§ 4.17 p.m.
§ The Parliamentary Under-Secretary of State, Department of Social Security (Baroness Hollis of Heigham)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Baroness Hollis of Heigham.)
§ Lord Higgins
My Lords, there are two important issues which arise from the proceedings on the Bill in this Chamber on Monday, which I believe it is necessary to draw to the attention of the House. I understand that it is on this Motion that it would be most appropriate for me to raise them. As I said, there are two issues: one rather complex and the other extremely straightforward.
During the course of the debates last Monday (as reported in Hansard at col. 71 onwards) the noble Lord, Lord Haskel, when speaking to another amendment which had nothing to do with the Budget, said that the Government intended in the course of the Report stage of the Bill to introduce new amendments relating to issues which arise from the Budget Statement of the Chancellor of the Exchequer regarding the introduction into this Bill of provisions relating to national insurance contributions. Noble Lords will recall that the matter was very much a central feature of the Budget of the Chancellor of the Exchequer. I have no doubt at all that the Minister was seeking to be helpful; indeed, I fully recognise that fact. However, what is proposed seems to me to raise two important points.
I am not arguing that the amendments which are proposed are outside the Long Title of the Bill. As I understand it, that is not the case. However, I think it has long been the case that the distinction between national insurance contributions on the one hand and taxation on the other has become increasingly blurred, not least because there is virtually no relationship between the amount which is charged in contributions and the amount which is disbursed in benefits. Nonetheless, it has generally been recognised that it is important that we should maintain the so called contributory principle; that is to say, an arrangement whereby people receive benefits only if they have at least contributed something towards those benefits. That, in a sense, gives them the passport to the benefits.
Having said that, as I understand it, the Government in the Budget propose to take action which will undermine that contributory principle. There is little if any distinction now left between national insurance contributions and taxation. Moreover, the Government propose that the responsibility for national insurance contributions should be transferred from the Contributions Agency to the Inland Revenue. That, again, strongly suggests that this is a matter of taxation rather than of national insurance. Overall, there is a strong impression that matters which are central to the Budget are being introduced into your Lordships' House as part of this Bill. If that is so, it raises important issues, which no doubt we ought to consider, with regard to the Parliament Act 1911 and the question of Commons 398 privilege with regard to financial matters. That is the first point that we have seriously to consider because, as far as I am aware, there is no precedent for that.
The second point is very much simpler. Were this Bill at an early stage in the House of Commons it might well be convenient—indeed what is now proposed is convenient from the Government's point of view—for the Commons to debate these proposed clauses at Second Reading; to debate them in great detail in Standing Committee upstairs; and then to debate them downstairs at Report stage. The Commons would have had an opportunity to do that. I note that the noble Lord, Lord Shore, and the noble Lord, Lord Diamond, a former Chief Secretary to the Treasury, are nodding assent. However, a central part of the Chancellor's Budget—it was very much at the centre of the matter—is being introduced into your Lordships' House not at Committee stage but at Report stage and will, if the clauses are approved, be returned to the Commons. The Commons will be able to debate those amendments. But that is vastly different from the Commons being able to discuss the matter in Committee and at Report stage before it reaches your Lordships' House.
There is a final point which I raised on Monday; namely, these are complex matters and those outside interests which are concerned about them will not have much notice at all of what is now proposed. The provisions will proceed much faster than would have been the case had they been included in the Finance Bill, or indeed if they had been included in primary legislation in the House of Commons and proceeded in the normal way. As I said, I understand it is appropriate to raise the matter at this stage, but we shall have to consider extremely carefully the appropriate way in which this matter ought to be considered. That is important as regards both the aspects I have mentioned. I hope that on reflection the Government will consider that this is not an appropriate way of proceeding.
§ Baroness Hollis of Heigham
My Lords, I am grateful to the noble Lord, Lord Higgins, for giving me notice that he was going to raise this issue this afternoon. Had he not given me notice, I think I might have been rather wrongfooted, given the push of his argument. The noble Lord is quite right to say that it is unusual for substantial issues to be introduced to a Bill after its Commons scrutiny. It is unusual, but of course it is not unknown or even rare. I spent many years on the Opposition Benches and I have seen that happen to Bills that I "shadowed". Governments must respond to changing circumstances during the passage of legislation. We do so in the way that seems most appropriate. Often when I sat on the Opposition Benches Bills that had passed through the Commons then had matters added as they proceeded through your Lordships' House. Those matters had not therefore previously been discussed by the Commons. Sometimes we were not slow to make the same points as the noble Lord has made today.
The issue of "privilege" in relation to the introduction of new measures on national insurance was considered before the announcement of my noble friend Lord Haskel on Monday. Our advice was clear. 399 Contributions payable into the National Insurance Fund are the subject of Commons privilege, but it is a privilege that they are able to waive. They will be invited to do so when the Bill returns there. After the changes announced by the Chancellor of the Exchequer in the Budget on the restructuring of national insurance contributions—which of course followed the Committee scrutiny of this Bill—we decided that the Bill was the most effective legislative vehicle to implement those changes. The national insurance changes have been broadly welcomed. We must legislate in this Session to give businesses the time they need to be ready to operate the new system from April 1999. Introducing the measures into this Bill is the best way of achieving that.
The new clause on directors' liability has also been widely welcomed. My honourable friend the Parliamentary Under-Secretary of State announced to the Committee in the other place on 25th November last year that this measure was to be introduced into the Bill as soon as the consultation concluded. This is what we have done. The new clause was first published on 2nd February, and reprinted with a minor amendment on 25th February. Therefore I believe that reasonable time has been made available to noble Lords to be able to consider those proposals. However, I accept that this is not the usual way, and certainly not the preferable way, of handling such matters. I appreciate the noble Lord's concern. When he raised this matter with me, I immediately offered him a meeting with officials—that invitation was extended to the noble Lord, Lord Goodhart, who is also involved in these discussions—to enable them to pursue the kind of issues they might otherwise have wished to have pursued at Committee in a more interrogative way, as it were. I hope that that offer to discuss the substantive issues will be taken up and will prove helpful.
I believe that these are worthwhile additions to the Bill. It is regrettable when things have to be done at short notice. However, when that is the case, I have tried to write to noble Lords opposite with a full explanation of the background. We were caught out by the timing of the Budget which came between the Commons stage and the Lords stage of this Bill. It has been made clear to us that businesses need this provision to be brought in as quickly as possible to expedite their arrangements. That is why we are under time pressure on this matter. I hope that I have been able to reassure your Lordships that no discourtesy to this House was intended, or has occurred. I take on board the noble Lord's concerns. We are trying to address them as best we can.
§ Lord Higgins
My Lords, I do not think there was any discourtesy to this House. On the contrary, the Government went to great lengths to inform us what they had in mind. The problem concerns the other House. The Minister referred to speed. Clearly this matter could be dealt with expeditiously either by primary legislation in another place or by including it in the Finance Bill. Therefore I do not think that is a sustainable argument at all.
I say with respect, in view of the care that the Minister has given to the matter, that the House may have been a little confused by her reply. An 400 announcement was made on this issue the other day during the course of discussion on an amendment concerning so-called "phoenix" directors. However, the announcement had absolutely nothing whatever to do with the amendment; it was just that the noble Lord, Lord Haskel, took that opportunity to make the announcement. I suppose he could have made the announcement while speaking to this Motion. At all events the two issues are totally separate. To discuss the point about directors—which I have not mentioned—in reply to the points which I raised may have confused your Lordships.
§ Lord McIntosh of Haringey
My Lords, I hope the noble Lord will forgive me but we are speaking to the Motion introduced by my noble friend Lady Hollis. I believe that only one speech is allowed from each speaker.
§ Lord Higgins
My Lords, I ask the House to allow me to comment; otherwise this matter is left totally in limbo, and it will look disgraceful from the Government's point of view. Perhaps I may ask for the leave of the House?
§ 4.30 p.m.
§ Lord Higgins
My Lords, I am most grateful. As a new Member of this House, the last thing I would wish to do is to impose on the rules of the House. However, I had taken advice and understood that this was the appropriate moment to raise the matter. Clearly, one cannot leave the points raised unanswered.
We may be able to raise the points about directors at some more appropriate moment during the course of our proceedings. However, it is the combination of the two points I am making which seems to be objectionable. At a later stage, the House of Commons may well move certain Motions which will enable them to discuss the position. None of us realistically would be surprised if the Government were to carry such a Motion.
However, certain important principles are raised so far as concerns Parliament. I do not think that it is an appropriate way to deal with the matters. There is no reason why the matter should not be dealt with in the Finance Bill, or by way of other legislation, in the normal way, so that elected representatives in the House of Commons have an opportunity to debate these matters.
§ Baroness Hollis of Heigham
My Lords, I sought to persuade the House to hear the second response of the noble Lord because I am aware that we are asking the House to do what is not customary or even particularly desirable. That is why I thought we should seek the indulgence of the House to pursue this a little.
Perhaps I may make two brief points. I hope that we can then put the matter aside for the time being. The noble Lord said that it was not a question of courtesy to this House but to another place. I understand that those arrangements have ensured that that position is not 401 objected to in another place. I was not a Member of the House of Commons, but, if I may say so, it is not my responsibility to ensure the courtesies to the other House. My responsibility is to ensure the courtesies to this House. I hope that we can lay that argument aside.
I was anxious to respond to the noble Lord on the substantive point. My advice is that this could not be included in the Finance Bill, despite what the noble Lord has urged, because the Finance Bill can deal only with taxation and this is a social security matter. It has to be dealt with in this way if we are to meet the requests of and obligations to business.
With that, I hope your Lordships will allow us to proceed into the Committee stage of the Bill.
On Question, Motion agreed to.
House in Committee accordingly.
§ [The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Nicol) in the Chair.]
§ Clause 13 [Appeal to appeal tribunal]:
The Deputy Chairman of Committees
I must inform the Committee that if Amendment No. 43 is agreed to, I shall be unable to call Amendment No. 44.
§ Earl Russell
moved Amendment No. 43:Page 7, leave out lines 43 and 44.The noble Earl said: With Amendment No. 43, I shall speak also to Amendment No. 54. The amendments both concern the right of appeal. First, I wish to read briefly the clauses which I seek to delete. Clause 13(2) states:"but nothing in this subsection shall confer a right of appeal in prescribed circumstances".As I understand it, "in prescribed circumstances" means that it may be decreed that there shall be no right of appeal. Amendment No. 54 refers to paragraph 8 of Schedule 2. That provides in slightly unexpected words that the decisions against which no appeal lies may include,Such other decisions as may be prescribed".If I may say so, that is a real chemist's provision.
I wish next to draw the attention of the Committee to the verdict of the Delegated Powers and Deregulation Committee on those two provisions. It says that in the case of the provision in Clause 13(2), withdrawing the right of appeal, and the corresponding provision in paragraph 8 of Schedule 2, in the committee's view even the affirmative procedure would not give the certainty required. Members of the Committee may therefore wish to consider amending the Bill to put the vital provisions in the Bill itself and to limit the powers accordingly.
That is an unusually strong recommendation from the Delegated Powers and Deregulation Committee. It has here considered not only the degree of parliamentary control, but whether those provisions improperly delegate legislative power. It has asked us to consider whether the answer to that question might be yes. It does not make a firm recommendation because it is the clear procedure of that committee that it invites the House to make the final resolution; it does not make it itself. That, I think, is right and proper.
402 It is clear that the legislative power may, where it wishes, limit rights of appeal. Since the legislative power may do whatever it likes, the minor would seem to be included in the greater. But the question is whether this power may be exercised by regulation. In theory, the use of regulation counts as a legislative procedure. But since regulations cannot be amended, and since regulations in this case would be likely to include a long list of individual provisions of which it is perfectly possible that some may be acceptable to the House and some may not, and we could not put down amendments to exclude some of them, and since the regulatory power in this Chamber is subject to such a limited degree of parliamentary control, in practical terms it is probably truer to say that the regulatory power is an exercise of Executive rather than legislative power.
For the Executive to take away rights of appeal is always a questionable procedure. For the Executive to take away rights of appeal against decisions which, according to Clause 1, are made by the Secretary of State, may risk conferring a rather unfortunate appearance of seeming to be judge and party in its own courts. It is no part of my purpose to anticipate what decisions might be reached in the courts. But for a very long time the courts have had a strict regard for the provision of natural justice, among which is the provision that people may not be judge and party in their own courts.
The Government might also consider Section 6 of the European Convention on Human Rights: the right to a fair trial. The restriction of appeal might come in for scrutiny in that quarter. I do not know how the courts might view such a provision, but I draw attention to the words of the noble and learned Lord, Lord Woolf, in the case of Fayed v. Home Secretary. He said that the courts would be guided by the principles of natural justice and where an Act of Parliament appeared to conflict with them Parliament may not confer a right to act unfairly unless it does so in express words. That is a fascinating form of words from the noble and learned Lord.
I do not see here any such conferring of an express power to act unfairly. It is also my view that conflicts between the Government and the courts should be minimised so far as possible. That means that it must be the responsibility of Parliament not to lead the courts into temptation. I cannot help thinking that these provisions lead the courts into temptation and I regret that. I beg to move.
§ Baroness Hollis of Heigham
I should like to address the concerns raised by the noble Earl in his amendments to Clause 13 and Schedule 2 by referring to the group of government Amendments Nos. 44, 129 and 130. My amendments are tabled in direct response to the recommendations of the report of the Select Committee on Delegated Powers and Deregulation, a report which I found extremely helpful and illuminating.
I put on record my appreciation for the careful consideration that it performed. It had a formidable task. As noble Lords will be aware this Bill is long and complex (81 clauses at the last count—and that is before the Government or noble Lords add any more—and seven schedules).
403 Fifty-two of those clauses and six schedules contain powers to make delegated legislation.
In the main, the committee accepted our arguments about the need for delegated legislation to provide the detail, with the primary legislation setting in place the framework for decision-making, rights of appeal, and the new appeal arrangements.
However, the committee highlighted areas where it felt the issues were significant enough to warrant further scrutiny by Parliament through the use of affirmative, rather than negative, procedures, when these regulations are brought forward. I am pleased to be able to say that, having studied the report, we feel it would be helpful to the House to have the opportunity for further debate on some of the details that will be set out in regulations and have therefore arranged for those powers singled out by the committee to be made under the affirmative procedure. In other words, we are acquiescing to the proposals of the Select Committee on Delegated Powers and Deregulation.
It may help your Lordships if I explain the issues that will be handled in this way. First, there are three groups of regulation-making powers which are concerned with appeal tribunals. Clause 8(3) relates to the composition of appeal tribunals and the allocation of cases among differently constituted tribunals. Schedule 1, paragraph 11, provides for the delegation of certain functions of appeal tribunals to authorised officers—clerks to the tribunals. My noble and learned friend the Lord Advocate has already discussed these issues in relation to earlier amendments. Schedule 5, paragraph 3, contains the power to provide regulations for striking out of proceedings. My noble and learned friend the Lord Advocate will be debating these in more details when we come to Schedule 5 later today. We recognise that these are important issues, and issues where the detail that is contained in the regulations will be of interest—over and above the debate on the principles we are able to have during the passage of this Bill.
We have tried to give the House full explanations as to how we will use the powers contained in the Bill. We have stated our intentions, and they are on the official record. However, I am aware of the ongoing interest and am therefore happy to agree to the recommendation and make the regulations in all three groups affirmative.
Secondly, the new clause in Amendment No. 130 also makes affirmative the power contained in Clause 13(2) and paragraph 8 of Schedule 2. These are the power that the noble Earl's Amendments Nos. 43 and 54 seek to remove and ones in relation to which the committee, too, expressed concern about their apparent wide range.
The Government have considered carefully the committee's argument that current "outcome" decisions (which are appealable) should be listed on the face of the Bill and that that would ensure that rights of appeal in relation to these decisions could not be denied. We consider, however, that the committee's concerns are best addressed by way of an amendment to clarify the nature and limitations of the regulation-making power in Clause 13(2). That is the purpose of Amendment No. 44. Amendment No. 44 specifically prevents regulations under Clause 13(2) from prescribing any decision that 404 relates to the conditions of entitlement to a relevant benefit—in other words, from removing an appeal right from a substantive outcome decision.
The power in Clause 13(2) is an important one which we intend to use to secure the concept of "outcome" decisions. It will be important in trying to streamline decision-making. Regulations under this power will make unappealable, as now, minor administrative decisions which are subordinate to the substantive appealable outcome decision. Such minor administrative decisions will cover whether a claim has been properly made, on which day of the week payment should be made, etc., as opposed to a decision as to whether a person is entitled to a benefit.
Paragraph 8 of Schedule 2 provides flexibility to accommodate with a minimum of fuss and delay any future changes to social security—for example, the introduction of a new kind of benefit or new procedures for the administration of benefit, where the interests of effective administration might require certain decisions to be made unappealable; for example, where a claimant received two outcome decisions carrying appeal rights which cover only one substantive issue.
We do feel this will effectively address the concerns of the delegated powers scrutiny committee and of the noble Earl. Though I do not doubt he will tell us it does not. But we have also decided that these powers should also be under the affirmative procedure to enable further scrutiny.
Finally, the Select Committee recommended that the power contained in Clause 70—the power to make regulations to remove the lone parent rate of child benefit for new lone parents—is of such general interest to the House that there should be an opportunity for further debate under the affirmative procedure.
Noble Lords will be aware that the issues in Clause 70 will be discussed by this Committee on Monday. I shall therefore, at this point, say only that we recognise the interest in this issue that noble Lords have and, again, we are content to accept the recommendation of the scrutiny committee.
To summarise, Amendments Nos. 44, 129 and the new clause, fully meet all the concerns of the Select Committee on Delegated Powers and Deregulation and, I believe, address the issues raised in the noble Earl's Amendments Nos. 43 and 54. I therefore ask him to withdraw his amendments and I commend my amendments to the Committee.
§ 4.45 p.m.
§ Lord Archer of Sandwell
I have shared the concerns of the noble Earl, Lord Russell, as he knows, and I delivered myself of some forthright views on the subject at Second Reading. I am grateful to the noble Earl for having set down this amendment. I agree with the noble Earl—and the Council on Tribunals shares the view—that it is not desirable that rights of appeal should be created or abolished in secondary legislation. That, too, I said at Second Reading.
In a perfect world, it would not happen. However, my noble friend has listened to our concerns, and has made a generous attempt to meet them. I should like an 405 opportunity to read what she has said. However, I am minded to say—and I hope the noble Earl will forgive me—that we should settle for the rather generous settlement that we have received. As the noble Earl and my noble friend have pointed out, it was a matter upon which the scrutiny committee, of which I am privileged to be a member, expressed some serious concerns.
My noble friend wrote to the committee explaining in response what she proposed to do. Perhaps I should place it on record that she is not the first Minister to respond to an observation of the committee. But, so far as I am aware, she is the first Minister to take the trouble to write personally to the chairman explaining the action that she proposed to take. For myself, I am grateful for that, too.
§ Lord Higgins
It has always seemed to me completely wrong, if one receives a forthcoming response from the Government, to prolong the proceedings; therefore, I do not propose to do so for more than a moment or two. Certainly the noble Baroness has given great thought to these matters and made considerable improvements in relation to accepting the report of the Select Committee on Delegated Powers and Deregulation.
That said, it is also the function of the Opposition to ask for more in the role of Oliver Twist. That being so, it will still be the case that the Government will come forward with these regulations but we shall not be able to amend them. It has always seemed to me preferable, if one can, to have a matter on the face of the Bill so that it can be amended, and then subsequently, if necessary, amend it by regulation and appropriate powers to be taken in the Bill to that effect. If that is not to be the case, then can the noble Baroness give any indication whether we shall be given a preview of the regulations before going all the way through the Bill so far as the main legislation is concerned?
§ Baroness Hollis of Heigham
I cannot help the noble Lord yet in relation to the timing; I may receive that information in a moment or two. In the past, I have argued some of the points made by the noble Lord on the grounds that it is the Opposition's job to do so.
I would make one further point, and this may also help the noble Earl. The noble Lord is quite right. These regulations, if they are affirmative, cannot be amended and the usual difficulty arises. However, it would be open to any noble Lords to put down a Motion which, so to speak, were it adopted, would have the practical effect of amending the regulations. If the Government were persuaded of the desirable nature of that Motion, I for one would seek to withdraw those regulations and re-lay them, having incorporated the additional proposals by virtue of the Motion. That is the only way the House can amend regulations. That would allow us to overcome the chicken-and-egg difficulty of tying our hands too tightly in primary legislation and then finding ourselves in difficult situations.
The advice I am given is that it is unlikely that we shall be able to produce the regulations before the Bill completes its passage. However, we shall be consulting on both the content of the regulations and the guidance with the members of an ad hoc group of representatives 406 from leading welfare and other interested organisations. The regulations will be brought before Parliament, and I give an assurance to the House that if, at the point at which they are discussed, a Motion is brought suggesting that they should be changed in any of these ways, that Motion will be taken very seriously.
§ Earl Russell
On this side of the House, one regularly looks gift-horses in the mouth, but to look two gift-horses in the mouth at once is a little difficult; it tends to give one a squint. The Minister has given one very substantial gift-horse in reply to my speech; she has given an even more valuable gift-horse in reply to the noble Lord, Lord Higgins. What she said about the use of the Motion to resolve and her personal undertaking—I understand that it is only personal—to take note of that were it to be carried is a concession of immense value to the orderly proceedings of the House.
§ Baroness Hollis of Heigham
No, I was not saying that. Were a Motion to resolve to be carried, we would take it in. What I said was that, if there were a Motion, I would ask the noble Lord not to move his Motion and I, on the other side, would not seek to move the regulations. I would seek to protect the convention that we do not overturn regulations in that way. If there were a Motion which commanded support all around the House, and I felt that it was a correct Motion and not one that we should seek to defeat by a vote—in other words, that it would improve the regulations—I would indicate that to your Lordships and ask that the Motion be withdrawn, I would not move the regulations, and we would come back with subsequent regulations which we would hope embodied the spirit of the Motion.
§ Earl Russell
That is an extremely helpful series of remarks. In effect, the Minister is saying, as I understand her, that we should at that stage take time outside the House to discuss things quietly. That is the way we make progress. That is something that it gives me very great pleasure to hear.
I am pleased by the two concessions of affirmative procedure on Amendments Nos. 129 and 130. The Minister knows well enough why I do not think that is enough by itself, and I shall not detain the House by explaining it. Amendment No. 44, on the other hand, is an extremely imaginative and interesting concession. This attempt to distinguish between things which are major and involve conditions of entitlement and minor administrative decisions is very much in the area where I was looking for some form of progress. The Minister will appreciate that there may be argument from time to time about which is which, but that again is the kind of thing which we can easily discuss outside the Chamber. It is not, of course, absolutely everything that I wanted, but it is so near to it that to do anything other than accept the advice of the noble and learned Lord, Lord Archer of Sandwell, and withdraw the amendment would be churlish and ungenerous. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness bows of Heigham
moved Amendment No. 44:Page 7, line 43, leave out ("prescribed circumstances") and insert ("relation to a prescribed decision, or a prescribed determination embodied in or necessary to a decision.( ) Regulations under subsection (2) above shall not prescribe any decision or determination that relates to the conditions of entitlement to a relevant benefit for which a claim has been validly made or for which no claim is required.").The noble Baroness said: In moving Amendment No. 44, I simply add that we always have to take into account in discussion of any regulations and their relationship to the face of the Bill the decision that has been made in the Commons, so that we do not in any case undermine the will of the elected House. The Committee will understand that such discussions have to take place within that context. Given that understanding around the Chamber and the attempt to meet any suggested improvements which the Government accept are proper improvements to the regulations, I move Amendment No. 44.
On Question, amendment agreed to.
§ Lord Goodhart
moved Amendment No. 45:Page 8, line 16. leave out ("may") and insert ("shall").The noble Lord said: In moving Amendment No. 45, I wish to speak also to Amendment No. 47, which is the substantive amendment in this case. Amendment No. 45 merely corrects what seems to be a rather odd defect in the clause, which says that:Regulations may make provision as to the manner in which, and the time within which, appeals are to be brought".Since it is clear that there will have to be such regulations, it would surely make more sense to say "shall" rather than "may".
Amendment No. 47 is much more substantial. Its effect will be that the regulations which will govern the procedure at appeal hearings will require that there shall be an oral hearing unless the appellant specifically requests otherwise. It also gives the chairman of the appeal tribunal or, in the case of a one-member tribunal, that member, the power to order an oral hearing where he thinks that that is desirable in the interests of justice.
Since October 1996 appeals have been decided on the basis of written information provided by the appellant or coming from the respondent unless the appellant specifically asks for an oral hearing. In 1996, the success rate where an appellant appeared or was represented before the tribunal was 53 per cent. The success rate where the appellant did not attend and was not represented before the tribunal was 13 per cent. That is an average figure; in the case of some benefits the discrepancy is even more extraordinary. For example, in the case of incapacity benefit, the appeals were successful on 57 per cent. of the occasions when they were attended but on only 7 per cent. of the occasions when they were not attended. I do not say that, if all the non-attenders appeared, that their rate of success would necessarily go up to 53 per cent.; but it is impossible to imagine that, if they had appeared, the rate of success would have been as low as 13 per cent.
408 Few claimants understand these complicated regulations in any detail. Few of them are skilled in presenting their cases on paper. If they do not appear, there is no way of filling in or supplementing any gaps in the information they have provided. Many claimants will not have properly explained the grounds for appeal in their written submissions; they may have omitted essential facts. If they are present before the tribunal when the appeal is heard, the tribunal can question the claimant, find out what the real issues on the appeal are and fill in the gaps in the written presentation. In some cases, particularly with incapacity benefit, the claimant's own account of his or her disabilities is likely to be particularly helpful to the tribunal, and that may account for the staggeringly high difference between the success rates for those who attended and those who did not attend in cases of incapacity benefit.
Since the new rules came in in October 1996, the proportion of hearings attended by a claimant or the representative of a claimant has fallen from 62 per cent. to 44 per cent. Almost certainly largely as a direct result of that, the overall success rate on appeals has fallen from about 40 per cent. to just over 30 per cent. The rate of success on attended hearings has remained much the same and it is clear, therefore, that the reason for the decline in the success rate is the fact that so many more appeals are now being dealt with on paper rather than being heard orally by the tribunal.
These figures, which are quite extraordinary, show that the 1996 change in the rules has plainly worked a real injustice. It was estimated by Mr. Tony Lynes, a former adviser to the government led by the noble Lord, Lord Callaghan, that about 10,000 people a year lose benefits to which they are entitled as a result of these changes. It is, of course, wrong to compel claimants to turn up at their appeals if they do not wish to do so, but plainly they should be strongly encouraged to do so. The best way is surely to provide that there shall be an oral hearing unless the appellant asks for it to be done otherwise. In other words, the default procedure is that there shall be an oral hearing and it is only where for some particular reason you wish to present your case on paper and do not wish to be present at the hearing that the hearing will be dealt with on paper by the tribunal.
If it were not for these figures, Amendment No. 47 could be regarded as something that is relatively minor, but the figures show—and we are talking about thousands of people a year—that the failure to encourage claimants to be present at their appeals does work a real injustice. This amendment gives priority to oral hearings before the tribunal and will, I believe, help to remedy that injustice. I beg to move.
§ 5 p.m.
§ Baroness Wilcox
I am grateful to the noble Lord, Lord Goodhart, for having put down this amendment and I should like to speak in strong support of it. This amendment arises out of the fact that a person whose appeal is determined at an oral hearing rather than merely on the basis of written papers has, as we have heard, a much greater chance of success. The noble Lord, Lord Goodhart, has provided figures in support of 409 this and I believe that the right to an oral hearing is a basic and fundamental right which should not be taken away unless an applicant specifically confirms that he is happy for his case to be determined in his absence in writing.
The right to an oral hearing may appear to be less efficient to the Government and to have the disadvantage of being more time-consuming. However, applicants at an oral hearing not only have a much better chance of success but even those who fail, I think, are likely to feel that they at least have had a fair hearing and have been able to state their case in the way that they wish. In 1991, when I was chairman of the National Consumer Council, we did a study over two years of access to justice, and one point which came strongly out of that was that, if somebody had been represented and had to sit at the back of the court, they often did not feel that they had really had their say.
Following that piece of work, just last year I was able to take part in the review of the Court of Appeal in the Civil Division to look at why the Court of Appeal was being so over-burdened with work. One of the problems that we found over quite a short period of time was the number of lay litigants in person who were turning up wanting to go through the whole thing on their own, having been unhappy with the result from the court of first instance. This very often showed that they had been represented and had not had their say.
We spent time travelling through Canada and America to see how they dealt with this problem, trying to get through the amount of work that they had, yet at the same time retaining something that we treasure so much in this country: an oral tradition. I might tell your Lordships that in New York they have a system whereby it is 10 minutes for anybody. There are "traffic lights" in front of the person giving evidence orally. They start with a green light and the three judges can interrupt at any time during that 10 minutes. An amber light flashes half-way through and at the end of 10 minutes a red light comes on, a bell rings and you are out. But this does mean that you have had your moment in court; you have had your 10 minutes. Perhaps if the Government are looking for expediency they might wish to consider that method.
It is not right I think, to allow the decision over whether there should be an oral hearing to be left to the whim of the DSS or the appeal tribunal. Every person has a fundamental right to have their case heard at a full oral hearing unless they choose otherwise. As we have heard in earlier debates, many claimants are unrepresented and would find setting out their case in writing difficult. We have heard about this again from the noble Lord, Lord Goodhart. An oral hearing allows the appeal tribunal to elicit the facts from the claimant in a non-intimidating way and ensures that the claimant feels that he or she really has had a chance to state his or her case in their own way.
I am aware that many of these appeals may involve relatively small amounts of money. However, for the individual involved they can often be amounts of vital importance. If the assumption is not firmly in the camp that there should be an oral hearing, a system will soon 410 develop under which many applicants will not really be aware that they have a choice in the matter and they will be deterred from seeking an oral hearing in the interests of efficiency. I would therefore strongly support the noble Lord, Lord Goodhart, in enshrining this legal right in the Bill.
§ Lord Borrie
The fundamental purpose of procedural rules is to ensure that those who are not entitled to benefit are not likely to receive benefit. Similarly, the purpose must be that those who are entitled to benefit have a reasonably good chance of getting that benefit. That surely must be the objective of procedural rules. We have heard from the noble Earl, Lord Russell, and the noble Baroness, Lady Wilcox, the undoubted fact and the statistics which indicate that the chances of winning a benefit if you are a claimant are much enhanced if you have the benefit of an oral hearing. The statistics show that when the rule was changed so that a request had to be made specifically for an oral hearing, the chances of succeeding in a claim were less.
It seems to me morally wrong that the procedures should be so skewed that the claimant has less chance of winning because the regulations currently say that an oral hearing has to be requested in order to get one. The other evening in the course of a debate on this Bill on another amendment I had the temerity—I think that, although the noble Lord, Lord Goodhart, did not use that word, he felt that I was being rather unwise—to reject the solid advice on that amendment given by the National Association of Citizens Advice Bureaux, the Law Society, the Legal Action Group and, I think, the Child Poverty Action Group.
I must say on this matter that I have received a great deal of help from the briefing of the National Association of Citizens Advice Bureaux. It seems to be extremely sensible because it points out that it is not just the noble Earl and noble Baroness who have been arguing how much better and more wise it is from the claimant's point of view to have an oral hearing, but it quotes the official advice from the DSS at page 8 of a detailed leaflet where it says:Please note that claimants who attend the hearing of their appeal usually do better than those who do not".The Government, in other words—although I do not think it is just this Government because it has come through from the previous government—have admitted that you do better to go for an oral hearing and yet they allow the regulation to be such that you are less likely to get an oral hearing than this amendment would suggest and less likely to get a benefit that you are entitled to. That seems to me to be quite wrong.
I noticed particularly one vivid example given by the National Association of Citizens Advice Bureaux of someone who was seeking a disability benefit and whose presence at an oral hearing enabled that claimant actually to describe the problems of daily living. Even if relatively inarticulate, if encouraged, as one should be of course by the tribunal itself, to explain one's normal life, that is surely a far more vivid way of giving evidence than the whole thing being on paper.
411 So there does not seem to be any dispute between people in this House and the DSS in its official leaflet that it is better to have an oral hearing. The only possible reason for having the regulation as it now stands is to save money and to avoid delay. The Government's reasoning for a whole number of proposals in this Bill is that there are considerable delays which arise not from the delay from claimants but through the fault, if it be a fault, of the authorities in not arranging hearings, tribunals and appearances and time and all the rest of it, rather than any fault on the part of the claimant. But surely it is wrong to damage the claimant's chances, which is what the existing regulation does, simply in order to try to remedy something which is the fault of the system. I support the amendment.
§ Lord Higgins
The brevity of my remarks on this amendment in no way reflects my enthusiasm for it. The noble Lord, Lord Goodhart, has made the case very strongly indeed. The statistics speak for themselves. My noble friend Lady Wilcox has made it clear from her own experience how strong the case for it is.
My own experience in seeking to get oral hearings in individual cases is that very often the bureaucracy does not work well. I can remember one case vividly—it was a child support case—when the hearing was cancelled three times, on two occasions because the chairman failed to turn up. It is very important indeed that these matters should be organised in an efficient way. If it is possible to have a oral hearing, it is more likely that the case will receive sympathetic and accurate consideration by the body concerned. I certainly think that that is a strong argument. I look forward to hearing the Minister's reply.
§ The Lord Advocate (Lord Hardie)
First, I shall deal with the small point raised by the noble Lord, Lord Goodhart, as to whether the word "shall" should be substituted for the word "may". This is a drafting issue. As I understand it, using the word "may" in this clause would include the issues with which the regulations may deal. The regulations may deal with other issues, whereas if the word "shall" is used it may well restrict what the regulations might deal with.
Perhaps I may put that to one side and deal with the substantive issue raised by the noble Lord, Lord Goodhart, the noble Baroness, Lady Wilcox, my noble friend Lord Borne and the noble Lord, Lord Higgins. These amendments would require regulations made under Clause 13(6) to provide for two particular matters of detail. The first is that an appellant would be entitled to an oral hearing unless he requested otherwise. The second would be to require the chairman of a tribunal to order that there should be an oral hearing when he considers that to be desirable in the interests of justice, and that he should do that regardless of the wishes of the appellant. I propose to deal with those two issues separately.
As noble Lords will be aware—there has already been allusion to this—changes were introduced to appeal tribunal procedure regulations in October 1996. The automatic provision for an oral hearing which existed prior to that date was replaced by measures which 412 ensure that an oral hearing is arranged only for appellants who request one. The position that is being adopted in the Bill simply reflects the present position and the amendment would propose to go back to the pre-1996 position.
The changes were made in 1996 because prior to that about 30 per cent. of appellants failed to attend the hearing, which led to a waste of time and money and was inefficient. I take the point made by the noble Lord, Lord Higgins, that, because of maladministration, cases have not been heard. I accept that there are unfortunate and unacceptable situations such as the case he mentioned. I would hope that in the case to which he referred, unless the chairman on each occasion had a very good reason for not turning up, some action was taken to make sure that the chairman did not turn up at any tribunal after that.
Two wrongs do not make a right. If we re-instate the position which prevailed prior to 1996 without analysing what the effect of the post-1996 position has been—I shall come to that in a moment when I deal with the statistics which the noble Lord, Lord Goodhart, mentioned and which were referred to by my noble friend Lord Borrie—that would clearly be an inefficient system which was not to the benefit of the majority of appellants. Appellants are quite properly entitled to expect as early a hearing as possible. If we can take out of the system the 30 per cent. to whom I referred, others who wish a hearing will get a hearing and a decision more quickly.
Noble Lords will also be aware that every appellant in terms of this provision retains the right to an oral hearing. The only thing that he or she has to do is to confirm whether they wish one. Where they do not request an oral hearing the appeal will be heard on the papers alone. That reflects the change that was introduced in 1996 to organise hearings more quickly and effectively when the appellant does not plan to attend.
Amendment No. 47 proposes that an oral hearing should determine an appeal unless the appellant requests otherwise. Noble Lords will appreciate from what I have said that, as far as we are concerned, this would re-invent the previous inefficiency and is not the way forward. Appellants who have no intention of attending a hearing may not make the effort to ensure that an oral hearing does not take place. To take the point made by the noble Baroness, Lady Wilcox, unless an appellant writes in and says that he or she does not want one, a hearing will be fixed. If they do not wish one, and if they do not write in saying that, we will go back to wasting tribunal time. The current provisions provide a far more effective use of the time available to tribunal sessions.
I am grateful to the noble Lord, Lord Goodhart, for the opportunity which this amendment has given us to reassure the Committee that the existing provision for oral hearings will continue. All appellants will have access to such hearings on request.
Perhaps I may turn to the second part of the amendment. Regulation 22(1C) of the Social Security Adjudication Regulations currently enables a tribunal 413 chairman to require an oral hearing where he considers it appropriate. We intend to continue this provision under the new appeals arrangements. Again, we are not making any change to that. The chairman can still, if he or she decides that it is appropriate to have a hearing, order it.
There will be cases where, although an oral hearing has not been requested by the appellant, the tribunal may consider this to be necessary. For example, the tribunal may wish to examine the Secretary of State's representative or her expert witness. I can reassure the Committee that in those cases the tribunal will continue to be able to order an oral hearing, irrespective of the appellant's wishes but this will be done only after the claimant has been invited to attend and given the reasons why it is thought that this may allow a better opportunity to examine the case.
Perhaps I may say a few words on the statistics. Information on the effect of the change since 1996 is being collected. When enough data are available we will consider whether any further change is necessary. We do not consider that we have sufficient data at the moment to draw the conclusions referred to by the noble Lord.
As regards encouraging appellants to appear in person, as my noble friend Lord Borrie has pointed out in terms of his briefing, the department itself seeks to encourage people to attend. I draw to the attention of the Committee a leaflet NI246 entitled How to Appeal. That explains the procedure and emphasises that it is in the appellant's own interest to attend the hearing, including the fact that those who do attend do better than those who do not. That message will continue to be included in leaflets from the department, which will continue to be given out by representatives and employees of the department. In addition, welfare rights organisations, with which the noble Baroness has had a distinguished association in the past, will continue to do the invaluable job that they have always done. They will emphasise to claimants that they ought to have their day before the tribunal.
I differ from the noble Baroness, Lady Wilcox, in any suggestion that we should import into this country any American experience of coloured lights and 10-minute deadlines, because that is not the culture that we wish to impress on people appearing before our tribunals. We wish them to have a full and proper hearing, not constrained by coloured lights or 10-minute sessions. They should have a full session where they can explain their concerns and the tribunal can listen uninhibited by such restrictions.
I hope that I have explained why these amendments are not appropriate at this stage. We shall continue to provide information to claimants. Chairmen will continue to have the right to insist on an appeal in appropriate cases. By following the route that the Government propose, there will be a more efficient and effective use of the available time which tribunals have to consider appeals. In those circumstances, I ask the noble Lord to withdraw his amendment.
§ Lord Goodhart
I am most grateful for the support that I received from the noble Baroness, Lady Wilcox, and the 414 noble Lords, Lord Borrie and Lord Higgins. The main problem arises from the fact that, as the noble and learned Lord the Lord Advocate said, before the changes to the rules in 1996, 30 per cent. of appellants did not appear for the hearings. I can understand why that is a matter of concern. It is a waste of time and money if that happens. At the same time, I am not sufficiently familiar with the procedure to know whether or not a tribunal can proceed to make a decision in the absence of the appellant. If the present position is that it cannot do so, that might be changed. If it can, and if the appellant does not turn up, it does not mean that there has to be another hearing.
§ Lord Archer of Sandwell
I am most grateful to the noble Lord for giving way. I have fully taken on board the arguments which the noble Lord has advanced and they are very much present in my own mind. But in fairness, if there is an oral hearing and without announcing his absence the claimant fails to appear, usually there is at least a delay because it has to be ascertained whether something has happened to the claimant. At the very best it means that the matter is resumed a long time afterwards. If it is known that a claimant proposes not to attend, then as a matter of fact everyone knows that the hearing will be much quicker. I have seen this happen. If four claimants out of five on a morning's list do not turn up, by half-past eleven the tribunal is just sitting there and nothing is happening.
§ Lord Goodhart
I accept what the noble and learned Lord, Lord Archer of Sandwell, has said and I recognise the problem. That has made understandable the experiment introduced in 1996. The trouble is that the figures show that it has failed because, although that may have reduced the amount of time wasted and the expense of members of the tribunal turning up and finding they have nothing to do, it has also led to a serious decline in the quality of justice administered by the appeal tribunals.
§ Baroness Gardner of Parkes
Will the noble Lord give way? I have not sat on social security tribunals, but for years I have sat on industrial tribunals where the situation is very similar. I have listened very carefully to the debate on this amendment, although I have not taken part in the discussions on this Bill. As I listened to the noble Lord presenting his amendment, I believe that there is a total misunderstanding as to how the tribunals work. I am totally convinced by the arguments put forward by the Minister on this point. If people could no longer have an oral hearing, I would have been all in favour of the amendment. But people have to go to the trouble of saying that they would like an oral hearing. That is a very good first hurdle for people to overcome because it weeds out so many claimants. I believe that of the 30 per cent. of claimants who do not turn up, there are many who know that their claim has no hope in the world, and that is why they do not appear. They have no case and they would just be wasting time.
We must not overlook the fact that if we greatly increase the number of cases by insisting that each person has an oral hearing, whether or not it is wanted— 415 the lazy ones will certainly not bother to opt out—we should be delaying the whole process to such an extent that it will be to the disadvantage of the really deserving people who need to have their cases dealt with. I take issue with the Minister on one matter about the traffic lights system in America, which has something to recommend it. I am not proposing—and I do not believe that my noble friend Lady Wilcox was either—
§ Earl Russell
The noble Baroness had a point to make, but I believe that in this House it is not the convention to make interventions quite as long as is acceptable in another place.
§ Baroness Gardner of Parkes
I take issue with that. This is Committee stage of the Bill and we are all allowed to speak as often as we wish and at whatever length we wish. This is not Report stage, but if I am wrong I shall be grateful to be corrected.
§ Lord Goodhart
Perhaps I may resume. I am grateful to the noble Baroness, Lady Gardner, but I believe that there are distinctions here between industrial tribunals and social security tribunals. For one thing, those who apply to industrial tribunals are much less likely to be among those who are disadvantaged in various ways. They are less likely to be functionally illiterate. Both those categories of people are likely to be rather highly represented among those who apply to a social security tribunal. For that reason, what is appropriate for an industrial tribunal is not necessarily appropriate for a social security appeal tribunal.
It is perfectly clear that the proportion of those who attend for an oral hearing has fallen from 62 per cent. to 44 per cent.—that is, out of every seven people who attended oral hearings before, two do not attend now, with obvious consequences on their chances of success. I take the view that it is, and remains, appropriate that the default procedure in cases involving social security tribunals should be the oral hearing. In those circumstances, I do not propose to move Amendment No. 47, but it may be a matter to which we shall want to return on another occasion because, on the figures, the current system seems not to have worked and to have been the cause of serious injustice.
Finally, I was much attracted by the suggestion of the noble Baroness, Lady Wilcox, about traffic-lights for speakers. It occurred to me that we might experiment with that in this House, possibly at the Committee stage of the European Communities (Amendment) Bill!
§ Baroness Gardner of Parkes
I must apologise to the noble Lord. I realise now that when I intervened in his speech, I also made a point to the Minister when I should have referred only to the noble Lord. That is where I think that I was out of order. I regret that and I apologise to the noble Lord.
§ Lord Goodhart
moved Amendment No. 46:Page 8, line 17, at end insert (", save that the time within which an appeal shall be brought shall not be less than three months from the notification of the decision in question.( ) Regulations made under subsection (6) above shall provide that a person may bring an appeal after the expiry of the prescribed time if a full-time chairman considers that the person has reasonable excuse for not bringing the appeal before that expiry.").The noble Lord said: This amendment relates to the time-limit for appeals. At present the time-limit is three months and I understand that the Government intend to use the regulations, which they have power to make under Clause 13, to reduce the time-limit for appeals from three months to one month. There is little real justification for reducing the time for appeals. It is perfectly true that most people apply within one month, but those who are least likely to do so are those who are disadvantaged, and the disadvantaged often need advice and help from organisations such as citizens advice bureaux. There may well be difficulty in arranging home visits to disabled people who are unable to come to a CAB office.
A statement from Richmond CAB, which runs a disability rights advice group, is typical of comments from many CABs. Richmond CAB stated:We believe one month is a quite inadequate time for preparation of an appeal and will particularly work to the disadvantage of the most vulnerable who may need help to make an effective case. With the best will in the world, agencies such as CABs, who have heavy caseloads may not he able to offer a home visit to a vulnerable client in less than two to three weeks and obtaining supporting evidence within the time allowed is quite unrealistic. This assumes that the client gets in touch with us immediately the decision arrives. In many cases, it takes a while before people with disabilities who often live isolated lives find out how to contact someone who may be able to help them".If the period is shortened, it becomes all the more essential—this is the effect of the second paragraph of the proposed amendment—to give full discretion to the tribunal to extend the period for the appeal. Since February 1996, time-limits can be extended only if the appeal has reasonable prospects of success and if it is in the interests of justice to grant leave. The reference to "interests of justice" is interpreted very narrowly and under the existing practice of the tribunals, it is considered to apply only if there are special reasons which are wholly exceptional and which relate to the history and the facts of the case, and only if the special reasons are sufficiently strong to give a reasonable excuse for the delay. The second part of that is, I think, understandable, but the first (that the special reasons must be wholly exceptional) seems to go well beyond anything that is reasonable. No official figures are available on the number of cases where late appeals are allowed, but experts believe that under current practice it is almost impossible to obtain leave.
I believe that the Government have expressed some concern about this matter. I hope that they will be willing to leave the time for appeal at a minimum of three months, but, if not, I hope that they will accept that if the limit is reduced to one month, the chairman 417 of the tribunal should be given a general jurisdiction to allow an appeal out of time whenever it is fair and reasonable to do so. I beg to move.
§ Lord Higgins
I believe that the Minister expressed some doubts at Second Reading about whether the restriction might be too draconian and that she said that she would give further consideration, in consultation with outside bodies, to the question of whether, if the limit were reduced, some flexible arrangement could be made so that there may be some discretion for vulnerable groups. Perhaps the Minister will comment on that in her reply.
§ Earl Russell
I should like to speak briefly in support of the amendment. We have a considerable number of cases—some, but not all, have been forwarded by Richmond CAB—which illustrate the reason why some such amendment may be necessary.
One case involves a recovering drug addict who, at the relevant time, was on a treatment programme and overlooked a housing benefit review form. In fact, it would have been quite difficult at that stage to get him to understand what it was all about. At present, it seems to be the case that no housing benefit claim can be backdated for more than one month even where there is continuous good cause. Where housing benefit is withdrawn, there may be eviction and other consequences which are liable not only to cause hardship to the claimant, but also considerable cost to public funds.
Another case which comes to mind (although it is not a case from Richmond) relates to somebody who was disentitled to benefit and who was illiterate. He had been required to attend a scheme, but his reader, who read his post for him, happened to be away, so he did not know what the letter said until too late, but he lost his benefit none the less. That is the sort of case in which there might be some cause for allowing appeals to go forward at a later date.
The Richmond cases also include the chronic schizophrenic who had a deep paranoid suspicion of other people. If one has dealt with any such cases, one understands—
§ Lord Williams of Elvel
We have had two interventions from the Liberal Democrat Front Bench. Are both spokesmen from the Liberal Democrat Front Bench speaking for the Liberal Democrat Party or are they speaking individually?
§ Earl Russell
We are both speaking for the party and we are amplifying the same case. I am making points entirely in support of what my noble friend said. It is a procedure which I have seen used before, and many times, by the Front Benches of all parties. I recall during the Jobseekers Bill that the noble Lord's Front Bench had three Members of your Lordships' House taking part, all amplifying each other's arguments and at much greater length than is happening now—and they did a 418 great deal of good, if I may say so. However, if the noble Lord thinks that I should not develop the case further, I shall not spend too long on it.
If one tries to approach a paranoid schizophrenic to get him to pay urgent attention to business, one is lucky if one escapes with nothing worse than a flea in one's ear. Those are the sort of cases where the one-month limit is liable to do gross injustice. I hope that the Minister will think seriously about it.
§ Lord Borrie
Perhaps I may first apologise to the noble Lord, Lord Goodhart, for calling him the noble Earl in the course of our discussion on the previous amendment—
§ Lord Goodhart
If the noble Lord will excuse me, perhaps he should be apologising to my noble friend.
I apologise to both, on the same Front Bench. If the Government accept a point that I sought to make on the previous amendment (that those who are legally entitled to benefit should have a reasonable opportunity to claim and to appeal in order to obtain that benefit), surely they will agree that unreasonable hurdles should not be put in their way.
One is entitled to ask whether imposing a time limit of normally one month is an unreasonable hurdle. We have heard examples—I can cap them with similar instances—of the great difficulty faced by claimants in obtaining the advice that they very much need, especially because of the kind of people they are and the technicality and detail of social security regulations. It is not a matter of being able to obtain an appointment with an adviser tomorrow or even next week. Before one knows it the month has gone.
I believe that there is a case for saying that a one-month limit is an unreasonable hurdle. The Government may say that most people manage, as they do, to make an application, claim and appeal within one month, but surely that should be not used as an argument for saying that one month should be the imposed upper limit. That is quite a different matter. One can ask the Government why, if most people manage to appeal within a month, they worry that some will require a rather longer period. If they accept, as they must, that there are cases, admittedly a minority, in which people find it difficult to get suitable advice within a period of four weeks, surely the Government would be willing to extend the present time limit.
§ Lord Hardy of Wath
I echo the point that has just been made by my noble friend. In the light of my experience in the other place, I recognise the value of the services provided by citizens advice bureaux and other organisations of that kind. Members of another place are frequently involved in such cases. I held surgeries every two weeks. If a person felt it appropriate to see me, in some cases a fortnight might have elapsed before that could be arranged. The individual might ask whether I thought it worth while to appeal or whether I could assist in that appeal. If a Member of the other place received individuals of that kind, the case might be quite complicated. He might require a few days to 419 look into the matter, in which case the best part of a month would have gone by. That would not leave the constituent with very much time in which to pursue his appeal. I believe that the case that has been advanced by my noble friend deserves consideration; indeed, such a case might have been echoed in the other place a little while ago.
§ 5.45 p.m.
§ Lord Hardie
I am grateful to noble Lords for their contributions to this amendment. I make special mention of my namesake my noble friend Lord Hardy. I am reluctant to disagree with my namesake, but I regret that on this occasion I may have to do so. This amendment seeks to ensure that the time limit for appealing which will be set in regulations is not less than three months. The amendment also provides that the chairman is the person who decides whether there is a reasonable excuse for not bringing the appeal before the expiry of the time limit.
The Government intend to make regulations setting a time limit of one month in which an appeal can be made, as the noble Lord, Lord Goodhart, has indicated. The Government believe that that strikes a reasonable balance between giving an appellant sufficient time in which to consider the appeal and ensuring that there are no undue delays. I accept that there are disadvantaged people who, by virtue of their situation, may well require a longer period than the more fortunate among us. However, what has been overlooked inadvertently in this amendment is that a dispute period is to be introduced.
To take the first example that has been cited relating to Richmond citizens advice bureau—the person who was housebound and required a home visit—as I understand it, the bureau said that it might be two or three weeks before it could arrange such a visit. That assumed that the recipient of the letter got in touch immediately. With the one-month dispute period, if the recipient got in touch before the end of that period, advantage could be taken of that time to enable a question to be raised as to the correctness of the decision. The appeal period would run from that point. The one-month period taking into account the dispute period will reduce what is now effectively a three-month period to a two-month period.
If the time limit for appeal was longer than two months, the Government believe that it would reduce the incentive for claimants to act quickly in order to have mistakes put right. The shorter time limit will ensure that decisions are revisited while the facts are still fresh. We believe that one month strikes the right balance. That is illustrated by the fact that, as has been observed, at present most claimants appeal within one month. I accept the point raised by my noble friend Lord Borne that that is not a complete answer to the amendment, but it is an indication that the majority of people manage to mark an appeal within a month, and if a dispute period is introduced claimants will have a two-month period in which to raise issues. Moreover, it is in line with child support appeals. The current limit for appeals in respect of child support is 28 days. Our proposals will make the provision for appeals relating to 420 benefits and child support more similar to each other and easier for appellants to understand. We believe that if there are different time limits for different benefits there is a greater risk of confusion.
This amendment would require the regulations to give discretion for a legally qualified chairman to accept a late appeal where he considered that the person had reasonable excuse for not bringing the appeal within the time limit. Current legislation makes provision in regulations which allows late appeals to be brought where there are special circumstances, as the noble Earl, Lord Russell, has observed. I hope that the Committee is reassured if I say that there will be similar arrangements in future. As has been pointed out by the noble Lord, Lord Higgins, my noble friend the Minister said at Second Reading that while most claimants appealed within a month, the Government wanted to ensure that they got the provision for late appeals right. It is important that if one has a system people have access to it and have a proper opportunity.
§ Earl Russell
I am grateful to the noble and learned Lord for allowing me to intervene. I listen to what he says with great interest. If he provides for a series of grounds for late appeal, will he consider the case for including one ground for unforeseen circumstances? One cannot foresee all the reasonable exceptions in advance.
§ Lord Hardie
I accept the noble Earl's comment. I go on to say that for the future we will discuss the details of the new arrangements with interested parties, including representatives of claimants and welfare rights organisations, through the ad hoc group that we have set up to consider draft regulations and new procedures. I am sure that that very point will be one that such organisations will draw to the attention of the Minister who deals with the regulations, if that does not already feature in them. However, we do not believe it necessary in every case for the chairman to make the decision on whether to allow a late appeal. That is unnecessarily restrictive and will be an obstacle to our efforts to establish an efficient service for appellants which makes optimum use of the expertise of panel members.
There will be occasions when such decisions can be taken by a clerk. Allowing clerks to deal with straightforward cases means that panel members could focus upon those cases which require their expertise; for example, in current regulations there is an absolute time limit of six years for making a late appeal. Any appeal after that period cannot be disposed of by a clerk under the current system. There is no prospect of such an appeal being competent, and that would be the type of thing which a clerk should be able to do in future. I hope that with the explanations I have given the noble Lord will consider withdrawing the amendment.
§ Lord Goodhart
I listened with attention to what the noble and learned Lord said. The main problem with which I am left is the limited discretion which at present is given to extend the time for appealing. If it is to be reduced to one month or, if one takes into account the 421 dispute period, two months, that increases the importance of giving a general discretion whenever there is a reasonable excuse.
We do not want to see similar arrangements, because they are unduly restrictive as they have been interpreted. The present rules make it extraordinarily difficult to get leave to appeal out of time. We want something considerably less restrictive than are the present rules.
I accept that the person giving the leave should not necessarily be the chairman of the tribunal, though it should probably be a member of the panel. I doubt whether it should be a matter for the clerk, as the clerk, if refusing leave to appeal in a case where there is some element of discretion, is effectively debarring the appellant from access to the next stage in the system of justice. That is not a decision that it is proper for the clerk to take.
I shall take this matter away and read what the noble and learned Lord has said. I shall be interested to hear any further comments that the voluntary organisations may wish to make on what the noble and learned Lord has said today. For today, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No.47 not moved.]
§ Lord Goodhart
moved Amendment No. 48:Page 8, line 17, at end insert—("( ) In deciding an appeal under this section, an appeal tribunal shall consider any issue relating to the benefit in question which is raised by the evidence before it, irrespective of whether the person bringing the appeal has himself raised it.").The noble Lord said: Amendment No. 48 is grouped with Amendment No. 49. They are very much of a pair, although in Amendment No. 49 the lead name to the amendment is that of the noble and learned Lord, Lord Archer of Sandwell. It is one that the noble Lord, Lord Higgins, and I have also signed.
The present position under Clause 13(7) is:In deciding an appeal under this section, an appeal tribunal—Amendment No. 49 deletes that and restores the status quo.
- (a) need not consider any issue that is not raised by the appeal; and
- (b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made".
Amendment No. 48 replaces subsection (7)(a) by a subsection which provides:In deciding an appeal under this section, an appeal tribunal shall consider any issue relating to the benefit in question which is raised by the evidence before it, irrespective of whether the person bringing the appeal has himself raised it".It is arguable that Amendment No. 48 is not strictly necessary, because the effect of the deletion under Amendment No. 49 would be to maintain the status quo which Clause 13(7)(a) seeks to alter.
Tribunals are of course currently supposed to be inquisitorial and to inquire into all issues arising out of the evidence, not merely to confine themselves to those issues which have been raised or argued by the parties.
422 It is not necessary, and should not be necessary, for a tribunal to trawl through the case for issues that are unlikely to arise, but where it has reason to believe that an issue may arise, surely the tribunal should look into it. It is, after all, usually dealing with claimants in person who are not familiar with regulations and who are often unable to analyse their own technical problems. Tribunals will have power to look at the issues raised on appeal, but Clause 13(7) appears to be intended to dissuade them from doing so by relieving them of that necessity and giving an indication that they are not supposed to go outside the parameters of the arguments that have been presented to them.
However, in fact the position is that tribunals should be under a duty to look at all the issues raised on the evidence, whether raised by the appellant or not. Clause 13(7)(b) raises a different point which is, as I have said, whether the tribunal can look not only at issues not raised by the appeal but take into account a change of circumstances. That is not raised by Amendment No. 48. It might therefore be more appropriate if it were dealt with by the noble and learned Lord, Lord Sandwell, because it is covered by Amendment No. 49 in his name. I beg to move.
§ Lord Archer of Sandwell
As the noble Lord said, Amendment No. 49 is somewhat more radical than his moderate Amendment No. 48. Amendment No. 48 would mitigate the effects of this subsection; my amendment would abolish it.
The subsection, as the noble Lord said, makes two separate provisions. First, it absolves the tribunal from considering any issue:not raised by the appeal".I am not wholly clear what that means. Does it mean not raised in the letter of appeal; does it mean not raised by the appellant or on his behalf at the hearing; or does it mean not required to be determined in order to ensure a just outcome of the appeal? Merely as a matter of drafting, that needs to be clarified or, I venture to prophesy, it may give rise to endless problems in adjudicating, and ultimately to long and costly litigation. I do not normally spend a great deal of time trying to prevent the legal profession from making an honest living, but on this occasion it would be better if it were looked at again.
Let us assume in broad terms that the provision means, "If you want the tribunal to consider a question, however relevant to entitlement or the calculation of benefit, you must research and raise it yourself". I shall return to that provision in a moment.
Secondly, and separately, the subsection at present provides that the tribunal is concerned to review the original decision only in the circumstances then obtaining. If there is a change of circumstances, the claimant must go back and make a new claim, and the process has to begin all over again. As the noble Lord, Lord Goodhart, said, those provisions are independent one of the other. Ideally, they might have been debated together, but I fear that I have precluded the Committee from taking that course by the form of my amendment.
423 Perhaps I may follow some of the arguments used by the noble Lord, Lord Goodhart, in relation to the first provision. It has been well stated by the Child Poverty Action Group that the present function of the tribunal is, in a sense, inquisitorial as opposed to the adversarial approach which is normal in most of our traditional courts and tribunals. It is under a duty to satisfy itself what is a just and lawful outcome of the appeal and it is not confined to the arguments of the parties.
That is important because many—probably most—of the claimants who appear before the tribunals are not expert in the relevant regulations and, for whatever reasons, frequently do not take expert advice. They depend on the expertise of the tribunal. I agree with the noble Lord that everyone must use common sense. The tribunal cannot spend hours exploring every point which might have been overlooked. Conversely, whatever the provision in the statute, if the tribunal discovers a possible issue which has been overlooked, no doubt it will endeavour to address it. I believe that the provision as drafted sends an unfortunate signal. I should he grateful if my noble and learned friend could look at it and I await with interest his explanation why it was thought necessary to include it.
The second provision is more specific and it will change what has become a practice in the independent tribunal service. Without any statutory provision, but by decisions of the social security commissioners, tribunals have acquired the power to look at all the circumstances prevailing at the time when the appeal is heard. Therefore, a tribunal could make a fresh decision and it would not be restricted to pursuing an issue which may by then have become outdated.
A problem arose with the introduction of incapacity benefit. That benefit depends on what an applicant can or cannot do at the time when the doctor applies the test based simply on a list of function descriptors. Sometimes a person's capacity or incapacity to perform a particular physical function may change from day to day. All of us, with aches and pains which accumulate as we grow older, have our good days and bad days. But the functioning of those who have a serious clinical handicap may change from day to day. Sometimes the tribunal members will say to an appellant, "The test does not refer to trouble with walking, but you were limping when you came in. May we ask you a few questions about that?". There may be no reference to any mental disability, but at the hearing it may become clear that there is some mental disturbance.
The tribunal members may not have the necessary medical qualifications to administer the all-work test. Tribunals were reluctant to adjudicate on circumstances which have arisen since the test was applied. That practice was considered last year by a tribunal of commissioners. It ruled that tribunals should consider the circumstances at the date of hearing. Admittedly, that led to difficulties because tribunals frequently found themselves adjourning cases for further medical evidence. It may be that the provision in Clause 13(7)(b) is intended to deal with the difficulty relating to incapacity benefit. I hope that my noble and learned friend will be able to address the issue.
424 Judge Bassingthwaighte, in his memorandum, comments that he supports the provision in relation to incapacity benefit for the reasons that I have endeavoured to indicate, but he sees no necessity for it in relation to the other range of benefits. In particular, the child support appeal tribunals, which operate less as a procedure for adjudication but more as what Professor Whiteley recently described as "being in the business of dispute processing", frequently hear appeals precisely because there has been a change of circumstance.
The Child Poverty Action Group, which has great experience in this area, believes that it would be quicker and more economical to permit tribunals to dispose of the whole case and it would subject claimants to fewer delays and hardships. I will listen to what my noble and learned friend says in explanation; but my initial reaction is that that provision attracts all the disadvantages and none of the advantages. In due course, I propose to move it.
§ Lord Higgins
I am not sure whether we are having another intervention from the Liberal Democrat Front Bench in the light of the intervention from the Labour Back-Benches. The noble Lord is no longer in his place. In the light of our discussions last night on Gilbert and Sullivan, I was reminded of the traditional performance of "The Gondoliers".
I believe that the amendment proposed by the noble and learned Lord, Lord Archer, to which I have added my name, is preferable. Two points arise in relation to Clause 13(7). As regards paragraph (a), I cannot help believing that the draftsman was having a bad day. I believe that no harm would he done by leaving it out and that the draftsman was merely thinking of something to say. As regards paragraph (b), the noble and learned Lord appeals to his great experience of these issues and it appears to be positively objectionable. Since the objective of all Members of the Committee is to improve the Bill, it would be, from the point of view of those affected by the legislation, if not a great matter an advantage not to have the restriction in the Bill. As the noble and learned Lord, Lord Archer, said, looking at the matter practically, the restriction that it would impose is objectionable. I hope that the Minister, whatever his brief may say, will have listened to the debates and decided to leave out Clause 13(7)(a) and (b) so that we can make rapid progress.
§ Lord Hardie
I am always keen to make rapid progress and I assure Members of the Committee that I always listen to the debates. I hope that that was illustrated on Monday. Clause 13(7) requires tribunals to concentrate on a decision which has been appealed against and enables them to focus their attention on the issue or issues which are in dispute or the issues which are irrelevant. I say to my noble and learned friend Lord Archer that the interpretation of paragraph (a) is the third option. I will explain that in a few minutes.
The group of amendments seeks to nullify the focus which we are seeking to direct. I wish to explain to the Committee why we believe that the focus is essential. As regards Amendment No. 48, the purpose of the 425 provision in Clause 13(7)(a) is to clarify the proper role of the appeal tribunal which has become obscured by contradictory case law. The noble Lord, Lord Goodhart, referred to the commissioners' decisions. During the years, some commissioners have ruled that the tribunal must reconsider every aspect of the appeal decision, even those aspects which are not in dispute. Other commissioners have taken a different view.
The provision in Clause 13(7)(a) seeks to address that problem by making it clear that the tribunal's function is to focus its attention on the issues in dispute. That will avoid the uncertainty which currently exists and enable the preparation of papers for tribunals and hearings to be dealt with more speedily. We believe that claimants want a fair, quick and accessible service and that our proposals achieve that.
Amendment No. 48 places an obligation on the tribunal to reopen the whole decision before it. However, it is important for the tribunal to make a judgment on whether issues are relevant to the appeal decision, otherwise it may become bogged down in hearing aspects of the case which are not in dispute. That runs completely contrary to our aim.
Of course, we fully recognise—and this is the point which I made at the beginning to my noble and learned friend Lord Archer—that there will be times when, in the conduct of a hearing, the tribunal becomes aware of issues which are relevant and which should be considered, even though they did not form the basis of the appeal. I wish to assure Members of the Committee that that clause as it stands does not prevent the tribunal looking at any other issue. Rather, it gives the tribunal a discretion to do so when it considers it to be appropriate.
Amendment No. 49 seeks to delete subsection (7). I had intended to deal with that in more detail when we reached Amendment No. 50 in the name of the noble Earl. However, it may be appropriate to say something at this stage and perhaps refer back later to what I said.
It is important for the tribunal to focus on the circumstances which pertain at the time at which the decision being appealed against was taken—not on changes which have happened during the intervening period and which should be dealt with by the first tier of decision-makers; namely, the agency. In the new system, the Secretary of State will make all first-instance decisions and the function of the tribunal will be to decide appeals on those decisions. Focusing the tribunal on the claimant's concerns—that is, on the issues in dispute—will enable the tribunal to determine the issue which was before the Secretary of State. It will ensure that rights of appeal are not lost.
For a number of reasons we do not believe that the tribunal should undertake the function of the first-instance decision-maker. First, in taking a first-instance decision, there may be a complex sequence of events and facts which cannot properly be exposed at a tribunal hearing.
Well intentioned though it is that tribunals should consider events which have occurred since the decision, I cannot support such a proposal. It is the function of tribunals to look afresh at a disputed decision, not to 426 take over the role of an initial decision-maker. If the claimant's circumstances change while he is waiting for the appeal to be heard, he should notify the relevant agency; he could put in a new claim for benefit or ask for the existing award to be changed. That would be quicker for the claimant; would achieve a result much more quickly than waiting for the tribunal to determine the issue; and it would be more cost-effective if the agency dealt with those changes, and may well take some appeals out of the system.
In addition, by allowing tribunals to make initial decisions in respect of a change of circumstance that has occurred between the decision and the hearing, the amendment would have the effect of limiting the claimant's rights. I appreciate that that is quite contrary to what Members of the Committee wish to achieve. That is because where claimants may appeal to a tribunal about decisions of the agency on facts and law, appeals against decisions by the tribunal would have to go to commissioners and the only ground of appeal then is on law. Therefore, if the tribunal gets the facts wrong, there is no appeal on that matter whereas by going back to the agency, if the agency gets the facts wrong, the tribunal can readdress those facts and correct any error of fact.
For those reasons, I respectfully submit that this group of amendments would delay the handling of appeals. Members of the Committee would be aware that the current backlog of appeals exceeds six months and is increasing. The amendments would also make the service less accessible to claimants. The overall effect would be to load tribunals with inappropriate and unnecessary burdens so that fewer appeals are cleared at each session; backlogs and delays are likely to increase; and costs will rise. That would work against our aim to create an efficient and effective appeals system. In those circumstances, I invite the noble Lord to withdraw the amendment.
§ 6.15 p.m.
§ Lord Archer of Sandwell
It may be for the convenience of the Committee, if, before the noble Lord concludes the debate and withdraws the amendment, I say a few words about my amendment and then the Committee will not be troubled with it at a later stage.
I am most grateful to my noble and learned friend for his very careful reply. In relation to the first provision in subsection (7)(a), I was rather surprised when he said that of the three possible constructions which I put forward, it was the third which is really meant. First, it is not obvious from the words which are used and it may be that the draftsman will wish to consider that. But if that is what is intended, I cannot understand why it is necessary to say it. What tribunal in its right mind will consider an issue which is not necessary to the proper and just determination of the appeal which it is considering? My noble and learned friend may wish to reflect further on that.
As regards the provision in subsection (7)(b), I say this not at all by way of criticism because I know that there must be discussions on the Front Bench as the Committee stage proceeds, but I gained the impression 427 that my noble and learned friend did not have his attention on what I was saying throughout the whole of the time that I was saying it.
Some of the things which he said, I should reflect upon. I shall do a deal with my noble and learned friend. I shall read carefully what he said if he will read carefully what I said.
§ Lord Goodhart
I rise to speak finally to Amendment No. 48. The noble and learned Lord the Lord Advocate said that one of the purposes of Clause 13(7)(a) was to clarify the situation because of existing conflicting decisions. I make two remarks about that. First, I believe that it has been clarified the wrong way by moving away from the current jurisprudence which indicates that the tribunal should adopt an inquisitorial role. Secondly, the situation has not been clarified at all because the Bill provides that the tribunal need not consider any issue which is not raised by the appeal. That means that it will have a discretion whether or not to consider such an issue. That discretion must be exercised judicially. There will no doubt have to be litigation to decide whether or not the tribunal has exercised its discretion judicially. Therefore, we have gone round in a circle and ended up back where we started. The tribunals do not have guidance from this clause about what they can and cannot do.
However, I shall ask leave to withdraw the amendment if only because, like the noble Lord, Lord Higgins, the amendment moved by the noble and learned Lord, Lord Archer, is preferable to the one which I moved.
Amendment, by leave, withdrawn.
§ [Amendment No. 49 not moved.]
§ Earl Russell
moved Amendment No. 50:Page 8, line 19, leave out from ("appeal") to end of line 21 and insert—("(8) In deciding an appeal under this section, an appeal tribunal shall also consider whether the person concerned was entitled to the benefit in question during any part of the period between the decision against which the appeal has been brought and the determination of the appeal.").The noble Earl said: This is another fall-back in case the amendment of the noble and learned Lord, Lord Archer of Sandwell, should not prevail at a later stage. I agree entirely with what my noble friend said about that amendment.
I have come to think of this amendment as the Sierra Leone amendment, and I shall attempt to explain why. The purport of Amendment No. 50 is that it provides that a tribunal shall consider whether the person was entitled to the benefit in question during part of the period between the decision and the appeal. It therefore overrides the ban in Clause 13(7)(b) on taking into accountany circumstances not obtaining at the time when the decision appealed against was made".Let us assume that an asylum seeker from Sierra Leone says that he attempted to apply for benefit at the port of entry but was unable to make himself understood and was sent on his way out of the airport. They say 428 that he made no attempt to apply. The tribunal spends a great deal of time trying to disentangle the story and suspects, although it is not certain, that the problem was essentially a failure in communication. However, since that asylum seeker arrived in this country, the Home Secretary has declared Sierra Leone to be a country in a state of upheaval. Therefore, he has been entitled to benefit from the time of his arrival whether or not he claimed that right at the port of entry. Nevertheless, by the time the case comes to be heard, Sierra Leone has ceased to be a country in a state of upheaval and the previous entitlement has disappeared.
Under my amendment, the tribunal would he able to find in such a case that the claimant was entitled to benefit during the period when Sierra Leone was in a state of upheaval, regardless of how the original issue was settled. If the Government's view of the matter prevails, it seems to me that three consequences would follow. First, a person with a genuine entitlement to benefit would not get it; that is one undesirable effect. Secondly, the tribunal would have to give a decision which it knows to be unjust; that I regard as a second undesirable effect. Thirdly, yet another appeal would be generated; that I regard as a third undesirable effect.
I listened with care to the noble and learned Lord the Lord Advocate. In effect, he said that the procedure that we are proposing and recommending offends against the canons of administrative tidiness. So it does; that is precisely why we are recommending it. I can understand why bureaucrats in any century may wish to take refuge behind the fortresses of bureaucratic procedure against the rising tide of untidiness in the world outside. Indeed, they have always done so.
However, social security is an essentially untidy subject. We are dealing all the time with a collection of the world's misfits. The world's misfits, often in very fascinating and sympathetic ways, are thoroughly individual and totally unpredictable. They simply do not fit into categories. So if one spends all one's time trying to force social security into a mould of total administrative tidiness, one will end up very unhappy and disappointed. It would be much better to recognise the reality of the situation and take a decision which, even if it were a little untidy procedurally, would nevertheless be just; would enable justice to be done; and, just for an uncovenanted bonus, would save public funds. I beg to move.
§ Lord Hardie
I dealt with this amendment when speaking to the two previous amendments on the Marshalled List. I trust that the noble Earl will not think me discourteous if I do not repeat what I said. Under the explanation that I gave previously, the answer to the Sierra Leone problem would be for the immigrant to go back to the agency in between the first application and the date of the appeal. At that time, the agency would reassess his circumstances and, if entitled, would grant him benefit.
The other point that I should make is that the agency and its staff will be instructed to reconsider cases when they are at appeal. If it is obvious from the papers that there has been a change in circumstances—as there would be in the Sierra Leone case—it would be for the 429 agency to draw the fact to the attention of the claimant and encourage him to submit a fresh claim to enable him to receive benefit at the earliest opportunity. I appreciate that that will involve a continuing training programme for the agency staff. That should ensure that they take the initiative and encourage claimants to reapply when it appears that they ought to do so. With that explanation, together with the one I gave previously, I hope that the noble Earl will feel able to withdraw his amendment.
§ Earl Russell
I thank the noble and learned Lord for his reply. Of course, I entirely understand why he did not repeat all that he said before, and I did not expect him to do so. I was interested in the noble and learned Lord's remarks about the Sierra Leone case. However, I see two disadvantages in that response. First, he is creating a need to make a second claim where before it could perhaps have been disposed of all in one case. Indeed, that may multiply work. Secondly, it is not necessarily a valid assumption that every asylum seeker from Sierra Leone knows that it has been declared a country of upheaval. That fact was not widely publicised in press reports and not every asylum seeker without benefit is able to buy and read newspapers on a regular basis; indeed, not all of them have the ability to do so.
In social security law, the maxim that ignorance of the law is no excuse really does not have very much place because many of these people are not in a position to have a proper understanding. I quite understand that the noble and learned Lord is concerned for the tidiness of the claiming procedure. But if the material simply does not fit into the categories that he has designed for it, the result will end up looking rather like my desk. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Lord Hardie
moved Amendment No. 51:Page 8, line 21, at end insert—("( ) The reference in subsection (1) above to a decision under section 11 above is a reference to a decision superseding any such decision as is mentioned in paragraph (a) or (b) of subsection (1) of that section.").The noble and learned Lord said: In bringing forward this technical amendment we are seeking to clarify which applications made under Clause 11 will attract a right of appeal under Clause 13. As noble Lords will be aware, under our new proposals decisions of the Secretary of State will either be revised or superseded depending generally upon the timing of the application. Where an application is made to revise the Secretary of State's decision within one month after that decision is made, it will be revised under Clause 10. Once that period has ended, cases will be superseded under Clause 11 only where the application is made for specified reasons—such as ignorance of or a mistake as to a material fact, an error of law on the original decision or where there has been a relevant change of circumstances.
Where an application for supersession has no prospect of success—that is, where it is clear that there has been no relevant change in the claimant's circumstances—the 430 Secretary of State will not act on the application. The decision not to act will not be a decision under Clause 11. Therefore, it will not fall within Clause 13(1) and will not attract appeal rights. Of course, if the Secretary of State gets it wrong in refusing to entertain the application, there would be a remedy by way of judicial review.
That approach should be seen in the context of creating a modernised social security system which will allow customers to exercise their rights more effectively. If the Secretary of State has to deal formally with nugatory applications this must affect her ability to operate processes effectively. Moreover, if we were to offer appeal rights on applications which could not succeed, then more nugatory work would be created for the new appeal service, causing delays to claimants who had a justifiable case.
I have explained when appeal rights will not be offered. I will now briefly explain when they will be offered under Clause 11. Appeal rights will be granted where the Secretary of State acts on an application. This will include those circumstances when the amount of the award is not changed; in other words, by acting, the Secretary of State decides that there should be no change. It may seem odd to describe a decision as superseded where there is no change. However, that will be the case. A decision will be superseded every time that the Secretary of State issues a benefit decision in response to an application. That will be a new outcome decision which will attract appeal rights and a period of one month in which to appeal.
While our intention with the new dispute process is to encourage claimants to take responsibility for exercising their rights promptly, we also want them to do so in a meaningful way. The amendment ensures that the legislation supports that intent. I beg to move.
On Question, amendment agreed to.
Clause 13, as amended, agreed to.
§ [Amendment No. 52 not moved.]
§ Schedule 2 [Decisions against which no appeal lies]:
§ [Amendment No. 53 not moved.]
§ 6.30 p.m.
§ Lord Hardie
had given notice of his intention to move Amendment No. 53A:Page 56, line 34, at end insert—("Reduction in accordance with reduced benefit directionA decision to reduce the amount of a person's benefit in accordance with a reduced benefit direction (within the meaning of section 46 of the Child Support Act).").The noble and learned Lord said: This group of amendments comprises Amendments Nos. 53A, 141A. 142A, 146A, 146B, 147B, 147D, 147F, 147H, 147L and 156A. This group commences with Amendment No. 53A which is a late amendment. In view of representations made to me by the noble Earl, Lord Russell, about this late amendment and concerns that he has about it, it would not be appropriate for me to move it or this group at this stage. Having said that, it is my intention to address the issues raised by these 431 amendments at Report stage after further discussion with noble Lords opposite. Therefore I shall not move the amendment.
§ [Amendment No. 53A not moved.]
§ [Amendment No. 54 not moved.]
§ Schedule 2 agreed to.
§ Schedule 3 [Decisions against which an appeal lies]:
§ Lord Haskel
moved Amendment No. 55:Page 58, line 31, at end insert—("Liability of directors etc. for company's contributionsSubject to the provisions of section 121 D of the Administration Act, a decision as to the issue and content of a notice under section 121C(2) of that Act.").The noble Lord said: I spoke to this amendment on Monday. I beg to move.
§ Lord Higgins
I intervene at this point with some trepidation because I realise the matter has already been debated, although the situation remains somewhat confused after the response which we have had to a number of points which were raised. I intervene because I am anxious that the Bill should be improved. The objectives which the Government set out at an earlier stage are ones which we entirely support. However, we have grave doubts about the method of doing it.
There is a problem because we have already passed what one might call a paving amendment. If we also accept this amendment it may still be possible, in the light of the substance of the issue, to improve the matter by amendment at later stages. However, Amendment No. 100 runs to some three pages and embodies a method of dealing with this problem which seems to me to have wide repercussions, for example, for the Department of Trade and Industry. I fear that if we accept that amendment it would be difficult to claw back the situation. Indeed we may have to rely on another place to do that.
I think we can probably get away with accepting this amendment—if I may use that expression—but between now and reaching Amendment No. 100 we need to consider whether we want to include the other amendment in the Bill or whether it would be more appropriate to return to it at Report and not accept that amendment at this Committee stage. That still rather leaves the earlier one hanging in the air, but not wholly because to some extent it deals with the main substance of the Bill rather than the issue we are discussing.
§ Baroness Hollis of Heigham
With the best will in the world, I do not see how we can meet the noble Lord's request. When my noble friend moved Amendment No. 11—I believe that was the number of the amendment—he made it clear that that amendment, together with Amendment No. 55, was, so to speak, a semi-paving amendment on the substantive amendment, which is Amendment No. 100. In other words, they were consequentially linked, not just grouped together. If the noble Lord intended to air those concerns, he ought to have aired them when we discussed Amendment No. 11. At that point it was clear that we were discussing the 432 substantive issue. We were led to believe that the Official Opposition understood, accepted and went with—if I may put it that way—the substantive amendment. We would now experience some difficulty, therefore, in following the path suggested by the noble Lord, which is to retain the paving amendments but not to accept the substantive amendment.
I am willing to discuss this matter outside the Chamber, but my advice to the noble Lord—unless any other way forward is proposed—is that he should accept this amendment and also Amendment No. 100 but return to the matter on Report. There is also Third Reading. There are two further stages at which we can return to this matter. If the noble Lord then feels there is a preferable way forward, which commands the assent of the Chamber at Report stage, it would still be open to us to strike out Amendment No. 100 at Third Reading. That may be the better way of doing it. I do not think we can leave paving amendments floating without the substantive amendment, given that we have already debated the substantive issue.
§ Lord Goodhart
Before the noble Baroness sits down, I wish to reinforce what the noble Lord, Lord Higgins, has said. We are not asking for this provision to be dropped. We are merely asking for it not to be moved at this stage so that it can be brought back at Report. There are serious problems here. Amendment No. 100 causes grave problems as regards the procedure which is proposed for what we agree is a perfectly legitimate aim. Amendment No. 100 can be dealt with by means of an amendment to that amendment. However, there are great difficulties as regards the amendment we are discussing; in fact there are rather more serious problems with this amendment. If Amendment No. 100 is to be put into proper shape, I believe it is essential to place the system of appeals altogether outside the system of social security appeals, which is what Schedule 3 is concerned with. That would mean that Amendment No. 55 would simply not be amendable because it would have to disappear. There would be no other way of dealing with it.
§ Baroness Hollis of Heigham
I believe the noble Lord, Lord Goodhart, is making this matter unnecessarily complicated. Amendment No. 100 has already been debated as part of the debate on Amendment No. 11. That was the Committee's choice and that was what we did. Therefore I do not believe that we can defer the other two amendments to some later stage, keeping the paving amendments floating in the Bill; that is, make a break between the two stages. The right way to deal with this is to accept the judgment of the Committee on Amendment No. 11 and the subsequent amendments and, if the Chamber so desires, return to the matter at Report stage. That is the appropriate way of proceeding. As I said, we still have Third Reading if we need to do any subsequent tidying up, should the Chamber change the substantive amendment.
As regards the issue that the noble Lord, Lord Higgins, mentioned, we shall be happy to discuss this with him outside the Chamber, as we shall do with 433 the national insurance issues. My understanding is that the DTI was consulted on the matter and raised no objections to it. The policy reasons for the noble Lord wishing to defer this matter may be groundless. That would be good news if it were the case. I suggest that the Committee accepts that this matter has already been debated. In that sense it has already been accepted and will be included in the Bill. However, if the Chamber is unhappy about that, noble Lords can return to the matter on Report and table an amendment to what will then be the revised Bill.
§ Lord Higgins
I certainly accept that the matter has been debated. It will be quite clear from that debate that neither this side of the Chamber nor those on the Liberal Benches were happy about it. I intervened at this stage because it seems to me that when we reach Amendment No. 100 we shall run into problems. However, given what the noble Baroness has said, let that be the case. We shall have to try to sort out the mess later.
On Question, amendment agreed to.
Schedule 3, as amended, agreed to.
Clause 42 [Child support: appeals to appeal tribunals]:
§ Lord Hardie
moved Amendment No. 56:Page 27, line 5, at end insert ("against the refusal").The noble and learned Lord said: In moving this amendment, I shall speak to Amendments Nos. 57 to 61 and Amendment No. 141.
Amendments Nos. 56 to 58 tighten the drafting of Clause 42 and clarify which child support decisions are appealable.
As presently drafted, Clause 42 gives the circumstances under which a right of appeal relating to child support exists. However, the clause does not state explicitly which decisions can be appealed. These amendments address this issue.
The decisions which can be appealed under the amended clause will be the same as at present; namely, a refusal to make a maintenance assessment; the amount and effective date of a maintenance assessment; the cancellation of a maintenance assessment; and the refusal to cancel a maintenance assessment. This amendment does not remove any appeal rights currently held by child support clients. It merely clarifies which decisions can be appealed against.
Amendment No. 59A removes a restriction on what a tribunal can do when it allows an appeal. In contrast to existing child support appeal rules, we want tribunals to be able to determine the outcome of an appeal—where appropriate—when they allow an appeal. This amendment achieves this by removing a limitation in the Bill as drafted.
Amendments Nos. 59, 60, 61 and 141 make minor drafting changes in respect of child support appeals. If Members of the Committee wish clarification of the amendments, I can explain them in more detail. I beg to move.
On Question, amendment agreed to.
§ Lord Hardie
moved Amendments Nos. 57 to 61:Page 27, line 12, at end insert ("against the amount of the assessment or the date from which the assessment takes effect").Page 27, line 22, at end insert ("against the cancellation or refusal").Page 27, line 24, leave out from ("of") to ("as") in line 25 and insert ("that right and, in the case of a right conferred by subsection (1) or (3), such notice of the decision").Page 27, leave out lines 26 to 30.Page 27, line 32, at end insert ("and(b) such provision with respect to proceedings before appeal tribunals as the Secretary of State considers appropriate.( ) The regulations may in particular make any provision of a kind mentioned in Schedule 5 to the Social Security Act 1998.").Page 27, line 38, after ("decision") insert ("or assessment").On Question, amendments agreed to.
Clause 42, as amended, agreed to.
Clause 14 [Redetermination etc. of appeals by tribunal]:
§ 6.45 p.m.
§ Lord Goodhart
moved Amendment No. 62:Page 8, line 33, leave out ("shall") and insert ("may").The noble Lord said: Since I put down this simple and limited amendment, I have considered Clause 14 rather more closely, as perhaps I should have done earlier. It seems to me—I hope that the Committee will excuse my raising this point—that the real issue is whether Clause 14 should be in the Bill.
I am distinctly puzzled by the clause. Clause 14(1) states:This section applies where an application is made to a person under section 15(10)(a) below for leave to appeal from a decision of an appeal tribunal".That links with Clause 15(10)(a) which states:No appeal lies under this section without the leave of the person who constituted, or was the chairman of, the tribunal when the decision was given or, in a prescribed case, the leave of such other person as may be prescribed".Clause 15(10) provides for the usual perfectly straightforward and acceptable requirement for leave to appeal in certain circumstances. Clause 14, in effect, is requiring in certain circumstances the person who is asked to give leave to remit it for determination by a different tribunal rather than giving leave. That will produce some very peculiar circumstances.
The person from whom leave is sought will normally be the tribunal chairman. The regulations may provide for someone else to do that no doubt if the chairman is not available. That person could be another member of the tribunal or perhaps someone else on the panel. Clause 14(2) will have a peculiar and awkward effect, if the person hearing the request for leave thinks that the appeal was wrongly decided. That may arise in two different cases. First, the person from whom leave was sought was a member of the tribunal that heard the case but was outvoted. Where a tribunal is divided on a question of law, there is a strong case for sending it up to the next level to be decided by the commissioner. But in this case, that cannot happen. If the person who is asked to give leave was in the minority, of course he will consider that the decision was erroneous. That goes 435 by definition. If he were in the minority, he must consider the decision erroneous. He is therefore not only entitled but hound under Clause 14 to send the matter back for redetermination.
Clause 14(2) states:If the person considers that the decision was erroneous in point of law, he shall set aside the decision and refer the case either for redetermination by the tribunal or for determination by a differently constituted tribunal".Let us say the chairman of the tribunal was outvoted. He wants to say, "It is an important and difficult case. I was in the minority. But I think the appropriate thing to do is to send it up for decision at the next level by the social security commissioner". He then has to say to the appellant, "But I cannot do that. I should like to; but because I consider the decision was erroneous, I have to send it back for redetermination".
Secondly, the person from whom leave is sought is what I might call an outsider—someone who was not a member of the tribunal that heard the case from which an appeal is sought. Occasionally it will be obvious that the tribunal made a mistake in law, perhaps by overlooking a specific regulation. That may happen more often if we have non-legally qualified chairmen, as we discussed the other day. But more commonly it will not be an obvious mistake, and the person from whom leave is sought will have to consider not only whether there is a point of law of sufficient difficulty and importance to justify the appeal, he will also have to say to himself, "Do I think that the tribunal got it wrong? If I do, I then have to send it back for redetermination and I cannot give leave to appeal".
That seems to lead to the suggestion that if at first sight he thinks that the tribunal got it wrong, he may even have to hear as full argument as may be available so that he can make up his own mind. Surely, if a person thinks that there is a point of law of difficulty and importance, he should be able to send it to the commissioner even if his own personal view is that the tribunal, or the majority of the tribunal, were wrong.
Clause 14(3) makes provision where the person from whom leave is sought thinks that the decision was right, but both the parties consider that the decision was wrong in law. If they think the decision was wrong in law and they agree on the reasons why it was wrong, there is a case for sending the case back. But, frankly, I believe that will happen rather rarely. More often, the parties will have different reasons for thinking that the decision was wrong. In those cases, surely again the person hearing the application for leave to appeal should be able to send the case to the commissioner and not back for another rehearing. What happens then if a new tribunal reaches the same view as the first? Does the case have to shuttle backwards and forwards between the tribunals?
I do not think that Clause 14 raises a point of principle. It simply introduces an ill thought-out form of procedure which is likely to stop cases going to the commissioner that should go, or require a second tribunal to examine matters again before they do go to the commissioner.
436 I would ask the Minister whether this matter might he reconsidered; there is a problem here. The Government might re-examine the drafting to try to see whether what is thought to be achieved by Clause 14 is in fact needed, and perhaps return to the matter on Report. I beg to move.
§ Lord Hardie
I accept that this clause introduces an entirely new provision and a new concept. The intention, again, is to speed up the process where an appeal tribunal has made an error in law by allowing the issue to be re-determined, either by the same tribunal or by a differently constituted tribunal.
At present, there is a right of appeal to social security commissioners or child support commissioners. This provision would not do away with that right of appeal, but it may dispense with the need to go to the commissioners in certain circumstances.
Perhaps I may deal first with Clause 14(3). Where it is clear to all the principal parties that the tribunal has made an error in law, the only way currently to correct that is to go to the commissioners. There are very limited exceptions to that rule. Many of the mistakes are procedural; for example, the failure by a tribunal to record properly the reasons for the decision.
Social security commissioners are overwhelmed with hundreds of cases which could be quickly and easily dealt with by a tribunal hearing. In that situation, what the commissioners do is refer the matter back to a differently constituted tribunal, or to the same tribunal to give reasons. But obtaining a commissioner's decision can take up to a year after the tribunal hearing. The outcome of that, as I said, is often simply to return the matter to another tribunal for a re-hearing. As noble Lords will see, there is a huge waste of time and resources involved in putting matters right, particularly when everyone agrees that there has been an error. We feel that claimants and appellants would be better served if the effort were spent on consideration of cases which raised issues of legal substance and dealing with them more quickly.
When a person seeks leave to appeal against the decision of an appeal tribunal, two procedures are provided for in this clause. First, as the noble Lord, Lord Goodhart, observed, if the person considering the application agrees that the tribunal erred in law, then he or she will set aside the decision. That will be done by the chairman of the tribunal or the single person. If the chairman is not available, regulations will provide for another panel member to consider the application. The case may be referred for a re-hearing to the same tribunal or to a differently constituted one.
I accept the point that we perhaps ought to look at the drafting of subsection (2) because of the concerns raised by the noble Lord. But apart from that issue, I respectfully suggest that this clause is an improvement and is of benefit to claimants. In indicating that I will examine the drafting of subsection (2), it may be that, having reflected, I shall return with the same wording. However, I certainly undertake to look more closely at the wording of that subsection.
Regarding the other points, I hope that noble Lords will accept that there is some force in the thinking behind this position—particularly where everyone agrees that there 437 has been an error, and especially a procedural one—that there ought to be a much quicker remedy to appellants than having to wait for a year for the case to come before the commissioners.
§ Lord Archer of Sandwell
I wholly approve of lateral thinking. This, as my noble and learned friend said, is a novel provision. I am not aware of any other jurisdiction anywhere where it has been introduced. It may be none the worse for that. It may be a pioneering proposal. However, the part which troubles me is my noble and learned friend's suggestion that, if everyone thinks there has been a mistake, then it should not be necessary to go to the commissioner.
That is not what subsection (3) says. The subsection says that if the parties think that there has been a mistake, then it does not matter what the chairman or the person acting as chairman believes about it. All that is being proposed by the noble Lord, Lord Goodhart, is that there should be some input from the chairman or whoever is acting judicially in the matter. As he says, it may be that the parties think that there has been a mistake for quite different reasons. If two parties, for different reasons, think there has been a mistake, then the chairman will have no discretion, but will have to send the matter back. That is the point which troubles me. I am not sure that that is what principally troubles the noble Lord.
§ Lord Goodhart
There is no point of principle here. It is simply a point of workability. When the noble and learned Lord, Lord Hardie, perhaps has a chance to examine my remarks in more detail, he will appreciate that, if the obligation to send a case back for redetermination in subsections (2) and (3) is mandatory in certain circumstances, it could lead to results that are totally absurd.
I suspect that the problem might well be cleared up in both subsections simply by making it optional on the person hearing the application to send it back for redetermination rather than by making the matter mandatory. I hope that the noble and learned Lord will re-examine the matter and return with what may well be simply a minor amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 14 agreed to.
Clause 15 agreed to.
Schedule 4 agreed to.
Clause 16 agreed to.
Clause 17 [Procedure]:
§ Lord Hardie
moved Amendment No. 63:Page 12. line 21, after ("that") insert—("(a) an application for leave under section 15(10)(b) above; or(b)")The noble and learned Lord said: These amendments relate to the handling of applications for leave to appeal to the social security commissioners. The amendments provide that, where he considers it appropriate to do so, the chief commissioner may direct that such applications be considered by a tribunal of commissioners.
438 Subsection (7) of Clause 17 provides that the chief commissioner may direct that an appeal which involves a question of law of special difficulty may be dealt with by a tribunal of commissioners. That approach, which reflects current law, already works well. Other commissioners will normally follow the tribunal of commissioners' decision when subsequent appeals raise similar points of law. That assists in the orderly development of caselaw and speeds the handling of appeals generally.
The chief commissioner, Judge Machin, has identified that not only appeals but also certain applications for leave to appeal would benefit from that approach. In recent years there have been instances where an application for leave to appeal and its determination were of crucial importance to a substantial number of other applications. Here, too, determination by a tribunal of commissioners would help ensure clarity and consistency.
Although such a power is likely to be exercised infrequently by the chief commissioner, it offers clear benefits for the development of social security law. I therefore commend these amendments to the Committee. I beg to move.
On Question, amendment agreed to.
§ Lord Hardie
moved Amendments Nos. 64 to 66:Page 12, line 22, after ("the") insert ("application or").Page 12, line 26, at end insert ("; and the presiding Commissioner shall have a casting vote if the votes are equally divided").Page 12, line 26, at end insert—("( ) Where a direction is given under subsection (7)(a) above, section 15(10)(b) above shall have effect as if the reference to a Commissioner were a reference to such a tribunal as is mentioned in subsection (7) above.").On Question, amendments agreed to.
Clause 17, as amended, agreed to.
§ 7 p.m.
§ Schedule 5 [Regulations as to procedure]:
§ Lord Hardie
moved Amendment No. 67:Page 60, leave out lines 36 to 38.The noble and learned Lord said: In moving Amendment No. 67, I shall speak also to Amendments Nos. 68 and 69. These are purely drafting amendments to simplify the wording in Schedule 5.
Amendment No. 67 removes the definition of a "competent tribunal" from the schedule as the other two amendments make the definition unnecessary. Amendments Nos. 68 and 69 remove references to "a competent tribunal" and insert clearer references to "an appeal tribunal or a Commissioner" and to "the Secretary of State, an appeal tribunal or a Commissioner". These amendments do not have any effect other than to simplify the wording in Schedule 5.
On Question, amendment agreed to.
§ Lord Hardie
moved Amendments Nos. 68 and 69:Page 60. line 41, leave out ("or a competent tribunal") and insert (", an appeal tribunal or a Commissioner").Page 60, line 44, leave out ("him or such a tribunal") and insert ("the Secretary of State, an appeal tribunal or a Commissioner").On Question, amendments agreed to.
Lord Hardie moved Amendment No. 70:Page 61. line I, after ("out") insert ("or reinstatement").The noble and learned Lord said: I beg to move this amendment in order to put on the face of the Bill, the provision for appeals that have been struck out to be reinstated.
In the other place my honourable friend the Parliamentary Under-Secretary for Social Security explained how the powers to strike out are to be used and also how appeals that have been struck out can be reinstated. He told that Committee that appellants would be informed in writing about why their appeal had been struck out; and, if they did not agree, they could go back to the agency and make the case for it to be reinstated. I hope that noble Lords will agree that this amendment is a helpful clarification. It puts on the face of the Bill the assurances given by my honourable friend that struck-out appeals can be reinstated when it is appropriate to do so.
Earlier today my noble friend the Minister informed your Lordships that the Government intended to meet the concerns raised by the Select Committee on Delegated Powers and Deregulation. She recommended that the strike-out regulations should be subject to affirmative procedures. It is the Government's intention to ensure that strike-out procedures are fair and that there is a proper balance between the provision of a framework for a faster appeals service and preserving individual rights. This amendment confirms appellants' rights to have their struck-out appeals reinstated where appropriate.
On Question, amendment agreed to.
§ Lord Goodhart
moved Amendment No. 71:Page 61. line I, at end insert—("3A. Where regulations are made under paragraph 3 (striking out of proceedings) above they shall provide that:The noble Lord said: At present an appeal can only be struck out for want of prosecution. Under paragraph 3 of Schedule 5 to the Bill there is a power to prescribe the grounds for striking out by regulation. This will, as was said in Committee stage in another place, enable appeals to be struck out on wider grounds than simply want of prosecution. They can, for instance, be struck out if there is no prospect of success or if they are 440 frivolous or vexatious. That in itself is not, we believe, objectionable. We accept that the existing power is too narrow and we do not object to prescribing further grounds by regulations, provided they are subject to the affirmative procedure. We therefore welcome Amendment No. 130, which requires the affirmative procedure for prescribing the grounds for striking out.
- (a) an order for the striking out of an appeal may only be made by a member of one of the relevant panels who has a five year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1991;
- (b) no such order shall be made unless the person bringing the appeal has been given an opportunity of showing cause, within such period as is prescribed, why the appeal should not be struck out;
- (c) such a person shall have the right to apply for an appeal which is struck out to be reinstated on any ground within such period as may be prescribed.").
However, it is essential, in our view, that the power to strike out should be exercised by a panel member and not by a clerk. A clerk is someone who is appointed by the Secretary of State under paragraph 6 of Schedule 1. There must, in our view, be some point at which the claimant has guaranteed access to someone who is not an employee of the Secretary of State.
The first-year decision would be taken by someone who is an employee of the Secretary of State. We are alarmed by the prospect of an appeal against the decision of one employee of the Secretary of State being struck out by another employee and the appellant or claimant therefore never being able to get outside the loop. We believe that that would be contrary to natural justice.
The Government stated in Committee in the other place that decisions to strike out under the regulations would be taken by panel members and not by clerks, and we welcome that. However, we believe this is something which is not just desirable but is essential to ensure natural justice and it is a matter of sufficient importance that it should be in the statute.
We also believe that it is preferable that the power to strike out should be vested in not just any member of the tribunal but in a legally qualified member, and that is what our amendment states. The essential element of the amendment is that the power to strike out should be vested in someone who is at least a member of the panel.
Some strike-outs may not need legal knowledge because of a missing time limit. But if, for example, an appeal is being struck out on the grounds that it is frivolous or vexatious, whoever decides on the application to strike out would need to have an idea of what that concept means. The concept of an appeal being frivolous or vexatious is familiar to lawyers, but I venture to suggest that it is not likely to be familiar to lay members.
I assume that it is contemplated that the striking-out will effectively be ex parte—that is, that the member considering it will look at the papers and decide without hearing the views of the appellant. If so, it is obviously essential that the would-be appellant should have a chance to come back and explain why the appeal should not be struck out. We welcome the fact that there will be a possibility of reinstatement, as was mentioned by the noble and learned Lord the Lord Advocate, but here again we should like to see enshrined in the statute itself a right for the appellant whose appeal has been struck out to come back before the person who struck it out and show cause.
While entirely accepting the principle of widening the grounds of striking out, we feel that this widening brings with it an obligation to ensure in statute, not just in regulations, that any application to strike out must be heard by a member of the panel, and, if possible, a 441 legally qualified member of the panel, in order to avoid the risk that the claimant will never in any circumstances be able to have his case looked at by someone who is not an employee of the Secretary of State. I beg to move.
§ Lord Higgins
I am very conscious of being sandwiched between two lawyers. In view of the remarks of the noble Lord, Lord Goodhart, about laymen not understanding the concept of frivolous and vexatious, I feel that I should perhaps have consulted my wife. It seems to me that the argument put forward by the noble Lord was very convincing and I hope that we might have a reasonable response from the Minister.
§ Lord Hardie
I always endeavour to give a reasonable response. I start by reassuring the noble Lord, Lord Goodhart, that not only will the regulations give appellants the opportunity to make representations as to why their appeal should not be struck out; they will also enable appellants to apply for their appeal to be reinstated. The regulations will deal with how that is to be done. Whether or not that will be by making representations to the person concerned. I can certainly say that there will be provision for that.
I can give the noble Lord further reassurance. As I understand it, his concern is that any decision to strike out should be at the instance of a member of the panel, although he goes on to say that that should preferably be a legally qualified member. I can give the assurance that it will be by a member of a panel and not by a clerk or other employee of the Secretary of State. That again will be covered in the regulations.
The only issue between us is whether this member of the panel has to be legally qualified. I can assure your Lordships that persons who sit on tribunals will receive adequate and appropriate training before doing so and, in consultation with the Secretary of State and chief medical officers, the president will arrange for the training of all panel members. The training will cover areas such as relevant legislation, the powers of appeal tribunals and how those powers are to be used, together with the procedural rules relating to tribunals and commissioners. Panel members will also receive training in the conduct of hearings so that the facts can be established and decisions reached by applying the law to those facts. The president of the tribunals will be closely involved in the designing of the training programme itself, so that all panel members will be given appropriate training. It will be ultimately for the president to decide which panel members are qualified to take decisions such as striking out. If there are some who are not, then he would decide that and he presumably will have a list of people who are qualified to do that.
This amendment seeks to place on the face of the Bill the detail of procedural arrangements for striking out appeals. In our view it is more appropriate for such matters to be addressed in secondary legislation. To do otherwise would clog up the Bill with unnecessary detail. We have already indicated that in terms of the Minister's Statement today, we have accepted the 442 recommendation of the Select Committee on Delegated Powers and Deregulation about the nature of these regulations. With those assurances, I would hope that the noble Lord would withdraw his amendment.
§ Lord Goodhart
I think the real issue between us is whether this particular provision should go into the statute or into regulations. I very much welcome what the noble and learned Lord the Lord Advocate has said about the content of the regulations. On the whole, I do not think there is anything there that causes me particular concern but it was my feeling that ensuring that the actual striking out would only be carried out by someone who was a member of a panel was a matter of sufficient importance to justify that going into the statute, even if all the rest of the matters could be dealt with properly by regulations. However, I do not propose to take this matter further and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 5, as amended, agreed to.
Clauses 20 and 21 agreed to.
§ 7.15 p.m.
§ Clause 22 [Suspension in prescribed circumstances]:
§ Lord Hardie
moved Amendment No. 72:Page 14, line 31, leave out subsection (4).The noble Lord said: In moving Amendment No. 72, I should like to speak, with the leave of your Lordships, to Amendments Nos. 73, 74 and 75. The Government are putting forward these amendments for two reasons: first, to reflect concerns expressed at Second Reading; and, secondly, to deal with a technical drafting point. As regards the first of these, in response to concerns expressed by the noble Earl, Lord Russell, at Second Reading, the amendments clarify the circumstances where entitlement to benefit may be terminated following the suspension of payment of benefit. It had been the intention to explain this in regulations; but we accept the strength of the noble Earl's argument and we have decided to make this matter clearer on the face of the Bill.
The intention has always been that entitlement will terminate only where someone fails to comply with an information requirement that the Secretary of State imposes after she has suspended payment of benefit. The suspension will be lifted when the required information is supplied. If the claimant fails without good reason to do so within a specified period, then benefit will terminate. The noble Earl, Lord Russell, said that creating new grounds for this entitlement is on the level of creating new criminal offences: they are equally serious to those at the receiving end. I would certainly agree that terminating any award of benefit is a serious matter. However, while that action is a serious one, it is also one which is justified. It is one which does not infringe the rights of the claimant.
It may be helpful if I explain in more detail how this power will be exercised. Once a suspension has been imposed, steps will be taken to resolve the doubt or gather the information to decide whether the reward 443 ought to be revised. This will generally involve asking the claimant to give that information. In the vast majority of cases the matter will be resolved in a few days and the suspension lifted. However, there are cases where there is no response and under current provision there is no power to close the claim. Instead, the suspension simply continues indefinitely. On the face of it, this may seem harmless because there is no loss to the Exchequer. However, because the cases remain in the system, they can distort the statistics and the performance information; but, more significantly, they are vulnerable to fraudulent activity. It was because of this uncertainty that we added a termination provision at Report stage in another place.
If I understand the noble Earl, Lord Russell, he is more concerned about how we reach that point and so I will turn now to the procedure by which termination will take place. The regulations we intend to make under the subsection will impose a time limit within which the claimant must respond to a request for information. It will be their failure to respond which will trigger the new power. We intend to set out in the regulations that claimants will have one month in which to respond to requests for information. We believe this to be a reasonable period. It mirrors the period to be allowed in Clause 23, a separate suspension provision. It also brings clarity of the provision to claimants and administrators alike.
I would stress that while one month will be the standard period, the regulations will allow for the period to be extended if there are good reasons for doing so. I can assure your Lordships that officials will act reasonably at all times, taking into account the nature of the information to be provided and the individual circumstances. It will be at the end of the month of the extended period that entitlement will be terminated.
Finally, if entitlement is terminated, the claimant will be given a new outcome decision which, as with any decision, can be disputed via revision or appeal.I apologise to your Lordships for having spoken at some length, but I am conscious of the concerns that have been expressed about this new power and I wanted to take this opportunity to provide your Lordships with reassurances.
I prefaced the above explanation by saying that there were two reasons for bringing these amendments. I turn now briefly to the second, technical reason. Clauses 22 and 23 are separate suspension and termination provisions. Clause 23 already explicitly states that termination will follow a failure to provide information. Initially we thought we would simply add a similar provision to Clause 22. However, that would have meant either adding a reference to Clause 23, the new information requirement provision, or cross-referencing to this provision in Clause 23. Either way, this would have made the legislation more difficult to follow. Instead, to ensure that the drafting is clear, it is proposed to add a separate clause covering both examples of termination. I am pleased to have been able to explain how the new power in Clause 22 will be used. I hope that the noble Earl, Lord Russell, has been reassured 444 that the department will discharge its duties objectively and to the satisfaction of all parties. I commend these amendments to the Committee, and beg to move.
§ Earl Russell
I should like to thank the noble and learned Lord very warmly for what he has done. It has not abolished the gap between us but it has narrowed it very substantially, and I am very grateful.
On Question, amendment agreed to.
Clause 22, as amended, agreed to.
Clause 23 [Suspension and termination for failure to furnish information etc.]:
§ Lord Hardie
moved Amendments Nos. 73 and 74:Page 14, line 43, leave out subsection (3).Page 15, line I, after ("section") insert ("and section (Termination in cases of failure to furnish information) below").The noble Lord said: I beg leave to move these two amendments formally. I have already spoken to them.
On Question, amendments agreed to.
Clause 23, as amended, agreed to.
§ Lord Hardie
moved Amendment No. 75:After Clause 23, insert the following new clause—TERMINATION IN CASES OF FAILURE TO FURNISH INFORMATION(". Regulations may provide that, except in prescribed cases or circumstances, a person—The noble Lord said: I beg to move Amendment No. 75. I have already spoken to this.
shall cease to be entitled to the benefit from a date not earlier than the date on which payments were suspended.").
- (a) whose benefit has been suspended in accordance with regulations under section 22 above and who subsequently fails to comply with an information requirement; or
- (b) whose benefit has been suspended in accordance with regulations under section 23 above for failing to comply with such a requirement,
On Question, amendment agreed to.
On Question, Clause 24 agreed to.
On Question, Whether Clause 35 shall stand part of the Bill?
§ Lord Archer of Sandwell
I apologise for interrupting the smooth flow which we had achieved. I understand the problem which Clauses 25 and 26 are intended to address.
§ Lord Hardie
moved Amendment No. 76:Transpose Clause 59 to after Clause 72.The noble and learned Lord said: This is a wholly technical amendment to relocate Clause 59 into the part of the Bill dealing with benefits. I beg to move.
On Question, amendment agreed to.
445 Clause 25 [Decisions involving issues that arise on appeal in other cases]:
On Question, Whether Clause 25 shall stand part of the Bill?
§ Lord Archer of Sandwell
All things come to those who wait. I apologise for having twice interrupted the smooth flow of our business. As I was saying, I appreciate the problem which Clauses 25 and 26 are intended to address. Although I appreciate that there cannot be a grouping in this case, it may be in the interests of expedition if I may be permitted to mention in speaking to Clause 25 some of the matters which it has in common with Clause 26.
Sometimes a question of principle arises for discussion on a specific case and upon that decision there may depend the decision in numerous other cases. They may be first instance decisions—the subject matter of Clause 25—or they may be decisions on appeal—the subject matter of Clause 26. In either situation it clearly would be inviting chaos and be extremely profligate of time and expense to say that all the depending cases should proceed to an individual decision and that each dissatisfied claimant should then pursue such further remedy as may be open; and if they are awarded a benefit which transpired not to be payable, that should be paid and, if necessary, subsequently recovered. Clearly, of course, it would be more sensible to await a decision on the question of principle which can then be applied to all the cases. I at least would not seek to dispute that.
However, that leads to some further questions. First, who is to decide whether the outcome of a specific case really does depend on the decision in the lead case? In other words, who is to decide whether it really is a lookalike case? The Bill's answer in both situation is: the Secretary of State. But in relation to the first instance decisions, falling within Clause 25, that confers on the Secretary of State a discretion whether to put the whole process on ice, with no powers for the claimant to proceed to appeal. In relation to appeal cases, within Clause 26, the proposal is even more startling. The Secretary of State is a party to the proceedings. Should we really leave a party to the proceedings to decide whether the proceedings should be stayed and whether they really do require to await a decision in the lead case.
That has been described by Deputy Commissioner Edward Jacobs as the constitutional difficulty. It raises the question: should the tribunal not have at least a discretion as to whether the proceedings should be stayed; and if it should, then no legislation is necessary. It is open now to a tribunal chairman to direct that a particular case shall not be listed until some other event; for example, until the law has been clarified.
The problem is dealt with in the presidents' circular 9. One of the prospects floated in circular 9 is the possibility of class actions. As I understand it, my noble and learned friend the Lord Chancellor is already considering whether class actions should be generally introduced into our system. It is not a simple question 446 because one would have to ensure that all those involved had an opportunity to make representations as to whether they should be part of a class action; whether, for example, they do have a lookalike case. There are possible ways of organising this. NACAB or some other non-governmental organisation may attempt to take under its wing all the claimants concerned to see whether it is possible to organise between them how the matter should be conducted.
That brings us to the second question: is the applicant to have no opportunity of arguing whether his case really is a lookalike? He or his representative may wish to say, "But the issue in my case does not depend on a decision in the lead case. It is distinguishable for these reasons"; and someone should have an opportunity of hearing that submission and considering it.
In circular 9 it is assumed that the president would give a directive, because at the time that was drafted this proposal had not come forward. The Bill makes no corresponding provision for addressing arguments to the Secretary of State. What the Bill provides is that a decision on the question whether a claimant is entitled to some or all of the benefit claimed shall be suspended at the discretion of the Secretary of State. That would be tolerable if some of the issues addressed by the noble Earl, Lord Russell, on Monday were taken into consideration. It may be sensible not to pay the whole of the benefit until the issue is resolved. But, meanwhile, the claimant may be getting deeper into debt; losing his or her house; having no longer a meal in the larder or a pair of shoes which do not let in the rain.
My noble and learned friend was kind enough to write to me on this subject and I really am grateful to him for that. He pointed out that the Government have put down an amendment to ensure that arrears are paid back to the date of the claim. That clearly is a welcome concession. But for the claimant it is not really a solution to be assured that after you have starved your estate will be duly paid.
Administrators like to see administration conducted neatly and economically. The noble Earl, Lord Russell, made that point earlier today. They are none the worse for wanting to see things conducted tidily. However, some of us are also concerned that they should be conducted fairly. Those of us who have seen for themselves the daily lives of some of the underprivileged may be anxious to see that they are also conducted with a measure of compassion.
I agree that there are no easy, painless answers, but I hope that my noble and learned friend will, if he cannot satisfy us today, take back Clauses 25 and 26 and consider whether there may not be a fairer and more compassionate solution.
§ Earl Russell
I agree entirely with everything the noble and learned Lord, Lord Archer of Sandwell, has said. We have here a quite remarkable example of what appears to me to be unaccountable power. I take the point that the Secretary of State is taking a decision in which she may appear to be an interested party; and, of course, like any other human being, she is capable of error. I do not understand how such error can be 447 controlled. I hope I may be forgiven for taking a leaf out of the noble and learned Lord's book and mentioning one or two points which may concern Clause 26 as well.
Normally one would rely on judicial review to control the mistaken exercise of this power. However, when I look at Clause 26. I find in subsection (7)(b)(i) that the powers which can be controlled include,an application for, or for leave to apply for, judicial review of the decision under section 31 of the Supreme Court Act 1981".I am not aware, though I am an amateur in these matters, of any case where Parliament has previously taken power to forbid the use of the power of judicial review.
Indeed, having followed some of the arguments of the noble and learned Lord, Lord Woolf, and others, I am extremely interested in the relationship between the powers of Parliament and the strength of the principles of natural justice. I believe that here Parliament is attempting to venture into constitutional territory where, so far as I am aware, it has never ventured before. It is attempting to use the power of statute to override the principles of natural justice. Whether Parliament can do that, so far as I am aware has never yet been determined. There are some types of legal case which it is much better and in all our interests not to have determined at all because victory either for one side or the other creates a tilt in the balance of power within our constitution which can be very disturbing.
As someone concerned with the principles of judicial independence, I am considerably concerned about the powers in Clause 26(2) where the,Secretary of State … may serve notice requiring the tribunal or Commissionerto do something. That the Executive can require the courts to do this, that or the other is not my understanding of how things have usually worked here. In fact, it is a possibility, the extension of which has quite alarming implications. Meanwhile, as the noble and learned Lord said, the claimant is left without benefit.
I am reminded, sorrowfully, of the story of the Englishman, Irishman and the Scotsman. The Englishman's hat blew off and fell down a well. They could not reach it, but they decided that if the Irishman held on to the top of the well and the Scotsman held onto the Irishman and the Englishmen held onto the Scotsman, he could just reach the hat. Just as the Englishman was reaching down to pick up the hat, the Irishman at the top said, "Hold on hard while I spit on me hands". The claimant, like the Irishman, may hold on, but it will not do him much good.
§ 7.30 p.m.
§ Lord Higgins
I do not wish to detain the Committee for very long. I have much sympathy with the view which the noble and learned Lord, Lord Archer, has expressed with his vast experience in these matters. There would seem to be a very serious problem here inasmuch as the Secretary of State would seem to be an interested party. While, as the noble Earl, Lord Russell said, anyone can make errors, it is obviously rather more suspicious if one is made by an interested party.
448 Between now and Report stage we need to give further thought to the extent to which these matters can be resolved. I particularly take the point about people awaiting benefit, but who do not get it while this no doubt sometimes very lengthy legal process takes place.
The other point, which is a cause of particular concern, is to what extent the arrears are paid. On the assumption that meanwhile the person has not become totally destitute or homeless, one must at least hope that the arrears are back-dated to a reasonable date.
§ Lord Archer of Sandwell
I am most grateful to the noble Lord for giving way. In fairness, my noble and learned friend has tabled an amendment to ensure that that at least happens and was kind enough to write to me accordingly.
§ Lord Higgins
If I recall correctly, that refers to Clause 27. The only point I sought to make in that context was how far the arrears go back. If the case is not regarded as being in the same category as the case which arose originally, which is the lead case, do the arrears go back beyond the date when the lead case was first put forward? It may be that I have misunderstood the situation and that that is not possible. All these cases are decided centrally and it may be that they are not so interrelated in time as one would wish.
§ Lord Hardie
I am grateful to noble Lords for raising issues on Clauses 25 and 26. The background to this matter is that under the current arrangements adjudication officers are obliged to decide all cases put to them. Until last year the adjudication officer would decide the case, but in the vast majority of cases of the kind in question, the Secretary of State would step in and suspend the payment of benefit until such time as the lead case was decided.
Following a decision of the High Court in November 1996, the power to suspend payments of an award of benefit in look-alike cases has not existed. That has serious consequences where the lead case is decided in the Secretary of State's favour. First, it has serious consequences for the claimant whose benefit must be reduced to the correct amount, but he or she may have taken on extra financial commitments on the basis of the original incorrect award. Secondly, it has serious consequences for the taxpayer who must foot the bill for the overpaid benefit before the lead case is decided. Reference was made by my noble and learned friend Lord Archer to the question of recovery. I believe that he accepted that it is difficult to recover benefit in many cases when it has been overpaid.
Clause 25 is intended to provide a simple solution which is seen as being fair to both the claimant and the taxpayer. In future, the Secretary of State will make the substantive benefit decision and there will be no need to decide entitlement and then suspend payments. Instead, the Secretary of State can defer making a decision; in other words, she can stay a case where she considers that the outcome of a lead case would mean that there was no entitlement to benefit.
449 I can understand the constitutional concerns that have been raised. But in that regard it has to be borne in mind that we are protecting both the claimant and the taxpayer by this procedure. Customarily, claimants will not have increased benefit until the law has been settled. That is a better arrangement than the current one. As soon as the lead case is settled, any increase in benefit due can be paid immediately rather than the claimant having to wait for it to be determined by a tribunal or the commissioner.
In addition, where some benefit will still be due whatever the outcome, regulations will allow the Secretary of State to decide a case on the basis that the decision in the lead case would be unfavourable to the claimant. The benefit entitlement not affected by the decision in the lead case can then be paid. I understand, appreciate, and sympathise with the unfortunate situation that people find themselves in when benefit is suspended. We are not aiming to suspend the totality of the benefit—only the element of it in dispute in that situation affected by the lead case decision.
What amounts to a look-alike case will be drawn up by the department in conjunction with lawyers, and guidance will be issued to staff on the identification of such cases. When it has been decided that it is a look-alike case, that decision will be intimated to the claimant so that he or she is aware of the decision. In addition, an explanation will be given as to why the Secretary of State believes that it is a look-alike case and why the claimant will have to await the outcome of the lead case for either the entire benefit or, more likely, a particular part of his or her benefit.
The notification letter will also make it clear to the recipient that if he or she considers that the circumstances are different from the lead case; or if circumstances have changed or do change, or if he or she suffers undue hardship, that person should contact the agency without delay. Any response from the customer on any of those issues would involve agency staff taking a further look at the circumstances. Thereafter, a further letter would be issued explaining the outcome of that further determination. I would expect that in hardship cases relief would be given, assuming that the claimant was entitled to benefit under the hardship rules.
That is the scheme that is envisaged and it is our view that it is a prudent new provision which will reduce the level of confusion which currently surrounds the issue. It will avoid those cases, sometimes quite large numbers of cases, which require unnecessary double handling as a result of awards being made and then suspended. It will allow decisions to be deferred or payment to be made in part and revised if necessary. Any benefit due which is not affected will be paid. It would not be right to make payments when the legal position is unclear and entitlement to benefit is in doubt. Those arrangements will reduce the opportunity for over-payment, to the benefit of the claimant and the taxpayer, while affording claimants the opportunity to bring to the attention of agency staff particular hardship problems peculiar to them, which will then be addressed.
450 I turn now to Clause 26 and to a point made by the noble Earl, Lord Russell, with regard to subsection (7)(b). As I understand it, the noble Earl suggested that we were excluding judicial review. If I have misunderstood, I apologise, but if that was the suggestion, perhaps I should point out that it is not our intention to exclude judicial review. If the complainant is aggrieved by a decision to suspend, there will still be an opportunity of judicial review. The reference to "judicial review" in subsection (7) refers back to paragraphs (a), (b) and (c) of subsection (6) so that, under subsection (6), an appeal against a decision is pending, and is treated as such, if there is an application for judicial review. It is not the Government's intention to exclude the supervisory jurisdiction of the courts in England and Wales or in Scotland. I hope that noble Lords opposite and my noble and learned friend will be satisfied with that explanation.
§ Lord Archer of Sandwell
I appreciate that my noble and learned friend has tried hard to address the problem, and I hope that he will forgive me if I say that I am not wholly satisfied. There are three reasons for that. First, my noble and learned friend pointed out that a person can always go back to the agency to make representations and it is hoped that officials in the agency will consider any such representations. However, we are speaking of a judicial process and it is normal in a judicial process to write in the right to make representations and to have them considered. The idea that the agency will probably, if it has the time, look at the letter that one has written and that it may do something about it is not enough in a judicial process.
Secondly, there still remains the constitutional problem that, as the noble Earl said, a member of the Executive, such as the Secretary of State, is sending a direction to a tribunal. Even presentationally, there must be better ways of presenting it than that. We really must reconsider this matter.
Thirdly, as the noble Lord, Lord Higgins, said, the gist of this is the effect on the unhappy claimant. I thought that my noble and learned friend took perhaps a little too much pleasure from saying, "If only part of the benefit is in dispute, we will pay the other part", rather as though that were a generous gesture. If my noble and learned friend told me that I owed him £5 and I said that I owed him only £3 and then tendered only £3, that would be an act of justice, not of generosity. This matter requires to be addressed further. However, as I appreciate that these are difficult questions, for this evening I shall not seek to oppose the Motion that the clause stand part of the Bill.
Clause 25 agreed to.
Clauses 26 and 43 agreed to.
§ Lord Haskel
I beg to move that the House do now resume. In moving this Motion, perhaps I may suggest that the Committee stage begins again not before 8.45 p.m.
Moved accordingly, and, on Question, Motion agreed to.