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Lord Mackay of Ardbrecknish: I am not sure that I can help the noble Earl that far, but I am prepared to say

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that there have been cases--I am not sure that I can refer to them by name because I have only a code in front of me--where it was decided that a person must be reasonably expected to disclose a material fact. If the person may not reasonably be expected to know of the material fact because of his or her mental state, there is no failure to disclose.

I do not think that we are far apart. However, as we cannot continue to bat previous cases back and forth, I hope that the noble Earl will accept that I am content to consider what he has said and to write to him with clarification of the cases that he has drawn to my attention.

Earl Russell: I am most grateful to the Minister for that assurance. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Russell moved Amendment No. 3:


Page 1, line 22, leave out ("subsection") and insert ("subsections").

The noble Earl said: This is a comparatively small amendment. It covers the point of vires for an appeal. If there is to be an appeal against an overpayment, it must cover the matter which came up on the review. That is inevitable. It is in the necessity of the case. However, the effect of the Bill has been to separate the review from the overpayment for reasons which I believe are good and which I accept.

Perhaps I may quote from paragraph 10 of Commissioner Mesher's judgment which gave rise to the Bill. It is the same passage which I believe also gives rise to the case for the amendment. He said:


    "It would be most unfair to a claimant if an adjudication officer could ... after the time for appealing against the review decision has expired, decide that a resulting overpayment was recoverable".
That was why Commissioner Mesher found there was a problem about recovery after the period of the review was over. As that problem has been met, Commissioner Mesher's other problem needs to be met also. The amendment is simple and equitable and will, I hope, save confusion. I beg to move.

Lord Mackay of Ardbrecknish: As the noble Earl said, the purpose of the amendment is effectively to reopen the appeal rights of a decision to revise or vary an award where a decision on the overpayment aspects are considered at a later stage. The noble Earl quoted Commissioner Mesher's decision in the Mustard case about the problem of separating the review of the payment from the decision on whether there has been an overpayment; to what extent; and why it arose. They have always been separated and our purpose is to place the legislation in exactly the position that absolutely everyone considered it to be in since 1948.

A person has the right of appeal to a social security appeal tribunal against a decision of an adjudication officer. He has three months in which to exercise that right. The period can be extended by the tribunal chairman in very exceptional circumstances. However, in the interests of good administration, there must be a point where a matter about entitlement to benefit is considered closed. If a person has been receiving an amount of

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benefit for three months without appealing, it is only right to consider that the amount in payment is accepted and that there cannot, unless there are exceptional circumstances, be a longer period in which that appeal can be made. If a determination on an overpayment is made after the expiry of the time in which an appeal against the revised or varied award can be made, there will still exist a right of appeal against the overpayment decision. That seems to me right. We are talking about where the person fully accepts the amount currently in payment--he has not appealed within the three-month period allowed--but disputes the overpayment part. If he chose not to exercise his rights of appeal when the award was revised in the first instance, I do not see that he can expect the matter to be reopened at a later stage--after the initial three-month period has expired.

In any event, giving a person what effectively amounts to an extended period in which to appeal, in circumstances where his own misrepresentation or failure to disclose led to the award being revised, is manifestly unfair to those who report the facts about themselves correctly and promptly and who do not have extended appeal rights. That is why I think that it is important that we do not extend beyond three months the initial ground for appeal (against the actual decision to vary the weekly or monthly payment), although I accept that beyond that period of three months the person may wish to appeal against the decision on overpayment. The two are separate. I think that the fact that there is a cushion of three months in which someone can appeal against the recalculation of the weekly benefit that is in payment is more than sufficient. To go further would be to go too far. Having listened to that explanation, I hope that the noble Earl will withdraw his amendment.

Earl Russell: I must confess to being rather disappointed by that answer. It seems to me to amount to a total denial of the possibility of an appeal against recovery of overpayment. I cannot see how you can appeal against recovery of overpayment without questioning the assessment of the overpayment which led to the recovery. I think that Commissioner Mesher was quite right: the two matters necessarily become involved with each other.

I take the Minister's point that when you are found to have been receiving an excess of benefit, obviously you should take it up and, if you think that it is wrong, you should appeal immediately. However, if one talks to people on benefit, one realises that they spend a lot of their lives in what I can best describe as a "fog" about why the DSS does to them what it does. A great many of them, without understanding, accept that the DSS moves in a mysterious way and they grit their teeth and bear it. However, if one suddenly faces a demand for recovery of a four-figure sum which one has no chance of producing, that may be a very different matter. I think that the Minister is risking making the right to appeal against recovery of overpayment practically nugatory. Will he read Commissioner Mesher's judgment again and reconsider the matter in the light of what he said? Is the Minister prepared to go that far?

Lord Mackay of Ardbrecknish: I am reading the appropriate paragraph of Commissioner Mesher's

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judgment. I have been studying it. Even in the interests of being as generous as I can to the noble Earl, I do not think that I can go any further than I have gone because that might lead the noble Earl to think that I was being more generous than I intend to be on this matter.

I am perfectly clear that if, over a period of three months, a person has accepted a reduced payment, there is no case for extending the period in which he can appeal against that reduced payment beyond those three months. Obviously I appreciate that that person may wish to appeal against the size of the overpayment demanded, but that may be on other grounds. He has already accepted that new conditions and new information leads the Benefits Agency rightly to a new conclusion on the amount of the new weekly payment. He can dispute whether he knowingly misrepresented the facts or knew the facts. He can certainly dispute these other matters in an appeal against a decision for overpayment, but I do not believe that it is right that we should extend the three-month period for an appeal against the decision on the recalculation of the benefit itself.

Earl Russell: It is an illness of office that one tends to believe that everybody else is wrong. Briefs come back marked "Resist". I understand perfectly well why that is so. I hope that if I remove myself with my amendments and I leave the Minister so that I am no longer here to say "no" to, the Minister may just think again. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved.]

Clause 1 agreed to.

Clauses 2 and 3 agreed to.

Report received.

Then, Standing Order 44 having been suspended (pursuant to Resolution of 18th July), Bill read a third time, and passed.

Child Support (Miscellaneous Amendments) Regulations 1996

7.12 p.m.

Earl Russell rose to move to resolve, That this House invites Her Majesty's Government to withdraw the Draft Child Support (Miscellaneous Amendments) Regulations 1996 and to lay amended regulations making the power to increase the benefit penalty discretionary and therefore to be exercised with regard to the welfare of any child likely to be affected by the decision, as required by Section 2 of the Child Support Act 1991.

The noble Earl said: My Lords, I beg leave to move the Motion standing in my name on the Order Paper. I should like to offer my thanks to the Minister's honourable colleague, Mr. Andrew Mitchell, first, for a great deal of kindness over correspondence; secondly, for giving me a meeting in which we discussed these new regulations in some detail; and, thirdly, when I asked for additional information on some of the points covered in the CSA research, for sending me a very large quantity of material.

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I have read it all but it does not answer any of the questions about which I asked Mr. Mitchell for further information. I regret to say that I shall have to ask those questions again.

We are familiar with the proverb, "Give a dog a bad name and hang him". We have seen that done today to asylum seekers. It is being done under these regulations in very much the same way to women with children. The idea is being put about that they must be fraudulent and therefore outside our mercy. It is a wonderful way of denying sympathy to people in need. I find it extremely disturbing.

In the course of preparing this speech I looked back at our debates on the Child Support Act 1991. I found I had said then that if a benefit penalty was needed as large as the one that we have now, it would mean that the resistance among women to the Child Support Act was so great that the Act would be unenforceable. I believe that that was a good judgment. The Minister has decided that the present benefit penalty on women who do not co-operate with the CSA of losing 20 per cent. of their benefit for a year and 10 per cent. for a further six months is not enough. He says that that level of benefit penalty fails to provide a sufficient incentive to co-operate with the CSA. I cannot help wondering whether the conclusion that I drew in 1991 may be rather more appropriate. The Government have concluded that there is a need to make the benefit penalty more effective if they are to tackle abuse.

What are the real causes of women's failure to co-operate with the CSA? Surely the Child Poverty Action Group is right that in the context of the requirement to co-operate there will always be a margin for error. That emerges from a case in the book by Elaine Kempson. She quotes the case of a woman who left her husband after a particularly bad beating. She did not qualify for income support because he was supposed to be paying her maintenance, which she never received. That is a familiar story, too. Mounting money problems forced her to return to her violent husband. That woman did not have sufficient confidence in the good cause procedures to go anywhere near them. I wish that the Government were as alert to those cases as they are to the very few of fraud.

In a crucial passage in paragraph 43 of the CSA's research, a distinction is drawn, which the CSA regards as fundamental, between those who have genuine concerns and those who do not co-operate with the CSA. It assumes that these are two fundamentally different groups. There is a refutation of that on page 131 of the very same research. One would have thought that the authors might have noticed what they had themselves published. That case concerned a woman who refused to co-operate with the CSA and would not give any reasons. But the relevant officer, who fortunately had scholarly instincts, looked up the old liable relative documents and found that, although she had not claimed this, she had left her husband because of repeated incidents of violence. Because he happened to be a genuine scholar, the woman was found to have good cause. But that violence would have been just as genuine if the officer had not happened to look up the documents. It would have been just as genuine if it had

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not found its way in the first place into the liable relative papers. We do not know how many causes of that kind may be being missed.

Another common cause for failing to co-operate, which is perhaps not as bad a cause as the Minister believes, is a desire to protect a second family. It so happened that on Saturday evening very occasionally I took a little time off and watched a film on television. It emerged that the brother of the heroine suddenly discovered that the man he believed to be his father was not. His response was to take to heroin. That was a fictional case, but I am sure that it is possible to find real cases which can go with it. That may be a good cause for not co-operating, even if the CSA does not find it. It may be a common cause that to co-operate with the CSA will disrupt an amicable arrangement between divorced parents. The example of Mrs. Smith in the CSA's model cases in the appendix to this research is a typical case in point. It is a fictional case, but I believe that it is very accurately delineated.

God knows, it is hard enough for couples who have split up to reach amicable arrangements and keep them going. They may perfectly well dislike having the CSA marching in and putting its muddy boots all over those arrangements. Even if the Minister does not accept that that is so, he must accept that there is a limit to the practical powers of the state to force people to act against their own interests as they perceive them. That has always been so, and, thank God, it is.

The commonest reason: Professor Craig's report for the Rowntree Trust studied the cases of 53 women who had been subject to the CSA. Not one of those women was better off as a result. So, in this benefit penalty regime, we have a regime which is all stick and no carrot. If the Minister is keen for more women to co-operate with the CSA, he might think about a tiny little bit of carrot. The Minister knows perfectly well what we shall be asking him for. I shall not labour the point. It is a maintenance disregard, better arrangements for passported benefits, and, above all, some way of dealing with the frequent failure of maintenance to arrive. That is something that many other European countries have done, with profit. We have not done it here, and we are paying for it.

Another common reason, as one of the women in the Rowntree study said, is that she has refused to co-operate because she does not want to go into, as she put it, "the gory details of a rotten marriage". People coming out of a marriage, like people coming out of a party, tend to be suffering from centrifugal force. Requiring those people to resume a relationship with their former partners could be rather like an administrative requirement to require Dr. David Owen to return to the Labour Party. I do not think that it would be particularly effective.


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