Kitty
Ussher: I am happy to explain why this subsection is
there, and I do not think it is unjust. The key to it is this: it is
something that the courts may do. They may award costs to the
non-resident parent on appeal. It is not something they necessarily
have to do.
The hon.
Gentleman is quite right. If the non-resident parent has followed all
the rules and it transpires on appeal that they should not be
disqualified from using their passport or driving licence for one of
the reasons that is set out clearly in legislation—for example,
their children’s welfare would be affected, they need it for
their livelihood or they have not wilfully refused or culpably
neglected to pay maintenance—then it is at the discretion of the
court not to award costs to
them. Let
me turn this around. You can construct an argument where even if one of
those criteria is met—the non-resident parent could be one of
the people that the hon. Gentleman characterised in a previous
amendment, who perhaps is routinely ignoring any correspondence or
attempt to communicate and find out the facts from the Child Support
Agency. The parent may well need their driving licence in order to earn
a living, but has never bothered to communicate that despite numerous
attempts to ascertain the situation. It is only when presented with the
last possibility to ensure this does not happen that
they actually engage. At this point, I think it would be wrong that the
taxpayer should pay the costs. In such cases, it should be at the
court’s discretion—it should have the option of imposing
costs. The fact that a non-resident parent may have to pay
costs—which is obviously something that would be communicated to
them at an earlier stage—would also help prevent manipulation of
the appeals process. It would raise the stakes slightly, so perhaps
fewer cases would come unnecessarily to court. That would also be a
good use of taxpayers’ resources. It is not
always the case that the non-resident parent would have to pay costs,
but I can envisage circumstances where a court acting with the
discretionary powers we are giving it may consider it fair to award
costs to the non-resident parent. That is why the subsection is in the
legislation.
Mr.
Harper: That was not a terribly good explanation. It
sounded remarkably as though the Minister is talking about using the
appeal costs as some sort of punishment. If she wants to have a form of
punishment in the legislation, it should be explicit; the costs of the
appeal should not be used as a back-door method of punishment. I am
concerned about non-resident parents who have done nothing wrong but
end up having a disqualification order sought against them, who
successfully appeal against the order because the commission has taken
the incorrect steps, and then find that they have an award of costs
against them.
In addition,
there is nothing in the Bill to suggest that the commission’s
appeal costs are in any way reasonable. Will the Minister go away and
consider whether the commission’s appeal costs ought to be
reasonable, and come back to us, perhaps on Report? We do not want the
commission, using taxpayers’ money, to spend a lot of money on
these processes, at the end of which non-resident parents who have done
nothing wrong and have successfully won their appeal are hit with a
significant bill. That is the danger with this type of legislation: if
we are not to create a lot of martyrs, it is sensible to ensure that
these powers are used proportionately.
The Minister
is correct that the subsection just gives the court the ability to
award costs—obviously we are depending on the court’s
looking at all the facts of the case and being reasonable. Given that
that safeguard is in there, and given the Minister’s explanation
about where she thinks this power is likely to be used, I am quite
happy to seek leave of the Committee to withdraw my amendment. But I
would like to ask her to go away and have a look to see whether any
check is needed—whether in the legislation or the
regulations—on what the commission is allowed to spend on
appeals, to make sure that it is
reasonable.
Kitty
Ussher: So that we can satisfy ourselves that unreasonable
costs will not be put on non-resident parents appealing, even when
there is no fault on the commission’s side, I would be happy to
have a look at the issue and perhaps write to the hon.
Gentleman.
Mr.
Harper: That is very generous of the Minister. On that
basis, I beg to ask leave to withdraw the amendment.
Amendment,
by leave,
withdrawn. Question
proposed, That the clause stand part of the
Bill.
Paul
Rowen: Before we go on to agree on the clause, there are a
couple of comments that I would like to make and a few questions I
would like to ask the Minister, to which I hope she can
respond.
First, it is
clear from the Child Maintenance and Other Payments Bill that the
Department already has the ability to disqualify and take away licences
and passports. In the House of Lords on 13 May 2008 the Lord McKenzie
of Luton made the following
statement: “I
therefore acknowledge your Lordships’ concerns relating to that
provision and accept that the prevailing view at present is that the
decision should be made by the courts.”—[Official
Report, House of Lords, 13 May 2008; Vol. 701, c. 963.]
I would like to ask the
Minister what new evidence has come to light that, since that
statement, it has proved necessary to remove the reference to the
courts. Give that the Child Maintenance and Enforcement Commission has
only been operational since October last year, perhaps she would tell
us how many applications have been made to the court and whether there
is evidence that that process has proved slow and
unsuccessful.
The second
question that I would like to ask the Minister concerns the
implementation of the orders. Who will actually be implementing the
order and at what level in the structure? There is concern that very
junior civil servants might issue these orders. What internal checks
will exist to ensure that it is the last resort and that proper checks
have been made before an order is issued?
In addition,
there is a wider concern—I admit that it applies more to
CMEC’s predecessors—about the number of orders that the
Child Support Agency already gets wrong. One of the issues in the
clause is that, although the court can discuss whether disqualification
is appropriate, it is not allowed to discuss whether the sum that is
being talked about is correct. A concern about the CSA—rather
than CMEC, because the CSA has been in operation longer—is the
fact that it often gets it wrong. I am sure members of the Committee
have examples from their own constituency casework of the CSA getting a
maintenance order figure wrong and, following a challenge, having to
revise it.
My final
question was also raised by Fathers for Justice. When a driving licence
has been withdrawn, what action will the Department take if that parent
loses his job or is unable to do his job? There have been examples of
the withdrawal of licences having disastrous effects, not only in
respect of people’s livelihood but in respect of their ability
to see their children.
I shall be
grateful if the Minister will answer those
points.
Kitty
Ussher: I am grateful for the opportunity to answer the
points raised by the hon. Gentleman. On his final point, I am
interested that he quotes evidence from Fathers for Justice; I do not
see it particularly as a credible organisation, but obviously the hon.
Gentleman does. I do not know whether he or Fathers for Justice have
read the legislation, because the Bill makes it quite clear that, if
the document concerned is required for the non-resident parent to earn
his livelihood, it should never be removed; and if its removal would
have an effect on the welfare of a child, whether it is the child in
question or other children of whom he is the parent or with whom he is
associated, then it will not be removed.
Moreover, the
onus of proof will be on the commission to demonstrate that the parent
is wilfully and culpably refusing to pay child maintenance. That is
quite a high level of proof, and is one of the safeguards in the
legislation showing that this provision will not be used willy-nilly by
junior clerks in the organisation. There will be quite rigorous
internal mechanisms, and the outstanding debt would have already been
checked when the liability order was made—which must be done
before tougher forms of enforcement can be considered.
The
commission will obviously complete any outstanding maintenance
assessment action on each individual case where it is relevant to the
level of arrears. The caseworkers will be trained in the new
legislation to guide them in the decision-making process. The
non-resident parent will have been given notice of the fact that a
liability order is being considered, and they will have the opportunity
at that stage to make representations. So if an error has been made, or
if they fall into one of the categories on the face of the Bill, they
will have an opportunity to pick that up at an early stage. I am
therefore certain that this is not something that will be used lightly
or inappropriately, and I wish Fathers for Justice had the same
view.
The hon.
Gentleman’s first point related to the history of last
year’s child maintenance legislation. We did say that we would
continue to consider which decisions needed to be made by the courts,
and which needed to be made administratively. In the intervening period
of time, more international evidence has come to light that makes it
clear that it is an extremely effective policy. Between July 2006 and
August 2008, for example—this is extra data that we did not have
during the passage of the previous legislation—an additional 11
million Australian dollars was collected in child maintenance payments
brought about by the use of around 1,800 prohibition orders relating to
Australian travel documents. A review of a sample of 124 cases where
such an order had been made indicated that 88 per cent. of customers
had continued to pay the right amount of child support 12 months after
the order had been lifted, whereas they had previously simply
disengaged with the
process. We
think that makes the case for legislating even clearer than before. But
I also have to say—I am repeating the point made by my right
hon. Friend the Secretary of State—that, in a sense, we had no
option but to withdraw our proposals on administrative disqualification
of a travel document, because the main Opposition party had made it
quite clear that it would not support the rest of the Bill unless that
was removed. There was a touch of realpolitik in it that was extremely
regrettable. I am very glad that the main Opposition party now appears
to have done an elegant U-turn, hopefully enabling this clause to go
through. I hope that that is sufficient to allow the Committee to agree
to clause
40. Question
put and agreed
to. Clause
40 accordingly ordered to stand part of the
Bill. Schedule
5 agreed
to. Clauses
41 and 42 ordered to stand part of the
Bill.
Clause
43Child
support maintenance: offences relating to
information 11
am
Mr.
Harper: I beg to move amendment 83, in
clause 43, page 49, leave out line
8. The
clause requires a person liable to make payments of child support
maintenance to notify a change of address, or any other change of
circumstances. The amendment leaves out the line that says
“any other
change of circumstances”.
This is a probing
amendment to ask the Minister to give the Committee more detail about
the type of information that the Government envisage being
used. On
the face of it, the clause is drafted incredibly widely: someone would
be guilty of an offence for not notifying any other change of
circumstances with no information as to what that might mean. Ministers
clearly envisage some of that detail being contained in regulations,
but I should like to set out for the Committee some of the areas of
concern in order to inform the nature of the regulations and how
tightly they are
drafted. Some
of the information and some of the concerns have been raised by
Families Need Fathers, which is keen to campaign in this area. It has
spelt out the concerns about the lack of due specificity on the face of
the Bill. It has also raised concerns, which I know the Government
share as they set out in their document how they thought the
regulations might be used, that, should those regulations not be
defined tightly enough, it will generate a significant number of flows
of information into the Child Maintenance Enforcement Commission. That
would have the opposite effect to what the commission is seeking. The
commission is trying to streamline its future case load by reducing the
number of cases in which it carries out reviews of change of
circumstances; for example, it is reducing the number of times it will
look at a child maintenance award where the income varies by less than
25 per cent. It would seem that, unless this provision is narrowly
drawn, it would generate the inflow of a huge amount of information to
CMEC, which would offset the work it is doing to reduce its work load
in order to focus more effectively on the cases that require the most
attention.
I have not
seen any evidence—perhaps the Minister could supply the
Committee with some—about the kinds of information that should
be supplied to CMEC under the clause, and how that would make the
payment of child maintenance more effective and more likely to reach
the family in which the child is resident, which is the purpose of the
test. I
have looked at the document that the Ministers have published detailing
how they plan to use regulation-making powers. They have said that the
definition of “other change of circumstances” would be
left to secondary legislation, which would allow the commission
flexibility and time to consult stakeholders as part of its process for
developing policy. That sounds sensible, but there is nothing in the
Bill that constrains any of that—no guidance is
provided. On
a positive note, to be fair to Ministers, paragraph 376 of that
document does say that Ministers
are “mindful
of not creating unnecessary offences”
and
that they want regulations to
be “tightly
and precisely termed to ensure there is a clear understanding of any
requirement placed on
parents.” In
fact, Ministers have acknowledged the concern that I and Families Need
Fathers have outlined about the burden of information coming into the
commission. They have
said: “Indeed,
the changes of circumstances to be notified to the Commission must be
narrow enough to enable the system to process the information without
becoming over
burdened.” So
I think Ministers recognise that the clause is widely drawn and that
the regulations will need to be narrow and tightly focused so as to be
fair to parents and so as not to burden the commission. It will help
the Committee—as it has not seen the regulations— if the
Minister will give some idea of the kinds of information that the
Government and the commission have in mind. The Committee can then be
reassured that Ministers will be committed to the objective of having
tightly defined terms when they bring the regulations before the
House.
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