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Earl Russell moved Amendment No. 25:

Before Clause 18, insert the following new clause:

("Appeals: amendment of section 20 of 1991 Act

. In section 20 of the 1991 Act (appeals), in subsection (1) (b), at end insert—
"(c) to refuse an application for a maintenance assessment;
(d) to make an assessment;
(e) to refuse an application, under section 17, for a review of a maintenance assessment;
(f) in determining the amount of an assessment;
(g) to cancel an assessment;
(h) to refuse to cancel an assessment" ").

The noble Earl said: My Lords, in moving Amendment No. 25, I should like also to speak to Amendment No. 26. The matter of the two amendments is different but the area they cover has a certain amount of similarity. They both deal with the question of appeals. Amendment No. 25 would cut out the internal review which was provided in the 1991 Act and which adds to the delay, adds to the difficulty and adds to the obstruction. I can remember in 1991 the noble and learned Lord, Lord Simon of Glaisdale, waxing particularly eloquent against this internal review on the ground that it simply did not partake of the character of an appeal. It is an appeal to the same body which originally made the decision, and that is not what we understand by an appeal. The large number of decisions needing to be corrected is really much more an indication of poor adjudication and poor administration at the lower level. Indeed, those errors are so many and the number of missing papers so great that it is often not until there is investigation from outside that they come to light.

I heard the Minister speak in defence of the agency earlier today. I did not intervene because I had no further locus standi on that amendment and I remembered that we are at Report stage. However, the Minister knows that in general I do not believe that the agency is to blame for what is wrong with the Bill. Ministers are responsible for the load they have placed on the agency. Since the Minister knew that, I thought that he did not need to take the general distrust of power which I believe every parliamentarian must have in all circumstances as personal hostility to the agency. That was a little unnecessary of him.

Amendment No. 26 is much more far-reaching. It provides, in case of error, for a genuine appeal to the High Court. It also gives the High Court authority to override the Act itself where that is necessary to prevent hardship or injustice to any particular person. I am sure that the Minister will not like that. However, from 1991 onwards it has been one of our substantial criticisms of the Act that it does not provide any proper machinery for appealing against an assessment.

Over and over again in my postbag I have found that what most frustrates people in appealing against an assessment which appears to them patently unjust is that they are unable to get any judicial recourse to appeal against it. That is all part of what the noble and learned Lord meant by describing the 1991 Act as a threat to the rule of law. I do not believe that the Government can imagine the frustration and disillusion that results

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from facing what people see, rightly or wrongly, as an unjust act by an executive power and being unable to query it, challenge it or bring it to scrutiny before any higher authority whatever.

Under Amendment No. 26 the court would be allowed to correct any error of fact or law involved in the decision appealed against. Due to the amount of work the CSA is asked to undertake, rather than through any incompetence on its part, the papers of the CSA are in such confusion that until it faces an outside authority with power to compel it to produce documents a great many errors will never be sorted out.

The power that the CSA enjoys would have been draconian enough if all its decisions had been accurate, but at present it seems that no more than 50 per cent. of its decisions are accurate. Enjoying that much draconian power and immunity from questioning in defence of decisions, some half of which are wrong, is too much. That is why it is important to be able to appeal against the CSA to a proper court—the Family Division or, in Scotland, the Court of Session.

Ever since I arrived in this House I have been hearing arguments about the need for a proper family court. I have heard the noble Baroness, Lady Faithfull, speak eloquently and persuasively on the subject. If the Minister has not learnt yet he soon will that the noble Baroness, Lady Faithfull, is usually right even if, as in this case, it takes three years for her rightness to become apparent.

Although they deal with very different points, both amendments need to be taken seriously. The provisions of Amendment No. 26 go a long way to make the internal review seem even more unnecessary and time wasting than it seemed in 1991. I beg to move.

8.45 p.m.

Lord Mackay of Ardbrecknish: My Lords, as the noble Earl, Lord Russell, explained, the two new clauses he proposes concern appeals. Amendment No. 25 deals with appeals to a child support appeal tribunal while Amendment No. 26 deals with appeals to the High Court.

Amendment No. 25 proposes to make provision for child support officer decisions relating to the refusal, cancellation, making, or adjustment of the amount of a maintenance assessment to be appealed directly to a child support appeal tribunal. Noble Lords will know that the 1991 Act provides for a statutory review of such child support officer decisions by a second child support officer. The new clause offers an alternative avenue for disputing a child support officer's decision—directly to an appeal tribunal. However, it does not do away with the provisions of Section 18 of the Act. The effect of the new clause is to give the aggrieved party a choice of whether to ask for a review by the CSO or to go straight to a child support appeal tribunal.

The statutory review which is carried out before an appeal can be lodged serves a useful purpose. It reduces the pressure on the appeals system. There are times when matters of grievance can be dealt with simply and quickly by a second child support officer reviewing the maintenance assessment. There is no need for an appeal.

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In effect, the second-tier review acts as a filter mechanism to identify such cases and avoid clogging the system. Currently only around one case in five of those reviewed under Section 18 of the Act continues on to appeal. Before anybody says that the other four out of five have had their appeal rights denied, I should point out that the right of appeal is automatic should either party be dissatisfied with the result of the review.

Therefore, it is not so much, as the noble Earl, Lord Russell, suggested, an appeal to the same body. The second-tier review process is not an appeal at all. It is an opportunity for either party to ask for a different officer to check the assessment to ensure that it is correct. If either party then disagrees with the outcome, there is the automatic right of appeal to a tribunal.

If, instead of applying for a review by a child support officer, everyone sought to appeal, the number of appeals launched could increase fivefold. It is entirely appropriate for people to apply to the child support officer in the first instance if they are unhappy about any aspect of the initial decision on child maintenance. If he agrees the decision is wrong, he can put it right. There is no need for cases to go to a tribunal unless people are unhappy about the outcome. I cannot understand what is wrong with that. To go down the road suggested by the noble Earl would undoubtedly increase the number of appeals made to tribunals and make the problems of the tribunals even greater and the delays which the parent with care would face in getting maintenance ever longer.

The effect of Amendment No. 26 would be to undermine all first and second level decisions on the assessment, payment and collection of child support maintenance. As the noble Earl explained, it would abolish the child support commissioners and allow any decision of a child support officer, a child support appeal tribunal, the Secretary of State, a magistrates' court or a sheriff's court to be challenged in the High Court. There would be no requirement to seek leave to appeal. The High Court would accept all comers.

Child support commissioners are appointed by the Crown. They are barristers, solicitors or advocates of not less than 10 years' standing. Their role is to consider points of law raised by decisions of child support appeal tribunals. It is a well-established process which also applies in other areas of social security. The commissioners, whose legal standing is equivalent to High Court judges, provide a valuable function in establishing case law which then applies in later cases.

I know that the noble Earl regards the abolition of the child support legislation as his main aim. I believe that these two amendments would disable the legislation and get quite close to that position by the route that he suggested in the two amendments. By providing for the Family Division of the High Court to hear any challenge to a decision on child support, the amendment in effect returns questions to the courts. Such a move would result in a great deal of extra work for the High Court and the Court of Session in Scotland and people would wait a very long time for the outcome of their case. Other cases currently heard in the High Court and the Court of Session would suffer equally. Frankly, I do not believe that that is an acceptable way to proceed.

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Your Lordships will not have failed to notice that all the costs would fall on the Secretary of State unless the court decides otherwise. That would, of course, be a considerable and most unwelcome burden on the taxpayer. I am afraid that vexatious litigants would take every opportunity of pursuing their cases, especially if there was absolutely no possibility of them having to pay any of the costs. I do not believe that that is right.

I am sorry to tell the noble Earl that I think neither of his amendments are sensible. Both would increase costs and, more importantly, cause unacceptable delays. I believe that they would go a long way towards undermining the objectives of the Child Support Agency. The provisions would certainly add to delays. There are people who would use the procedures that the noble Earl would put in place as a way further to clog up the machinery of the system, to aggravate the system, to delay the system and to bring it into disrepute.

I cannot possibly accept the amendments. I am sure that the noble Earl is not in the least surprised at that. I hope he will withdraw this amendment. If he does not do so, I hope my noble friends will support me.

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