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Lord Carter moved Amendment No. 7:


Page 2, line 23, after ("may") insert ("refer it to a departure review panel, which shall be made up of not less than two legally qualified officers who will").

The noble Lord said: In moving Amendment No. 7, I wish also to speak to Amendments Nos. 9 and 10 which are consequential. This group of amendments is intended to ensure that the important area of departure which will introduce a substantial element of discretion into the work of the Child Support Agency is carried out by appropriately trained and qualified personnel.

The amendment was not discussed in the other place in terms, but there have been discussions in Committee in the other place which relate to it. The Government have given assurances that staff dealing with departures will be appropriately trained. On the second day in Standing Committee E in the other place, the Minister stated at col. 55:


The Government also suggest that the staff will be appointed from within the agency. Also in Standing Committee E, the Minister said:


    "We decided that staff from the Child Support Agency should do the job, rather than staff from an outside body, because we believed that that would be the best way to deal with preliminary decisions".

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Although we appreciate that staff have developed expertise in certain areas, the whole new area of departure introduces a great deal of discretion and, I think we all agree, will require high levels of skill if staff are properly to recognise and interpret complex information, documents and papers and then make a fair judgment as to the degree of departure which should be granted.

To refer again to the second sitting of the Committee in the other place, the Minister stated that the Government had thought about the procedure that was adopted in Australia, using an independent review officer. They quoted the opinion of the Australian select committee, which preferred the option of internal organisation to deal with departures rather than the use of an outside body. However, they did not mention that the Australian system employs qualified lawyers who have to have considerable tribunal experience or a background in family law for the job of deciding departure. In our view, the UK system needs a similar standard if the departure system is to work and be seen to be fair by all parties. We are saying that if the staffing is to come from within the agency, not from outside, then the departure review panel should, in the words of the amendment,


    "be made up of not less than two legally qualified officers".

I beg to move.

6 p.m.

Earl Russell: This is a useful amendment. I am happy to support it. This is also as appropriate a moment as any other to ask a question about which I have wondered since the Bill was first published. Why have the Government chosen to use the word "departures"? It sounds dreadfully like British Rail. When we come to the term "departure direction" and one begins wondering about all the things that may go wrong, and when one begins talking about a "mistaken departure direction", one really is into the territory of "Beyond the Fringe". Could the Government use slightly less risible terminology?

Lord Mackay of Ardbrecknish: To answer the last point, the term "departure" is used because it refers to a departure from the formula. That is why the term was chosen.

The noble Lord, Lord Carter, explained that his intention was to introduce the concept of a departure review panel to consider applications rather than to have them considered by the Secretary of State or a child support appeal tribunal. The Committee will have recognised that the effect of these amendments to the new Section 28B, as introduced by Clause 2 of the Bill, is to require the preliminary consideration of an application to be carried out by a departure review panel. Following that, the Secretary of State, or occasionally a child support appeal tribunal, will determine those applications which have not lapsed or been withdrawn. This would be a rather curious arrangement, although perhaps it was not intended that way. I listened carefully to what the noble Lord said.

The purpose of the preliminary check is to avoid processing those applications which cannot succeed because they do not meet even the basic conditions for application; that is, either they do not fall within the cases in Part I of Schedule 4B, as introduced by Schedule 2 to

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the Bill, or any departure direction which might be given would not vary the current assessment by a significant amount. In other words, they may not fall to be considered as one of the departures in any case. Even if they do, they might not vary the current assessment by a significant amount. The preliminary check is therefore both a management tool to ensure that staff resources are not expended unnecessarily, and a means of managing people's expectations in that, where there can be no hope of an application succeeding, those concerned are not left too long in the dark, harbouring hopes or even fears as to the possible outcome of an application.

It is our intention that this will be a quick, straightforward check of application forms, involving no discretionary judgments, and will be carried out by officers at a lower grade than those who will determine the applications and give departure directions on behalf of the Secretary of State. To have this check carried out by a panel of no less than two legally qualified officers seemed to be rather over-egging the pudding. Clearly, however, it was not the noble Lord's intention that the review panel should deal with just the preliminary consideration of applications, and I shall therefore go on to address the question of a panel to deal with full consideration of departures.

This seems also to be unnecessary. There are numerous precedents, both within child support itself and elsewhere within the social security system, where discretionary decisions are taken by individual adjudicators. The Child Support Act already has areas of discretion which are exercised by individual child support officers or agency staff on behalf of the Secretary of State. There is no reason why the departures scheme should be any different. On the matter of whether those taking decisions need to be legally qualified, I would say to the Committee that it is common for staff in the agencies of the Department of Social Security to work successfully from quite complex legal provisions without themselves being legally qualified.

Furthermore, if the noble Lord is concerned about the standard of decision making that will result from individual officers exercising their discretion in accordance with the Act and regulations, I should like to reassure him that staff involved in this work will, as I mentioned earlier, receive special training and departure directions will be given by senior staff. Furthermore, of course, we shall be monitoring the scheme closely to ensure that decisions are fair and, so far as is possible within a discretionary scheme, consistent.

Finally, and very importantly, I remind the Committee that any decision of the Secretary of State in relation to a departure application carries the right of appeal to an independent appeal tribunal. The tribunal, as discussed, will always consist of a legally qualified chairman and, will normally have two members who may or may not be legally qualified.

The noble Lord cited the Australian review officer procedure as a precedent. In fact, that system is something of a halfway house between the Government's proposals and the system that would result from this amendment. The review officers in Australia are legally qualified people, employed by the Australian Child Support

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Agency. An individual review officer considers each case and reaches a decision, in the same way that we propose for our system. But the only avenue of appeal is to the courts. In other words, there is not the equivalent of a tribunal. Noble Lords may be interested to know that a joint select committee of the Australian Parliament has just published a comprehensive report on its scheme which is not entirely enthusiastic about how well the review officer system works. It describes it as having "an unnecessary legalistic structure" and criticises,


    "the inflexibility of the procedures and the lack of an effective and simple internal review mechanism".

As a better approach, the committee suggests that initial decisions on departures be taken by staff within the agency, with an appeal to a new independent "child support claims tribunal"—exactly the approach that we suggest in the Bill.

We gave careful consideration to the best way to administer the departures scheme, and we concluded that the one set out, using the already experienced and knowledgeable staff in the Child Support Agency, is the best way forward—with, of course, the tribunals behind them to deal with any appeals to the decisions made by them. I believe that that is the best way to proceed. With that explanation of how we envisage that the system will work, and a small look at our friends on the other side of the world, I hope that the noble Lord will withdraw his amendment.

Lord Houghton of Sowerby: The original legislation was introduced by the Government in 1991 in an ethos of hostility towards a body of citizens who were prima facie in default. There was an assumption behind the Bill, and in the Act, that we were dealing with undesirable people who had forsaken their responsibilities to their own children and had escaped the duties that should have fallen upon them.

We talk about justice in this context. I am not sure that the Prime Minister intended any justice at all. I believe that she had in mind making this a penal Act. That was the spirit behind it. We have only to look at its terms and the pursuance of the statute in observing the conditions that can be imposed upon a person. We have spoken to an amendment in a group of amendments that propose to delete from the Act the rules about distraint. That was Amendment No. 35. I am in sympathy with that amendment. In the British system of recovering a debt, distraint is imposed on persons without some justification. There was a time when one could not find collectors of taxes to distrain. It was such an unpleasant thing to do. It seems unjust to go round a person's house and stick labels on items, acquiring ownership of the property in the house in the name of the state. That kind of action is disturbing.

I must say—I hope that noble Lords will forgive me—that in 1991 there was another Act which was full of hostility; namely, the Dangerous Dogs Act. In fact, 1991 was a year of legislative hostility and we are reaping the ill rewards of that at the present time. I see that some noble Lords wish to interrupt me but I have in fact finished.


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