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Baroness Blatch: I understand that in calculating loss of earnings loss of pension would be subsumed therein. That will be made clear as a result of today's debate; and, indeed, had already been thought about before my noble friend raised the matter in relation to the police. I also understand that, where pensions are paid, clearly there will not be a double payment. We are talking about a situation where there is a loss of pension as a direct result of a criminal injury which is properly recognised by the authority and where the loss of pension rights would also be subsumed within the calculation for loss of earnings. I do not believe that Members of the Committee should be concerned about the issue. However, I shall read what the noble Lord, Lord McIntosh, said and we shall continue to try to make the matter as clear as possible in the hope that all fears are allayed.

Lord Carlisle of Bucklow: Before we leave the matter, I do not wish to make my noble friend's life more complicated but, while listening to the noble Lord, Lord McIntosh, it occurred to me that there may be another problem involved. The compensation for loss of earnings mentioned by my noble friend the Minister is payable only if the person is off work for 28 weeks. It seems to me that there are many cases at present of people in public services—especially, as it happens, in the police—where a person may have a substantial future loss of pension by being retired without in fact having had 28 weeks off work at the time immediately following the injury. Therefore, although the matter may already be covered, it is important to ensure that the scheme will provide for the effect of loss of pension even where the individual concerned has not been off work for 28 weeks immediately following the original injury.

Baroness Blatch: I must now admit to being somewhat confused. However, I shall read what my noble friend said. Again, if someone is out of work as a result of criminal injuries but then returns to work within 28 weeks, the tariff will be paid and loss of earnings will not apply. However, if that person is subsequently out of work as a result of the criminal injury beyond the 28 weeks when loss of earnings starts to apply, then loss of pension will also be taken into account in the calculation. If I am wrong about that I shall return to the matter.

Lord Bethel: I am grateful to all those Members of the Committee who have spoken. I should like, first, to confirm to the noble Lord opposite that in mentioning the police I was only using them as an example. If the spirit of the amendment is accepted by the Government it would apply to all victims of criminal injuries. If there is a category involved, that is the category; namely, victims of criminal injuries and not just the police.

I was most encouraged by the response made by my noble friend the Minister about loss of pension rights being subsumed into loss of earnings. However, perhaps

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I may ask my noble friend to make that absolutely clear. I have the impression that she accepts the spirit if not the precise text of my amendment. In subsuming loss of pension rights, is it the case that it would be part of the scheme that my noble friend expects in the fullness of time to submit to the Committee under proposed Amendment No. 61?

Baroness Blatch: Yes it is. In the new scheme that will be put before Parliament that change will be made to make it absolutely beyond doubt that the loss of pension will be taken into account as well as loss of earnings.

Lord Bethel: I am most grateful to my noble friend. In that spirit, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 9 not moved.]

Lord Archer of Sandwell moved Amendment No. 10:


Page 2, leave out lines 8 and 9 and insert—
("(c) where the applicant has lost earnings or earning capacity for longer than 28 weeks as a direct consequence of the injury or, if not normally employed, is incapacitated to a similar extent, additional compensation in respect of special expenses, payable from the date of the injury, shall be awarded for—
(i) loss or damage, as a direct consequence of the injury, to property or equipment belonging to the applicant on which the applicant relied as a physical aid;
(ii) the cost other than by way of loss of earnings or earning capacity of attending for medical or dental treatment;
(iii) the cost of private medical or dental treatment, but only if the claims officer considers that, in all the circumstances, both the private treatment and the cost of it are reasonable;
(iv) the reasonable cost of special equipment or adaptations to the applicant's accommodation or of care, whether in a residential establishment or at home, which are not provided or available from the National Health Service, local authority or any other agency free of charge, provided that the claims officer considers such measures to be necessary as a direct consequence of the criminal injury; and
(v) the reasonable cost of housework, childcare, maintenance of the applicant's home, garden or means of transport to the extent that the applicant cannot perform such maintenance to the extent he did before the injury and as a consequence of it.").

The noble and learned Lord said: We come now to another example or perhaps, more accurately, other examples of problems which arise when we begin with a totally inflexible scheme and then seek, somewhat belatedly, to introduce some flexibility into it. I wonder whether it would be more sensible to go back to the beginning and start again. However, if I made such a proposal to the Government I assume that it would not readily be accepted.

Clause 2 makes some attempt to repair the damage; indeed, subsection (2) sets out the heads of compensation which will be available under the scheme. Paragraph (c) makes provision for "special expenses", but that enigmatic provision is where the Bill leaves it. For further enlightenment one must turn to paragraph 23 of the draft scheme.

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Perhaps I should have said at the outset that it may be for the convenience of the Committee if we also discuss Amendment No. 24. Amendment No. 10 has two purposes. First, it seeks to write certain provisions into the Bill because we believe that they are of major importance. However, we have already discussed that principle and, if I were to invite the Minister to reply, I envisage that we would hear the arguments that she has already employed.

Secondly and more particularly for this purpose we are concerned to include under the heads of compensation a provision which on our understanding is absent from the scheme. Amendment No. 10 proposes to add paragraph (v) which makes provision for a head of loss which is recognised in the common law scheme of damages but, as I say, appears to be missing from the scheme.

One serious financial burden which may follow from a physical injury is that the victim is unable to do some of the things which are part of civilised living. I nearly referred to a woman but I suppose these days a woman or a man may be unable to do the housework. A person who takes a pride in the appearance of the house and its surroundings may be unable to keep the garden tidy and if those tasks are to be done that person may need to pay someone to do the work. As I say, I understand that that is now accepted in common law as a head of damages but it does not appear to be recognised as a special expense in the scheme. It is not a fanciful concept. For those who find themselves in that situation it is an intensely practical problem. I look forward with interest to hearing the response of the noble Baroness.

Amendment No. 24 repeats what is in paragraph 23 of the scheme but again adds another paragraph. Incidentally, for reasons which are not wholly clear to me, I note a reference to subsection (4). Clearly it should be paragraph (d). If we are confronted with that technicality today, it is a matter we shall have to face up to. The provision covers the case of someone who has provided care for a victim without making a charge and who has, himself or herself, suffered loss in consequence. Perhaps that person has had to give up work which he would otherwise have done, or something of that kind. Technically, that does not represent a loss to the victim but it seems in common fairness that recompense should be made. If the relative had charged for those services, that charge, as I understand it, would be recoverable as a loss to the victim. I hope that the Government see that justice indicates that where a person has not charged he might also be properly remunerated if he has lost financially in consequence. While we would like to see those provisions in the Bill we would be mollified if the noble Baroness felt able today to tell us that they will be written into the scheme. I beg to move.

6.30 p.m.

Baroness Blatch: The aim of these amendments, as the noble and learned Lord said, is to bring onto the face of the Bill more of the more detailed provisions of the scheme itself, this time those relating to special expenses. For the reasons I have already explained we do not believe that that is necessary or indeed

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appropriate. We had a long discussion a while ago about the point of principle involved, and I do not propose to run through those arguments again. Suffice it to say that I shall have to ask the Committee to reject these amendments for the reasons adduced previously.

With regard to the examples given by the noble and learned Lord, for example the reasonable cost of housework, or, possibly, child care, maintenance of the applicant's home, garden or means of transport and detriment—other than financial—suffered by a relative caring for a victim, which appears in the new clause which it is proposed to insert after Clause 2, it is clear from the draft of the scheme which we circulated in August what sort of things will be covered by the term "special expenses".

In general the new scheme will cover the "core" losses which are covered under the present arrangements. However, the scheme is not intended to cover each and every item which might be allowable under common law damages either now or in the future. That is because the scheme is no longer based on common law damages, and it is not the function of a scheme funded by the taxpayer to make good each and every potential loss which a victim might conceivably suffer. That is why the more peripheral losses of the kind mentioned by the noble and learned Lord, Lord Archer, will be outside the scheme's scope. Such losses are less susceptible to precise quantification and would provide endless scope for argument and, quite possibly, fraud. For example, how could one assess the extent to which an incapacitated victim had previously done his own gardening or housework or cared for someone else, and what that was worth? I am afraid that the term "other detriment" is far too wide and far too vague to be included in the scheme. For those reasons I must ask the Committee to reject the amendments.


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