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Lord Mackay of Ardbrecknish: I think there is at least some detail in the memorandum to the scrutiny committee but one of the objects of the Committee—not only this Committee but most Committees—is to give Members the opportunity to ask the Government the purposes behind the delegated legislation and what their thinking is. That is what I am discussing; I have done it on many an occasion in this parliamentary Session. I cannot see where else I might have chosen to explain to the noble Earl what we intend by the powers that we seek in this part of the Bill.

I was saying that we recognise that there may be a number of further situations where we would want to provide for departure directions to be given. These would be too complex to detail in primary legislation and that is why the provision contains a power to make regulations. For example, we might want to provide for a departure in certain circumstances where debts were incurred in respect of step-children. As step-children are not allowed for in the maintenance assessment except by virtue of a departure direction this amendment would exclude debts incurred for their benefit. The provision which the noble Earl wishes to amend, together with its delegated power, is one that seeks to widen rather than narrow the scope for departures on the grounds of previously incurred debts. Secondary legislation is essential because of the many different circumstances that can arise.

I return to Amendment No. 4. A departure may be requested here either at the time an assessment is made or at a later date if there has been relevant change of circumstances. For example, an absent parent may be content with the travel-to-work provisions in the formula but may later have to move his place of work with resulting higher travel costs and therefore may want to ask for a departure. This regulation-making power enables the Secretary of State to provide that the question of whether a change of circumstances is material should be determined in accordance with regulations. We do not

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expect that it will be necessary to provide a definition of "material" for this purpose. A reserve power is needed in case there prove to be circumstances in which it is not clear whether or not a particular change of circumstances is material. It is sensible to take such a power for the avoidance of doubt and to prevent the scope for inconsistencies of approach.

Amendment No. 23 concerns Clause 6 of the Bill and seeks to remove the power to make regulations clarifying certain factors which should or should not be taken into account in considering whether it would be just and equitable to give a departure direction. In exercising his discretion to give such a direction the Secretary of State must consider whether it would be just and equitable to do so. He must look at all the circumstances of the case and particularly the financial circumstances of the absent parent and the person with care. He must bear in mind the welfare of any children to be affected. We do not pretend that these decisions will be easy. The issues will be many and varied. Some absent parents may well be able to show that they have quite high levels of special expenses and many parents with care will be able to demonstrate that in comparison to the absent parent they are financially worse off. Deciding what is fair in any given situation will involve some difficult decisions and questions will arise about the sort of factors it is right to take into consideration. The power conferred by subsection (3) of new Section 28F is intended to allow the Secretary of State to specify particular factors to be taken into account, or not to be taken into account, when making these difficult judgments.

Question 24—that is, Amendment No. 24, although it is question 24!—which the noble Earl suggested we might include in this grouping we are discussing, would remove the provisions in new Section 28F for a departure direction not to be made if the result would be to change the current assessment by less than a specified amount. The result would be that where, after due consideration of all the facts, the Secretary of State considered that a case had been made for allowing special expenses, he would instruct a child support officer to make a fresh assessment even if the changes in the assessment were as little as a penny.

The Committee will be familiar with the concept of the de minimis rule which currently exists in relation to reviews of maintenance assessments for changes of circumstances. It may be helpful if I discuss the reasons for using this type of control mechanism and explain why we wish to introduce a similar provision for departures. The de minimis rule restricts the number of times an assessment is changed by providing that where the amount payable will vary by less than a stated amount no reassessment will be made. It is designed to ensure that once an assessment is made it will be changed only by significant amounts. We believe that it is important both for the person with care to know how much income she can expect and equally for the absent parent to know what his commitments are. Frequent changes would not be helpful in either case. Moreover, the need to make constant reassessments for small amounts would place an unmanageable administrative burden on the agency.

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Lord Houghton of Sowerby: I am sorry to intervene. I have probably missed a beat or two. When the noble Lord refers to the Secretary of State and the difficult decisions the Secretary of State must take, he is of course referring to the staff of the Secretary of State. Since there are thousands of cases there will be a need for a great many staff, who will be of different types and ages, with different training and different approaches to the problem and who will apply varying degrees of wisdom in their discretion. What staff are likely to be in post to reach all these difficult decisions? The root of a great deal of the troubles of the agency is that it has not had the staff. I do not know where they came from or what training they had. Can the Secretary of State guarantee that decisions will be taken by people capable of taking them?

5.30 p.m.

Lord Mackay of Ardbrecknish: As with all the agencies of the Department of Social Security, there is a considerable number of staff to deal with these issues. Of course the training of those staff, the guidance given to them and the regulations which Parliament lays down are all important matters. We shall recruit and put in place senior, well-trained staff to make the difficult decisions on departures. Via regulations and guidance sent out to staff on how to operate the rules, we shall try to ensure that they are as highly trained as possible. However, every system is human. Even the courts, which some Members of the Committee seem to think was the infallible system of yesteryear, did not exactly produce a totally consistent method of dealing with individuals when they came before them. That is why we propose that there should be a de minimis rule. It is good common sense.

The effect of Amendment No. 26 would be to allow an application for a departure direction from an absent parent who had an expense not taken into account in the formula assessment. The departure system is intended to allow some flexibility for the small number of cases where the application of the maintenance formula causes genuine difficulty. It is important that we are able to prescribe the circumstances in which a departure can be requested. Without it we shall return to a totally discretionary system under which it would be possible to place virtually any expense before the duty to pay child support maintenance.

In accordance with the affirmative procedure, any regulations made under the departure provisions under Schedule 4B of the 1991 Act will be brought before Parliament for further consideration. If, when the system of departures is up and running, the gateways need adjusting that can be done.

During the Committee stage in another place some members of the Opposition indicated that there were one or two items that they would like to see included in the list. My honourable friend the Under-Secretary of State for Social Security, Mr. Alistair Burt, gave an undertaking that we would keep the list of special expenses under review and would make adjustments if that proved necessary in the light of the pilot exercise.

Perhaps I can explain the purpose of the regulation-making power which the noble Earl proposes to delete in Amendment No. 33. The purpose of the power is to avoid uncertainty as to when disability and illness—

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terms which themselves will be defined in regulations—are to be regarded as being long term. Our intention is to introduce regulations to the effect that a long-term illness or disability is one which is expected to last for at least 52 weeks. That would be consistent both with the definition used for incapacity benefit and that in the Disability Discrimination Bill. The regulation-making power is subject to affirmative resolution and therefore Parliament will have the opportunity to debate the contents.

The effect of Amendment No. 35 would be to remove the delegated power which is required to define the circumstances in which a child may be considered to be part of the family for the purposes of considering a departure direction. Defining the circumstances in which children are considered to be part of the family is best left to regulations, an approach which is consistent with provisions for income-related benefits.

Earl Russell: I am grateful to the Minister. I did not ask him to explain why the power should be in regulations rather than in primary legislation. I asked him to explain why it should be a legislative matter at all.


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