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Earl Russell moved Amendment No. 91:


Page 18, leave out lines 15 to 24.

The noble Earl said: In moving Amendment No. 91 I shall speak also to Amendment No. 92, which is consequential upon it. The amendment deals with the

20 Jun 1995 : Column 230

situation where the absent parent has made an overpayment of maintenance. It strikes out the existing provisions of the Bill and provides instead that,


    "The Secretary of State shall make full reimbursement of any such overpayment to the absent parent as soon as practicable, and in any event within 14 days of the date on which it should have become apparent to the Secretary of State that such an overpayment had been made".

The Minister heard me talking earlier today about redress. On that occasion I was speaking on behalf of the parent with care; this time it is on behalf of an absent parent, but the principle is the same. If you cause damage to someone by unlawful or negligent acts, you owe them compensation. If the Minister asks, "Why the taxpayer?", I would remind him of the law of agency. The CSA is the agent of the state and therefore ultimately of the taxpayer. It is a claim that the Minister has made on its behalf many times; and since he allows so much for the agency, I think he ought to allow it against the agency as well. If you do injustice, you should put it right. It is just like the principle on which I brought up my children. If you make a mess, you clear it up. I beg to move.

Lord Mackay of Ardbrecknish: These two amendments make substantial changes to the provisions in Clause 23 for dealing with overpayments of maintenance. The effect would be that the Secretary of State would be required to reimburse all overpayments, and within a specified time limit.

Since the child support scheme came into operation a reduction to current maintenance has been the way in which overpayments have been dealt with. We accept that this does not always deal with overpayments satisfactorily, which is why this new provision has been proposed. But I believe it is right that an adjustment to the current assessment should remain the first consideration.

Payment of child maintenance is essentially a matter for the parents of the children. Overpayments occur for a variety of reasons and it would not be right for the taxpayer to have to step in immediately to sort the matter out. A reduction to the current maintenance assessment, where this is possible and reasonable, remains the most equitable way of initially dealing with overpayments. The right of the absent parent to be repaid can be balanced against the needs of the parent with care and children to receive regular maintenance. The regulations relating to the adjustment of maintenance assessments on account of overpayments were amended in April to give the child support officer greater discretion in setting the amount of the reduction. This will ensure a fairer outcome in most cases. But we accept that there will be a number of cases where a reduction to the current assessment is not possible or practicable, and that is why we are proposing the provisions in Clause 23. There may be no assessment, for example, where the child is no longer in full-time non-advanced education or the assessment is already at the minimum amount, meaning no adjustment is possible; or an adjustment may be inappropriate because, for example, it would take an unreasonable

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length of time to repay the overpayment. However, it would not be right for all cases to be dealt with under these provisions.

The amendments also introduce a 14-day time limit for making reimbursement, but I believe this is impracticable. It is not clear from the amendment just when the clock will start ticking, but in cases where a revised assessment results in a lower award, the Child Support Agency will be able to calculate the overpayment immediately and will deal with it as soon as practicable.

But, more importantly, the amendments would place operational constraints on the agency and would undermine its ability to organise all aspects of its work. The agency deals with a huge range of different tasks in making assessments; undertaking reviews; dealing with routine queries and correspondence; and collecting payments and passing them on to the parent with care. Imposing such a time constraint in respect of one particular activity—I have already mentioned this today—would have considerable implications for the way in which the agency manages its workload. Other activities do not have such time constraints, and there is no reason why the reimbursement of overpayments should be treated differently or have priority.

Of course it is right that overpayments are calculated as quickly as possible and appropriate action taken to ensure that the absent parent is repaid in the most appropriate way. The agency aims to ensure that all its work, including that of overpayments, is processed as quickly as possible. In considering the wider issues of processing work in the Child Support Agency, time limits prescribed in legislation for certain actions can only hinder rather than assist in providing a satisfactory level of service. With that explanation, I hope that the noble Earl will be able to withdraw the amendment.

8.45 p.m.

Earl Russell: That most of my amendments should be mistaken would merely mean that I was subject to the human condition. That they should all be mistaken would offend against the law of averages. I really had hoped that in the whole Bill there might be just one single amendment which would find the Government's favour because some of them were actually meant to be helpful.

I am sorry that the Minister has not seen it. He talks about placing operational constraints on the agency. But does he understand that the agency itself is placing the most severe of operational constraints on practically everyone else? Why should the agency be free of operational constraints while everyone else is more and more tightly restricted? That is the kind of question that was in the mind of the noble and learned Lord, Lord Simon of Glaisdale, when he introduced the concept of the rule of law. We have an agency which is more and more being given the discretion to do absolutely whatever it likes, with the Secretary of State to back it up. This is arbitrary government. It is something which we have a long history of resisting and which we were supposed to have a Parliament in order to prevent. I cannot see that it does very much about it.

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I am sorry that the Minister does not understand the point of the amendment. He keeps on talking about absent parents refusing to accept their liabilities. What I see is a Secretary of State refusing to accept his liabilities. But if we were to attempt to deal with him with even one-hundredth of the vehemence used in the pursuit of absent parents, the squawking would be heard from here to Timbuktu. I hope that at some time the Government will hear something. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 92 not moved.]

Lord Carter moved Amendment No. 93:


Page 18, line 33, at end insert:
("( ) Subsection (3) shall not apply where the overpayment has arisen as a result of administrative error on the part of the Secretary of State, his servants or agents.").

The noble Lord said: In moving this amendment I shall speak also to Amendment No. 94. Both amendments deal with the matter of overpayment but from a rather different direction from that in the last group of amendments.

Amendment No. 93 deals with the situation where the overpayment has arisen as a result of administrative error on the part of the Child Support Agency. The effect of the amendment is obvious from its wording. It is intended to protect parents with care from the requirement to repay a debt to the agency where the agency itself is responsible for an overpayment being made. The Minister will not want me to labour the figures, which have appeared in the press only today, about the mistakes that have been made by the CSA.

Although the Government's intention to recompense an absent parent who is overpaid is to be welcomed, in fact the clause also makes it clear that the Government intend to go after the parent with care to recoup the losses of the offer the Government have generously made. This clause would help absent parents, but parents with care also need to be adequately protected against the considerable number of administrative errors which have been made and are likely still to be made by the agency. If the agency has admitted fault in causing an overpayment, the parent with care should not then be made to repay the debt to the agency.

I shall not be at all surprised if the Minister argues that if the parent with care was overpaid she should ultimately pay it back. However, in most of the cases—we are dealing here with people who are not very well off and will not have large savings or anything like that—the money will already have been spent and therefore the parent with care will need to manage on less money each week in order to repay the debt to the agency. In other cases the parent with care will suffer an actual overall financial loss should she be required to repay the payment.

For example, in the case of parents with care who are claiming family credit, they will lose in three ways. First, they will be claiming a reduced level of family credit to take account of the higher or overpaid maintenance payments. That underpayment, as we would describe it, will not be recompensed. Secondly, the readjustment of maintenance to the lower level will

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reduce their income, which may not be readjusted immediately due to the current six months rule on family credit, a point to which we shall return on later amendments. Lastly, if this clause remains, they could be asked to repay a debt to the agency. So they are caught with a troika of injustice.

This amendment was not proposed in the other place, but the Government have said that they intend to use their discretion when looking to claw back a debt from the parent with care—I think that the Minister indicated that in his reply to the last group of amendments—but they do not want any amendment to take away their discretion. This amendment would not remove discretion, but would simply limit discretion to cases where the overpayment was not made as a result of an error on the part of the agency.

I turn now to Amendment No. 94, which deals with a situation where the overpayment has arisen as a result of an interim maintenance assessment (IMA) being paid by the absent parent. The effect of the amendment, if accepted, is to ensure that where an overpayment has been made by the absent parent due to his non-co-operation, the agency would not offer compensation to the absent parent. If, due to the non-co-operation of the absent parent, an interim maintenance assessment is imposed by the agency, in the new regulations the absent parent who then co-operates will only be liable for the lower maintenance level. In some cases an overpayment of maintenance will result if the IMA was enforced.

The amendment will ensure that any overpayment would not be recompensed by the agency and therefore, under the terms of Clause 23, the parent with care would never be asked to repay the overpayment.

At the seventh sitting of the Committee in the other place the Minister said that the situation will not often arise. However, he said that the Government should not be constrained from recovering such money from the parent with care when it is right, on behalf of the taxpayer, to do so. As I say, the Minister said that the situation will not often arise.

The Government are right in saying that that will not often happen as in most cases the benefits will have been reduced to account for the higher payments. The Government are worried that the clause will take away their discretion to recoup the overpayment on behalf of the taxpayer. If this amendment is not accepted, it will mean that the agency can recompense the absent parent for what effectively amounts to non-co-operation, and then expect the parent with care to pay it back. It is reasonable to expect the parent with care to pay back an overpayment in certain circumstances. The legislation should allow the CSA the freedom to do that, but not when the debt is due to the non-co-operation of the absent parent. It is entirely wrong that if the absent parent refuses to co-operate the consequences which I have described follow. That is extremely unfair. I beg to move.


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