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Lord Airedale: My Lords, the admitted gap in the tariff is liable to occur because of the sheer pace of medical research and the need to invent new medical terms to describe the new medical discoveries. We do not want a situation where the tariff is admittedly lagging behind but the application is refused because the language in which the applicant's doctor describes his injury is in terms which have not yet arrived on the tariff. We need an interim period to deal with this little problem. That is why we on this side of the House consider that an amendment of this kind is necessary.

Lord Rodger of Earlsferry: My Lords, as the noble Lord, Lord McIntosh of Haringey, indicated, there was some debate on this matter at Committee stage. What I shall say will reflect much of what was said then. Everyone recognises that from time to time—presumably especially in the earlier years—some novelty will come to light which has not been provided for and where it will be necessary, therefore, to have some new entry in the tariff scheme. We all recognise that. It is also recognised that a means has to be devised for dealing with those matters.

The approach taken in the amendment is to suggest that such a matter would be referred to the chairman of the body of adjudicators, who would determine it and who might at least subsequently make a recommendation to the Secretary of State as to the amount of the compensation. The scheme envisaged in the amendment would involve a decision being taken by the chairman of the body of adjudicators. As has been said on a number of occasions, we take the view that there should be a clear distinction and separation

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between the initial decision-making process and the appeals process. The authority alone must be responsible for the initial decision and any decision taken in review. The appeals panel is then fully at liberty to consider any subsequent appeal by the claimant without the impediment of any earlier involvement in the initial decision-making process. We consider that such a demarcation line is of importance.

What is also involved in this line in the amendment is that someone who came forward would be given an award merely on the decision of the chairman of the body of adjudicators, who might not necessarily get it right. For example, the award might not eventually be incorporated in the scheme when the matter was put to the Secretary of State and then before Parliament. When we are dealing with the tariff scheme it does not seem right that any individual should get an award which is different from that which is subsequently approved by Parliament. The scheme envisages a way of dealing with this matter, which is that the person can be awarded half of what is thought to be the appropriate award and then, when the matter is subsequently dealt with by the Secretary of State and Parliament, if the award is confirmed the amount recommended will be paid. Even if it turns out to be less than what he has been awarded, he is entitled to keep it.

As the noble Lord, Lord McIntosh, said, there is in the scheme some measure of generosity. I think that we are here trading off what might be a slightly swifter resolution of any particular case with the desirability that in all cases there should be awarded a sum which has been approved as the appropriate sum by the Secretary of State and by Parliament. We think that the scheme as envisaged is more satisfactory than that which is envisaged in the amendment.

Lord McIntosh of Haringey: My Lords, the Lord Advocate says that the chairman of the body of adjudicators may not get it right. That is true. The Government have been insistent throughout that many of these awards may not be right. There is no absolute standard of rightness. What we are trying to do in all of these things is to make the best of a bad job.

The tariff is being adopted, as opposed to the common law scheme, because it is thought to be quicker and easier to understand and because it is the basis on which there can be a better control of public expenditure. We have accepted all those arguments and we have accepted at the same time that there is no such thing as an absolute test of rightness for any particular award. What we are saying here is that it is possible to make improvements in the tariff scheme, even within the context of the tariff scheme. The improvement which we suggest, which enables a determination to be made at the highest administrative or quasi-judicial level possible without reference to Parliament, is fairer to the applicant than forcing the applicant to wait, in all probability for 50 per cent. of his award, until Parliament has given approval to an amendment of the scheme. That is the only point we are making. It is not an issue on which to divide the House although I still believe that it is right. I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

6 p.m.

Lord Archer of Sandwell moved Amendment No. 13:

After Clause 3, insert the following new clause—

Domestic violence

(".—(1) Where, at the time when the injuries which are the subject of the application were sustained, the applicant and any person responsible for those injuries (whether or not that person actually inflicted them) were living in the same household as members of the same family, an award will be withheld unless the person responsible has been prosecuted in connection with the offence, except where the person determining the claim considers that there are good reasons why a prosecution has not been brought.
(2) For the purposes of this section, a man and a woman living together as husband and wife shall be treated as members of the same family.").

The noble and learned Lord said: My Lords, this is another amendment, which in form is an amendment to the Bill, but its purpose is to seek to improve the scheme. I paraphrase paragraph 15 of the scheme which says that where the victim and the person responsible for the injuries were living in the same house as members of the same family, then an award will be withheld unless the person responsible has been prosecuted.

The scheme states in paragraph 15(b) that,

    "in the case of violence between adults in the family, the claims officer is satisfied that the applicant and the person responsible stopped living in the same household before the application was made and are unlikely to share the same household again".

Your Lordships will have observed by now that our amendment repeats what is in that paragraph, but omits paragraph 15(b). As I understand it, the reasoning behind paragraph 15(b) is that if the victim of domestic violence is compensated for an injury by someone with whom he or she is living as a spouse or a partner, then the perpetrator of the offence is likely to benefit from the compensation. We understand that and have no quarrel with any safeguard designed to ensure, as far as possible, that that does not happen.

The provision as it is now formulated ignores the present situation relating to living accommodation. If someone who has been assaulted by a partner could simply leave the house and find accommodation elsewhere, there would be no real problem. However, finding other accommodation at an affordable rent is no simple matter. Unhappily, the days are past when the local council was possessed of a substantial housing stock and could make accommodation available. Not only are the regulations governing housing benefit designed not to provide a rent at a moment's notice, but the Government's proposal will bear hardest on those who have already been dealt a rough hand. For that reason we hope that the Government will think again about a provision which will have the effect not of encouraging the victim to leave the home, but of depriving the victim of compensation because she cannot leave the home. I beg to move.

Lord Stewartby: My Lords, I hesitate to display my ignorance in such august legal company as Members of

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your Lordships' House who are considering the Bill. But as a layman in this subject, I was a little surprised to see the wording of the amendment. It states that,

    "For the purposes of this section, a man and a woman living together as husband and wife shall be treated as members of the same family".

Is that something which has to be spelled out? Under what circumstances would they not be treated as members of the same family? The noble and learned Lord referred to paragraph 15(b). Does the position have to be explicitly stated in this legislation?

Lord Rodger of Earlsferry: My Lords, the issue was debated on a previous occasion. The position which we have adopted in the draft scheme is that which was adopted in all versions of the scheme since 1979. It resulted from a report by an inter-departmental working party which reported on the scheme as it existed in 1978 and analysed the various problems. The recommendations were accepted by the then Labour Home Secretary and implemented by the Conservative Government of 1979. Those provisions have been in existence since then.

I recognise that there can be occasions when it is difficult for, let us say, the woman to leave the home where she has been subjected to violence. I fully understand that. Nonetheless, if she is someone who is subjected to violence and a domineering husband, and she remains in the home, those are precisely the circumstances—and there is no getting away from it—where it is likely that any award which she obtained would not go to benefit her, but would be liable to be taken over and used by the man whose violence caused the award to be made in the first place. It is because of the grave risk that the perpetrator of the crime would benefit by it that the rule was introduced and maintained. I accept that there may be cases where the provision works somewhat harshly in the circumstances which have been mentioned. However, overall we believe that the rule is right for the reasons which we have given.

As for the particular form of the amendment, it is partly because it is an Opposition amendment. It is often useful to have to say exactly in what circumstances people are regarded as living in the same family.

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