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Lord Goodhart moved Amendment No. 10:


Page 6, line 14, leave out subsection (2) and insert--
("(2) When considering whether to make a decision under subsection (1) above, the Secretary of State shall consider any issue which appears to him to be relevant to the claim, so however that he shall not revise the decision in question so as to terminate an award of benefit or reduce its amount unless he is satisfied that it was given in ignorance of, or was based on a mistake as to, some material fact, or was erroneous in point of law.
(2A) For the purposes of subsection (2), "relevant benefit" has the same meaning as in section 9 above.").

The noble Lord said: At present Clause 10(2) provides that in making a decision to revise an earlier decision,


We have tabled this amendment to seek to remove that exemption for the Secretary of State--or, in practice of course, the adjudicator--to make sure that the adjudicator is bound to take into account any relevant issues whether or not they are raised on the application. It is surely a basic principle that decisions should be correct as far as possible. If there is an application for revision of an earlier decision, surely it should be the duty of the adjudicator to take into account any issue which he or she thinks is relevant.

I recognise that there may be some problems if the adjudicator is a computer. Nevertheless it is surely not beyond the ability of computer programmers nowadays to programme the computer to identify circumstances where relevant issues that might be raised on the application have not been raised, and therefore alert the computer's "minder" to the need to look into further aspects of the case. There is a principle of civil law that an appellate court is not bound to consider a point of law raised for the first time on appeal, but has a discretion whether or not to do so. But this of course is not an appeal; it is a revision of the original decision. In those circumstances all the circumstances which gave rise to the original decision, or which might indicate that it is wrong, should surely be considered. It is wrong to apply to the adjudication procedures the strict rules governing appeals in civil actions where both parties are likely to be represented.

Applicants are unlikely to know much about social security law. They will certainly know less than the adjudicator, whether or not the adjudicator is a computer. No doubt if there is a serious relevant issue of which the adjudicator is aware, the adjudicator will raise it. But why should the adjudicator not be bound to do so? Why should it simply be left to the adjudicator's discretion, recognising, of course, that the adjudicator cannot raise an issue of which he or she is not aware?

The amendment also proposes that, first, a downward revision of the original award should be possible only where the earlier decision is plainly incorrect; that is, based on a wrong view of the facts or law, and, secondly, that it should not be possible to revise a decision downwards just on the exercise of a discretion where the revising adjudicator disagrees with the original adjudicator's exercise of that discretion. It is entirely wrong that in such cases there should be any

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question of the recovery of an over-payment made on the basis of the original decision. This might arise unless there is a regulation to prevent that happening.

In those circumstances I hope that the Minister will explain why it is thought necessary that the adjudicator should be given the power not to take into account relevant issues simply on the grounds that they are not raised on the application. For my part I find it extremely difficult to see why there should not be such a duty. I beg to move.

Lord Hardie: I welcome the opportunity presented by the noble Lord, Lord Goodhart, in setting down this amendment as it enables me to explain our thinking in an area where the Government's intentions are clearly causing concern, not only to the noble Lord. I am aware that other members of the public have expressed similar concerns about this matter.

As the noble Lord has pointed out, the amendment would do two things. First, it would reintroduce, in statute, the concept of formal grounds for revision where an award was to be terminated or reduced. It would also move away from concentration on that part of a decision which is disputed or which appears to be wrong to the position where undisputed aspects of a decision must be revisited.

The amendment goes to the heart of our proposals on improving customer services. Services which simplify complicated, bureaucratic processes, which reduce delays and which cut out waste are central to the Government's welfare proposals and result in more efficient, customer focused services. Clause 10 is a key component of those proposals. It is about revising decisions which appear to be wrong. I think we would all agree that this should be a simple, easily understood process. Yet current law requires customers to seek review by means of an application in writing to an adjudication officer, stating the grounds of the application. That is neither simple nor easily understood. Customers are constrained by a complex legal framework set out in statute and with rules which differ from benefit to benefit and from agency to agency.

In future our approach will achieve two things. First, it will make the claimants' task easier. They will need only to say in their own terms what it is they do not like about a decision. They will not have to translate their objection into one of the more formal grounds. Members of the Committee with experience of these matters will agree that the requirement to set out grounds for a review can cause problems at present. For example, when does a change of medical opinion amount to a relevant change of circumstances? Sometimes it is not easy for the expert to interpret these matters and it is certainly not easy for the average claimant.

Secondly, our approach makes the best use of limited resources. By focusing on the issue that is being queried cases will be dealt with more efficiently. When a claimant writes in to query a decision, agency staff will not have to look at every aspect of a claim. Their time will be better spent by focusing on the issue that has been raised and moving quickly on to the next case.

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In the long run, the time saved should lead to a more comprehensive and better service for all claimants.

When reconsidering a decision under this clause it is entirely reasonable that there should be no obligation for the decision-maker to consider the entire matter afresh. Customers should play an active part in identifying and voicing their concerns. This will enable decision-makers to focus on the issues raised by the customer and place the responsibility for reporting changes and disputing decisions firmly with customers. I stress that there is nothing in our proposals to prevent the investigation and correction of errors which have not been raised by the claimant.

Dealing with the point raised by the noble Lord, it could be argued that every aspect of the decision was relevant. It would be a waste of time and effort to re-address every single aspect of a decision, even where there was no question of it being likely to change.

Clause 10(2) allows the decision-maker to take a wider look at any decision where he or she thinks it is appropriate. In other words, decision-makers will be free to reconsider any aspect of the application, whether or not it is raised by the customer, if they believe there are other errors. It would be unreasonable to ignore a clear error solely because it had not been raised by the customer--this would simply create problems for the future--but what we do not want is an automatic opening up of every aspect of the dispute in every case. Your Lordships would find that equally imprudent.

In the second part of the amendment the noble Lord appears to want the more straightforward approach to revising decisions to be used only when it results in an increase in benefit--not where the benefit is reduced or terminated. I fully appreciate the noble Lord's concerns. Changing benefit awards--whether upwards or downwards--must not be done at the whim of decision-makers; there must be good reasons. Customers and other users of the benefit system would quickly lose confidence in it if decisions were seen to be taken in an arbitrary manner.

That will not be the case. As now, all decisions will continue to be made on the basis of the facts and the law. Regulations will contain the grounds for a decision to be changed, and detailed guidance, which will be published, will include examples to help agency staff, claimants and their advisers alike.

Customers can be assured that before any decision is revised there will have been a thorough examination of all the relevant issues. Constraints against "whimsical" or arbitrary decisions will continue to be an integral part of the legal framework for revising decisions. Our approach simply allows that process to be easier for claimants and staff alike to understand.

I hope with this explanation that the noble Lord will understand why the amendment cannot be accepted and I would invite him to withdraw it.

Lord Goodhart: I am grateful to the noble and learned Lord for his explanation.

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We do not oppose Clause 10 and give a warm welcome to any proposal for simplification. In particular, we are pleased to hear that the claimants will be entitled to have a decision revised simply on the basis of saying that they do not like that decision.

The noble Lord then went on to say that "customers"--an expression which I do not like--should focus their own application. That is inconsistent with the idea that they only have to say that they do not like the decision. Another problem is that the claimant or customer might be unable to focus the application without help, which is difficult to obtain.

I do not intend to press the matter further this evening and I will ask leave to withdraw the amendment. I am not altogether happy with the answer of the noble and learned Lord. We do not propose that there should be anything in the nature of a total re-investigation every time there is a revision. It should be the duty of the adjudicator not simply to take an application at face value but to think as far as possible whether there are issues which are likely to arise and have not been raised. We are only asking that the adjudicator considers an issue which appears to him to be relevant to the claim. So he must be aware of the issue and must think it relevant. If those two conditions are satisfied, there is a case for saying that the adjudicator "must" and not merely "may" take those things into account.

I shall read in Hansard what the noble and learned Lord has said. For the time being, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.45 p.m.

Lord Goodhart moved Amendment No. 11:


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