HL Deb 23 March 1999 vol 598 cc1266-76

11 p.m.

The Parliamentary Under-Secretary of State, Department of Social Security (Baroness Hollis ofHeigham) rose to move, That the draft regulations laid before the House on 4th and 8th March be approved [12th Report from the Joint Committee].

The noble Baroness said: My Lords, the regulations provide for the new arrangements that will be introduced from the second half of this year. The draft Miscellaneous (Amendments) (No. 2) Regulations contain some consequential amendments to the child support regulations. All these regulations are derived from the powers provided in the Social Security Act 1998.

The Child Support Miscellaneous (Amendments) Regulations make a small number of amendments to the secondary legislation which provides the structure of the child support scheme. For the most part, they correct minor errors and clarify the intention of the legislation in cases of doubt.

The current system of determining claims and resolving disputes in social security is too long and too complex. People have a right to expect their claims and applications to be dealt with correctly and speedily. When they wish to dispute a decision, they expect to see it resolved swiftly wherever possible or progressed rapidly to the appeal stage.

The draft regulations provide for an improved decision-making and dispute resolution system, a simplified appeal system where five different types of tribunals are replaced with a single jurisdiction and the introduction of a modern, accountable appeals service.

Noble Lords will recall that one of the main provisions of last year's Act was to provide that all initial benefit and child support decisions will be made by officers acting on behalf of the Secretary of State. This replaces the current system where there are a variety of different types of decision-maker.

The current inflexible system for reviewing decisions often forces people into a frustrating and time-consuming appeals process. Clients often appeal against a decision simply because they are not aware of any other way, in practice, to get their decision checked. In future, where decisions are clearly wrong, the agencies will put them right quickly with the minimum of fuss. The same straightforward and simple rules on how and when decisions can be changed will apply across all benefits and business areas.

Regulations 3 to 24 contain the detail of the changes to the decision-making process. Regulation 3 allows decisions to be revised and replaced with a new decision, for any reason, where a dispute or appeal is made within one month of the decision being notified. This regulation further provides that some decisions may be revised after the one-month time limit in order that we may be sure that any errors are corrected. Regulation 30 allows an appeal to lapse where someone appeals against a decision at the outset and the decision is revised in their favour. There will, however, be fresh rights to dispute and appeal the revised decision which Regulation 31 confers.

Even where errors are identified outside the one-month time limit and the decision cannot be revised, a decision may be superseded under Regulation 6. Superseding decisions, as Regulation 7 details, will generally take effect from when the decision is made or when the application was made.

In planning for the introduction of these new arrangements the agencies have taken the opportunity to begin to improve their notifications. The notification will invite clients to contact the agency if they are not satisfied with the decision or if they have a query. They will be given the opportunity to discuss it and to present any new relevant information. The agency will then reconsider the case and either confirm the original decision or issue a new one. In either case their right of appeal is protected.

I will now deal with the provisions on appeals. This is covered by Regulations 25 to 59. Current delays in the handling of appeals are unacceptable. Noble Lords will be aware that appeals take, on average, seven months to be heard. Many people wait a year or more. That is unacceptable and this Government are committed to delivering significant improvements in performance.

These regulations introduce a number of important changes. First, they simplify the confusing jumble of time limits that currently operate. At the moment where appeals are lodged out of time, we have different rules governing their acceptance or rejection and the period during which such applications may be admitted. The arrangements are a mess and we propose to replace them with a single one-month limit for each stage of the process. Various regulations—for example Regulation 3 for revisions and Regulation 31 for tribunal appeals— achieve that.

Secondly, Regulation 36 ensures that tribunals have the necessary expertise to deal with the range of issues that may come before them. A disability benefit appeal, for example, will be heard by a three-person tribunal (lawyer, doctor, disability expert) while a retirement pension appeal raising questions of fact and law would normally be heard by a lawyer sitting alone. Such an approach will allow the appeals service to concentrate expertise on the cases that need it and speed the service it offers to all appellants. For the most part it is these regulations that will determine the composition of any particular tribunal. However, where the exercise of discretion is involved I would like to make clear that it will be the president or his judicial staff who will decide how a tribunal will be composed. While on the subject of tribunal composition, I would like to clarify the position on appeals relating to incapacity for work. All such appeals will be heard by a lawyer and a doctor and we are looking again at the wording of Regulation 36 to ensure that that is made clear.

Thirdly, 10 per cent, or more of appeals received by ITS (Independent Tribunal Service) have no prospect of success. For example, child benefit is not payable for children over the age of 19 and an appeal in those circumstances simply cannot succeed because the law is explicit. The same is true in the case of the disability living allowance mobility component in relation to a child under the age of two. It is essential that we build in arrangements to ensure that such cases (10 per cent, of the whole) do not undermine the ability of the appeals service to handle other appeals speedily and effectively. But there will be safeguards to ensure that appeals are handled properly. People will still have the opportunity to argue in front of a tribunal that their appeal is not misconceived if they wish to do so.

Fourthly, I want to make clear to the House that the Government are expanding the role of tribunal clerks from that we envisaged when the Bill was debated. We have done this following discussions with Judge Harris, to whose helpfulness and co-operation I should like to pay tribute. At present tribunal chairmen must spend time dealing with clear-cut interlocutory matters including the disposal of certain appeals. That time would be better spent hearing appeals and helping to ensure that the delays and backlogs in the system are reduced. That will mean a speedier service for all appellants. So we have decided that clerks may handle matters involving a simple assessment of straightforward facts. Regulation 46 gives effect to that. Of course, the clerks will be properly trained to perform these duties and Judge Harris has kindly agreed to assist in both the training and guidance provided for clerks. Clerks will not strike out appeals in any other circumstances. I particularly want to draw the House's attention to these changes both because of their importance and because they represent a change from our earlier proposals.

Lord Higgins

My Lords, perhaps it might save time if I just intervene at this moment. Will these clerks be legally qualified?

Baroness Hollis of Heigham

My Lords, no; but they will be trained. The kind of things they will be looking at, for example, are striking out a claim where someone is seeking to challenge a pay date when that is laid down by legislation: it is a clear fact and no discretion is involved. Another example might be whether they turn up on a fortnightly basis or otherwise to get their JSA: the law is unambiguous. They will also be handling matters like renewals, deferments and so on. They will not be legally trained, but the kinds of decisions they will make will not require legal training. I hope that has addressed the noble Lord's point.

I turn now to the Child Support Miscellaneous (Amendments) Regulations 1999. As I said earlier, these make a small number of amendments to the secondary legislation, which provides the structure of the child support scheme. For the most part, they correct minor errors and clarify the intention of the legislation in cases of doubt.

This package of regulations marks a step along the way of improving the CSA. We all know the difficulty that the CSA has is particularly marked in obtaining maintenance from self-employed non-resident parents. Regulation 6 introduces provisions which self-employed parents should find helpful, enabling them to provide the figures which they use for self-assessment of their earnings for tax purposes, for use in calculating maintenance. Only where they are unable to provide them, for example, if the business is a new one, will the agency have to continue to use the old cumbersome arrangements.

The package also includes a regulation, Regulation 3, to defer the re-introduction of fees until April 2001. That was originally provided for in legislation. It was subsequently deferred on a couple of occasions, and until the service is of sufficient quality we do not think it is appropriate to talk about fees. Therefore we are proposing not to re-introduce fees for at least another two years.

A further measure in Regulation 6(7) restores the policy intention in respect of the valuation of property transferred before 1993 in lieu of child maintenance, where a decision by a child support commissioner has resulted in that value being less than was originally intended.

These are the most significant of the changes contained in the package. Your Lordships will be relieved to hear that I do not intend to go over the regulations one by one since they are very extensive; but I will do my best to answer any questions that may arise before us today. I hope that your Lordships will accept the regulations. I beg to move.

Moved, That the draft regulations laid before the House on 4th and 8th March be approved. [12th Report from the Joint Committee]. —(Baroness Hollis of Heigham.)

Lord Higgins

My Lords, the House will be grateful to the noble Baroness for her explanations of these three orders. I believe that it is convenient to deal with the orders en bloc, although the first one deals with very important issues relating to appeals whereas the second and third are rather more detailed and relate to the Child Support Agency.

In the light of the debates last year on the Social Security Bill I have some serious concerns about these orders. We complained at that time that if the implementation of the Act took the form of statutory instruments, we would not be able to amend them. In relation to a number of points arising on the orders had it been possible to amend them I would have wished to do so.

Before turning to the points of substance, I thank the noble Baroness for writing to me explaining some of the points dealt with in the orders. Obviously, the orders are very complex and require detailed examination. In that context I make one particular point.

In the course of considering these matters I came across the various documents produced for the Joint Committee on Statutory Instruments. Those appeared to me to be a vast improvement on the Explanatory Notes on the back of the orders. Given that a number of these issues will be of great concern to outside bodies like the Child Support Agency, Citizens Advice Bureaux and so on, perhaps the noble Baroness and her department—I do not ask that it be dealt with this evening—will consider whether the documents produced for the Joint Committee should be more widely distributed to general advantage. To a large extent, these complex matters must be explained by the various bodies to the people whom they seriously affect. The more information that can be provided, and the simpler the explanation, the better. It seems to me that the documents to which I have referred achieve that end.

Next, perhaps the Government Chief Whip could say what determines the order in which these measures come before the House as opposed to the other place. Some have come ahead of these and some after. I understand that one of the orders is to go before the other place tomorrow. The other place will not have the benefit that we have had of hearing the debates in the other place. Perhaps that is also a point that can be considered.

I turn to the substance of the matter. Some of these issues have been raised with a number of outside bodies which have expressed very considerable concern about the way in which the orders operate. The Explanatory Notes provided to the Joint Committee point out that the orders will not be referred to the Social Security Advisory Committee. Given their importance, I was not clear precisely why that was so. Apparently, it was based on the fact that there was a short time lag between the Act on the one hand and the making of the orders on the other. But I am not sure why we have not had the advantage of the Social Security Advisory Committee's comments on these orders.

Essentially, what we have here is a simplification in the sense that a number of different jurisdictions are to be amalgamated. But one feels that the simplification is not by and large to the advantage of the people affected by these orders. The tendency has been to take the lowest common denominator in terms of time limits and so on. In addition, the situation now is one in which the Secretary of State is said to take the decisions. Perhaps the Minister can say who in practice will make the decisions. I doubt whether Mr. Darling will see each of them individually. It appears that provision is made whereby, if the officials concerned discover that they have made a mistake, they can take immediate or very rapid action to put it right.

Having said that, there are a number of points about which the outside bodies make complaint, in particular the composition of tribunals. As I understand it, the fact is that a number of them selected by the president will in the light of these orders be single-member tribunals. Can the Minister confirm that if they are single member tribunals he or she will be a lawyer? That would be helpful to know.

I have received two separate sets of representations regarding the situation which may arise if there is a single member tribunal. In a specific case there was no presenting officer. Apparently it is now common for presenting officers not to turn up. The appellant was not represented, as is commonly the case. During the hearing the appellant had a psychotic fit. If a single member tribunal is sitting with no presenting officer, considerable problems may arise if some appellants are unhappy or indeed disturbed by the situation. It is a genuine point which needs to be considered.

Having thought that that was a one-off example, somewhat to my surprise a similar case was brought to my attention. Apparently, not satisfied with the decision, the appellant tried to jump out of the window and had to be restrained. I raise the point because I was surprised to hear of the first case and even more surprised to hear of the second; and as a result of the Bill and these orders we shall have single member tribunals.

In addition, I have had representations pointing out that the chairman, sitting alone, has to take a note, keep the questioning going, observe the appellant, and does not have the advantage of the experience of colleagues if a larger number of individuals were to be involved in the tribunal. I hope that these points can be clarified.

The noble Baroness will know that there is concern regarding the reduced time limits. It is difficult not to receive the impression that the time limits to lodge an appeal are being reduced on the ground that it will reduce the period before the appeal can be heard. As the noble Baroness pointed out, on average appeals take something like seven months, and perhaps significantly longer, to be heard. A month seems a somewhat short period when people may have to assimilate the decision against which they wish to appeal. Two weeks also seems extraordinarily brief. People may be on holiday. Mail may not be received as swiftly as it might, and so on. Those time limits seem very tight indeed.

The third cause for concern is the wide powers to strike out a specific application. I was not greatly reassured by the Minister's response to my intervention. The striking out provisions may be made by an individual who is not legally qualified. If we were able to amend the order we would wish to examine that provision in detail and perhaps vote upon it.

As regards the time limit to appeal to the commissioners—it can only be on a point of law and is effectively to a body the equivalent of the High Court— it is a shorter period than would be the case if there were an appeal to the High Court. The time limit for appeals to commissioners on a point of law should be the same as that which applies for appeals to the High Court.

All those matters give considerable cause for concern, as does the fact that a legally qualified panel member can reinstate an appeal. However, I understand from the Minister that all tribunals will have a legally qualified member who can reinstate an appeal if appropriate.

I turn rapidly to the second and third orders. I am puzzled that we should suddenly have new child support regulations when, as I understand it, the Government are making progress with their proposals for changing the law with regard to the agency and expect to produce a White Paper fairly soon. I have only one or two relatively minor points on the orders. First, there are provisions in the orders for people who happen to be serving in the reserve forces. That seems an extraordinary sledgehammer to crack a. nut. 1 am not in the least clear how many members of the reserve forces are likely to be engaged with the Child Support Agency—

Baroness Hollis of Heigham

Too many!

Lord Higgins

Too many perhaps, my Lords, but I wish to ask the noble Baroness how many. We are legislating here for probably a small number of people. There are other problems, particularly with regard to disclosure of information. As the noble Baroness knows, I am concerned about the confidentiality of information within government, particularly with regard to information held by the Inland Revenue and so on. There are provisions in the orders for the transfer of information from one party to another which has been obtained from a third party. For example, if in a specific case the CSA has information which it has obtained from a third party—perhaps the Inland Revenue—it can then transfer that information, which may well be private and confidential, to the other person involved in the child support case, whether the parent with care or whoever it may be. That seems to be a sudden relaxation of the rule which previously existed.

Those are most of the points which one might appropriately raise at this stage. We look forward to hearing what the noble Baroness says. Having said that, it is unfortunate that on some of these important points, which are of concern both to the individuals who are affected by the orders and also to the various organisations outside which seek to help them in relation to this legislation, we do not have a better chance to amend the measures. We can either accept the orders or reject them.

Lord Addington

My Lords, on these Benches we support the principle of making appeals work more smoothly and more speedily. However, we have some misgivings about the idea of efficiency as very often "efficiency" means in Treasury-speak "cheap". The Treasury's shadow is always cast over regulations. Whenever we consider a measure which mentions efficiency we should bear that point in mind.

We have some misgivings about the reduction in the number of people on tribunals, not because someone has had a fit, as the noble Lord, Lord Higgins, suggested. The idea that there is a difficulty in someone having a psychotic fit is an understatement of which we should all be proud. Such a reduction may lead to there being a lack of expertise on a tribunal. For instance, in a case that involved allegations of domestic violence, it might be appropriate to have at least two members on the tribunal, one of each gender.

We are concerned about the time limits that are applied to the lodging of material for appeals. We are particularly concerned that the clock should not start running until the appellant, or potential appellant, knows that it is running. That would be a step in the right direction.

We are also concerned about the wholly exceptional circumstances in which the detail might be extended. I believe that those few noble Lords present—I believe we are just quorate—would benefit from having a better idea of what the wholly exceptional circumstances might be. The Child Support (Miscellaneous Amendments) Regulations give effect to some provisions in the context of the CSA but do not call for separate comment. The other CSA regulations allow for the use of the income tax data of the self-employed who, while enjoying apparently considerable means, nevertheless appear to be stating that they are incapable of supporting their children. The idea of allowing the argument for civil liberties to stand in the way of someone being required to give full support to his children is one that my colleagues and I would find totally inappropriate. Having civil liberties does not give you the right to starve your own children.

We welcome the further postponement of the levying of fees by the CSA as it is far from clear that it has yet achieved a level of service that would justify the fees. It has been a consistent line from these Benches that the agency is not to blame; it is the complexity of the legislation. It is to be hoped that the efficiency I mentioned before will allow the agency to do its job.

Baroness Hollis of Heigham

My Lords, this has been, to use a word much favoured by the Civil Service, although I am not sure it really exists, a "timeous" debate. By that I mean not a fearful debate but one that is expeditious and on time. I congratulate your Lordships on helping us to extend the English language.

I shall do my best to answer the points that were raised. The noble Lord, Lord Higgins, referred to the opaqueness of the explanatory note compared with that produced by the Joint Committee. I have two responses to that point. First, any individual will be able to ask the agency for a full explanation of its decision. Any individual affected will have rights that currently do not exist. I am happy to follow up the noble Lord's more general point and see whether that is a helpful way of proceeding. I entirely accept that these are technical matters and that one would not expect people who seek to represent themselves fully to understand their import. I am happy to follow that point through.

The noble Lord's second point concerned the relationship of the regulations and the role of the Social Security Advisory Committee. The regulations have not been referred because regulations made within six months of the relevant commencement order do not need to be referred to the Social Security Advisory Committee. However, we will be writing to the Social Security Advisory Committee about the regulations and their effects.

The noble Lord asked about the appearance of presenting officers at tribunals. This is an important issue. The president is discussing with the Benefits Agency when presenting officers will be present at appeals. The noble Lord was right to draw our attention to that point.

The noble Lords, Lord Higgins and Lord Addington, asked about the composition of tribunals—single member tribunals, and so on. I am happy to confirm that the single member of a tribunal will be a qualified lawyer. The case raised by the noble Lord, Lord Higgins, seemed to be a mental health case, which would involve a two-member tribunal. We will be discussing with Judge Harris the question of security, in so far as that was presented, and I am happy to say again that where there is a single member tribunal, as in other tribunals, a clerk will be present to handle the paperwork and administration. There will be other people, so to speak, in the room.

It is worth reminding ourselves that 50 per cent, of all tribunals are expected to have two members, 25 per cent, to have three members and 25 per cent, to have one member. Though this matter will be laid down in regulations, it will be open to Judge Harris to come back to us if he feels that any of these composition balances are inappropriate.

The next point raised by the noble Lord, Lord Higgins, which was a concern shared by the noble Lord, Lord Addington, was the general point about time limits. Two sets of time limits apply: the first concerns the appeal to the tribunal from the decision of the agency; the second is the appeal from the tribunal to the commissioners. The regulations propose two different sets of arrangements for each of those.

First, there is a limit of 14 days in which to get a full explanation for the decision from the agency. There is then a one month period for that person to be involved in discussion, dispute or negotiation with the agency. There is then a further one month following that for the appeal to be registered. Therefore, in practice, that person has a minimum of two months, almost two-and-a-half months, for that appeal to be made from the original decision of the agency through to the tribunal.

The time limits are extended further for an appeal from the tribunal to the commission. In reality, there is a three-month time limit in relation to such an appeal. There is one month in which to request a full statement; one month from the issue of the full statement in which to apply for leave to appeal; and there is one month after that for the appeal to be lodged. Therefore, effectively, there is a time limit of three months for the appellant to go from the tribunal to the commissioners.

In addition there is an absolute time limit of 12 months which applies in cases of somebody facing illness—and that may be what the noble Lord, Lord Addington had in mind—bereavement, absence abroad, postal strikes and other exceptional circumstances to be determined by the commissioners. There can be an absolute limit of up to 12 months.

Those arrangements are perfectly decent and proper. I hope that they will ensure that we deal with appeals as expeditiously as possible. That is why I believe your Lordships accept the point about striking out misconceived appeals. A time limit of seven months in which to go to the tribunal and up to a year in which to go on to the commissioners is far too long. Throughout that time, a person's benefit status is uncertain and it is right that we should speed up that process as far as possible.

Lord Higgins

My Lords, it is extremely helpful to hear that explanation. However, is it not the case, under the current regulations, that if a claimant does not apply within 14 days for a request for an oral hearing, that may be struck out, as I understand it, by a clerk with no legal training?

Baroness Hollis of Heigham

My Lords, as I understand it, a person may request either an oral or a paper hearing. He certainly needs to give due notice of the fact that he wishes to appeal. He has 14 days in which to ask for an explanation of the decision and one month in which to go into dispute. I take it that the noble Lord is talking about appeals to the tribunal rather than to the commissioners?

Lord Higgins

My Lords, my understanding is that if a claimant does not reply within 14 days in relation to whether or not he wants an oral hearing, it will be struck out and that is it.

Baroness Hollis of Heigham

My Lords, an appellant has the right to receive a full decision from the agency, which takes 14 days. He has a month in which to go into dispute and a month in which to appeal. If he does not reply to the request as to whether he wishes an oral hearing, there would normally be a paper hearing. Perhaps we should follow up that matter through correspondence because it may be that there is a misunderstanding.

The other issues raised by both noble Lords were about the proposals for the Child Support Agency. We are expecting to issue a White Paper fairly soon. If parliamentary time permits, we hope to see legislation in due course, but not in this parliamentary Session. However, it will take a couple of years, starting from scratch now, to get the IT system in place on which any reform of the Child Support Agency will depend. Without such an accurate, reliable and robust IT system, it will simply implode on us.

Therefore, because we are several years away from seeing the improvements which we all wish to see, we need to make interim improvements. Part of that is to ensure that where people are self-employed, the basis of the information which is submitted to the Inland Revenue for tax purposes, is the same set of accounts as is produced for the agency. I believe that that has been welcomed.

The noble Lord asked me a question which I certainly cannot answer, and I do not think that anybody in the Chamber tonight could either. I do not know how many people in the reserve forces are affected by this regulation.

I have noticed in the caseload of letters received that there is sometimes what appears to be a disproportionate problem of people in the Armed Forces. This is partly because they feel aggrieved that, as members of a disciplined force, they are obviously vulnerable if payments are not made regularly. There is often a dispute as to the appropriate payment. We are determined to ensure that all people, including those in the reserve forces and the Armed Forces, contribute as they should. However, I will write to the noble Lord on the particular point concerning the Armed Forces.

Given the lateness of the hour, I hope that I have answered the questions raised. However, if there is any point which either noble Lord would wish, upon reflection, to follow up in correspondence—these are typically complex regulations—we shall obviously do our best to answer questions and to be helpful. I commend the regulations to the House.