain a fragile first family. I beg to move.
§ 3.45 p.m.
§ Earl Russell
My Lords, before I get down to business, I hope that I shall be forgiven for taking a moment to congratulate Mr. Alistair Burt on his promotion to the rank of Minister of State. It is a well earned promotion and I am happy to congratulate him on it. I wish to say to those outside the Chamber who may read the debate that Mr. Burt is not to blame for this Act being on the statute book. Actions against him personally are not the way to change it. An Under-Secretary in our system is a private soldier in the ministerial army. He does not give orders. It is a mark of his unusual stature among Under-Secretaries that even though these changes are quite inadequate he has managed to produce as much change as he has. If we are looking for people to blame for the 1991 Act, we do not look for Under-Secretaries who came in afterwards. But we must reflect that the classic line that the evil that men do lives after them is a sexist remark.
Now that it has been decided that the attitude to broken marriages—which I might perhaps describe cursorily as the Gospel according to St. Mellons—is 1251 apocryphal within the Conservative Party, perhaps we may give slightly more thought to this issue than it has been possible to give it before.
At this stage, I shall not take up the remarks made by the noble Baroness, Lady Hollis, about rewarding those who break the law. She is wrong and we shall return to that on another occasion. But in this instance, and for once on this Bill, these Benches and those Benches happen to think alike. This is a good and important amendment and on these Benches we support it with all the strength that we can muster.
One important argument in favour of the amendment is that it gives people an incentive to pay. A large number of men want to support their children but they do not wish to pay more to relieve the Treasury or other taxpayers. If people who are asked to pay maintenance knew that their children would be better off as a result, there would be a much greater degree of compliance than there is at present.
If, as the Government presumably want, the Act is to survive at all, it is necessary to make people a great deal more willing to comply with it than they are now. It would make the women, many of whom are extremely poor, better off than they are now instead of having them, as they are as a result of the present operation of the 1991 Act, often worse off than if they remained on benefit.
The noble Baroness, Lady Hollis, is quite right about the effect of passported benefits. I had hoped that, as we had in 1991, we might have an amendment to deal specifically with that problem. On that occasion, the noble Lord, Lord Carter, divided the House upon the matter and I very much wish that he had been successful.
Of course, the provision of school meals is likely to affect the vast majority of people affected by this Act. If you have a large family and you lose free school meals, you are losing a very substantial part of your necessary weekly income. Therefore, many women who receive maintenance as a result of the implementation of the 1991 Act are worse off than they were when they received benefits.
Again, if we are to achieve the consent which the Act needs for its operation, it is necessary that somebody should be seen to benefit. If this amendment were agreed to and the disregard were to be made sufficiently large, we might perhaps be able to argue that some of the poverty among women had been relieved. On these Benches, we should very much welcome that.
The next important matter is that the amendment would make it easier for the women concerned to enter employment. I simply do not understand why the Minister thinks that it would act as a disincentive. One of the greatest difficulties if you are trying to get off benefit into employment, especially if you are a single mother in that position, is the costs created by returning to work. You need to pay fares. Certainly if you are living in or near London that is likely to be a substantial cost. You will need to arrange childcare, and we shall return to that later. But the initial costs of childcare, especially the costs before the first pay cheque comes in, can be a considerable handicap in returning to work. 1252 This amendment would play a small, modest part towards solving those problems. For that reason, we welcome it.
The effect might be similar to, for example, the jobseeker's grant and other measures announced in the last Budget. On these Benches, and I believe on the Opposition Benches generally, we welcomed those measures. It is in that same spirit that we propose the amendment.
We do not believe that the back-to-work bonus is a substitute and, frankly, it appears to us to be a gimmick. It does not do very much to help. Regular money coming in every week would do a great deal more.
The other matter which I believe is particularly important in relation to the amendment is that it would provide women with an incentive to co-operate with the Act. Miss Chant, giving evidence to the Public Accounts Committee, said that even women were not co-operating with the Act. I do not know why she was so surprised. That is what most of the rest of us expected. But if we want them to co-operate, we must give them an incentive. We must try to get back to the spirit of legislation which helps people to do what they want to do in any event. That greatly reduces the problems of enforcement.
Of course, if we were to give women a carrot to operate the Act, we should not need the stick. If there was a disregard, we could do without the objectionable benefit penalty which has caused a good deal of hardship and injustice and a great deal of administrative labour and general confusion. Therefore, if we lead people to act in their own interests instead of harrying, chasing, whipping and scorpioning them and so on, we should get on a great deal better. This amendment would do a great deal of good and we are happy to support it.
§ Lord Simon of Glaisdale
My Lords, I do not wish to say anything on the merits of the amendment but I should like to address a few words about the phrase with which the noble Baroness introduced it; namely, that she is in favour of the Child Support Agency. I can only say that if she is still in favour of it after its disasters, anomalies and administrative chaos—
§ Baroness Hollis of Heigham
My Lords, I am grateful to the noble and learned Lord for giving way. I said that I was in favour of the principle of the Child Support Agency. I chose the word deliberately because I did not wish to be associated with the administrative chaos that has subsequently followed.
§ Lord Simon of Glaisdale
My Lords, the principle of the Child Support Agency was that a jurisdiction that had belonged to the justices of the peace since they were set up in the 13th century was transferred to a government agency. That government agency was to apply a series of formulae which your Lordships will have an opportunity to examine on a later amendment. As I said, that has caused not only administrative chaos but also grave hardship, great injustice and such indignation that the postbags of Members of another place were even fuller in relation to that matter than they were in relation to the poll tax.
1253 If one can believe that the Child Support Agency is right in principle, that is the charm of fidelity to an idea rather than to experience. It is very natural that anyone who seems to have the gift of perennial youth should tend to be caught in a political time warp. I fear that that is what has happened to the noble Baroness. We are so much in her debt that we try to exculpate her and find a scapegoat. As the noble Lord, Lord Carter, has such a fund of good will, we tend to blame him. He should have told the noble Baroness that Sidney Webb is now dead. I see that the noble Lord wishes to intervene. I give way.
§ Lord Carter
My Lords, I am grateful to the noble and learned Lord for giving way. Can he explain the exact connection between Sidney Webb and the maintenance disregard?
§ 4 p.m.
§ Lord Simon of Glaisdale
My Lords, I was taking up the very phrase with which the noble Baroness introduced the amendment and which should not go undisputed; namely, that one favours the Child Support Agency as against the jurisdiction of the justices of the peace. As I said, the justices of the peace were established in the Middle Ages. They took cognisance of the maintenance of children in the parish and of deserted women and enforced the obligation on what we now call the absent parent. They did so under common law until the end of the last century when their jurisdiction was codified in the 1895 Act. They were then to do what the Child Support Agency was supposed to do—to ensure that absent fathers maintained their children so far as was reasonable in all the circumstances. That is exactly what is claimed for the CSA and in respect of which it has woefully fallen down.
The justices of the peace—the magistrature—no doubt being human beings, could have been improved in their proceedings. Indeed, I know that the noble Earl and the noble Baroness, Lady Seear, have ideas which I share on how the system might be improved; that is, by the institution of a family court. That was powerfully argued, too, in 1991 by the noble Lord, Lord Mishcon. What he said on that occasion could well bear rereading, if I may make so bold with the noble Baroness.
In the Courts and Legal Services Act we welcomed a measure that your Lordships will remember—the specialist family county court. We welcomed it as a step towards a family court. The 1991 Act which is now under review, confirmed in that respect by this Act, was a notable step away. I was presuming to complain of the noble Baroness being caught in a time-warp in that no one had told her that Fabianism is not at the top of the agenda of her party at present; that a centralised bureaucratic state is no longer to be advertised; that the apparatchiks of the Soviet empire are not to be admired; and that that empire should no longer be regarded as the fatherland of the working class, or the monster at its head referred to affectionately as "Uncle Joe". All that is gone.
However, if I may say so, the noble Lord, Lord Carter, was particularly to blame in not having drawn to the attention of the noble Baroness the fact that Clause 1254 4 has now been revised and that Clause 28 is now considered to be seven times more important. For those reasons, the Child Support Agency—a body of bureaucrats—has arrogated the jurisdiction that was being carried on by the body which is called "the great unpaid" and at great cost. What the noble Baroness said at the outset should not go entirely unchallenged, at least from these Benches.
§ Lord Carter
My Lords, before the noble and learned Lord sits down, and with the leave of the House, I have one question for him. Does he consider that his attitude to the amendment—and, indeed to later amendments—will be regarded as attempting to wreck the Bill?
§ Lord Houghton of Sowerby
My Lords, if we could only come rapidly to Amendment No. 15 which deals with the appointment of a child support advisory committee and pass it, then nine-tenths of the remaining amendments on the Marshalled List could be withdrawn. That is the way to do the business this afternoon.
§ Lord Mackay of Ardbrecknish
My Lords, if we could only come rapidly to Amendment No. 47, I suspect that your Lordships might be a great deal happier. However, perhaps I may begin by thanking the noble Earl, Lord Russell, for the congratulations that he extended to my honourable friend Mr. Alistair Burt. I am grateful for what the noble Earl said about my honourable friend and I shall certainly pass those remarks on to him.
Both the amendments that we are discussing deal with the maintenance disregard in income support. In fact, this is the third time during the proceedings on the Bill that we have discussed the issue. It is clearly a subject which generates strong feeling on both sides of the House—or perhaps I should say on all sides.
The noble and learned Lord, Lord Simon of Glaisdale, argued his case—and I shall not deal with it in any great detail because it goes quite a long way from the subject of the amendment—against the whole concept, preferring that such matters be returned to the court system which, clearly in his view, was markedly better. I have already explained to the House that the previous system had many inconsistencies in it. Indeed, the figure arrived at as maintenance through all those inconsistencies was often extremely low, partly because the Bench knew that the taxpayer would pick up the tabs in any case. Even when granted—
§ Lord Simon of Glaisdale
My Lords, was it ever as low as the one penny a week which the CSA managed in one case to leave to a divorced father?
§ Lord Mackay of Ardbrecknish
My Lords, I do not believe that that question is terribly relevant. Indeed, that was part of one of the difficult administrative problems that we had. It is not a matter of the principles of the way that the system works. That ought not to be the case and I hope that it will not be the case in the future. I do not know whether the courts went as low as awarding one penny; indeed, I doubt whether they did. But the awards were certainly not very high and they certainly did not cover anything like the costs of the children. Moreover, in very many cases, even when they came to a conclusion, the courts did not have the 1255 mechanisms for ensuring that the money was paid. Perhaps the parents with care in those distant halcyon days when the courts had such responsibility would not join the noble and learned Lord in thinking that that was a sensible way to work. I see that the noble Earl wishes to intervene. I give way.
§ Earl Russell
My Lords, I am most grateful to the Minister. However, as he introduced such a general point, perhaps I may ask him, before he again blames the courts for what was wrong in the old system, to think about the points made on Second Reading by his noble friend Lady Faithfull.
§ Lord Mackay of Ardbrecknish
Yes, my Lords, but I should point out that I did not introduce the subject; indeed, the noble and learned Lord, Lord Simon of Glaisdale, introduced the more general debate. However, I have thought about that and I noted what my noble friend said. I believe that I indicated in Committee—although, if I did not, it is because it has arisen since—that I actually had occasion to discuss those days with someone who was in the post of looking after parents with care and trying to secure money from absent parents. I have to say that her recollection of the situation does not match that of my noble friend Lady Faithfull. In any case I suspect that the noble and learned Lord, Lord Simon of Glaisdale, will never be persuaded by anyone, far less myself, as regards his view that lawyers and courts ought to be left to deal with absolutely everything and that they can be relied on to do it in a totally sensible way.
§ Lord Simon of Glaisdale
My Lords, I apologise for again intervening in the noble Lord's speech, but are the courts not being left to deal with the maintenance of the mothers? If they can deal with the maintenance of the mothers, why can they not deal with the maintenance of the children? Is it not quite ludicrous to suppose that those two matters can be adjudicated upon differently?
§ Lord Mackay of Ardbrecknish
My Lords, what the courts do now in the case of divorce—as the noble and learned Lord knows—as regards the relationship between the husband and wife is to attempt, as far as is humanly possible, to institute what I think is called a clean break. As I believe I have said on a number of occasions, there can never be a clean break from the children, and that is where the Child Support Agency comes in. As I indicated as I was about to leave this particular diversion, I doubt whether I shall ever be able to persuade the noble and learned Lord that any system would be an improvement on what the courts did or would do if they were granted the powers to look after these issues again.
I shall deal first of all with Amendment No. 13 as it is the key amendment which introduces the disregard. We have given considerable thought to the arguments put forward both here and in another place for a disregard. But despite the passionate and eloquent speeches by the noble Baroness, Lady Hollis, and others, we remain firmly of the view that a maintenance disregard in income support is not the best way of providing help for lone parents or other parents with 1256 care. In a speech in Committee which some noble Lords will remember as it covered much the same ground as the noble Baroness, Lady Hollis, mentioned in her speech today, she gave five reasons in favour of her proposal. While she has not enunciated them as five points this afternoon, I believe she has encompassed every one of them in her contribution. I wish to consider each of them separately.
The first point that the noble Baroness makes, and I have no doubt that she will return to it on a number of occasions during the day, is that lone parents and their children are poor. However, I should point out that we already spend—or taxpayers spend—something like £9 billion each year supporting lone parents. That is a considerable sum. Since 1979 poorer lone parents have seen a real increase in their income. It is also the case that since 1988 extra help, which is now worth over £1 billion a year, has been given to low income families, and of course that includes many lone parents. It is important to recognise the considerable amount of money which has already been spent on supporting lone parents and to ensure that any additional expenditure is effective. I believe that overall the child maintenance bonus will be of more real and lasting benefit to lone parents than would a disregard in income support.
The second point is the loss of passported benefits such as free school meals and free prescriptions for the parent with care when the payment of maintenance lifts her off income support. This implies that maintenance is somehow different from other sources of income which may also lift parents off income support benefits or indeed all benefits. We must remember that the financial provision for children is properly the responsibility of parents who can afford it and should not be passed on to the taxpayer through the benefit system. Parents with care lifted off income support may in any case be able to claim housing benefit and council tax benefit, as well as help with NHS charges, on grounds of low income. They may also be eligible for family credit if they take up employment, and family credit rates include an element to cover the costs of school meals. I recognise that some parents with care will have to meet charges from which they have previously been exempt, but receipt of maintenance is in this respect no different from receipt of other forms of income.
I believe that the noble Baroness suggested that the £5 disregard would somehow compensate for the loss of passported benefits. I do not believe it would because, if the parent with care stays on income support, she receives the passported benefits regardless of whether there is a disregard. All a disregard does is to shift upwards by that amount the level of income at which the parent with care would be floated off income support. Once floated off, at whatever level of income she loses these passported benefits.
The third point made in her speech on a previous occasion by the noble Baroness was that a maintenance disregard would give an incentive to both the absent parent and the parent with care to co-operate in seeking and paying maintenance. I believe that point was also made by the noble Earl. I have previously made the point that I do not believe that a disregard will 1257 encourage absent parents who are reluctant payers to become committed payers. Many who refuse to pay take this line on the grounds of their fundamental objection to the child support system and not because maintenance is fully taken into account when assessing income support. As I said on 19th June, the regular receipt of maintenance can transform the lives of parents with care and their children by opening up opportunities for employment. This fact alone ought to be enough to convince absent parents that maintenance was of value to their children if they were genuinely looking to be convinced that they should pay. The claim that a disregard would encourage parents with care to co-operate is equally debatable. Reference was made in Committee to the possible collusion between parents with care and absent parents to avoid the effects of a reduced benefit direction.
§ Earl Russell
My Lords, I am grateful to the Minister for giving way. The point about collusion has been made many times before. Is there a single piece of hard evidence to sustain it, and, if so, could we please hear it?
§ 4.15 p.m.
§ Lord Mackay of Ardbrecknish
My Lords, I was in the midst of explaining that. I shall not produce hard evidence because I am simply speculating that it may happen. To the extent that this may happen, it is a risky route for the parent with care as she will have no means of ensuring that the absent parent will actually pay the money he offers each week. She will also be acting fraudulently if she fails to declare any maintenance received. The maintenance bonus, which forms part of this Bill, will give parents with care a real bonus when they begin work of 16 hours or more a week. Parents with care will come to realise that they are losing money if they collude in this way.
The noble Earl, Lord Russell, suggested that the back-to-work bonus was a gimmick. He seemed to suggest that a £5 a week disregard would help the parent with care at the moment that that person decides to move into work from being out of work. I suggest to your Lordships that the back-to-work bonus that we are instituting in this case would build up over what I accept is quite a long period. Nevertheless it will build up and it will give the lady—it usually is a lady—a great deal more than £5 in the week or two in which she makes the leap from being out of work to being in work.
I would therefore suggest that it is not a gimmick but rather it is an important way to help a parent with care move from income support to being in work. I have said this in relation to the Jobseekers Bill as well as here. The parent with care will have various start-up costs associated with a return to work. It is for that reason that in this Bill and in the Jobseekers Bill we have instituted the back-to-work bonus, as we called it in the Jobseekers Bill, so that people will have something to use to cross that bridge. I agree with the noble Baroness, Lady Hollis; and it is important that we try to find a way across that bridge. To be honest,I do not think that 1258 a £5 a week disregard is anything like a substitute for a back-to-work bonus which would be paid at the time the bridge is crossed.
The fourth point—it is a point which is often made and it has been made again today—is about greater equity between parents with care and absent parents in the context of the package introduced by this Bill and the changes to regulations which we introduced in April. As I said in my response at the time, a number of measures in the Bill benefit the parent with care, for example the departure scheme, the child maintenance bonus and the compensation for family credit and disability working allowance recipients. But the measures both in this Bill and in the changes to regulations which I introduced to your Lordships in April will remove the legitimate causes of concern of absent parents and should ensure that more of them co-operate in meeting their maintenance liability. That should ensure that more maintenance is paid more regularly to more children.
The noble Baroness referred to net costs of £85 million for the £5 per week disregard. I believe that she calculates that as the long-term costs of the disregard less the cost of the child maintenance bonus. We calculate that the long-term costs are £110 million. Whether one looks at it as reduced savings or increased costs, £85 million is a significant sum to spend on a disregard in income support, with all its disadvantages.
Both I and my colleagues in another place have said that we think that it is right that resources should be directed at easing the transition from income support into work. Furthermore, the long-run costs of disregard were calculated on the basis that that disregard would apply only to cases where maintenance was being paid. The amendment provides for disregard to apply to all maintenance due. I believe that that would be inappropriate since it cannot be right to disregard something that is not actually being paid; it would also further increase the cost to the taxpayer.
However, to respond to one of the points that was made, there is no assumption on our part that lone parents should be at work rather than at home. I fully accept that some parents with care will decide that it is appropriate to stay at home to care for their children, particularly when those children are young. It is for the parent with care to decide what is right for her. Surveys of lone parents show that most want to return to work, and the child maintenance bonus will help them to do so. A parent with care who builds up the bonus steadily over time, say from the time her child is a year old, will be entitled to the full £1,000 if she starts work when the child starts school.
The final point made by the noble Baroness was the need for extra help while the parent with care is on income support because many already work and incur child care costs. However, lone parents already benefit from a higher disregard of earnings within income support, getting a £15 disregard compared with the £5 given to others. That is given in recognition of the extra in-work costs, including child care in those cases where it is needed.
1259 As I said at the beginning, we have considered this issue seriously. I listened to and have considered the points made by your Lordships when we debated the matter at Committee stage. However, for the reasons that I have outlined, I remain of the view that this is not the best way to proceed.
As the noble Baroness explained, Amendment No. 2 is intended to ensure that parents with care who benefit from the disregard proposed by the amendment I have just discussed are protected from losing any of the benefit of that disregard as a result of a departure direction in favour of the absent parent. It is consequential on the major amendment, and my arguments are similar.
For all the reasons that I have put forward, I cannot accept that we should have a child maintenance disregard for this particular type of payment. I know that the noble Baroness feels strongly about the matter. It is not that I do not understand the argument, but I believe on balance that the position we have taken is the right one. If the noble Baroness decides to put the amendment to the test I invite my noble friends to support me.
§ Baroness Hollis of Heigham
My Lords, first I should like to comment briefly on the contributions of the noble Earl, Lord Russell, and the noble and learned Lord, Lord Simon of Glaisdale. I appreciate that we disagree on the principle of the Child Support Agency, but I am happy that the noble Earl, Lord Russell, who frequently shares the same view on such matters as I do, and the noble and learned Lord, Lord Simon, nonetheless support the amendment. The amendment would ensure that women with children—the parents with care—were no worse off because they received maintenance rather than income support pound for pound. It provides that no one should be worse off because they co-operate with the agency and replace their income support with maintenance. Without the amendment many women will be worse off as a result of co-operating with the agency. That is a fact.
The noble and learned Lord, Lord Simon of Glaisdale, teased me, as to be fair he warned me he would, about Fabianism. He said that I was not aware that the age of Fabianism was dead. However, as George Bernard Shaw and the early Fabians argued, Fabianism was the application of reason to social problems. Is the noble and learned Lord, Lord Simon, quite so sure that he wishes to dissociate himself from that? Does he really favour its opposite, irrationality?—and that from a very distinguished Law Lord.
As for the Government's view and the points made by the Minister, I rather feel that they have helped to reinforce my points for me, even if the Minister answered the speech made in Committee rather than on Report.
First, we argued then and now that lone parents are very poor. The Government did not deny that. Secondly, we argued that under the Bill those poor lone parents will be made poorer still because they will lose passported benefits. The Government did not deny that.
Thirdly, we argued that such a modest maintenance disregard would increase co-operation and consent to 1260 the Bill. The Government doubt that. However, it is the case that 18,000 mothers with care are refusing now to co-operate with the agency for apparently no good cause. We do not know the reason, but it is certainly not because of a fear of violence. Is the Minister so sure that some of those mothers with care would not now be co-operating with the agency if they were to receive a maintenance disregard? There is anecdotal evidence on our side. There is none on the Minister's side. Therefore, we have no reason not to believe that a modest disregard would ensure that more mothers and more fathers would willingly co-operate with this law. Surely none of us doubts that co-operation and consent are at the core of the CSA, as reformed, being effective in the years to come. Without them, it will not be effective.
Fourthly, the Minister referred to the back-to-work bonus which, as he said, is a maintenance disregard paid when the mother leaves her children to go back to work. The Minister said, perfectly reasonably, that that is a decision for the mother and the Government should not make the decision for her. She must judge when it is right, and it would be unreasonable for her to leave her children when they are very small. We agree. It is the mother's choice. Then why is it that the Government are loading the maintenance disregard to construct that choice so that the mother is given a bait—a carrot—to go back to work? If the Government were genuinely neutral about allowing a mother to make the best choice given the age of her family, she would have the choice of a maintenance disregard paid weekly or a maintenance disregard rolled up as a lump sum to be paid at the point when she returns to work.
The fact that the Government will not offer that choice between the two options means that they are loading it in favour of the mother with young children, who may be a year old or two-and-a-half years old. She is being persuaded and pressured by the Government, as a result of the back-to-work bonus, to leave them in the hands of someone else, often reluctantly, to go back to work. As the party of the family, and as the House of the family, we should not do that.
The Minister said that it was the mother's choice. What the Minister accepts and did not challenge at any point in his reply is that a mother with care receiving maintenance in place of income support will often be worse off. Is that what we want? Do we really want a mother with care to be worse off unless she is forced back into work by the back-to-work bonus? Is that fair? Is that reasonable? Is it even-handed? Is it wise social policy? I do not believe that it is, and I shall seek the opinion of the House on the matter.
§ 4.28 p.m.
§ On Question, Whether the said amendment (No. 2) shall be agreed to?
§ Their Lordships divided: Contents, 80; Not-Contents, 151.1262
|Division No. 1|
|Addington, L.||Jeger, B.|
|Archer of Sandwell, L.||Jenkins of Hillhead, L.|
|Avebury, L.||Jenkins of Putney, L.|
|Beaumont of Whitley, L.||Judd, L.|
|Birk, B.||Kennet, L.|
|Blackstone, B.||Kilbracken, L.|
|Broadbridge, L.||Longford, E.|
|Bruce of Donington, L.||Lovell-Davis, L.|
|Carmichael of Kelvingrove, L.||Macaulay of Bragar, L.|
|Carter, L.||McIntosh of Haringey, L.|
|Cledwyn of Penrhos, L.||Merlyn-Rees, L.|
|Cocks of Hartcliffe, L.||Milner of Leeds, L.|
|Cross, V.||Molloy, L.|
|David, B.||Monkswell, L.|
|Donaldson of Kingsbridge, L.||Morris of Castle Morris, L|
|Donoughue, L.||Nelson, E.|
|Dormand of Easington, L.||Nicol, B.|
|Dubs, L.||Ogmore, L.|
|Eatwell, L.||Peston, L.|
|Elis-Thomas, L.||Plant of Highfield, L.|
|Ezra, L||Rea, L.|
|Falkender, B.||Redesdale, L.|
|Fisher of Rednal, B||Rochester, L.|
|Russell, E. [Teller.]|
|Foot, L.||Sainsbury, L.|
|Freyberg, L.||Scanlon, L.|
|Gallacher, L.||Stallard, L.|
|Gladwin of Clee, L.||Stedman, B.|
|Gould of Potternewton, B.||Stoddart of Swindon, L.|
|Graham of Edmonton, L. [Teller.]||Strabolgi, L.|
|Halsbury, E.||Thomas of Walliswood, B.|
|Hanworth, V.||Tope, L.|
|Harris of High Cross, L.||Tordoff, L.|
|Haskel, L.||Turner of Camden, B.|
|Hilton of Eggardon, B.||Wallace of Coslany, L.|
|Hollis of Heigham, B.||Wharton, B.|
|Holme of Cheltenham, L.||White, B.|
|Hooson, L.||Williams of Crosby, B.|
|Houghton of Sowerby, L.||Williams of Elvel, L.|
|Jay of Paddington, B.||Williams of Mostyn, L.|
|Aberdare, L.||Chesham, L.|
|Abinger, L.||Clark of Kempston, L.|
|Addison, V.||Cockfield, L.|
|Alexander of Tunis, E.||Courtown, E.|
|Allenby of Megiddo, V.||Cox, B.|
|Ampthill, L.||Craigavon, V.|
|Arran, E.||Cranborne, V. [Lord Privy Seal.]|
|Astor of Hever, L.|
|Balfour, E.||Cranworth, L.|
|Barber, L.||Cumberlege, B.|
|Belhaven and Stenton, L.||Davidson, V.|
|Beloff, L.||Dean of Harptree, L.|
|Birdwood, L.||Denham, L.|
|Blatch, B.||Denman, L.|
|Bolton, L.||Denton of Wakefield, B.|
|Boyd-Carpenter, L.||Dilhorne, V.|
|Brabazon of Tara, L.||Dixon-Smith, L.|
|Braine of Wheatley, L.||Donegall, M.|
|Brentford, V.||Downshire, M.|
|Bridgeman, V.||Dudley, E.|
|Brougham and Vaux, L.||Eccles of Moulton, B.|
|Burnham, L.||Eden of Winton, L.|
|Cadman, L.||Ellenborough, L.|
|Caldecote, V.||Elles, B.|
|Carnegy of Lour, B.||Elliott of Morpeth, L.|
|Chalker of Wallasey, B.||Elton, L.|
|Chelmsford, V.||Ferrers, E.|
|Finsberg, L.||Mowbray and Stourton, L.|
|Flather, B.||Moyne, L.|
|Foley, L.||Munster, E.|
|Fraser of Carmyllie, L.||Murton of Lindisfarne, L.|
|Fraser of Kilmorack, L.||Newall, L.|
|Gainford, L.||Noel-Buxton, L.|
|Gardner of Parkes, B.||Norfolk, D.|
|Geddes, L.||Norrie, L.|
|Gisborough, L.||Northesk, E.|
|Goschen, V.||O'Cathain, B.|
|Gridley, L.||Onslow, E.|
|Hailsham of Saint Marylebone, L.||Oppenheim-Barnes, B.|
|Harding of Petherton, L.||Orr-Ewing, L.|
|Hardwicke, E.||Oxfuird, V.|
|Harmsworth, L.||Park of Monmouth, B.|
|Harrowby, E.||Pearson of Rannoch, L.|
|Hayhoe, L.||Pender, L.|
|Henley, L.||Perry of South wark, B.|
|Hogg, B.||Pike, B.|
|HolmPatrick, L.||Platt of Writtle, B.|
|Hooper, B.||Pym, L.|
|Hothfield, L.||Rankeillour, L.|
|Howe, E.||Rawlings, B.|
|Hylton-Foster, B.||Renwick, L.|
|Inglewood, L.||Romney, E.|
|Jeffreys, L.||Salisbury, M.|
|Jenkin of Roding, L.||Seccombe, B.|
|Kimball, L.||Sharpies, B.|
|Kingsland, L.||Shaw of Northstead, L.|
|Knollys, V.||Skelmersdale, L.|
|Knutsford, V.||Soulsby of Swaffham Prior, L|
|Lane of Horsell, L.||Stanley of Alderley, L.|
|Leigh, L.||Strathcarron, L.|
|Lindsay, E.||Strathclyde, L. [Teller.]|
|Lindsey and Abingdon, E.||Suffield, L.|
|Long, V. [Teller.]||Teviot, L.|
|Lucas, L.||Thomas of Gwydir, L.|
|Lucas of Chilworth, L.||Thomas of Swynnerton, L.|
|McColl of Dulwich, L.||Torphichen, L.|
|Mackay of Ardbrecknish, L.||Waterford, M.|
|Mackay of Clashfern, L. [Lord Chancellor.]||Wedgwood, L.|
|Macleod of Borve, B.||Willoughby de Broke, L.|
|Merrivale, L.||Windlesham, L.|
|Mersey, V.||Wise, L.|
|Miller of Hendon, B.||Wolfson, L.|
|Milverton, L.||Wyatt of Weeford, L.|
|Monk Bretton, L.||Wynford, L.|
|Mountevans, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 4.37 p.m.
§ Baroness Hollis of Heigham moved Amendment No. 3:
Page 3, line 21, at end insert:
the amount of family credit shall immediately be re-calculated to take account of the reduction in child support maintenance.").
§ The noble Baroness said: In moving Amendment No. 3, I speak also to Amendment No. 46. The amendment refers to the issue of family credit. The income of many lone parents in low paid work will come from three quarters in future: their earnings; their 1263 maintenance; and their in-work benefit, family credit. There are 250,000 parents with care who are on family credit. However, unlike income support, family credit is calculated for six months at a time. There are perfectly sound advantages in that approach but in the context of child support there is one major disadvantage. I suspect that the Government recognise that it is a major disadvantage. I believe that we should, if we can, overcome it.
§ If family credit is fixed for six months at a time to top up the low pay plus maintenance to the prescribed figure and the maintenance falters or falls, then, because family credit is fixed for that period the sum will not rise to compensate for the loss of maintenance. Therefore the parent with care, struggling with small children, in low paid work, will find herself without the full family credit that she needs.
§ Why would family credit falter? Why would maintenance falter? For two obvious reasons. First, the absent father may fail to pay regularly because he seeks to avoid his responsibilities and, secondly, because his situation has changed. For example, he may have lost his job or taken a different job with lower pay and his maintenance contribution falls. But because the family credit is fixed for six months at a time, the woman may be stuck for five months on family credit which is lower than it should be because it was calculated when her maintenance was higher than it is. We believe that that is deeply unfair; hence this amendment which would uncouple family credit from maintenance payments. In other words, in addition to the woman's low earnings, she would receive family credit as in-work benefit. In the amendment we ask that the CSA should collect and keep from the absent father the maintenance to which the woman is entitled. The CSA would instead pay it all to her.
§ Thus, as with income support, the CSA would hand over the £15 disregard and keep 70 per cent. of the maintenance collected over and beyond the income support level. In an age of computers it would not be difficult to calibrate the family credit calculations. The proposal means that the CSA would pay the family credit plus maintenance jointly and assume that the maintenance remained constant at the figure first thought of when family credit was set. The CSA would then be responsible for collecting the maintenance from the father just as with income support arrangements. There would be no difference. That would protect the six month rule but would ensure that the parent with care was not penalised should maintenance falter. It need not be compulsory and provided that the Child Support Agency collects maintenance efficiently, the only cost would be administrative. If the agency does not collect efficiently, then it is not fair that the burden should fall on the parent rather than the CSA.
§ In such a situation, knowing that the additions to the woman's income are secure and in addition to her earnings from work, she can rely on a family credit and maintenance figure that remains unchanging. Provided the mother knows that, then, as the parent with care, she would try to remain in work. But without the amendment, should her maintenance falter and her 1264 family credit not float up to reflect it, the wise woman will leave work and go back onto income support to obtain a new adjustment of benefit. None of us would wish to see that, but it would be entirely sensible and rational for the woman.
§ I believe that the Government understand the problem because they have made adaptations to family credits following their own change in regulations so that the woman is not worse off. We are saying that the woman should not be worse off if the husband's circumstances change and, as a result, the family credit is frozen at an unrealistically low level for six months at a time. The amendment would take away the problem of the six months rule. It is sensible, not expensive and would make the Bill work better. I beg to move.
§ Earl Russell
My Lords, the basic case for the amendment is one which the noble Baroness and I both made in response to the regulations of February 1994. The case is a strong one. The Government's response to it in Clause 24 of the Bill, though better than nothing, is definitely not adequate. The amendment will make it a good deal better. We are happy to support it. I shall not gild the lily because the noble Baroness put practically all the arguments in favour of the amendment.
However, I ask the Minister one crucial question. Is it the purpose of the 1991 Act that the parent with care should benefit? If the answer is yes, then the Minister must accept the amendment. If the answer is no, then it would be a strong argument in favour of the repeal of the 1991 Act.
§ 4.45 p.m.
§ Lord Mackay of Ardbrecknish
My Lords, these two amendments are both concerned with the way in which child maintenance is taken into account in awards of family credit. Amendment No. 3 is concerned with the fixed award period of 26 weeks. This is a very important feature of the family credit scheme because it ensures that the working family has a stable source of income for the 26 weeks. It works to the advantage of most families because increases in earnings during that period are not eroded by reductions in the benefit. The amendment would breach that fundamental feature of the scheme by providing for the family credit to be reassessed when the maintenance is reduced. But, of course, maintenance can go up or down. If the amendment were accepted, it would not be reasonable to take account only of reductions in maintenance without also taking account of increases of maintenance or where maintenance is awarded for the first time.
At present, persons with care gain the full advantage of new awards of maintenance or increases of maintenance until their family credit becomes due for renewal. There is no reason why maintenance should be treated any differently from any other income taken into account in the family credit assessment. It could be argued that any other income would be likely to increase or decrease. Changes in maintenance are part of the usual pattern of income which can increase or decrease throughout the award and do not warrant special provision.
1265 Furthermore, it is difficult to see quite how the amendment would work. Because compliance is not 100 per cent., family credit needs to be based on actual maintenance being paid rather than on the maintenance assessment itself. If the maintenance assessment reduces, it is likely to be several weeks before a clear pattern of compliance emerges. It would not therefore be feasible to provide for an immediate reassessment of the family credit.
Taking account of changes in circumstances turns a simple scheme, the family credit scheme, providing a guaranteed source of income, into a much more complicated scheme with the inherent problems of delays and mistakes. We have recognised that there is a particular problem when maintenance is reduced because of a change in the child support legislation. That is why we have included in Clause 24 of the Bill provision for compensation to be paid to parents with care in this situation. In fact, we have already, in advance of the Bill, paid compensation to parents with care whose maintenance assessment was reduced as a result of the changes in child support regulations which came into force in April.
Amendment No. 46 builds on a long-standing arrangement whereby a single payment is made to people on income support which represents the total of their maintenance and their income support. It seeks to extend that arrangement to family credit and disability working allowance. The amendment is complemented by Amendment No. 3 which provides for the review of an award of family credit or disability working allowance when maintenance is reduced.
This payment arrangement is entirely suitable for income support, and for income-based jobseeker's allowance when it is introduced, because income support is calculated according to the amount of income received each week and takes maintenance fully into account. If the amount of maintenance due to be paid in any week is not received, the benefit recipient is entitled to receive an equivalent extra amount of benefit. Making one payment for the total of maintenance and income support avoids the problems for both the claimant and the Benefits Agency which would arise from the need for a revised assessment to be made each time maintenance was not received.
But the basis on which family credit and disability working allowance are paid is completely different. Both benefits are awarded for fixed periods of 26 weeks and take account of the amount of income being received immediately before the claim rather than the amount received week by week. The benefits take no account of fluctuations in any income during the 26 weeks of the award period. Non-receipt of the amount of maintenance taken into account in calculating the award does not result in extra benefit being due, as it does in income support. We should be getting away from the basic principles of these benefits if we treated maintenance within family credit and disability working allowance in the same way as it is treated in income support. An important further difficulty arises from the fact that—
§ Baroness Hollis of Heigham
My Lords, I thank the noble Lord for giving way. Can he explain his reasoning further? He said that we should not treat maintenance within family credit in the same way as we would treat it within income support. I believe that that was the sense of it. Can he say why not?
§ Lord Mackay of Ardbrecknish
My Lords, I have explained that. I am surprised that the noble Baroness asks why. She knows that if income support is calculated at, to take an example, £50 a week it may represent income support of £30 and £20 maintenance. But that person in receipt of income support is still due £50 whether or not he or she is in receipt of maintenance. If the income support or the maintenance goes down, the person will still receive the £50.
The point of family credit is that it contains a £15 disregard. I shall come to why there is a significant difference between the two. As I tried to explain to the noble Baroness, with income support, maintenance is taken into account pound for pound against the benefit. But in family credit, the first £15 and at least 30 per cent. of the balance is disregarded. As a result, only the remaining balance can be provided for in any payment which represents the total maintenance taken into account, and indeed the benefit itself. For example, out of a maintenance payment of £20 a week, no more than £3.50 would be taken into account in the assessment and so be provided for in the benefit payment. If the payment is £20, a £15 disregard leaves £5; 70 per cent. of that is £3.50. It would simply not be possible to provide for the full payment of maintenance. To do so would mean the benefits system covering expenditure that was greater than the benefit entitlement. In comparing a person in receipt of family credit who has no maintenance with a person who receives maintenance, the noble Baroness asks us to take a road that could mean that if the maintenance were not paid the taxpayer would end up paying through family credit more than the person was entitled to, and more than was received by the next-door neighbour in the same circumstances except as regards maintenance.
§ Revising awards of family credit each—
§ Earl Russell
My Lords, it becomes important to ask the Minister whether he intends to answer my question: was it the purpose of the 1991 Act that the parent with care should benefit? If I do not receive an answer, I may find the Minister's silence eloquent.
§ Lord Mackay of Ardbrecknish
My Lords, I believe that the noble Earl, with his clever question, knows jolly well that the answer is that it is to benefit the parent with care. Earlier, I pointed out how family credit works. The parent with care, already on family credit and beginning to receive maintenance income during the—
§ Earl Russell
My Lords, I beg the Minister's pardon. He said just before my intervention that it was wrong for a woman receiving maintenance to be worse off than a woman not receiving maintenance. If the purpose of the maintenance payment is to benefit the woman, why?
§ Lord Mackay of Ardbrecknish
My Lords, either the noble Earl misheard me or I did not make my point about the neighbour carefully enough. I attempted to 1267 draw a comparison between two people living side by side, one of whom had no cause to receive maintenance but whose circumstance of work and family was the same apart from not being in a position to receive maintenance—perhaps, for instance, because her husband was dead—and in receipt of family credit, and a woman living next door, for example, doing the same job, in receipt of the same income and the same family credit but also in receipt of maintenance. I was trying to explain that the amendment could result in a situation in which, if the absent parent ceased to pay maintenance, one woman would receive a family credit payment of something like £66.50 in the example I am using, whereas the other woman would receive only £50. That was the comparison I was trying to make; it was not a comparison between one parent with care receiving maintenance and another not receiving maintenance. I know that this is a complicated issue. I hope I have made my point clear.
The important point is that, looking at family credit as a help for all people on low incomes who take low-income jobs and have family responsibilities—taking the whole field and not just the narrow field of people receiving maintenance—the great merit, the principle, of family credit is that it runs for 26 weeks. If we start to break it down only on the plus side, as the noble Baroness wants to do, and one section is eligible for family credit, it becomes very difficult to argue against the woman whose income goes down at work during the 26 weeks; and it then becomes very difficult to argue against recalculating family credit if the maintenance goes up, or indeed, as I mentioned in my speech, if the maintenance starts during the 26-week period. There is huge merit in the 26-week period being fixed. Leaving aside all the problems that I mentioned in relation to the arithmetic of family credit, I do not believe that it would be sensible and wise to go down either road that I am invited down by the amendments. I am afraid that I cannot accept either.
§ Baroness Hollis of Heigham
My Lords, I thank the Minister—at least I think I thank him—for that reply. We have now debated two amendments. The first related to the fact that, as a result of this Bill, parents with care out of work can be worse off. We tried to remedy that in the previous amendment with a maintenance disregard. Noble Lords overwhelmingly defeated that attempt and accepted that parents with care out of work can, and perhaps should, be worse off when their maintenance displaces their benefit. That was the last decision of this House.
Now we are dealing with a second amendment which relates to the fact that the parent with care who is in work and on family credit can also become worse off by receiving maintenance because of the six months rule. The Government rejected the first amendment. I had hoped that they might not reject the second.
I believe that the Government misrepresented the function of this amendment—whether as the result of an error of draftsmanship on our part, which I hope is not the case, though perhaps it may be, or because they misunderstood its purpose, I do not know. But it is not the case that with this amendment we argue that family 1268 credit should be constantly reassessed in the light of maintenance. That is not our argument because we do not want in any way to impugn the principle of the 26-week rule. We are trying to uncouple family credit from maintenance arrangements. In other words, we are making use of the fact that the CSA could be a collection agency for family credit and maintenance, as it is for income support and maintenance. Just as, if maintenance falters, income support goes up, there is no reason, since the CSA is a collection agency, why, if maintenance falters, family credit should not go up.
§ The Minister says that that can also apply to earnings—
§ Lord Mackay of Ardbrecknish
My Lords, in the example I tried to give, I suggested to the noble Baroness that the payment could actually exceed what a person was due under family credit. So the noble Baroness asks us to go a great deal further than she tries to make out in her speech.
§ Baroness Hollis of Heigham
My Lords, I am sure the Minister would not want me to toss back at him the phrase that he often uses to me; namely, that if he could contain himself for just a moment I shall be very happy to come to that point. The Minister will perhaps forgive me; it was irresistible, and I promise not to say it again.
This amendment would uncouple family credit from payment of maintenance. The Minister made the point that if family credit were to float up and down according to maintenance, it might equally apply to earnings. That is not so. We accept that family credit is an in-work benefit associated with earnings level. The difference here is that maintenance is meant by government to displace family credit pound for pound, once the disregard and the 70 per cent./30 per cent. taper are taken into account. That is why it is in a different category from that suggested by the Minister.
The technical issues of the £15 disregard, the 30 per cent. balance, and even the fact that someone might appear to he paying more are all mechanical matters. It is perfectly possible to write into the programme that no one should receive more under this arrangement than they would if they received no maintenance whatever. That is perfectly easy to put into any such programme. It is a mechanical and technical matter which can easily be overcome.
The fact remains that, as it stands, if a woman goes on to family credit, goes back to work, receives maintenance and that maintenance falters, her family credit does not float up to compensate; she is worse off. At present she would be wise to do what neither the Minister nor we would want her to do; namely, to leave work, go back on to income support, float up the calculation and start afresh. If she did that, she would be financially very sensible. As the Bill is now structured, she would have a perverse incentive to leave work in the hope of—I give way to the Minister.
§ Lord Mackay of Ardbrecknish
My Lords, the noble Baroness is very keen on the perverse incentives. All these systems have their difficulties at the margins. But does she agree with me that, if a woman comes in the second half of the 26 weeks and has a job, it would be puzzling and perverse of her if she were to leave 1269 work because of the problem illustrated by the noble Baroness. Just a few weeks later there would be a total recalculation on her new income which would last for the next 26 weeks and—dare I say it?—during that period her maintenance would backup and she would receive the benefit of that without her family credit being reduced.
§ Baroness Hollis of Heigham
My Lords, the Minister is entirely right. If she is towards the end of her family credit period and her maintenance is falling, she may very well make a rational calculation that she should stay where she is because the situation would improve for four weeks' time—but not, if it were to improve for five months. Nor, if she has the offer of a job and she cannot guarantee the flow of her maintenance or that family credit will sustain her if her maintenance were to drop in the future, can one expect her to go into work with the same confidence. She would not have the same surety of income that she has on income support.
The Government have structured the Bill so that family credit is fixed, even though maintenance may falter, whereas under income support, if maintenance falters, income support picks up the stress. For a woman with only marginal advantages from going into work—given childcare costs and that the work is part-time, say, 16 or 17 hours or so, so that she is over the income support threshold—that degree of irregularity of income, if that has been her experience, will deter her from going back to work.
It would not be difficult for the Government to ensure that the woman can rely on a combination of maintenance plus family credit, if they accept the amendment and the two are uncoupled in the way proposed. It would not threaten the six-month rule but would give her the surety of income to which she is surely entitled. I feel very strongly about this matter. In fairness to women who will be very vulnerable under a 26-week rule, if the Government do not accept this amendment, I should like to test the opinion of the House.
§ 5.2 p.m.
§ On Question, Whether the said amendment (No. 3) shall be agreed to?
§ Their Lordships divided: Contents, 60; Not-Contents, 139.1271
|Division No. 2|
|Addington, L.||Dubs, L.|
|Avebury, L.||Elis-Thomas, L.|
|Beaumont of Whitley, L.||Foot, L.|
|Broadbridge, L.||Gallacher, L.|
|Bruce of Donington, L.||Gladwin of Clee, L. [Teller.]|
|Butterfield, L.||Gould of Potternewton, B.|
|Callaghan of Cardiff, L.||Graham of Edmonton, L.|
|Carmichael of Kelvingrove, L.||Gregson, L.|
|Carter, L.||Hanworth, V.|
|Cocks of Hartcliffe, L.||Harris of Greenwich, L.|
|David, B.||Haskel, L.|
|Donaldson of Kingsbridge, L.||Hilton of Eggardon, B.|
|Donoughue, L.||Hollis of Heigham, B.|
|Dormand of Easington, L.||Holme of Cheltenham, L.|
|Jay of Paddington, B.||Ogmore, L.|
|Jeger, B.||Rea, L.|
|Jenkins of Hillhead, L.||Redesdale, L.|
|Jenkins of Putney, L.||Ritchie of Dundee, L.|
|Judd, L.||Rochester, L.|
|Kennet, L.||Russell, E.[Teller.]|
|Kilbracken, L.||Seear, B.|
|Longford, E.||Stedman, B.|
|Macaulay of Bragar, L.||Stoddart of Swindon, L.|
|McIntosh of Haringey, L.||Strabolgi, L.|
|Merlyn-Rees, L.||Tonypandy, V.|
|Milner of Leeds, L.||Tope, L.|
|Molloy, L.||Wallace of Coslany, L.|
|Monkswell, L.||White, B.|
|Morris of Castle Morris, L.||Williams of Crosby, B.|
|Nicol, B.||Williams of Elvel, L.|
|Aberdare, L.||Goschen, V.|
|Abinger, L.||Gridley, L.|
|Addison, V.||Harding of Petherton, L.|
|Alexander of Tunis, E.||Hardwicke, E.|
|Allenby of Megiddo, V.||Harmsworth, L.|
|Arran, E.||Harrowby, E.|
|Ashbourne, L.||Hayhoe, L.|
|Astor of Hever, L.||Henley, L.|
|Balfour, E.||Hogg, B.|
|Barber, L.||HolmPatrick, L.|
|Belhaven and Stenton, L.||Hooper, B.|
|Birdwood, L.||Hothfield, L.|
|Blaker, L.||Howe, E.|
|Blatch, B.||Inglewood, L.|
|Blyth, L.||Jeffreys, L.|
|Boyd-Carpenter, L.||Jenkin of Roding, L.|
|Brabazon of Tara, L.||Killearn, L.|
|Braine of Wheatley, L.||Kimball, L.|
|Bridgeman, V.||Knutsford, V.|
|Brougham and Vaux, L.||Lane of Horsell, L.|
|Burnham, L.||Leigh, L.|
|Cadman, L.||Lindsay, E.|
|Carnegy of Lour, B.||Lindsey and Abingdon, E.|
|Chalker of Wallasey, B.||Long, V.[Teller.]|
|Chelmsford, V.||Lucas, L.|
|Chesham, L.||Lucas of Chilworth, L.|
|Clark of Kempston, L.||McColl of Dulwich, L.|
|Courtown, E.||Mackay of Ardbrecknish, L.|
|Craigavon, V.||Mackay of Clashfern, L. [Lord Chancellor.]|
|Cranborne, V. [Lord Privy Seal.]|
|Macleod of Borve, B.|
|Cranworth, L.||Merrivale, L.|
|Cumberlege, B.||Mersey, V.|
|Daventry, V.||Miller of Hendon, B.|
|Davidson, V.||Milverton, L.|
|Dean of Harptree, L.||Monk Bretton, L.|
|Denham, L.||Munster, E.|
|Denton of Wakefield, B.||Mutton of Lindisfarne, L.|
|Dilhorne, V.||Newall, L.|
|Dixon-Smith, L.||Noel-Buxton, L.|
|Donegall, M.||Norfolk, D.|
|Downshire, M.||Norrie, L.|
|Dudley, E.||Northesk, E.|
|Eccles of Moulton, B.||O'Cathain, B.|
|Ellenborough, L.||Onslow, E.|
|Elles, B.||Oppenheim-Barnes, B.|
|Elliott of Morpeth, L.||Orkney, E.|
|Elton, L.||Orr-Ewing, L.|
|Ferrers, E.||Oxfuird, V.|
|Finsberg, L.||Pearson of Rannoch, L.|
|Flather, B.||Pender, L.|
|Fraser of Carmyllie, L.||Perry of Southwark, B.|
|Fraser of Kilmorack, L.||Platt of Writtle, B.|
|Gainford, L.||Rankeillour, L.|
|Gardner of Parkes, B.||Rathcavan, L.|
|Geddes, L.||Rawlings, B.|
|Gisborough, L.||Rees, L.|
|Renton, L.||Swansea, L.|
|Renwick, L.||Thomas of Gwydir, L.|
|Romney, E.||Thomas of Swynnerton, L|
|St. Albans, Bp.||Torphichen, L.|
|Salisbury, M.||Torrington, V.|
|Seccombe, B.||Wedgwood, L.|
|Sharples, B.||Westbury, L.|
|Shaw of Northstead, L.||Willoughby de Broke, L.|
|Skelmersdale, L.||Wise, L.|
|Soulsby of Swaffham Prior, L.||Wolfson, L.|
|Strathcarron, L.||Wyatt of Weeford, L.|
|Strathclyde, L. [Teller.]||Wynford, L.|
|Suffield, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ Clause 4 [Determination of applications]:
§ 5.10 p.m.
§ Lord Carter moved Amendment No. 4:
Page 4, line 32, at end insert:
("() Where the chairman of a child support appeal tribunal directs that documents are to be produced to the tribunal by any person concerned with a departure application he shall have the same powers to enforce that direction as a district judge in a county court would have were he dealing with the application.".").
§ The noble Lord said: My Lords, this amendment deals with a matter which has been drawn to our attention by the Law Society regarding the production of documents at the child support appeal tribunal. It was discussed in Committee in the other place. The Minister there, Mr. Burt, was interested in the amendment. However, nothing has happened since and so this amendment is a genuine probe to hear what the Government's views are.
§ The purpose of the amendment is to ensure that the chairmen of child support appeal tribunals have the same powers to enforce directions that documents should be produced as a court would have. Failure to make provision for this will mean that tribunals may be unable adequately to deal with appeals because they cannot ensure that full documentation is produced to them. There have been some concerns about the way in which the child support appeal tribunals are operating. That is relevant to the amendment.
§ We are advised that they already have a substantial backlog of work in dealing with appeals which have already been lodged. Legal aid is not available to individuals appearing before the tribunals. That impedes individuals' ability to put their cases forward. In Committee we discussed the fact that the chairmen of the appeal tribunals are legally qualified but they are by no means all family lawyers and they may therefore lack an understanding of how an award of child support maintenance relates to other financial provision made on divorce or separation. As we know, the lay members of tribunals are, by definition, not legally qualified and their experience of family law as a whole is likely to be limited. The tribunal system also fails to provide continuity between sittings. We are advised that the Law Society fears that the effect of those factors will be an unpredictable exercise of discretion, even though that discretion will be circumscribed.1272
When the matter was debated in Committee in another place the Minister, Mr. Burt, said:
I ask the hon. Gentleman to withdraw the amendment on the basis that I shall give the matter active consideration. He has raised an issue and, after discussion with officials, I am not sure about it. I need to talk to the independent tribunal service and, possibly, to the Lord Chancellor's Department about the full implications of the amendment. We may return with an amendment confined to the production of necessary documents without extending the powers too far".—[Official Report, Commons, Standing Committee E, 30/3/95; col. 71.]
§ I think I am correct in saying that we have heard no more. If would be helpful if the Minister could tell us what the Government's view on this matter is. I beg to move.
§ Lord Mackay of Ardbrecknish
My Lords, as the noble Lord, Lord Carter, has explained, this amendment seeks to give new powers to the child support appeal tribunal chairman to enforce any direction he may make concerning the production of documents in relation to a departure application. The amendment proposes that he should have the same powers as a district judge would have in a county court.
Your Lordships will have noticed that the amendment seeks to give these new powers only to tribunals hearing applications for departures. However, if I listened to the noble Lord correctly, that is unintentional and he is probing me about any child support tribunal. On that basis, I shall try to explain what the position is and why, when my honourable friend Mr. Alistair Burt looked at this, he was persuaded that he did not need to take any further steps. In order to do that it may be helpful if I explain that the powers of a district judge in a county court broadly allow him to strike out pleadings, to dismiss an action altogether or to commit the offending party—that is, send him to prison for a short period for contempt of court.
For the purposes of comparison I should explain that a tribunal chairman may by summons, or in Scotland by citation, require any person to attend as a witness at a hearing and to answer any question or to produce any documents requested at the hearing. Where a tribunal chairman directs someone to produce documents and that direction is not complied with, it is possible under the present rules of the High Court to obtain a subpoena in aid of an inferior tribunal. If the person still does not comply he may be held in contempt of the High Court and committed to prison. That course is currently available but, clearly, it is not an attractive option. Imprisonment would really serve no useful purpose. I do not believe it is the intention of the noble Lord, Lord Carter, in proposing the amendment to be so extreme as to allow for the imprisonment of an uncooperative parent in these circumstances. But that, ultimately, would be the effect of the amendment.
The powers given to the Secretary of State under Section 15 of the 1991 Act can, and will, be used to obtain information for a tribunal if required. These powers, as your Lordships are well aware, are substantial and should mean that any information which is being withheld from a tribunal can be obtained. Anyone who continues to obstruct an inspector intentionally or who refuses to comply with requests for documentation can be taken to the magistrates' court 1273 and, on conviction, may be fined up to a maximum of £1,000. I think your Lordships will agree that that is a considerable deterrent and in the circumstances more appropriate than imprisonment.
I should also explain that the provisions in the new Schedule 4A, as introduced by Schedule 1 to the Bill, enable both the Secretary of State and a child support appeal tribunal to decide an application on the basis of the evidence before them where information is not forthcoming. There is therefore no question of an application being left in mid air, so to speak—a decision one way or the other can always be made. Someone refusing to give documents to a tribunal cannot stop the tribunal coming to a decision.
We believe that there are adequate powers available to enable information to be obtained in connection with departure applications and that the proposed new powers are unnecessary. With that explanation of how the system will work, I hope that the noble Lord will be able to withdraw his amendment.
§ 5.15 p.m.
§ Lord Carter
My Lords, I am extremely grateful to the Minister. The intention of the amendment was to get the Government's views on record. I am not sure about the amendment being extremist It was the extremists of the Law Society who actually drafted the amendment. They were anxious to probe the point. The Minister has given a satisfactory answer. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 6 [Departure directions]:
§ Earl Russell moved Amendment No. 5:
§ Page 5, leave out lines 36 to 43.
§ The noble Earl said: My Lords, with this amendment I should like to speak also to Amendments Nos. 7, 8 and 10. This is a consequential and interrelated group of amendments which is put down with both drafting and policy intentions. Amendment No. 7 deals with a Humpty-Dumpty clause—that special expenses are whatever the Minister says are special expenses. Amendment No. 5 deals with what I think I might christen a Cambises clause. Cambises, King of Persia, had a law saying that he might do whatever he liked. Clause 6(3), to which it refers, says that the Secretary of State may lay down by regulations any factors which are to be taken into account in departure directions or any factors which are not to be taken into account. It really does say that he can do whatever he likes.
§ With the amendment I should like to consider Amendment No. 10, which is replaced by the draft of my Amendment No. 8, which is what I might call a matron's clause—any child of a prescribed kind. I am becoming a little tired of these unsatisfactory prescriptions. But it is not only concerned with the drafting. It is also concerned to lay down some clear policy grounds to govern the drafting of departures under the Bill.
§ The Secretary of State believes that he can lay down the grounds of departure in detail, piecemeal, and by regulation. That will prevent any parliamentary control of the grounds for departure and will stop any attempt 1274 to amend them. Since the grounds for departure are the heart of the Bill, that will prevent us from exercising our revising functions where they are most likely to be needed.
§ Following the principles of the Renton report, we do not attempt to enshrine all the grounds of departure in primary legislation in a sort of exhaustive list. We recognise that there is a need for flexibility, but what we argue is that regulation is the wrong way to exercise that flexibility. It is, of course, of the essence of the case for the system of departures which is now being introduced that it is designed to deal with unforeseen cases, for which the 1991 Act did not provide and where the formula failed to work equitably in a particular case.
§ But it is of the essence of the Secretary of State's regulation-based approach that it cannot, by definition, provide for the unforeseen: it can only allow for departure in cases the Secretary of State has foreseen, before they happen. Therefore, the approach must always involve injustice the first time any unforeseen problem comes up. Since Secretaries of State are not equipped with a crystal ball, any more than that enjoyed by the rest of us, such cases will be frequent. There will be no way of dealing with the child support equivalent of the man who was condemned for an incestuous marriage because he had married his deceased wife's sister's niece by the father and not the mother. It took the discretionary power of the prerogative of mercy to deal with that. No regulation could possibly have foreseen it. The Secretary of State, even with the flexibility of a contortionist, cannot lock the stable door unless the horse is already stolen.
§ In fact, the attempt to deal with extraordinary cases by total enumeration is necessarily doomed to failure. It is that approach which explains why, as the noble and learned Lord, Lord Simon of Glaisdale, has pointed out, the number of pages of regulations each year increases so alarmingly. But that is a labour of Sisyphus: it will never achieve its objective.
§ The only way to provide a discretion for extraordinary cases in which the formula does injustice, which is what the Government wish to do, is to adopt the principles of the Renton report: to lay down a series of general principles and to leave it to a court or a tribunal to decide whether the individual unforeseen case is covered by the principles.
§ In this case, unless the Secretary of State wishes otherwise, the task will presumably fall to a child support appeal tribunal. That means that the Secretary of State must make the painful sacrifice, at some stage, of losing control of the evolution of his legislation. He may find that distasteful, but the parents of laws, like the parents of children, must accept that in the end they acquire a life of their own. That is inevitable. So that is why Amendment No. 8, which is the key amendment, attempts to lay down general principles. I do not know whether they are the ideal general principles; I am not wedded to every detail of them.
§ If the approach is accepted, but the detail is not, I shall be very happy to engage in discussions between now and Third Reading about how it could be made more acceptable. Paragraph (2) (a) of the amendment lays down, first, a mandatory series of general principles 1275 for which the Secretary of State shall give a departure direction. The Minister will no doubt object that these have the effect of lowering the priority given to child maintenance. If he does that, we shall join issue with him.
§ The Government were right, in 1991, that the priority given to child maintenance needed to be increased, but they are not right in arguing, as they did in Committee, that child maintenance needs to be given priority over all other expenses whatsoever. That is an obsessive view and simply not in the real world. The protection it purports to give—and I say "purports" advisedly—to children subject to the 1991 Act is one which children of two married parents, living in ordinary conditions, have never enjoyed and never will enjoy.
§ The first category in the amendment covers expenses on which it would be unlawful for the absent parent to default. I find it very hard to see how a government committed to the rule of law could oppose such a provision; and if they do oppose it, they contribute to an erosion of respect for the law. That is a matter on which governments of all complexions must set a good example. To be told that we are bound by law to break the law, tends to invite the famous response that "the law is an ass". I would not wish to be a party to using this Bill to do that.
§ The second category in the first part of Amendment No. 8, covers expenses the absent parent could not cease to meet while remaining in employment. If the Government really want to increase child maintenance they must accept that if fathers cannot work they cannot pay maintenance, and therefore anything which prevents the absent parent from working defeats the object of the exercise and, incidentally, it is against the interests of the taxpayer because it reduces the number of taxpayers and therefore increases the burden on those remaining.
§ The third general principle, which to me is a basic part of the equity of child upbringing, is that all the children of one person should have an equal call on him. The Act should not lay down any standing division between Cinderella and the ugly sisters; such divisions do have a reputation for being self-reversing. In fact, the proviso that I have added gives that principle a paramountcy over the others. Children who are the subject of an assessment under the Act may not be left worse off by the effect of departures than other children whom it is the absent parent's duty to maintain. That may possibly assure the Minister that maintenance under the Act will not be allowed to slip too far down the list of priorities. It puts a brake on the operation of this amendment.
The amendment deliberately uses the general principle,
other children whom it is his duty to maintain
rather than the matronly phrase,
other children of a prescribed kind
§ which is now made unnecessary. There is no need to wander through a burgeoning maze of regulations, enumerating stepchildren, stepchildren-in-law, adopted children, orphan children taken on, and all the rest. Some are bound to be missed out. The question of whether it is a person's duty to maintain a child is 1276 precise enough: it is legally verifiable. It does allow for all the other cases, like the child of the next-door neighbour whose parents are killed in a car crash. The child is taken on so that someone shall look after it. If we discourage people from doing that sort of thing, we diminish ourselves as a society and put a burden on the taxpayer, for which there is no need.
Paragraph (3) of the amendment, on the other hand, is permissive rather than mandatory, and reads:
The Secretary of State may give a departure direction [if it appears to him] unreasonable, impossible or against the public interest, to require [an absent parent] to withdraw
from a particular expense.
§ There is one case to which I would like that to apply, which I have found many times in my postbag. I refer to people who are maintaining their aged parents, often keeping them out of the clutches of care in the community by doing so. It is not in the taxpayers' interests to stop them doing that. I shall not go on enumerating cases. It is of the essence of Paragraph (3) of Amendment No. 8 that, by giving the Secretary of State a discretion bound by a firm general principle, it obviates the need for regulations. It saves the need for the telephone-directory style of legislation and it gives us something which might just work, unlike the Bill as we have it. I beg to move.
§ Lord Simon of Glaisdale
My Lords, I support this amendment for the reasons given by the noble Earl, which need no expatiation. I only add this and I do it at the risk of annoying equally the noble Baroness and the Minister, which would be a formidable combination to antagonise. I merely emphasise that the considerations which are set out in Amendment No. 8, upon which the noble Earl enlarged, would be just the sort of considerations that a magistrates' court would have weighed. Such courts would also no doubt weigh the objections which the Minister may be about to urge and, with the infinitely different circumstances between one case and another, they would have made an order which would be far more satisfactory than anything thrown up by the formula. I hope that the noble Earl will forgive me for saying that, in the circumstances, this is second best, but, given the circumstances, it is something that we should adopt.
§ 5.30 p.m.
§ Lord Mackay of Ardbrecknish
My Lords, these amendments concern provisions in Clause 6 and in the new Schedule 4B as introduced by Schedule 2. All of the amendments remove the right to make regulations, which I do not suppose will surprise those of your Lordships who have been with us during our deliberations on three or four of the Bills with which we have dealt this Session.
Amendment No. 5, which seeks to amend Clause 6, will be familiar to those of your Lordships who attended our debates in Committee. It concerns the power to make regulations to clarify those factors which should or should not be taken into account in considering whether it would be just and equitable to give a departure direction, and it provoked a lively discussion about the need to afford Parliament the opportunity to 1277 consider both the general principle behind, and the detail of, any legislation before it. The remaining amendments deal with special expenses which may be cited as grounds for an application for a departure direction. It is appropriate to take them together, but I shall speak first to Amendment No. 5.
I have already mentioned that the noble Earl, Lord Russell, expressed concern at Committee stage that the use of delegated powers in effect made it impossible for Parliament to have any input. I do not accept that—and I hope I can reassure your Lordships on that point. As I explained during the earlier discussion, the purpose of the regulations which will be made under the delegated powers in the new Section 28F, as introduced by Clause 6 of the Bill, is to prescribe particular factors which ought or ought not to be taken into account during the consideration of whether it would be just and equitable to all concerned to give a departure direction. For example, we do not intend that the question of who left whom, and in particular any apportioning of blame, should colour the judgment of the officer who is considering the departure. We may well, therefore, introduce regulations to provide that no regard should be had to the circumstances of the parents' separation.
Perhaps I may offer your Lordships a further example. We may prescribe that regard should be had to the level of any previous court order in deciding whether to give a departure direction. If the departure would reduce the maintenance payable to an amount less than the court order, it is right to ask whether that is fair.
Your Lordships may have noticed that the effect of this amendment, which does not remove the preceding paragraph of the clause, would be to focus the consideration of what was just and equitable exclusively on the financial circumstances of the absent parent and the person with care and the welfare of any child likely to be affected by the direction. For the reasons I have explained, we believe this is to give it too narrow a consideration. There is a need to specify other factors, and setting those down in regulations provides the necessary flexibility to add to or adjust them in the light of experience.
The noble Earl, Lord Russell, is always asking me about the need for regulations and about how they will be dealt with. These regulations will be subject to the affirmative procedure and so will be debated by Parliament before they come into effect. Setting down specific factors in legislation will guide decision-makers at all levels. Not only staff acting on behalf of the Secretary of State, but also child support appeal tribunals, will apply the regulations in reaching a determination. That would not be the case if, for example, the factors to be taken into account were simply set down in guidance, which would be guidance only for staff acting on behalf of the Secretary of State.
We do not intend that any regulations will be overly restrictive or will constrain the decision-maker's ability to exercise proper discretion. Certainly they will not attempt to give comprehensive guidance as to the correct course of action in any particular case or set of circumstances, but it will be right in some cases to provide clear guidance on what should or should not be relevant to a decision.
1278 The next amendment, Amendment No. 7, which was also discussed in Committee, would make it possible for an application for a departure application to be made by any absent parent who had an expense not taken into account in the formula assessment. Your Lordships will be aware that the departure system is intended to allow for some flexibility in the small number of cases where the application of the maintenance formula causes genuine difficulty. But we must be able to prescribe the circumstances in which a departure can be requested; otherwise we risk a return to a totally discretionary system where it would be possible to place virtually any expense before the duty to support one's own child.
During the Committee stage of the Bill in another place, there was considerable discussion of the categories of expenses which should be included in the list and my honourable friend the Under-Secretary of State for Social Security gave an undertaking that we would be keeping the list of special expenses under review and would make adjustments if that proved necessary in the light of the piloting exercise. I am happy to reiterate that before your Lordships.
As I have already said in relation to the previous amendment, any regulations made under these delegated powers will be subject to the affirmative procedure and will be brought before Parliament for further consideration. Because the particular grounds will be set out in regulations, we shall be able (with the consent of Parliament) to fine-tune the system once it is up and running, should practical experience suggest that that is necessary.
I turn now to Amendment No. 8 which not only removes the power to make regulations but also substitutes a new sub-paragraph (2). I would draw your Lordships' attention to the fact that the new sub-paragraph appears to relate only to absent parents' circumstances. It is the Government's clear intention that both the absent parent and the person with care should have equal access to the departures scheme, provided of course that their circumstances were appropriate, and this amendment would cut across that. It would result in a very unequal scheme which would favour the absent parent and reduce maintenance payments by allowing the absent parent to place any of his other expenses above his children's needs.
I also find it strange that the amendment requires the Secretary of State to make a departure direction in respect of the full amount of certain expenses. This approach seems at odds with the whole concept of the new system of departures which is designed to permit people's detailed circumstances to be taken into account and to allow the position of both parties to be weighed carefully. The upshot might well be that some, rather than all, of an expense might be allowed. The noble Earl himself has railed against the rigidity of the formula, but when flexibility is offered (as it is here) he chooses to hem it in with restrictive provisions.
We spoke about these amendments at considerable length in Committee, and although I am happy to rehearse all those arguments again, perhaps I may concentrate on one or two of them. In doing so, I turn to Amendment No. 10. The noble Earl has explained that his main purpose in tabling this amendment once 1279 again is to prevent the Government taking delegated powers to provide for the detail of this ground for a departure from the formula in regulations. I hope that once I have explained the reason for this provision and why it contains a power to make regulations, the noble Earl will recognise that the provision is intended to widen the scope of the departure scheme and that the regulation-making power is necessary in order to prevent the Bill becoming cluttered with detail.
This amendment relates to the provision for special expenses departures, in this case on the grounds of previously incurred debts. As your Lordships will be aware, debts incurred during the former relationship between the parents which are the responsibility of one of the parents will be one of the grounds for a departure from the formula. A departure will be considered where the debt was incurred while the absent parent was still living with the parent with care and the child to whom the assessment relates and the debt was incurred for certain specified purposes.
The principal situation we have in mind is where debts were incurred for the benefit of a child who was a dependant at the time but is no longer dependent. Such a child is not included in the current assessment and, without this provision, debts incurred on his or her behalf would not be eligible for consideration. However, we recognise that there may be a number of further situations where we would want to provide for a departure direction to be given, and those would be too complex to detail in primary legislation, which is why the provision contains a power to make regulations.
There may, for example, be situations where we might want to provide for a departure in certain circumstances where debts were incurred in respect of step-children. As step-children are not allowed for in the maintenance assessment, except by virtue of a departure direction, this amendment would exclude debts incurred for their benefit. I doubt very much whether the noble Earl would like that.
§ Earl Russell
My Lords, if the Minister will forgive me, I do not believe that he has read subsection (2) (b) of Amendment No. 8 which gives the Secretary of State full discretion to deal with such things if he wishes, which I presume he will.
§ Lord Mackay of Ardbrecknish
My Lords, I hear what the noble Earl says, but I believe that the point that I am making about these debts is the proper one. If we leave the Bill as it is and do not make the amendments, those situations can be taken into account. I do not see the need—if I understand what the noble Earl is saying—to take out a lot and then, so to speak, put back a little, because the provision which the noble Earl seeks to amend, together with its delegated power, is one that seeks to widen rather than narrow the scope for departures on the grounds of previously incurred debts, and secondary legislation is essential because of the many different circumstances that can arise.
I have spoken at some considerable length, for which I apologise. But these amendments raised some important issues and I hope I have explained the Government's position fully. I hope that the noble Earl 1280 can withdraw the amendment, but I know from our debate today, and the longer debate we had in Committee, that he feels strongly about these matters. If he decides to put one or other, or all, of the amendments to the test, I hope that my noble friends will support me.
§ Earl Russell
My Lords, I thank the Minister for the care of his reply. It was thorough and full. I cannot say that I found it persuasive. I do not think the Minister expected that I would. He is of course right, but I was led into this issue by the effect of regulations in restricting the power of this House. I have realised, as I thought more about it, that that is an entirely inadequate expression of the criticisms of the regulation-making way of legislation. That is since a re-reading of the Renton Report on the night before the Committee stage of the Jobseekers Bill, because I now see that the regulation-making way of legislation is intended not only to restrict Parliament, or even necessarily primarily to restrict Parliament; it is intended also to restrict the sphere of decision which is left to the courts. That is perhaps the most important thing about it and the most important reason why we should deplore it.
Let us listen to the language that the Minister has just been using. He said "We" may prescribe, or "We" do not intend. The entire assumption is that his will is law; that he is operating a civilian system—he can make the law mean whatever he likes. I do not believe that the Minister has yet understood the criticism developed ably—far more ably than I could ever do it—in the Renton Report that the draftsman cannot foresee all circumstances.
It is no use listing all these circumstances in regulations. You are bound to get it wrong. You must lay down a principle and lose control of the crucial stage. Give it up. Let the legislation grow up and let the courts decide what it means. If you cannot do that, then the law has never fully been accepted. It has not been left to go through that process of evolution and growth which any law ought to do on its own account.
The Minister was most resistant to dealing with any expense which was not foreseen. He knows that he will do injustice by that. There will be expenses which were not foreseen and which ought to have been foreseen. He says, "If we allow any unforeseen expense, we may return to the discretionary system". It makes the 1991 Act sound so vulnerable. This is one of those creatures that cannot abide the light of day. It is a Bill that cannot abide evidence; that cannot be brought into contact with real cases. I do not believe that that is the mark of good legislation. If it does bring the Bill into line with real cases, is not that a good thing rather than a bad thing? If it is designed to fit the real world, and not just to assert one single and lonely principle, is not that an improvement?
But the Minister did make one single criticism in which I see force. He said that the amendment dealt only with departures for the absent parent and not for the parent with care. He is right about that. Before I push the amendment to a Division, I should put that right. Therefore, for the time being, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.1281
§ Lord Carter moved Amendment No. 6:
Page 6, line 29, at end insert (", and
(c) of the consideration which has taken place under section 2 as to the welfare of any child likely to be affected by his decision").
§ The noble Lord said: My Lords, I shall speak also to Amendments Nos. 16, 20 and 32 in the name of the noble Earl, Lord Russell. With this group of amendments we return to the crucial question of the welfare of the child. I do not intend to repeat the whole of the debate we had in Committee, but we felt the issue was important, and we are not satisfied with the answer that the Minister gave in Committee. It is an important point to which we should return to see whether we can press the Government to go a little further than they seem prepared to in Committee.
§ All the amendments deal with the welfare of the child. It is a concept with which all of us involved with the 1991 Act are familiar. The purpose of the amendment is to ensure that the parties are notified about the ways in which the welfare of any children involved is being considered when departure directions are being formed. We are trying to stop the business of an official just having to go through the motions as regards the child's welfare and to try to sharpen up the whole concept.
§ I pointed out in Committee, as did the noble Earl, Lord Russell, that when we were dealing with the 1991 Bill we moved successive amendments at each stage—in Committee, on Report and on Third Reading—to try to meet the points that the noble and learned Lord the Lord Chancellor made in relation to the welfare of the child. We accepted his assurance that if he accepted our amendment on Third Reading it would be changed in another place. It duly was, and the provision became Section 2 of the 1991 Act.
§ As we know, under that section the welfare of any children has to be taken into consideration when discretionary decisions are made. I underline that it is the "welfare of any children", but only when the people concerned are involved in discretionary decisions. In this case, the amendment deals with those affected by departure directions.
What aroused our concern—I do not apologise for returning to the point which was made in Committee—were the remarks of the counsel representing the Secretary of State for Social Security in the Biggin case who said:
As long as the agency notices welfare in passing it cannot be challenged on the ground that it did not attach sufficient weight to it. Welfare is not a paramount or even particularly significant consideration".
§ Perhaps I may examine those words and consider the assurances that we were given in our discussions on the 1991 Act. Counsel, who was presumably advising and representing the Government in the Biggin case, said that provided the agency notices welfare in passing it cannot be challenged that it did not attach sufficient weight to it. As I pointed out previously, he said that welfare is not even a particularly significant consideration.
§ For all those reasons, we must ask the Minister to spell out in greater detail the way in which he believes that officials, when considering such matters at tribunals 1282 and so forth, will meet the requirements of the 1991 Act and assure everyone that they are taking the welfare of the children into account. Reference was made to guidance notes and to a code of practice. It is extraordinary that the code of practice is not already in place on this issue which has been on the statute book since 1991.
§ We are advised that in practice the welfare of the children is not taken into account. It appears that officials are working on the basis of the wording which counsel gave in the Biggin case rather than the requirements of the 1991 Act. For those reasons, we are anxious to ensure that the welfare of the children, which I am sure we all agree is most important, is taken into account. I am deliberately avoiding the word "paramount" because I understand the legal problems that arise. We want the Government to explain exactly how it is proposed that the welfare of the children should be taken into account.
I do not intend to speak in detail on the amendments in the group tabled by the noble Earl, Lord Russell. I am sure that he will do that most adequately. However, perhaps I may ask him to explain a matter which arises in Amendment No. 20. Subsection (2) of the new clause states:
in this section 'ordinary circumstances' include any circumstances which are not extraordinary or amazing".
§ We have heard many remarks—perhaps I dare say lectures—from the noble Earl about the need for accurate definitions. Perhaps he will give examples of circumstances which are extraordinary or amazing. I beg to move.
§ Earl Russell
My Lords, in supporting the amendment I wish to speak also to Amendments Nos. 16 to 20 and 32. I believe that they are a great deal stronger than the amendment tabled by the noble Lord, Lord Carter. When we discussed the matter in Committee the Minister did not seem to think there was much of a problem. He assured me most earnestly that the welfare of the child was taken into account. Perhaps it is, but I do not see exactly what changes because of it.
In Committee I quoted to him a good deal of information about cases which are being heard in court. I am told that more information is on its way to me and he may hear more of that on Third Reading. I wish to draw his attention to the recent report by the Children's Society, Losing Support. It draws attention to the effect that the Act is having on the welfare of the child. It states:Many of the lone mothers criticise the negative impact of the legislation both on the relationships between former partners of first families and on second families. The lone mothers contrasted these actual effects of government policies with the rhetoric of family values and back-to-basics which were current at the time these interviews were carried out. They did think it was causing a great deal of difficulty in keeping up contact between the first and second families".Of course, the requirement to take account of the welfare of the child, if it is to be of any force, must bite on more than just the discretionary powers of the Secretary of State. Speaking as a taxpayer, and I stress that, I do not want to impose maintenance which is contrary to the welfare of the child. It is not the kind of thing from which I want to benefit.
1283 Amendment No. 32—which is placed, as the Minister advised me in Committee, in Section 52 of the 1991 Act—makes the welfare of the child bite on the regulation-making powers so that the Secretary of State shall not make regulations which are contrary to the welfare of the child. There is a very strong case for some action on that front. When we discussed the matter in 1991 we believed that the amendment, which I recollect was tabled in the name of the noble Baroness, Lady David, but to which we all spoke—
§ Lord Carter
My Lords, it was tabled in my noble friend's name in Committee but I took it on for Report and Third Reading.
§ Earl Russell
My Lords, I beg the noble Lord's pardon and I congratulate him on it. We thought that it would make more difference to the welfare of the child than in the event has been the case. We thought that the child would be the better for it. Unless there is power to vary the assessment because it is acting against the welfare of the child that section is nugatory. It was not our belief when we passed the provision in 1991 that it was as nugatory as it has turned out to be. I believe that it needs strengthening.
§ Lord Mackay of Ardbrecknish
My Lords, the noble Earl, Lord Russell, surprised me by speaking for a shorter time than I anticipated and certainly for a shorter time than he spoke in Committee. I hope that that augurs well for the rest of the evening and that he has decided to make shorter speeches.
The noble Lord, Lord Carter, and the noble Earl, Lord Russell, propose in their amendments to make all the decisions in relation to child support subject to the welfare of any child concerned and not just discretionary decisions. Of course, discretionary decisions are subject to the welfare of the child. The overall effect of the amendments would be to return to a discretionary system for determining maintenance and for dealing with other aspects of child support. I know that that is not the intention of the amendment tabled by the noble Lord, Lord Carter, but it is certainly the intention of those tabled by the noble Earl, Lord Russell, and I do not believe that he would deny that.
Section 2 of the 1991 Act exists to ensure that the welfare of the children who may be affected is given due weight when discretionary decisions are taken on cases. I have no evidence, and I do not believe that any evidence was laid, to suggest that officials are failing to do that. Therefore, we should be clear that the 1991 Act already ensures that proper consideration is given to the welfare of the children concerned.
Several references have been made to the debate on amendments tabled on this issue in 1991. I wish to return to that Act later. As the noble Earl reminded the House, I was not present at the time and he kindly suggested that I can, so to speak, escape responsibility. I must tell him that it is kind of him but I do not particularly wish to escape responsibility. I believe—and the noble Earl has heard me say so previously—that it is right, proper and just that absent parents should pay for the children of their first marriage if they can afford 1284 to do so. That should not become a cost on other taxpayers, many of whom have families and will be no better off than the absent parent.
My noble and learned fellow clansman the Lord Chancellor said in 1991 that it is an underlying objective of the child support. scheme to provide for the welfare of children and one of the most important issues which affects them; namely, the provision of maintenance by the parent who is not the person who has care of the child. Your Lordships will not be surprised to learn that I totally and completely endorse the words of my noble and learned clansman. In this case, not only am I being loyal to the Government, although I was not a Member at the time, but I am following that good Scottish trait of being loyal to my clansman. In this case, he is a slightly superior clansman, so that is further reason for being loyal to him.
§ Lord Mackay of Ardbrecknish
My Lords, I must tell the noble Lord, Lord Carter, that in the days when the language of the Scottish clans was devised, political correctness had not yet entered the landscape. "Clansman" also encompasses—and for my part will continue to encompass—clanswomen. All your Lordships will have heard of the major endeavours of that famous clansman, or clanswoman, Flora Macdonald, when she helped Bonnie Prince Charlie to escape. But that is a story which is a long way over the sea to Skye from this discussion.
The whole purpose of the legislation is, self-evidently, to benefit the child in that it provides for the assessment of the parents' financial liability for their children. The formula takes proper account of the financial needs of the children, both of the children for whom maintenance is an issue and of other children in the households concerned through the various allowances in exempt and protected income. As your Lordships will know, in the exempt income total housing costs are taken into account as are the children of the second marriage or relationship. In the protected income, any children of the second household are also taken into consideration in relation to calculating protected income. The aim of securing the welfare of the child is achieved by introducing a formula based on objective criteria rather than on discretion. The formula takes account of all the circumstances of all the children involved in the case. It considers the children of the absent parent—
§ Lord Simon of Glaisdale
My Lords, when the noble Lord refers to the formula, is he referring to the formula in Schedule 1 to the 1991 Act or some other formula?
§ Lord Mackay of Ardbrecknish
My Lords, I am referring to the formula used by the Child Support Agency, which comes from the 1991 Act. It considers the children of the absent parent as well as the children for whom maintenance is being sought through, in relation to the absent parent, the calculations to arrive at the exempt and protected income.
1285 It is important for Parliament to consider the position of all the people with an interest—and I know that it sometimes irritates at least some of your Lordships, including the noble Earl, when I say that—for example, the children, their own parents and the wider community of tax payers. I do not believe that those of us who want to see the child support scheme working effectively would wish to see a return to wide discretion in the calculation of maintenance, or in other aspects of the scheme.
At Third Reading, in 1991 the noble Lord, Lord Carter, said that there were certain parts of the 1991 Bill, such as the calculation of the maintenance formula, where it was evident that the welfare of the child was taken into account. If he will allow me to remind him, at that time the noble Lord had particular concerns about the requirement to co-operate with that provision as it was then drafted. The Government listened to what was said at that time and strengthened that provision to ensure that parents with care would not be required to co-operate if to do so would lead to a risk of harm of undue distress for them or any of the children living with them. We shall return to that matter.
The noble Earl, Lord Russell, challenged my authority to describe Parliament's intentions in 1991 because he rightly pointed out to me that I was not there. That is the classic defence of the Glasgow man lifted by the police: "It wasna' me, I wasna' there". But it is clear from the Official Report—not from my recollection or interpretation, because I was not there—that, as I said in Committee, it was never the intention of Parliament that Section 2 of the 1991 Act should be used to undermine the basic principles of that Act. Yet the noble Earl's amendment would import substantial discretion into the scheme, and would make it extremely difficult for staff to make decisions. It would have the effect of undermining the Act.
The noble Lord, Lord Carter, speaking in Committee, expressed his concerns about what was said in a recent High Court case. I shall call it the B case in order to preserve the anonymity of those involved. We must look at that case in its context. That was a case in which Judge Thorpe commented. In that case, the original appeal to the magistrates' court was principally on the grounds that the CSA had failed to consider the welfare of the children of the absent parent's second family and that the magistrates should, therefore, quash a deduction from earnings order against the absent parent. The magistrates held that the agency was bound to consider the welfare of the children and that there was no evidence that it had not done so.
The absent parent made an appeal to the High Court and it is comments at the appeal hearing made by counsel for the Secretary of State which were quoted by the noble Lord, Lord Carter, in Committee. Counsel pointed out to the judge that in his view the Secretary of State could not be challenged on the weight to be given to the welfare of the children in this case. The welfare of the children was not the paramount consideration. He also said that issues relating to the breach of Section 2 by the Secretary of State were in 1286 any event matters for judicial review rather than for the magistrates. In that case, the judge agreed with the Secretary of State.
The noble Earl, Lord Russell, alluded to other cases. In one case, the commissioners said that the welfare provision was applicable only in relation to the discretionary powers of the Secretary of State or a child support officer. The making of a maintenance assessment was an absolute duty, not a matter of discretion, and so Section 2 had no application.
The commissioners went on to say that even in discretionary matters, Section 2 provided only that the Secretary of State or the child support officer "shall have regard" to the welfare of any child rightly to be affected by the decision. The provision did not say that the child's welfare should be a paramount concern, only that it should be taken into account. Those cases illustrate that the welfare of children is not the paramount consideration. The Section 2 provision in the 1991 Act is, therefore, working as Parliament intended.
The noble Lord, Lord Carter, raised the issue of notifications to the parties in cases concerning a departure from the formula assessment. When we discussed this amendment in Committee I was able to tell the noble Lord that staff are asked to keep a note of any information relevant to the welfare of the child which comes to them, and to consider it when they make their decision. If it affects their decision, the matter will already be covered by the existing wording of the clause. Where it does not affect the decision, the amendment would lead to gratuitous information about the parent's family circumstances being passed to the other parent. We shall have to give a great deal of information to each parent about the other. I do not want to add unnecessarily to the information about the family circumstances of one parent that is conveyed to the other parent. I believe that that concern was raised in Committee. Clearly, at least a number of your Lordships share my concern that we really want to keep the amount of information which flows down to a minimum.
I will turn now to Amendment No. 32. The noble Earl, Lord Russell, has again returned to an issue that he raised in Committee. The amendment would require the Lord Chancellor, the Lord Advocate or the Secretary of State to have regard to the welfare of the child when they make legislation under the 1991 Act.
We have discussed issues relating to welfare of the child at some length, both today and in Committee. I do not intend to repeat all that I have said previously. However, as I said in Committee, I do not believe that it would be right to import such a requirement into regulation making powers. Parliament has decided that child maintenance should be dealt with through a formula which takes due account of the needs of all the parties involved: the children, their parents, and the taxpayer. As I said when we last discussed the matter in Committee, Parliament also decided that, fundamentally, the welfare of the child is best served through the support of his own parents based on their ability to pay. The House is aware that there are already safeguards to ensure the proper use of regulation making powers.
1287 As I have explained, consideration of the welfare of a child is already given due weight in maintenance matters. I do not believe that it would be appropriate to insert into the Bill the amendments as proposed by the noble Earl, Lord Russell.
I turn now to deal with the two very much longer amendments tabled on the basis of proposed new clauses by the noble Earl. Again, Amendment No. 19 was discussed in Committee. Amendment No. 20 offers a small variation on the text of Amendment No. 19 but does not alter it in any significant way. Both amendments introduce a new clause to set down all the children whose welfare should be considered when discretionary decisions are made by the Secretary of State or child support officers. Its meaning is not entirely clear, since it seeks to transfer a definition of welfare from the Children Act 1989 which does not actually exist.
Therefore, as I said, the noble Earl's amendment seeks to incorporate the definition of "welfare" from the Children Act 1989 into this Bill. In Committee, I explained that Section 1 of the Children Act relates to specific limited circumstances and to the decisions of courts in those circumstances. The wording of the Children Act section does not readily translate across into child support legislation.
From the words that he used in Committee, I rather inferred that the noble Earl wishes to make the welfare of the child paramount. The latter is the word used in the Children Act. However, as the amendment stands, it is difficult to establish precisely what the noble Earl hopes to achieve. As I said, it would mean that the welfare of the child would have to be paramount in the drafting of any regulations. The amendment includes amending regulations, but Amendment No. 20 does not. Any breach of the duty to consider the welfare of the child or children would be actionable in the civil courts, with the Secretary of State being liable for breaches by child support officers, rather than the child support officer himself having that liability.
I indicated earlier in my response that it would not be right to make consideration of welfare the paramount issue. If it were paramount, it would be above any other consideration and would mean that the needs of all the other parties to the process would become secondary. Where there were children in both the households involved, it would be extremely difficult to make a decision in a case.
I know that the noble Earl is especially concerned with second families. However, we must remember the position of first families. I should like to share with your Lordships some statistics which I believe underline my case. Frankly, no matter how far the balance is tilted, the first family is almost inevitably always in a worse position than the second family. For example, 84 per cent. of parents with care are on income support. It seems to me that their children will always be worse off than the children in the absent parent's new family. Moreover, 11 per cent. of parents with care are on family credit. In the majority of those cases also the children of the assessment will be worse off than those in the absent parent's new family. That fact is stark but 1288 true. It should give us pause for thought about the relative position of absent parents, even those with unavoidable expenses, and the children for whom they pay maintenance.
I should remind your Lordships that the Child Support Bill was introduced to redress the balance, which had become heavily weighted in favour of the absent parent and the second family and to restore some of the position of the first family by ensuring that they had a fair share of the absent parent's income. But even the current formula does not result in children of the first family being as well provided for as those in the second family. The children of the second family, even where the protected income calculation is appropriate, will be better provided for than those in the first family in the vast majority of cases. To do as the noble Earl is consistently chipping away and urging me to do,—namely, to change that balance even further in favour of the absent parent's family and against the first family—would, at least in my judgment, be totally and completely unfair.
In his two major amendments, the noble Earl wishes to make a breach of the duty imposed by Section 2 actionable by means of civil action. As your Lordships know, people who are aggrieved by discretionary decisions by the Secretary of State may already seek judicial review of the decision. On previous occasions the noble Earl has cast doubts on the integrity of the people who—
§ 6.15 p.m.
§ Lord Simon of Glaisdale
My Lords, I am sorry to interrupt the Minister once again, but he will know that judicial review is a very limited remedy. To succeed, one has to show that the Secretary of State was behaving quite unreasonably.
§ Lord Mackay of Ardbrecknish
Yes, my Lords; of course I accept what the noble and learned Lord has to say on the matter. That is indeed the case. However, the suggestion being made relates to the Secretary of State. As we all know, the position of the Secretary of State is a little like that of man encompassing woman, in that he also encompasses the officials of the CSA. The accusation being made is that they are bound to act unreasonably, almost as if it is in the nature of the beast to do so. It is my contention that the people in the Child Support Agency are doing their job to the very best of their ability. Indeed, they often do it in the face of quite deplorable behaviour from some of the people who have organised themselves in the campaign on behalf of absent parents. It is quite deplorable behaviour.
It is one thing—although, perhaps, it is not even one thing—and bad enough when some of my honourable and right honourable friends find their houses surrounded by absent parents causing a great deal of mayhem; but it is quite another thing when officials of the CSA find themselves in exactly the same position. That is absolutely unfair. As I said, the CSA officials are doing their best to run the system in difficult circumstances and, in fact, they do put many maintenance payments through to the parent with care and the children of the first marriage. It is largely the 1289 man in such cases—and, indeed, I am sorry to say it as a man—who feels that he no longer ought to have the proper financial responsibility for his own children in the first family.
Although the noble Earl's amendment would make the Secretary of State liable for the actions of child support officers in that context, it would, nevertheless, create a quite intolerable situation for individual staff members, who would be fearful that their reasonably made decisions would be subject to court action simply because one or other of the parties objected to them. I do not suppose that the parents with care would object very often, but, having read the literature of the organisation called NACSA, I have little doubt that a whole army of people would be encouraged to do so. Indeed I suggest that this document in a kind of quizzical way by deploring what steps people may take lays out the steps it would like them to take to upset the workings of the agency. To give them any more routes to frustrate the work of the Child Support Agency would simply add to the difficulties the agency has in carrying out what the great majority in Parliament, with the exception of course of the Liberal Democrats, wants; namely, for the agency to collect money from the absent parent and pass it to the parent with care. I am sure that the population at large is equally determined to ensure that that will happen.
Of course the debate has centred on the difficult question of the welfare of the child. Every child has a right of care from his or her parents. Parents generally have a legal and a moral obligation to care for their children until they are old enough to look after themselves. Unfortunately, in today's world the parents of a child may separate and in some instances the parents may not have lived together as a family at all. Although events may change the relationship between parents, for example when they part or when they divorce, those events cannot in any way change their responsibility to the child or the children who are, so to speak, left behind by that relationship. The payment of child maintenance is one crucial way in which parents fulfil their responsibilities towards their children and towards the welfare of their children. That is why in the 1991 Act we proposed a new system which was part of a wide-ranging series of measures to tackle these difficult issues of the breakdown in relationships and what happens afterwards.
It is relatively simple—however, I use the word "relatively" advisedly—to deal with the problem when there are no children. However, your Lordships will understand why I used the word "relatively" because there were difficulties when we discussed the Pensions Bill as regards the payment of pensions on divorce. However, when children are involved, this matter becomes doubly difficult. We wanted to make sure in the review in 1991—Parliament agreed with the Government—that it was in the interests of the child to emphasise parental responsibility and the need for one parent to help with the maintenance and the finances of the parent with care.
That is the situation. I am more than reluctant. I am unwilling to accept the various amendments which would incorporate further difficulties into the legislation 1290 and which would try to tie down further the definition of welfare of the children. I shall not discuss who the children are whose welfare is to be taken into account; that was discussed in Committee. I believe I have probably spoken for too long, or perhaps for long enough depending on one's point of view. But dare I say that I am gently trying to get my revenge on some noble Lords who make me listen to their rather long speeches? I hope I have tried to explain where we are coming from and why I cannot accept the amendments. I hope that, with that explanation, the amendments will be withdrawn.
§ Lord Simon of Glaisdale
My Lords, before the Minister sits down, this is an extraordinarily difficult and important issue. Perhaps I may say that it is one I have had to live with for many years. I am far from convinced that any of the formulae that have been put forward meet the case. However, I think it may be possible to find one. Is the Minister prepared to go so far as to say that he will consider the matter with those who are interested in it between now and Third Reading?
§ Lord Mackay of Ardbrecknish
My Lords, I am grateful to the noble and learned Lord for agreeing with me that this is an extremely complex matter. As I said and as will be obvious from previous amendments, we reflect on the issues that are raised in Committee before we reach the Report stage. We shall reflect on what has been said today in looking forward to the debate next week. However, I would be leading the noble and learned Lord up the proverbial garden path if I were to suggest to him that I had any reasonable hope of satisfying him or others on this issue by offering to discuss it with them. I must politely stand my ground and decline his suggestion.
§ Lord Simon of Glaisdale
My Lords, it would not just be a question of satisfying us; we would hope to be able to satisfy the Minister and meet the arguments that he has brought forward.
§ Lord Carter
My Lords, the Minister has certainly given a full reply and I was moved by his eloquence, particularly when he appeared to find it inconvenient that children should be involved in the Child Support Bill. I found that argument a little hard to follow. On reflection it might have been better if we had, as it were, degrouped and taken the amendment that is in my name alone and then perhaps dealt with the noble Earl's amendments. They are in the same group and they deal with the same subject but the Minister made a fair point on that matter. My amendment is intended to deal only with departure directions whereas the noble Earl's amendments are much wider. I emphasise that it is only in the case of departure directions that the welfare of the children would have to be notified to the parties as regards how that had been taken into account.
I was disappointed that the noble Earl did not give the definition of extraordinary and amazing circumstances that I had asked for; perhaps we can try again at a later stage. I congratulate the Minister, or at least his officials, on their assiduity in looking up what I said on Third Reading of the 1991 Act. I should warn the 1291 Minister that if we return to what various people said on the 1991 Act he may come to regret it. The Minister also referred to what I had described as the case of B and mentioned the decision of Judge Thorpe. I was surprised because I am sure that the Minister knows what Mr. Justice Thorpe said with regard to that case, as I quoted in Committee:If it [Section 2 of the 1991 Act] has so little influence on the discretion to enforce the formula assessment, the heading words of the section seem hollow indeed. I am not convinced that the agency is at liberty to decide whether or not to issue a deductions of earnings order without giving considerable weight to the welfare principle".—[Official Report, 19/6/95; col. 87.]I also quoted, again at col. 87, the words of counsel in that case. It was an extract and so perhaps misleading; one would need to read the whole transcript. But he did not say that welfare in this particular case is not paramount or even of particular significance; he simply said it as an absolute:Welfare is not a paramount or even a particularly significant consideration".It may be worthwhile the Minister reconsidering those words to see what counsel was driving at. I accept the point the Minister made. We certainly discussed the matter over a long period during the passage of the 1991 Act, and we discussed the legal effect of "paramount". I can see that in the Children Act, which is obviously all about children, one can make the welfare of the children paramount. However, in this case there are other people besides the children who have to be taken into account and therefore that welfare cannot be paramount.
I wish to make it entirely clear from these Benches that we agree that absent parents should face their responsibilities. NACSA, the organisation which the Minister mentioned, is perfectly entitled to protest legally and to express its views about the Child Support Agency. However, I agree with the Minister's strictures as regards the behaviour of some of the members of NACSA towards officials and others.
I did not think that we would convince the Minister but we have had a useful debate. We may want to return to the matter on Third Reading to see whether we can press the Minister further. However, the Minister has given a full reply which I shall wish to read. I believe that I can detect what the Government feel. However, we will need to be convinced that the officials have been given enough guidance in the form of the code of practice and other guidance. The Minister said that the Government are determined that the welfare of all children in these cases should be taken into account. We have to make sure that the officials know that and that the guidance and codes of practice are sufficiently strong to ensure that that happens.
I shall read with care what the Minister said. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Schedule 2 [Departure Directions: The Cases and Controls]:
§ 6.30 p.m.
§ [Amendments Nos. 7 and 8 not moved.]
§ Earl Russell moved Amendment No. 9:1292
Page 26, line 22, at end insert ("including the costs of car ownership when it is impossible or unreasonable to expect the applicant to travel to work by any other method.").
§ The noble Earl said: My Lords, in moving Amendment No. 9, I hope that I shall be a little more brief than we were with the last amendment.
§ The amendment allows for departure in respect of the costs of car ownership where it would be unreasonable or impossible for the parent to travel to work by any other means.
§ The basic argument is simple. There are many places where a person without a car cannot work. If he cannot work, he cannot pay maintenance, which is not in the child's interest. If he cannot work, he cannot pay taxes, which is not in the taxpayers' interests either. Therefore, priority must be given to allowing people to continue working. A formula which does not achieve that is not achieving its object.
The Minister gave me a little ground for faint hope when we discussed this matter in Committee. I am not building too much on that, but I should like to know how far the Minister's thoughts have progressed. He said:
we are looking at how to deal with the costs of travelling to work if the person concerned must go by car".
He said that he was concerned with the problem of,
how to define car costs as opposed to petrol costs when it comes to how much use a person makes of the car for one purpose against another",
I hope that I have indicated to the noble Earl that we are looking carefully at how we can make some allowances for those costs".— [Official Report, 19/6/95; col. 98.]
§ If that is an invitation to further discussion I should be happy to accept it. If he has any specific form of words in mind I should be very glad to hear it. If he has nothing in mind I suggest that there is a case for allowing the whole of the road fund licence and the insurance as a basic cost, because without that a person simply cannot work at all. If one possesses a car one may use it for other purposes, but the essential factor in these cases is the need to allow people to work. That is the hub of the whole argument and, in the hope of hearing the Minister's further thoughts, I beg to move.
§ Lord Carter
My Lords, I intervened briefly when we discussed the matter in Committee, and I shall be brief again. The noble Earl has a point when he refers to the costs of car ownership. One could be pernickety and say that this is a running cost and the ownership of a car is a different matter from the running costs, and so on. However, the noble Earl has a point. Perhaps I may repeat what I said in Committee. It is possible to separate from the costs of car ownership that proportion which applies to travel to work. I hope that if he is not happy with the wording of the amendment the Minister will be able to suggest wording that will meet the point that the noble Earl has made.
§ Lord Mackay of Ardbrecknish
My Lords, this is the same amendment as the noble Earl tabled in Committee. He wants to hear my further thoughts on the subject. In order to give him my further thoughts, perhaps I should for completeness remind the House of what I said in Committee.
1293 I said then that the Government intend to bring forward regulations for each of the grounds for departure listed under the category of special expenses. The detailed criteria for the granting of departure directions for each of the grounds are being considered, including the possibility of making some allowance for the costs of car ownership, at least in limited circumstances. The report of the Delegated Powers Scrutiny Committee explicitly approved our approach of secondary legislation to provide the detail of the departure scheme.
The issue of whether some account should be taken of the costs of car ownership where use of a car is essential for the purpose of travelling to work raises issues that need careful consideration. Most people—and I emphasise "most"—have the option of using public transport to work, although I acknowledge that there will be instances where individuals have no option but to travel to work by car, for example, where there is no public transport or perhaps in the small number of cases where a disability makes use of public transport impractical.
The noble Earl's amendment highlights the high cost of car ownership. Indeed, he narrowed that down in his contribution and referred in particular to the road fund licence and insurance costs, which are two costs that we all recognise as being considerable. I recognise that the costs of car ownership can be high. However, it would be rare for someone to run their car for the sole purpose of travelling to work and not use it for other social and leisure purposes. Would it be right, therefore, to make allowance for the costs of car ownership ignoring that fact? It is easy to narrow down the cost of fuel used in the journey to and from work. Where people travel by car purely as a matter of personal preference there is a strong argument that petrol costs in excess of the cost of public transport should not be considered for the purposes of the departure scheme. I believe that the noble Earl will agree with me about that.
I am asked whether I have some specific words in mind. At this stage I do not. However, I can make it clear that at this stage nothing is ruled out. There may be a case for including in the departure scheme some recognition that in a small number of cases individuals will have no choice but to travel to work by car. If that is so, details will be brought forward in regulations and your Lordships will have the opportunity to consider our proposals then. I take on board the point made by the noble Earl that the road fund licence and insurance are clearly identifiable costs. Insurance varies with the type of car but is fairly independent of the car you have and its value.
At this stage we wish to preserve the flexibility to develop the system in a way that is fair to all concerned. I am sure that the noble Earl appreciates that his amendment would erode that flexibility. I appreciate that I have not gone much further, if any further, than in Committee, but I have underlined the fact that we are looking seriously at this issue. I understand the point made, but there are some difficult issues to be addressed. How does one determine that it is essential? There could be an argument about that. How does one determine the costs?
1294 The noble Earl has made his point forcefully on two occasions and in today's debate has made a suggestion concerning the road fund licence and insurance. I hope that he will leave the matter on the basis that we shall try to deal with these issues in secondary legislation which at some stage, probably next Session, I (certainly after yesterday) shall bring before the House. We can then have a discussion on those proposals. I hope that we shall be able to look seriously at these points.
§ Earl Russell
My Lords, I am most grateful to the Minister. He is saying in effect that nothing is ruled in and nothing is ruled out. I remember those words. I gave them the benefit of the doubt before. I turned out to be right. If I give them the benefit of the doubt again, I hope that I shall once again turn out to be right. However, I ask the Minister not to wait too long, because once a person has to sell his car then for him work is ruled out. We do not want that to happen too often.
With that one final thought, and with warm thanks for the Minister's care in working out the arguments, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 10 not moved.]
§ Baroness Seear moved Amendment No. 11:
Page 26, line 40, at end insert:
("() child care costs incurred by a person with care who is in full-time or part-time employment;").
§ The noble Baroness said: My Lords, on behalf of my noble friend, who is not available at the moment to move the amendment, I want to make the fairly obvious point that we are all agreed that we want to encourage people to take employment if they possibly can when they have care responsibilities. However, the amount of money that is allowed under the government scheme to help with child care does not meet all the costs of child care which can be incurred in many cases. To have to pay that additional cost may well stop someone taking a job which, if they wished, they would be able to take. Therefore, in calculating the amount of money which should be paid by the absent parent, the child care costs should be taken into account. I beg to move.
§ Lord Carter
My Lords, I apologise to the noble Baroness. I had not noticed that the noble Earl, Lord Russell, had left the Chamber.
The noble Baroness outlined the purpose of the amendment. As she said, its effect is to allow child care costs to be included as grounds for a departure. The amendment would allow lone parents access to the departure system where they have increasing work-related expenses. The maintenance formula is such that it takes the lone parent's work gains into account but not the costs. When a parent with care returns to work and/or increases her working hours, her increase in income will be taken into account and at a certain point will begin reducing the level of maintenance which is payable by the absent parent. However, the formula does not currently include the work-related costs in exempt income.
We believe that there is a strong case for including child care costs in exempt income in the formula, which we would prefer. However, the Minister might like to 1295 touch on another option when he replies: to allow those with particularly high care costs access to departure. When we discussed the matter in Committee, the Government argued that existing legislation already covers child care costs. We are advised that many lone parents who want to work have prohibitively high child costs. For example, parents with care who have more than one child or whose child care is significantly higher than the average of £40 commonly referred to may be prevented from taking employment. In addition, it is also true that a relatively small percentage of lone parents are expected to benefit from the child care disregard; and certainly those who are in greatest need—for example, those on maximum family credit—will not benefit from the disregard. Even though the current legislation may offer some help to some people, the departure system should be available where that is not the case.
As we have already mentioned in Committee, the increase in maintenance would be granted only if the absent parent had the resources and it was fair and equitable to do so. If he has the resources, we believe that it would be fair to allow the parent with care to seek an increase in maintenance on the basis of work related expenses, including child care costs.
§ 6.45 p.m.
§ Lord Mackay of Ardbrecknish
My Lords, the noble Baroness, Lady Seear, proposes that child care costs of a person with care should be eligible to be treated as a special expense for which a departure direction could be given. The Government, of course, recognise the importance of child care in the context of assisting lone parents back into employment. However, although at first sight this would appear to be a reasonable amendment—it is one which the noble Lord, Lord Carter, indicated that he supports—there are strong arguments against allowing a departure on these grounds.
Current legislation makes substantial provision for child care costs. The first provision is in the child maintenance calculation itself. The first stage of the assessment process is to calculate the "maintenance requirement", which is the amount deemed necessary to meet the basic needs of the child or children. The maintenance requirement is based on income support rates and includes an amount intended to reflect the fact that there are costs associated with child care. This so called "carer element" is currently set at £46.50 if the youngest child is under 11 years of age. Where the youngest child is aged 11 but under 14 years of age, the amount of the carer element reduces to £34.88 on the basis that the need for day-to-day care lessens as children grow older. The amount reduces still further to £23.25 when the youngest child is 14 or 15, and is removed completely when the child reaches age 16.
It is important to understand that the carer element was specifically included in the formula in recognition of the fact that persons with care have costs, mainly in terms of earnings that they forgo, if they stay at home to provide care for their children, or conversely that they incur costs in providing for care if they decide to go 1296 out to work. Therefore the formula assessment already provides a significant sum that can be put towards child care should such costs be incurred by the person with care.
Additional help is available where the person with care is working and is eligible for family credit. In such cases up to £40 of child care costs can be offset against income before any entitlement to that benefit is assessed. Furthermore, the first £15 of any maintenance received is ignored when family credit is assessed. A person with care whose income is above the level where she will qualify for family credit should be better able to meet the costs of child care and will still benefit from the carer element in the formula. To make a specific allowance in child support would be to duplicate the child care provisions in family credit by allowing for the same cost twice.
I ought to reiterate that the departure system is designed to deal with issues that have been of major concern since the Child Support Act came into operation. Child care costs of the parent with care in the context of child support were not an issue on which we received significant representations when the review was taking place. I do not accept the need for the amendment.
The carer element in the formula and the maintenance and child care disregards in family credit provide, I believe, sufficient help with those expenses. With that explanation of how we understand the answer to the question posed by the noble Baroness, I hope that she will feel able to withdraw the amendment.
§ Baroness Seear
My Lords, I follow the argument of the Minister that an element of child care is included in the original estimate. But child care costs vary considerably. For example, a child may have some disability, or may need very close attention because of some handicap from which he or she suffers. Those children cannot be given child care at the price included in the maintenance grant or in the amount that the Government allow towards child care costs for someone in employment.
The Minister stated that in the majority of circumstances the child care costs would be covered by the other elements to which he referred. However, in saying that he implies that there is a minority for whom it would not be the case. In such circumstances, surely it is not unreasonable for the absent parent to make the additional payment, and therefore justify the departure. It would enable the caring parent to take a job and to be satisfied that a child who may have some specific difficulty is in good care for which she or he has to pay more money. In those exceptional circumstances, would it not be possible to make a departure?
§ Lord Mackay of Ardbrecknish
My Lords, with the leave of the House, I am grateful to the noble Baroness for allowing me to intervene. She referred to disability. Departure is available if there are extra costs arising from disability. While I know that that response does not address all her concerns, for that specific group the departure system is available.
§ Baroness Seear
My Lords, the Minister has not answered my point. There can be other exceptional circumstances. He said that disability is covered. The important issue is that the caring parent should feel free to take employment and should not be inhibited from doing so because of exceptional costs of child care.
However, from what the Minister said, and thin as the House now is, it would be absurd to press the issue. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Earl Russell moved Amendment No. 12:
Page 26, line 40, at end insert:
("() costs incurred to support a young person in further or advanced education;").
§ The noble Earl said: My Lords, this is an amendment on which I asked for consultation between the Department of Social Security and what will now be the Department of Education and Employment. I bring it back chiefly in order to find out whether that consultation has taken place; and, if so, to what effect.
§ The amendment concerns the costs of the parental contribution to higher education interacting, as it must do. with child maintenance. Depending on who is paying the parental contribution, it may affect either the parent with care or the absent parent. If one of them is paying the parental contribution to university—it is quite heavy—some allowance must be made for that in terms of a departure direction for maintenance paid, or, as it might be, received, under the formula. If an allowance is not being made, then any child of a family which is subject to the Child Support Act will not be in a position to obtain higher education. To put it mildly, that would be a pity and capable of being regarded as unfair.
§ It is possible for consultation which might avoid the problem. I move the amendment again simply in order to ask whether it has taken place. I look forward to the reply and I beg to move.
§ Lord Mackay of Ardbrecknish
My Lords, as the noble Earl explained, the amendment would provide for a further ground on which an application for a departure could be made; namely where special expenses are incurred in supporting a young person in further or advanced education. The provision would apply where, for example, a student is living with an absent parent who is therefore assessed for student grant purposes and he is also paying child support maintenance for younger dependent children who are not living with him. It could also apply where a parent with care of dependent children also has a child in further education living with her for whom she is assessed for a parental contribution to the grant.
We all acknowledge the importance of educating our young people. However, the amendment would have the effect of placing expenses incurred by a parent for that purpose above the responsibility to meet the basic needs of their dependent children. I cannot accept that that would be right. I shall not go into whether it would happen all that often because, as William in Just William said, it stands to reason that the children in the first family are likely to be older than the children in the second family. Although I freely accept that the noble 1298 Earl will be able to give me examples where such a case might arise, we must recognise that where a parent with care has young children for whom she receives child maintenance under the formula, as well as an older child in college, she would receive no additional maintenance in respect of the student. The maintenance she received for her dependent children would be added to her other income when her ability to make a parental contribution to the student grant was assessed.
If an absent parent is allowed to apply for a departure on the grounds that he is supporting a young person in further education, the corollary would seem to be that he should also support any other child of his who is in full-time education: in other words, he should pay maintenance for a student child who lives with his former partner. Nor does the grant system require an absent parent to make a parental contribution towards the grant for his child who is a student, if the young person lives with the person in care.
We have always made it clear that a parent's first duty is to provide for the basic needs of their own dependent children, whenever they are in a position to do so. It would be quite wrong to let the costs of higher education for an older child take precedence over the basic costs of supporting a younger child.
When this amendment was debated at Committee stage the noble Earl highlighted the interaction between child support maintenance assessments and the way parental contributions to student grants were assessed. He expressed a hope that the Department of Social Security and the Department for Education would consult with a view to ensuring that the two systems were not in conflict. I can assure him that consultation with officials from the Department for Education has taken place and that we are satisfied that there is no inconsistency in the way the two systems operate.
I should explain that, when a parent is assessed for a contribution to a student grant a standard allowance of £75 is made for any other child who is wholly or mainly dependent on that parent. It is irrelevant whether the dependent children actually live with the parent or not. The allowance applies, whether it relates to children in the parent's current family or children living apart from him but for whom he pays maintenance.
It is worth considering what the consequences would be if the amendment were to be accepted. Two-parent families who have a child in further education as well as responsibility for dependent children qualify for an allowance of £75 in respect of each of those dependent children. An absent parent would qualify for the £75 allowance for the children for whom he pays maintenance but on top of this he would also see a reduction in the maintenance amount he is liable to pay. So he would gain twice compared with parents who had stayed together to raise their children.
The result in the case of a parent with care who qualified for a departure on these grounds would be an increase in the maintenance due from the absent parent, in effect making him pay for a child who is no longer dependent under the terms of the Child Support Act.
The Government's proposals for the departure system are, as I have explained, the culmination of a thorough review of the system during which representations were 1299 received from all quarters. After careful consideration a list of special expenses was drawn up which reflect the areas of major concern raised during the review. I must stress that the departure system is designed to deal with the kind of expenses that have created the greatest difficulty since the Child Support Act came into operation. It is not our intention to allow a long list of expenses to be cited as grounds for a departure order.
As I said this afternoon in relation to another subject, in this case also the issue of costs associated with supporting young people in further education was not raised as a major area of concern in the context of child support.
I remain of the view that there is no strong case to include those costs in a scheme intended to relieve areas of greatest pressure. Indeed, it would have the effect of introducing an inequity, for the reasons I set out a moment ago. With that explanation and the assurance that we have talked to officials in the Department for Education, I hope that the noble Earl can withdraw his amendment.
§ Lord Kilbracken
My Lords, in view of what the Minister said about the ages of children, he might be interested to know that my youngest child is considerably younger than my four grandchildren.
§ Earl Russell
My Lords, I must declare an interest in the field. If the Minister believes that children at university are not dependent children, he is severely mistaken. They are certainly dependent children because they cannot pursue their chosen path without parental hacking, save in the case of parents in quite considerable poverty.
I must also ask the Minister to check how many parents affected by the CSA are paying more than £75 a year per child. I would bet that many assessments are extremely low, unprofitably low, but he will find that many people pay a great deal more than that.
The matter of priorities which the Minister argues is in the end self-defeating. He will produce a situation where, if he gets everything the way he wants it, children are maintained until they get to the point of needing higher education. Then, just when they are about to be able to reach the kind of career for which they may be suited and which they may want, all support will cease. That will produce large numbers of people who do not go to university at the proper time, who wish to go later as mature students and defer regular earnings until they are well into their late twenties or occasionally even their early thirties. In Germany, Chancellor Kohl has found that the prolonging of higher education has done a great deal to undermine the funding of pensions. If the Minister produces that kind of situation, he will find it has much the same troublesome effect.
At the very least, we must consider uprating the £75. However, before deciding what to do with the amendment, I should be grateful if the Minister could tell me in what Act, regulations, guidance or other document the limit of £75 is to be found. If he can tell me that now, it would materially assist me.
§ Lord Mackay of Ardbrecknish
My Lords, with the leave of the House, I am afraid that I cannot tell the noble Earl that now. I do not know quite what "now" means, but I shall be happy to write to him as soon as I can about where in the legislation, secondary legislation, or whatever it is, the £75 is lodged.
§ Earl Russell
My Lords, I am grateful to the Minister. I too have a pile of paper and I understand his difficulties. However, if he were able to address the point in time for us to table an amendment on Third Reading, I would much appreciate it. This is not a satisfactory situation. I do not think that we can leave matters there. However, as we cannot pursue the issue any further tonight, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment Nos. 13 not moved.]
§ Clause 10 [The child maintenance bonus]:
§ [Amendment No. 14 not moved.]
§ 7 p.m.
§ Lord Carter moved Amendment No. 15:
After Clause 17, insert the following new clause:
§ Child Support Advisory Committee
§ (".—(1) There shall be a body to be called the Child Support Advisory Committee, referred to in this section as "the Committee".
§ (2) The Committee shall consist of not less than eight and not more than fifteen members appointed by the Secretary of State.
§ (3) The Secretary of State shall appoint one member of the Committee to chair its proceedings.
§ (4) In appointing the members of the Committee, the Secretary of State shall have regard to the desirability of appointing persons with experience and knowledge of—
- (a) family proceedings and the work of family courts;
- (b) child support legislation; and
- (c) the welfare of children.
§ (5) It shall be the duty of the Committee to advise the Secretary of State on the working of child support legislation, and to make recommendations, when it sees fit, for amending such legislation.
§ (6) It shall be the duty of the Committee to prepare an annual report and to submit it to the Secretary of State.
§ (7) The report prepared under subsection (6) above shall include—
- (a) details of the number of child maintenance assessments made in the year, and an analysis of their effect on child welfare;
- (b) details of the number of departure directions made in the year, and an analysis of their impact on the effectiveness of child maintenance;
- (c) details of the number of reviews undertaken by child support officers in the year, and an analysis of the results of those reviews;
- (d) details of the number of appeals made to child support appeal tribunals in the year, together with an analysis of the grounds of appeal and the findings of the tribunals, and the Committee's assessment of any implications of that analysis for the reform of child support legislation; and
- (e) any other matters which the Committee considers appropriate.
§ (8) The Secretary of State shall lay copies of each report made to him under subsection (6) above before both Houses of Parliament.
§ (9) Any expenses incurred by the members of the Committee appointed under this section may be reimbursed by the Secretary of State out of moneys provided by Parliament.").1301
§ The noble Lord said: My Lords, although this amendment is rather long, I shall be quite brief in my remarks. I should simply like to have the views of the Minister on record regarding the proposals that have been made, and of which I am sure he is aware, for the child support advisory committee. There was a debate on this amendment in the other place at Report stage. Although it was fairly long, it was quite hard to pick out of it much about the child support advisory committee. It seemed to cover a large number of other issues. I felt that it would be helpful if in this House we could hear the views of the Government.
§ The purpose of the amendment is to ensure that a consultative and evaluative committee is established, similar to the one that exists in Australia, continually to monitor and evaluate the operation of the child support scheme and to make recommendations for its improvement.
§ At present, the only ways in which child support legislation is examined are by the House of Commons Social Security Committee and by the Department of Social Security through its day-to-day monitoring of the scheme; through research studies; and by the Parliamentary Commissioner for Administration (the Ombudsman). We know that the Social Security Committee's reports are extremely valuable. However, given the committee's workload, it is not able continually to monitor the child support legislation in detail. The research studies that the department organises will also no doubt be valuable, but they are designed to be of a long-term nature and, as they are not independent of government, may not cover all the aspects of the child support legislation and its effects which they should. The Ombudsman also performs an extremely useful role in examining individual cases where maladministration has occurred. However, he too is unable to provide truly comprehensive long-term reports into the operation of the scheme. We therefore believe it to be essential that an independent expert body is established continually to monitor child support legislation and standards of work in the Child Support Agency, and to make recommendations for improvements. I believe it is correct to argue that, had such an advisory committee been in existence when the 1991 Act came into operation, we might well have avoided a great many of the problems that led to this Bill. I beg to move.
§ Lord Mackay of Ardbrecknish
My Lords, as the noble Lord explained, this clause provides for an advisory committee to advise the Secretary of State on the workings of the child support scheme. Let me say straight away that we value consultation. That is why there was a wide-ranging consultation exercise before regulations were made under the 1991 Act, and why we took careful note of the advice in the 5th Report of the Social Security Select Committee, and of the views of other interested parties, in developing the improvements to the child support scheme of which the provisions in this Bill form a key part. We also have a constructive dialogue with many representatives of absent parents, parents with care, and those with experience of family law issues.
1302 In developing the changes that we announced in January, we consulted with eminent family lawyers and we corresponded frequently about the child support scheme with many organisations, including the National Council for One Parent Families, the Child Poverty Action Group and the Law Society. Whatever problems we have had with child support, I do not think that they have arisen for lack of consultation. Therefore I am not sure how this particular clause could assist.
In addition to the function of overseeing legislation analogous to that of the Social Security Advisory Committee, the proposed child support advisory committee would be required to monitor operational aspects of child support. It is in this area that the proposed annual reports of the committee would focus. In this respect, the committee would duplicate the role not only of the Social Security Select Committee of another place, but also of the Parliamentary Commissioner for Administration, the National Audit Office, and the Chief Child Support Officer.
Both the Select Committee on the Parliamentary Commissioner for Administration and the National Audit Office reported on the operation of the child support scheme. They drew attention to problems with these operations and Ministers have indicated the steps that are being taken to address these problems—in particular by improved methods within the agency for measuring accuracy, additional checking and enhanced training for staff. Many of the changes announced in the White Paper, Improving Child Support, are also aimed at improving the operation of the scheme. I have no doubt that both the Parliamentary Commissioner and the National Audit Office will continue to provide valuable information on the areas where we can improve the scheme, and Ministers will continue to respond positively to this feedback.
Noble Lords will be aware that the post of Chief Child Support Officer was set up under the 1991 Act to advise child support officers on the performance of their duties. His functions, which he discharges independently of Ministers or the Department of Social Security, include monitoring child support adjudication and reporting annually on performance. His annual reports contain much that is of use in identifying areas where further work is needed, and I know that he and managers in the agency are committed to working together to improve performance.
As noble Lords will recognise, the department and the Child Support Agency itself are involved in an ongoing process of evaluating the effectiveness of the policy and of the operations. This goes beyond responding to external comment and advice. The agency is seeking the views of key stake-holders by means of regular meetings and has set a challenging charter standard which will be monitored carefully. Officials will continue to monitor the policy, and particularly the changes introduced in April and through this Bill. The departure system will be piloted before full introduction to identify and solve any unforeseen complications.
So there is clearly considerable overlap between the functions of those who already advise on child support and the tasks for the proposed child support advisory committee. In my view, this inevitable overlap would 1303 seriously hamper the effectiveness of an advisory committee in this field. I believe that there is quite simply no distinct role for such an advisory committee, either in advising on areas where legislation could be improved, or in monitoring the performance of the agency.
I have explained in some detail what happens at the moment and the kind of way in which the current system responds to the sort of things that the noble Lord, Lord Carter, would like to see his child support advisory committee do. In addition, I am perfectly happy to give a clear commitment to continue to respond positively to constructive suggestions for improvements in child support from wherever they come. I hope that, with that explanation of how we look for advice and who is there, set up statutorily, as some of the bodies in question are, to look at the Child Support Agency and advise us—sometimes in quite robust reports, it has to be said—the noble Lord can withdraw his amendment.
§ Lord Carter
My Lords, I am extremely grateful to the Minister for that very full reply, which is now on the record as we wanted. Without attempting to turn the knife too hard, if the consultation and dialogue that the noble Lord describes had taken place in the run-up to the 1991 Act and after, we should perhaps not have needed this Bill. Not all the problems that have arisen, but certainly a large number of them, could perhaps have been avoided. However, we are all grateful now for the consultation machinery that is available. The object in having an independent committee was to formalise the procedure, to make it independent of government and to make it objective. However, considering the range of the consultation in which the Government are now engaged, perhaps the committee is not required. Therefore I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, perhaps I may suggest that the Report stage begin again not before 8.10 p.m.
§ Moved accordingly, and, on Question, Motion agreed to.