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Lord Mackay of Ardbrecknish: My Lords, the noble and learned Lord, Lord Simon of Glaisdale, and the noble Earl, Lord Russell, have again proposed this amendment which removes totally the provisions relating to the levying of distress. They are concerned that Section 35 of the 1991 Act
Lord Simon of Glaisdale: My Lords, perhaps the noble Lord will allow me to intervene. I venture to point out that it does no such thing; the power to levy distress remains under the Magistrates' Courts Act.
Lord Mackay of Ardbrecknish: Yes, my Lords, but I believe that the noble and learned Lord will agree that it removes the provisions as they apply to the Child Support Agency, giving it a different route to that which I believe the noble and learned Lord would prefer it to have.
Both noble Lords are concerned that Section 35 of the 1991 Act gives the Child Support Agency exceptional powers, and that this section is not neededas the noble and learned Lord pointed out to me in his interventionas there is an existing debt enforcement process in the county court. I should first like to remind the House of the efforts the agency makes to reach an agreement with the absent parent about the repayment of arrears before enforcement action is considered. There are a number of safeguards in place that limit the amount of arrears payable, the amount that the agency will seek to collect and the maximum amount of current maintenance and arrears repayments in cases where the absent parent makes prompt arrangements to meet his liabilities. Enforcement action is the last remedy for the agency in cases where an absent parent persistently seeks to avoid his liability.
For the sake of complete clarity I shall ask noble Lords to bear with me while I explain the stages in the agency's enforcement process in detail, relating them directly to the processes a private individual has to pursue to obtain the remedy of distress. First, the agency needs to establish that a debt has arisen and should be pursued. A magistrates' court must grant a liability order before any enforcement action by way of distress can be carried forward. As I explained in Committee, the court has no jurisdiction over the amount of the weekly maintenance assessment. That is a matter decided by the agency using the maintenance formula. Where a parent disputes the assessment, he or she has a right of appeal to an independent child support appeal tribunal. However, the court must be satisfied that the amount of debt stated on the application for a liability order is in fact owing and has not, for example, been paid in full or in part. All applications are heard in court and the absent parent may give evidence if he so wishes.
Section 35 of the 1991 Act provides for action to be taken to enforce the liability order by way of the levying of distress. This is necessary because all the liability order does is confirm that the debt is due. If Section 35 were taken away, the agency would be unable to use distress as a method of enforcing child support maintenance since, as there is no debt judgment from a county court, it would not be possible to apply to the county court for this action. Without the remedy of distress
Lord Simon of Glaisdale: My Lords, I am so sorry to intervene again. If I may say so, the noble Lord has entirely missed the point. There is no question of a county court order. It is a question of an order of the magistrates' court. I read the section and the provision. It is an order of the magistrates' court which can be enforced by distress. The liability order is an order by the magistrates' court to pay.
Lord Mackay of Ardbrecknish: My Lords, I hear what the noble and learned Lord says. However, I understand that an ordinary company, let us say, wanting to levy distress because a debt arises has to go to the county court for a debt judgment. I shall come to why we believe that this is the right procedure in a moment. I am saying that the agency goes to the magistrates' court; and I explained what the magistrates' court may or may not do and how it can establish what it is asked to establish, namely that the debt is owed and that it has not been paid either in whole or in part.
As I was saying, without the remedy of distress it would be much more difficult for the agency to obtain payment of maintenance quickly and effectively in those cases where absent parents refuse to meet their responsibilities to their children and where a deduction from earnings order cannot be used. The provisions in Section 35 give enforcement powers to the Child Support Agency which closely resemble the process in county courts. The decision to use magistrates' courts for liability orders, rather than the county courtsI hope that this helps to answer the noble and learned Lord's pointwas taken with the intention of being helpful to the parents. Magistrates' courts are often more local and therefore easier to attend than county courts.
An individual taking proceedings in the county court must first obtain a debt judgment and the debtor has an opportunity to attend court to defend the application if he wishes. The liability order process that I have described is similar, though taken in the magistrates' courts rather than the county court. If payment is not made following a debt judgment in the county court, the creditor can apply for a warrant of execution. But I should stress that that is, in most cases, an administrative procedure which does not involve the leave of the court. I do not, therefore, accept that the agency has exceptional powers in respect of distress. Creditors enforcing debt through the county court can have distress proceedings initiated on the basis of an administrative decision.
Section 35 of the 1991 Act does, of course, contain important safeguards to ensure that the absent parent is always left with certain essential items, including clothes, bedding, furniture and household equipment; and tools and other work equipment. There is also the right of appeal to the magistrates' court if the absent parent feels that the proceedings are irregular in any way.
I have been asked why it is not a magistrates' court order for distress. That would involve the agency going back to the magistrates' court, which is a two-stage process. The order for distress would normally be issued administratively and the agency has instead been given powers to act on the liability order. This is a simpler and quicker process to deal with the problem. I must say, frankly, that the problem will only come about and the person will only have that visited upon him if he is simply just not prepared to play ball with the agency and is showing no signs of paying the maintenance due to the children of the first marriage.
I hope that I have demonstrated that the distress provisions that the agency may use are the last resort in a well regulated process. The agency does not have exceptional powers. In Section 35 it has the means to use well-established procedures of debt recovery to secure maintenance payments for children whose absent parents are refusing to meet their responsibilities.
Lord Lucas: My Lords, I fear that the debate is getting a little out of order. The House may find it helpful if I remind noble Lords that it is possible to ask the Minister at the end of his speech short questions for elucidation before he sits down. There is no provision for interrupting a Minister in the middle of his speech at Report stage.
Lord Mackay of Ardbrecknish: My Lords, I was summing up and was about to say that I do not believe that these amendments are in any way helpful to the cause that at least I and, I suspect, most noble Lords and members of the public are trying to pursue; namely, to make sure that children in these circumstances get the maintenance that they are due from the absent parent. Therefore, I hope that with my detailed explanation, in addition to the letter that I wrote to him, the noble and learned Lord will feel able to withdraw his amendment.
Lord Simon of Glaisdale: My Lords, we are greatly in the noble Lord's debt. He has had an extraordinarily difficult brief to make good and has done it with force and patience. But I must, I hope with all respect, ask him to look again at this matter. He has talked all round the issue but has not faced it.
It is neither here nor there that any of those remediesthe right to intrude, the right to interrogate, the right to infringe Inland Revenue confidentiality and the right to levy distressare only ultimate sanctions. The noble Lord says in effectin fact, I believe that he said it in termsthat the debtor has only to co-operate and he can avoid all those unpleasant consequences. That is neither here nor there.
The question is whether Section 35 gives any additional powers. If it does not, it is unnecessary and the noble Lord can accept the amendment. I can put the matter very briefly again. Under Section 33, the Secretary of State may apply to a magistrates' court for a liability order. That is an order saying that the parent in question is liable to pay a sum. Then under Section 35, the Secretary of State, having obtained a liability order, may levy distress.
The only answer to that is to go back to the magistrates' court. Is that really so onerous? Must he really have Section 35 so that the Secretary of State may exceptionally, unlike the ordinary creditor, proceed administratively to distress? If so, so much the worse.
I ask again. Does Section 35 give additional powers? Obviously it gives one additional power because, characteristically, it allows the Secretary of State to make regulations supplementing that sectionthe distress section. There is one other subsection that I notice is discrepant with the Magistrates' Courts Act and that relates to special damages. As it is in different terms, one expects it to have some different meaning. In his letter the noble Lord did not go into that and, as we shall certainly have to return to the matter, I shall not pursue it today. But we are exactly where we started.
A liability order is an order to pay and then distress can be levied under the Magistrates' Courts Act. That is the beginning and the end of the matter. The only difference is whether the Secretary of State, unlike any other creditor, can proceed immediately by administrative action to levy distress or whether he is required to go back and obtain automatically, as I read the law, a warrant for distress.
As I said, we shall certainly have to return to the matter. The noble Lord may be able to find an answer to the question that I put. If so, I should be very grateful for a letter before Third Reading. In the meantime, I beg leave to withdraw the amendment.
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