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Lord McIntosh of Haringey: I started by thinking that the Minister's response was unsatisfactory because it was formalist—she was taking a view about the formal relationships between the different parts of the criminal injuries compensation process. I am afraid that as I continued to listen I realised that her answer was much worse. First, it is worse because she objects to the use of the phrase "claims officer" in the amendment—and therefore, as we propose, on the face of the Bill—on the grounds, if you please, that it could be the Government's intention to contract out the process of criminal injuries compensation. The Minister is inviting us—and we shall take up her invitation—to put down amendments at a later stage in order to make sure that the criminal injuries procedures are never contracted out. It would clearly be wrong for an integral part of the criminal justice system in this country to be in private rather than public hands. To that extent, I am grateful to her for drawing attention to what lies behind the Government's thinking in the Bill. Therefore, her comment regarding the inclusion in the Bill of a reference to "claims officer" is helpful in that it reveals what the Government are really thinking.

Of course, the scheme, which is subject to parliamentary approval, contains throughout references to claims officers. Therefore, if the scheme were to be contracted out all of those references to claims officers would have to be taken out of the scheme and new wording would have to be put in. The concession, which was made yesterday, of ensuring that there will be an affirmative resolution procedure for the whole scheme and the tariff makes it clear that any proposal for privatisation will have a huge parliamentary effect. To that extent, I suppose that we are grateful.

The second part of the Minister's answer puzzled me because she was saying that our amendment eliminated the possibility of parliamentary scrutiny of additions to the tariff. That simply is not true. The amendment states:


If the Secretary of State decides to include the unlisted injury in the tariff and to set a level for that, the amendment to the tariff will come before Parliament, as provided by the amendments to Clause 10 which are to be moved later today. Therefore, it is not true to say that we are proposing that any alteration should be free from the parliamentary scrutiny to which the existing proposals are subject.

The answer was very unsatisfactory and it gives rise to the possibility of a more considered and perhaps far-ranging amendment at a later stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 32:


After Clause 2, insert the following new Clause—

Loss of earnings where more than one injury within 2 year period

(". Where—
(a) the applicant has made a previous claim or claims under the Scheme in respect of an injury or injuries sustained not more than two years before his present application;

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(b) the applicant has lost earnings or earning capacity as a consequence of his injury or injuries; and
(c) the cumulative period of lost earnings or earning capacity from that injury or those injuries exceeds any period within the Scheme which disregards lost earnings or earning capacity in calculating additional compensation—
the period within the Scheme shall itself be disregarded to the extent that the cumulative period referred to in subsection (3) above exceeds the Scheme disregard period.").

The noble Lord said: This amendment refers to a type of case which perhaps will not occur often, but I believe that the occurrence may be more frequent than is commonly recognised. It is the case in which more than one injury takes place in a two-year period. It is likely that such a situation will happen when the victim is in a vulnerable occupation. I think in particular of people in the retail trade and of sub-postmasters, who are the classic case. Unfortunately, criminal attacks on shops for the cash takings are all too common and it is all too common to find that those who work in shops or banks—although their security has improved—can consider themselves likely to be attacked more than once in their lifetime and perhaps more than once in a two-year period.

The current scheme provides that the 28-week exclusion period in which no compensation for loss of earnings is paid in effect starts again with the second attack. That really is not fair. It will not be an expensive amendment, but it will provide, as in the terms of the proposed new clause, that if a previous claim has been made not more than two years before the present application, where the applicant has lost earnings, or earning capacity exceeds any period within the scheme which disregards lost earnings or earning capacity in calculating additional compensation, then the period within the scheme shall itself be disregarded to the extent that the cumulative period exceeds the scheme disregard period.

This is not a matter of profound principle but those who are close to people in vulnerable occupations have pointed out to us the anomalies which are to be found in the draft scheme as currently proposed. I suppose that this can be taken as a probing amendment. I do not expect to receive an instant recognition of the justice of the case but merely ask the Minister to undertake to look at it and consider whether, as I believe, there is an unwitting injustice in what is proposed. I beg to move.

3.30 p.m.

Baroness Blatch: It is extremely important to bear in mind that each claim should be considered separately and should attract a tariff payment in its own right so that if somebody has been criminally injured twice in the period of two years each claim would be considered separately and a tariff awarded, if appropriate, in each case. But since each tariff payment includes an element for loss of earnings, it would be quite wrong to allow the claimant to accumulate the period of loss.

The purpose of the qualifying period is to distinguish between the more serious cases which merit special consideration and the less serious ones which can reasonably be settled on the basis of a straight tariff payment. We do not consider that two less serious

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injuries can be regarded as more serious for these purposes, bearing in mind that the victim will receive two separate tariff awards.

There is no case for allowing claimants who receive criminal injuries from separate incidents within a two year period—or any other period come to that—to add together any period for which they may have lost earnings so that if the resulting total exceeds the normal qualifying period for a single injury (that is, 28 weeks) they may be paid loss of earnings for any excess. I hope that this amendment will not be pressed.

Lord McIntosh of Haringey: I made it clear that I was not intending to press the amendment but I am, of course, disappointed by that reply. We have never claimed that there should be extra tariff payments because somebody is attacked more than once in a two year period. We are saying that those people should not lose out by having the 28 week extension extended further than would otherwise have been the case.

I have listened to the somewhat intransigent response. I shall consider whether there is anything that can be done to persuade the Government more effectively than I have so far succeeded in doing. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 33:


After Clause 2, insert the following new Clause—

Loss of earning capacity

(".—(1) Where the applicant, at the time the claim is assessed, is considered by the claims officer to be likely to suffer continuing loss of earnings or earning capacity, whether or not the applicant was in work at the time of the injury or the application, the applicant shall be entitled to an additional award of compensation which award will comprise the product of a multiplicand (the annual rate of net loss at the date of assessment) and a multiplier (the number of years for which that multiplicand is deemed to be payable) or such other lump sum in respect of loss of earning capacity as the claims officer may determine.
(2) The rate of net loss of earnings or earning capacity (before any deduction in respect of social security benefits) to be taken into account in calculating any compensation payable under subsection (1) shall not exceed one and a half times the gross average industrial earnings at the date of assessment as published by the Secretary of State.").

The noble Lord said: This amendment is much more significant in terms of numbers of cases than the preceding amendment. I recognise from the outset that the proposed tariff is very much better than the 1994 tariff in that it contains provision for compensation for loss of earnings and loss of future earnings which were not included in the crude scheme introduced illegally in 1994.

However, the 28 week rule—in other words, the rule that those who make claims shall not receive any compensation for loss of earnings until after 28 weeks—presents very serious difficulties. I understand perfectly well the thinking behind the rule. It is assumed that for the first 28 weeks, the person concerned will be compensated by means of statutory sick pay. My noble and learned friend Lord Archer, in his speech yesterday on Amendment No. 25, exposed the falsity of that claim. There are many millions of people who are not eligible

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for statutory sick pay for all sorts of reasons and therefore will receive nothing for the loss of earnings in the first 28 weeks after the date of their injury.

The provision in the scheme for loss of earnings is contained in paragraph 22 of the scheme which, like so many of the paragraphs, is extremely complicated. In essence, the amendment takes the two elements which seem to make sense—that is, paragraphs 22(c) and 22(e)—and propose to put them on the face of the Bill but not to put on the face of the Bill those elements which we think are unfair. Paragraph 22(a)provides that,


    "no compensation will be payable in respect of loss of earnings or earning capacity during the first 28 weeks of the applicant's incapacity for work".

In paragraph 22(b) the period is calculated to begin 28 weeks after the date of commencement of the applicant's incapacity for work. Within the same paragraph of the scheme the person is first called a victim and then called an applicant. The draftsmen must get their act together on that.

Paragraph 22(d) refers to the calculation of the multiplicand and the multiplier for the determination of the amount of compensation for loss of earnings. That again refers to Note 7. However, the issue of the calculation is not being dealt with in this amendment. I want to deal with that separately when I move Amendment No. 34, which is next on the Marshalled List.

This amendment provides that it should be established in statutory form that where the applicant is considered to be likely to suffer continuing loss of work, then the applicant is entitled to an additional award of compensation. The rate of net loss of earnings or earning capacity is to be taken into account before any deduction in respect of social security benefits is taken into account in calculating the compensation payable. We agree with the Government that it should not exceed one-and-a-half times the gross average industrial earnings at the date of assessment as published by the Secretary of State.

We have taken out of this complicated paragraph those provisions which we consider to be unfair; that is, the assumption that there is no loss of earnings until after the first 28 weeks. We have put into it those parts without altering the words which we believe to be reasonable. I hope that the amendment will commend itself to the Committee and I beg to move.


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