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Before Clause 18, insert the following new clause:

("Contribution to maintenance by deduction from benefit: repeal of section 43 of 1991 Act.")

. Section 43 of the 1991 Act shall cease to have effect.

The noble Earl said: The noble and learned Lord has just given us the most superb justification for having brought back the amendment. He has been asking that question about Section 35 since the Committee stage, but it is only now that he has received an answer. It is possible that I might also receive an answer to Amendment No. 7 which I have not received before.

The amendment deals with the deduction from the income support of the absent parent if he is receiving that benefit. It has been my contention since 1991 that that is an altogether excessive and wasteful use of administrative power. It is excessive because income support is, as the Minister said during the proceedings on the Bill, a benchmark for subsistence. If one takes further deductions away below income support, one risks reducing the person to below subsistence level.

The other point is that we have here the whole weight of the state involved in getting from each person the princely sum of £2.30. As a taxpayer, I question whether that is an efficient and cost-effective use of my money. The agency is well known to be under very considerable burdens. It is also well known to have more work that it can possibly cope with. Like anyone else facing overwhelming pressures, it really ought to concentrate upon things which are rather more worth doing from its point of view.

I remember the effort that was put in to collecting the poll tax from the "20 percenters". The Audit Commission pointed out that it cost £15 to collect every £6 of revenue collected. I do not know what the disproportion is in the matter because the Audit Commission has yet to look at it. I should be very interested to know the result when it does so. I beg to move.

Lord Mackay of Ardbrecknish: My Lords, as I have said on a number of occasions, the Government believe that all absent parents should normally provide at least a small contribution towards the support of their children. The amendment would mean treating income support recipients more favourably than absent parents with similar levels of income from other sources. The standard current maintenance contribution in those cases—£2.35 per week from April 1995—provides a small but continuing recognition of the financial responsibility which parents have for their children.

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We recognise that it would not be right to expect absent parents to pay maintenance in all circumstances. The criteria for those who receive income support are clear cut. Those who contribute will be aged 18 or over, will be seeking work, and will not have dependent children living with them. When they do find work they will already be used to providing support for their children. Then, of course, they would continue to provide that support, although perhaps at a higher rate, when they are in work.

Absent parents who are aged under 18 and receive a lower rate of benefit, and those who are claiming benefit because they are sick or disabled or who have a child living with them, are not expected to make that contribution. There are also safeguards for those who have failed to budget for other essential expenditure and could face eviction from their homes or disconnection of fuel or water supplies. Deductions from income support to meet rent arrears or fuel or water charges are given priority over child maintenance. Where three such deductions apply, no contribution to child maintenance is required.

The question of collecting that maintenance is fairly easy via the Benefits Agency itself. That makes it not a very costly collection to undertake. Given the existence of the safeguards that I have mentioned, we do not consider that it would be right to treat unemployed, absent parents who receive income support differently from those with similar income from work. With that explanation, I hope that the noble Earl will feel able to withdraw his amendment.

Earl Russell: My Lords, the Minister invoked people with similar levels of income not derived from income support. If any people are receiving such low incomes from wages, they are being underpaid. Moreover, they will either be receiving family credit or, if they come into the new pilot scheme—for which I received the consultation paper recently—they will be receiving earnings top-up. That is one thing that I believe the Government have probably got right. Therefore, in the end, such people will be receiving rather more. However, if they are not, they are sweated labour.

The Minister mentioned water as being something which was capable of taking priority over child maintenance. I am extremely relieved to know that something is capable of taking priority in that respect. However, what I do not understand is: if water, why not food? The logic of that distinction seems to me to be a little curious. In fact, the insistence on wasting effort in getting money from absent parents on income support seems to me to be an example of the obsessive quality which over and over again shows in the Government's pursuit of the Bill. In 1991, I divided the House on the issue at 10 minutes to midnight. I am proud to have done so. However, I shall not repeat the performance this evening. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 8 to 10 not moved.]

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Earl Russell moved Amendment No. 11:

Before Clause 18, insert the following new clause:

("Parent with care: application of 1991 Act

. In section 46 of the 1991 Act, after subsection (11) there shall be inserted—
"( ) In cases where the child spends 140 nights a year or more with each parent, this Act shall cease to have effect." ").

The noble Earl said: My Lords, the amendment arises from the issue about 104 nights in shared care which we discussed on Report. The provision under the Bill at present is that if the allegedly absent parent has care of the child for more than 104 nights of the year—

Noble Lords: 140!

Earl Russell: Yes, my Lords; I know that 140 nights are mentioned in the amendment, but I am talking about the present position which relates to 104 nights. Any number of nights below that are counted as nothing.

The amendment came to my mind while I was reading the speech on another amendment made by the noble Lord, Lord Kilbracken. The noble Lord was complaining about the presumption of the Act that there is always one parent who is absent and one parent with care. He argued that that conflicts with the approach of the Children Act which tends to assume shared residence and responsibility for the child being divided between two people. It really is a case of oil and water.

However, while reading the speech by the noble Lord, Lord Kilbracken, I began to wonder whether there should not come a point when the child is spending so much time with each of the parents that neither of them should properly be counted as absent. If neither parent is counted as absent, the whole system under the child support legislation cannot work; one would have to go back to ordinary shared residence systems and support arranged in detail through a court. If the whole presupposition of the legislation is false, I do not see how it can work.

I shall now explain how I arrived at the figure of 140 nights. It seems to me to be a reasonable figure to take for an assumption that both parents regularly have care of the child. If one has a child for 140 nights in one's own house, that seems to me to be regular care. However, I will admit that I am not wedded to the figure of 140. If the Minister thought, for example, that it ought to be 150 or 160 nights, I would not necessarily wish to argue the toss with him. Nevertheless, I am asking the noble Lord to recognise that it is not true in every situation that one parent is absent. It is in order to make that point that I beg to move my amendment.

Lord Carter: My Lords, I read this amendment with some puzzlement but I can see now what the noble Earl is driving at. However, it occurs to me, if we take the case of the absent parent, that if he makes sure that the child is with the parent with care for 141 nights, he can presumably avoid his responsibilities. Is that right? If he is in a much better financial situation than the parent with care, once one introduces this number of nights, is not one introducing the danger that by adding just one night to the figure that one chooses, the absent parent gets an opportunity to avoid his responsibilities for maintenance?

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Lord Mackay of Ardbrecknish: My Lords, as the noble Earl explained, this amendment seeks to remove from the jurisdiction of the Child Support Agency cases where the absent parent and the parent with care each provide at least 140 nights of care for a child over the course of a year. It means that, in these circumstances, a parent could obtain child maintenance only by application to the courts or by agreement.

The maintenance requirement is shared. It is not a matter of one parent's liability to another; it is a matter of both parents' liability to the child. There is a calculation in the formula as regards who has the resources. If both parents have sufficient resources, that shared liability operates. If one has the resources and the other has limited resources, there is what might be called a transfer of funds.

The existing provisions mean that an absent parent's maintenance liability is reduced where he is providing a significant amount of care for a child. We believe, as we debated at previous stages of the Bill, that an average of two nights a week continues to provide an appropriate benchmark. We can see no case at all for removing access to the agency from parents with care simply because an absent parent, who could be well off, is caring for a child for well under half the nights of the year.

I pick up the point of the noble Lord, Lord Carter, and use the example of a case where an absent parent leaves the matrimonial home, taking with him the vast bulk of the family's income. Let us assume that he cares for his children for 150 nights of the year. The parent with care—although I suspect she would not then be defined as that—still has to care for the children for the other 215 nights of the year, but has no income to do this. The absent parent still has a responsibility for the children when they are not physically with him and should contribute where he can. There is, therefore, still a question of maintenance even where the absent parent provides significant amounts of care.

The amendment could potentially disadvantage all the parties. Children would not benefit from the consistent and realistic levels of maintenance which the agency provides because any awards of maintenance by the courts would be based on discretion. Parents with care would lose the advantages of the one-stop service for child maintenance which the agency can provide. Absent parents could not know with any degree of certainty what their maintenance obligations were going to be. Where the parent with care decided not to seek a child maintenance award, there would be increased benefit expenditure at the expense of taxpayers, many of whom are themselves bringing up children on low or moderate incomes. While I admire the cleverness of the noble Earl in thinking in his bath of a variation to the two amendments we have already discussed, I am afraid I cannot accept his clever try.

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