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Lord Archer of Sandwell: My Lords, I trust that the noble Lord, Lord Stewartby, was not asking the Opposition to translate the wording because it comes from the scheme, and those are the Government's words. The noble and learned Lord the Lord Advocate is right in that the words are hallowed by having been used over a long period. What has changed is not the meaning of the words, but the housing situation against which they have to be considered. The fact is that in the past it would not have been impossible for the victim to find other accommodation at a rent which was within the victim's means. Unhappily, that is no longer true.

I agree that we have to set against that the argument very properly used by the noble and learned Lord, that an award may be taken away by the perpetrator of the offence. It may be that together we can find a formula which will enable the claims officer, or whoever was dealing with the claim, to take into account whether that

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was likely to happen. Because there is this difficulty—we have to steer a course between Scylla and Charybdis—I certainly would not wish to persevere with the amendment today. I hope that the noble and learned Lord will indicate that the Government have taken on board the difficulty to which we seek to draw attention. It may well be that together we can find a course which will meet those difficulties. For the moment I am content to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Archer of Sandwell moved Amendment No. 14:


After Clause 3, insert the following new clause—

Special expenses

(". 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—
(a) 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;
(b) the cost other than by way of loss of earnings or earning capacity of attending for medical or dental treatment;
(c) the cost of private medical or dental treatment, but only if the person determining the award considers that, in all the circumstances, both the private treatment and the cost of it are reasonable;
(d) 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 authorities or any other agency free of charge, provided that the person determining the award considers such measures to be necessary as a direct consequence of the criminal injury; and
(e) where the care referred to in paragraph (d) above is or has been provided for no or nominal payment by a relative of the applicant which relative has suffered financial or other detriment as a consequence of the provision of such care, the award of special expenses shall be made in such sum as the person determining the award considers reasonably reflects that financial or other detriment.").

The noble and learned Lord said: My Lords, again, this amendment raises a principle which was discussed in Committee, again in terms which are an amendment to the Bill, but intended to improve the scheme. We simply seek to repeat what is in paragraph 23 of the scheme about special expenses. We do so with the addition this time, and not the omission, of a further provision in our subsection (e). Our intention is to meet the situation where a victim requires care in consequence of the injury and that care is provided by a relative without charge. The victim has suffered no financial loss in respect of the care and cannot be compensated for that under the scheme, but the relative who has provided the care may have suffered loss. He or she may have lost remunerative employment. That is not a loss to the victim, but in compassion and common sense it seems something that should be compensated for under the scheme.

If the relative had charged for providing care, that would presumably be recoverable under paragraph (d) as a reasonable cost of care. As drafted, the scheme will have one or other of two consequences, both of which

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one would have thought were to be avoided. It will encourage relatives to make a formal charge for providing care—that would be artificial and counter-productive to the Government's declared aim of encouraging stronger family bonds—or it will encourage relatives to refuse to provide care, leaving the victim to employ professional carers who may well charge more than the relative. The victim will then claim that as an expense under paragraph (d), so the expense of the scheme will be greater. In Committee the noble Baroness said that the scheme was not intended to include peripheral loss, but I think that it was agreed between us eventually that this is not a peripheral loss. However, in so far as it is a peripheral loss, that is precisely what paragraph 23 seeks to provide—and rightly. It would be monstrous if it failed to do so.

We simply seek to eliminate an irrational distinction between the care provided by a neighbour or professional who makes a charge and the care provided by a relative who, because he or she is a relative, does not make a charge. That seems to be a distinction which is based on no rational principle. I beg to move.

Lord Rodger of Earlsferry: My Lords, it is always a pleasure for me to be able to give something to the noble and learned Lord in reply to his eloquence and I am happy to be in that position on this occasion. We have received a number of comments on the provisions of the draft scheme particularly in relation to the care that is provided free or at nominal cost by a relative or friend. As was said in Committee, we had considered that that element was covered by the draft scheme. However, to put the matter beyond doubt, the relevant passage in the next draft will be amended to make it clear that unpaid care provided by a relative or friend of the victim—I am thus able to go a little further than the noble and learned Lord asks—can be compensated. I hope that in the light of that assurance the noble and learned Lord will withdraw his amendment.

Lord Archer of Sandwell: My Lords, it is a pleasure doing business with the noble and learned Lord. I am happy to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 [Appeals]:

[Amendments Nos. 15 to 17 not moved.]

6.15 p.m.

Lord Ackner moved Amendment No. 18:


Page 3, line 43, at end insert ("; and
(c) for such appeals to be determined only after oral representations by or on behalf of the applicant if the applicant so desires.").

The noble and learned Lord said: My Lords, this is an attempt to breathe a little compassion and humanity into this admittedly inflexible piece of legislation. It seeks to provide that, where an applicant desires oral representation, he shall be entitled to have it. I urged such a provision in Committee, but unsuccessfully. I said at the end of my observations then that I would withdraw the amendment with a view to reading the exact justification and that I might return to the charge.

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I have re-read the observations and I have taken considerable heart from what I have read because the usual resistance to this type of amendment giving an automatic right to an oral hearing is that it opens the floodgates and therefore makes the administrative position impossible. Fortunately, that is not the case here because the noble and learned Lord the Lord Advocate said:


    "Let me say straight away that we envisage that in the vast majority of cases an oral hearing would be heard by the panel".—[Official Report, 17/10/95; col. 716.]

Therefore, we are not dealing with floodgates; we are dealing with the vast minority, which is the consequence of having been told that the vast majority will be covered by the oral hearing.

Therefore, the only resistance which is put up is the simple resistance, which was again provided by the noble and learned Lord the Lord Advocate, who said that it was envisaged that there might be "unmeritorious" cases where there would be a requirement for such a hearing.

The noble and learned Lord indicated that that would be the plain and clear case in which there was clearly no viable right of appeal.

In the course of my submissions on the last occasion I sought to recall the wise words of Mr. Justice Megarry, who himself was dealing with that very contention in a case, the contention being that,


    "the result is obvious from the start".

The case for which I was searching was that of John v. Rees in 1970 Chancery 345, at page 402, where the learned judge said:


    "As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change".

We are dealing with a body of would-be applicants, many of whom are not highly articulate and who will have difficulty in setting out in writing with any great clarity their grounds of appeal. Those who are dealing with such cases will no doubt become highly professional in their approach. The noble and learned Lord the Lord Advocate said (again at col. 716) that, if that automatic right was given, it would involve,


    "a great deal of time and energy on a matter which could not succeed".

I have dealt with the proposition "which could not succeed", but surely,


    ""a great deal of time and energy",

is an extraordinary observation. The notice of appeal ex hypothesi reveals that there is no arguable case. That will appear in a minority of cases. You can group them together in a day or week and, if you have any tact or expertise, you can say to the applicant, "We should very much like to help you, but the fact of the matter is that we have no power to do so because ..." and, if that is spelt out simply, that is the end of the matter. It might take a couple of minutes. You might be able to deal with 20 cases conveniently in an hour. That means that one

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can deal with 100 cases quite simply in a day. Where is the


    "great deal of time and energy"?

In my respectful submission, once one accepts the wise words of the noble Baroness—that this legislation inevitably does rough justice—one tries one's best to make the roughness acceptable—and acceptable to an injured person. In those circumstances, it is not asking a very great deal to permit this automatic right.

The Government have been at pains by reference to other countries—and with some justification—to pat themselves on the back for their generous approach to this area of compensation. For this amendment to be permitted, it is not asking for that generosity to be extended to any great degree. Stirred on by the helpful observation of the noble and learned Lord the Lord Advocate about the vast majority getting a right of appeal, I suggest that this amendment is not straining generosity. I beg to move.


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