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Lord Ackner: My Lords, before the noble Baroness sits down I wonder whether she will consider changing "special circumstances" to "particular circumstances". I should have thought that that would ensure that one has regard to the particular circumstances of the case and does not look for those circumstances to be special. It is my recollection that on the previous occasion the noble Lord, Lord Carlisle, referred to how frequently in child abuse cases the period was overrun. If one uses the word "special" it may prove a stumbling block in that type of case.

Baroness Blatch: My Lords, on the face of it, I can see no reason to oppose the suggestion. However, the noble and learned Lord will understand that I must check that with officials. Certainly I shall give the matter consideration.

Lord McIntosh of Haringey: My Lords, again, before the Minister sits down, since we are at Report stage—and I shall respond to her other points later—perhaps I may ask her on the point raised by the noble and learned Lord, Lord Ackner, whether we can be sure that, whatever wording is finally adopted, whether it is "special" or "particular", there is explicit recognition of the kind of injuries which become apparent only a very long time after the offence has taken place. I am thinking in particular of the appearance in adulthood of the effects of child abuse and child sexual abuse. Will the noble Baroness bear that in mind, as she has undertaken to consider the wording?

Baroness Blatch: My Lords, throughout the afternoon I have been extremely remiss in not asking

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the leave of the House to intervene on such questions. I do so on this occasion. I say to the noble Lord that of course we will go away and think about anything that is suggested from the Dispatch Box. However, I believe that we need to leave it to the Criminal Injuries Compensation Authority to make judgments about a particular case. Clearly, evidence to support a claimant will be a very important consideration for the authority in considering a claim.

Lord McIntosh of Haringey: My Lords, I am grateful for that response. The Minister has sat down. She has not been at all remiss in not seeking the leave of the House. She has spoken only entirely in accordance with the rules. On the last two occasions she has done so without formally resuming her seat. That is entirely proper and does not require the leave of the House.

Clearly, we have achieved as much as we can expect on this issue. I am disappointed to find that it is my fault that the draft of the scheme did not come before your Lordships before Report stage. I did not think that I was creating so much work with the amendments that we have put down as to affect the timing of the scheme. We are glad to learn that the draft scheme will be available before Third Reading. We hope that it will be available tomorrow or on Thursday so that we can give it adequate consideration in time to put down amendments, if necessary, for Third Reading. However, we are pleased that the details of the scheme will be available.

Regarding the new wording which the Minister is considering, these are clearly moves in the right direction. I shall not go further than that. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 8 not moved.]

Lord Carlisle of Bucklow moved Amendment No. 9:


Page 3, line 20, at end insert ("; or
(c) by not less than two members of the Board of Adjudicators in any case that may be referred to them for determination by the Scheme manager or the claims officers.").

The noble Lord said: My Lords, with this amendment we move away from the issue of the tariff and turn to that part of the Bill which deals with how claims are to be dealt with. The purpose of the amendment is to allow for the possibility that, rather than an application having to be considered on paper by a claims officer, where appropriate it could be referred immediately to a hearing by two or more adjudicators.

The situation is clear. In this aspect the Government have made a deliberate change from the present situation. What is proposed is set out in paragraph 46 of the draft, which states:


    "The application will be determined by a claims officer and a written decision sent to the applicant or his representative".

Paragraph 22 of the current scheme begins:


    "The initial decision on an application will be taken by a single member of the board or by any member of the board staff to whom the board has given authority to determine applications on the board's behalf".

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It continues—and this is where the difference occurs because these words are not included in the new scheme:


    "It will also be open to a member of the board or a designated member of the board staff, where he considers that he cannot make a just and proper decision himself, to refer the application for a hearing before at least two members of the board".
I believe that such a provision will be found in practice to be essential in the tariff scheme.

That is a power which we have at present. I am told that in the past year we used it on something like 960 occasions. That may seem a large number. However, when taken against a rate of application of 60,000 to 70,000 cases a year it means that it is used in about 1 to 2 per cent. of the cases that come before us. I believe that it is vital in those cases. It would strengthen the Bill enormously were the same provision to apply in this case.

There are two types of case where I believe such a power would be helpful. The first is where there is a complete conflict of evidence, and the second (and this should appeal to the Treasury) is where there are substantial and complicated claims for damages.

To deal with the first, often in practice there are cases where one is faced with two totally conflicting accounts of an alleged assault. The applicant claims boldly that he was assaulted. His alleged assailant makes an equally bold assertion to the police that he was acting in self-defence. The CPS decides that in the circumstances there is insufficient evidence to prosecute, and the police may not wish to express any view as to which account they give veracity to.

In those circumstances, it is difficult to decide on paper whether one should make an award. Surely, it would be far better for the matter immediately to be referred to a hearing—as it can be at the moment—so that members of the adjudication panel in future, or members of the board at the moment, should have a chance to assess the matter in deciding whether to accept the person's account and whether or not to make an award.

Noble Lords may say that that could always be avoided because in such cases the application could originally be refused by the claims officer and the man could be forced to apply for a hearing by way of appeal. I should have thought it more just and reasonable that one should have the powers that we have at the moment immediately to refer it to a hearing in the first place.

The second type of case in which the power is important is that where complicated claims for damages are involved. I take the case of someone who has been seriously injured and a claim is put in for future care or future loss of earnings. I am glad to say that under the tariff as against the original abortive tariff, provision is made for loss of earnings and future care. However, I believe that many cases will be found in practice to be of a complicated nature where it will be impossible to decide on the real figure without some form of oral hearing.

What happens in the case of a claim for loss of earnings or future care is that the applicant puts in a schedule. It sounds impressive. It is a schedule of future

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loss based on a statement that the man is unable to work. A schedule is promptly put in saying that he will be unable to work for life. It states that the appropriate multiplier is 15, that the multiplicand is £10,000 a year, and that the claim therefore is £150,000. Equally, in a case for future care, those who have been involved in that type of work will know that there are certain highly experienced professionals who put in magnificent schedules on the additional care required for a person who is likely to be permanently invalided as a result of the injury he suffered. These can be schedules of changes required to accommodation, or of the amount of extra help needed, and matters of that nature. Often, when probing such cases by questioning the individuals concerned, one may sometimes find that the schedule bears little relation to real life. A person claiming many thousands of pounds for future care has, it turns out, been coping perfectly happily over the past so many years with a much lower level of assistance and intends to continue doing so in the future.

In cases for loss of earnings and for future care, we on the board have found that by referring an individual to a hearing so that the individual, his counsel or his representative can be questioned on the basis of the schedule, on some occasions at least the final award is considerably different from the original sum asked for.

If claims are merely to be dealt with on the basis of what appears in the papers, I do not see what alternative the claims officer will have other than to accept at its face value every schedule put before him. I believe that the Treasury, among others, will regret that there is no power to refer those types of cases to scrutiny by examination and questioning by the people who have to make the awards.

Therefore, I cannot see the Government's great objection—as I understand it to be—to the proposal. I am told that it is twofold. First, I am told that it is vital that those who are at the appellate level should have nothing to do with the original decision. However, so far as I know, we have not been criticised in practice for the system that has now been running throughout the life of the Criminal Injuries Compensation Board. That appellate body or the body which holds the hearing always consists of two or more members and is, of course, itself subject to judicial review. I do not believe that unfairness has been occasioned in any case because the decision has been taken immediately at the hearing stage rather than originally at the papers stage. The second reason for the objection is, I understand, to do with market testing. Should market testing mean that the authority was eventually "farmed out"—if that is the phrase—to an outside body, one could not have any connection whatever between the panel and the claims officers. Again, I cannot see that that is a valid argument against what I believe to be a sensible provision.

I add that since the administrative costs of the board run at slightly under 9 per cent. per annum, I am not sure what body will be anxious to take it over in the private sector after the market testing has taken place. That apart, even if the process were put out to tender, I cannot see why it should affect the right of a claims officer—who will be the individual looking at the papers in the first place—to decide that a certain aspect is one

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which he cannot justly and fairly decide on the papers and that it is necessary for him to see in person the applicant and his representatives. It is in an attempt to improve the administration of the scheme that I move the amendment.

5.15 p.m.

Baroness Blatch: My Lords, I hope that I can be helpful to my noble friend. As he knows, under the present scheme individual members of the board and, where appropriate, its staff take the initial decision in a case on documentary evidence alone. Appeals against such decisions are considered by a number of board members at oral hearings. Where a board member considers that he cannot take an initial decision on the papers, he may refer the case for an oral hearing before a number of members. That decision is final and there is then no right of appeal against the board's decision.

Under the tariff scheme, however, the arrangements will be different. There will be a clear separation of the initial decision taking process and the appeals function. The initial decision will be taken by a claims officer in the criminal injuries compensation authority. Appeals against those initial decisions will, following review, be considered by the appeals panel. That is a completely separate and independent body.

Under the tariff scheme, it is for the claims officer alone to take the initial decision and for a more senior officer in the authority to carry out any initial review of that decision. If the authority were able to refer cases directly to the appeals panel for first decision there would then be no further body to which the claimant could appeal if he were dissatisfied with the panel's decision. We consider a completely independent appellate body to be a central element in the new arrangements and one that can only be in the interests of claimants. To allow an initial determination to be made by the panel itself would risk compromising that independence.

We accept that there are bound to be more complex and more difficult cases such as those described by my noble friend in speaking to this amendment. If the authority felt it appropriate, therefore, there is absolutely no reason why it should not itself arrange a "hearing" on an informal basis to help a decision to be reached in a particular case. We should not expect there to be many such cases, since a refusal would normally follow if the authority was not satisfied, on the balance of probabilities, that a claim had been established. The claimant would then be able to exercise the right to request a review and, if necessary, to appeal to the appeals panel, which would not in any way have been involved in the earlier decisions. The informal oral hearings could be arranged by the board and, depending on the outcome of that deliberation and determination by the authority, the decision could be challenged. A review could then take place of that decision. Clearly, if the claimant continued to be unhappy, the whole of the rest of the appellate procedure could be put in train.

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Therefore, in a way, we have not only met the concerns of my noble and learned friend; we have added a sophisticated appeal system which is an improvement on the present system.


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