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Lord Higgins: It has always seemed to me completely wrong, if one receives a forthcoming response from the Government, to prolong the proceedings; therefore, I do not propose to do so for more than a moment or two. Certainly the noble Baroness has given great thought to these matters and made considerable improvements in relation to accepting the report of the Select Committee on Delegated Powers and Deregulation.

That said, it is also the function of the Opposition to ask for more in the role of Oliver Twist. That being so, it will still be the case that the Government will come forward with these regulations but we shall not be able to amend them. It has always seemed to me preferable, if one can, to have a matter on the face of the Bill so that it can be amended, and then subsequently, if necessary, amend it by regulation and appropriate powers to be taken in the Bill to that effect. If that is not to be the case, then can the noble Baroness give any indication whether we shall be given a preview of the regulations before going all the way through the Bill so far as the main legislation is concerned?

Baroness Hollis of Heigham: I cannot help the noble Lord yet in relation to the timing; I may receive that information in a moment or two. In the past, I have argued some of the points made by the noble Lord on the grounds that it is the Opposition's job to do so.

I would make one further point, and this may also help the noble Earl. The noble Lord is quite right. These regulations, if they are affirmative, cannot be amended and the usual difficulty arises. However, it would be open to any noble Lords to put down a Motion which, so to speak, were it adopted, would have the practical effect of amending the regulations. If the Government were persuaded of the desirable nature of that Motion, I for one would seek to withdraw those regulations and re-lay them, having incorporated the additional proposals by virtue of the Motion. That is the only way the House can amend regulations. That would allow us to overcome the chicken-and-egg difficulty of tying our hands too tightly in primary legislation and then finding ourselves in difficult situations.

The advice I am given is that it is unlikely that we shall be able to produce the regulations before the Bill completes its passage. However, we shall be consulting on both the content of the regulations and the guidance with the members of an ad hoc group of representatives

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from leading welfare and other interested organisations. The regulations will be brought before Parliament, and I give an assurance to the House that if, at the point at which they are discussed, a Motion is brought suggesting that they should be changed in any of these ways, that Motion will be taken very seriously.

Earl Russell: On this side of the House, one regularly looks gift-horses in the mouth, but to look two gift-horses in the mouth at once is a little difficult; it tends to give one a squint. The Minister has given one very substantial gift-horse in reply to my speech; she has given an even more valuable gift-horse in reply to the noble Lord, Lord Higgins. What she said about the use of the Motion to resolve and her personal undertaking--I understand that it is only personal--to take note of that were it to be carried is a concession of immense value to the orderly proceedings of the House.

Baroness Hollis of Heigham: No, I was not saying that. Were a Motion to resolve to be carried, we would take it in. What I said was that, if there were a Motion, I would ask the noble Lord not to move his Motion and I, on the other side, would not seek to move the regulations. I would seek to protect the convention that we do not overturn regulations in that way. If there were a Motion which commanded support all around the House, and I felt that it was a correct Motion and not one that we should seek to defeat by a vote--in other words, that it would improve the regulations--I would indicate that to your Lordships and ask that the Motion be withdrawn, I would not move the regulations, and we would come back with subsequent regulations which we would hope embodied the spirit of the Motion.

Earl Russell: That is an extremely helpful series of remarks. In effect, the Minister is saying, as I understand her, that we should at that stage take time outside the House to discuss things quietly. That is the way we make progress. That is something that it gives me very great pleasure to hear.

I am pleased by the two concessions of affirmative procedure on Amendments Nos. 129 and 130. The Minister knows well enough why I do not think that is enough by itself, and I shall not detain the House by explaining it. Amendment No. 44, on the other hand, is an extremely imaginative and interesting concession. This attempt to distinguish between things which are major and involve conditions of entitlement and minor administrative decisions is very much in the area where I was looking for some form of progress. The Minister will appreciate that there may be argument from time to time about which is which, but that again is the kind of thing which we can easily discuss outside the Chamber. It is not, of course, absolutely everything that I wanted, but it is so near to it that to do anything other than accept the advice of the noble and learned Lord, Lord Archer of Sandwell, and withdraw the amendment would be churlish and ungenerous. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Baroness Hollis of Heigham moved Amendment No. 44:

Page 7, line 43, leave out ("prescribed circumstances") and insert ("relation to a prescribed decision, or a prescribed determination embodied in or necessary to a decision.
( ) Regulations under subsection (2) above shall not prescribe any decision or determination that relates to the conditions of entitlement to a relevant benefit for which a claim has been validly made or for which no claim is required.").

The noble Baroness said: In moving Amendment No. 44, I simply add that we always have to take into account in discussion of any regulations and their relationship to the face of the Bill the decision that has been made in the Commons, so that we do not in any case undermine the will of the elected House. The Committee will understand that such discussions have to take place within that context. Given that understanding around the Chamber and the attempt to meet any suggested improvements which the Government accept are proper improvements to the regulations, I move Amendment No. 44.

On Question, amendment agreed to.

Lord Goodhart moved Amendment No. 45:

Page 8, line 16, leave out ("may") and insert ("shall").

The noble Lord said: In moving Amendment No. 45, I wish to speak also to Amendment No. 47, which is the substantive amendment in this case. Amendment No. 45 merely corrects what seems to be a rather odd defect in the clause, which says that:

    "Regulations may make provision as to the manner in which, and the time within which, appeals are to be brought".
Since it is clear that there will have to be such regulations, it would surely make more sense to say "shall" rather than "may".

Amendment No. 47 is much more substantial. Its effect will be that the regulations which will govern the procedure at appeal hearings will require that there shall be an oral hearing unless the appellant specifically requests otherwise. It also gives the chairman of the appeal tribunal or, in the case of a one-member tribunal, that member, the power to order an oral hearing where he thinks that that is desirable in the interests of justice.

Since October 1996 appeals have been decided on the basis of written information provided by the appellant or coming from the respondent unless the appellant specifically asks for an oral hearing. In 1996, the success rate where an appellant appeared or was represented before the tribunal was 53 per cent. The success rate where the appellant did not attend and was not represented before the tribunal was 13 per cent. That is an average figure; in the case of some benefits the discrepancy is even more extraordinary. For example, in the case of incapacity benefit, the appeals were successful on 57 per cent. of the occasions when they were attended but on only 7 per cent. of the occasions when they were not attended. I do not say that, if all the non-attenders appeared, that their rate of success would necessarily go up to 53 per cent.; but it is impossible to imagine that, if they had appeared, the rate of success would have been as low as 13 per cent.

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Few claimants understand these complicated regulations in any detail. Few of them are skilled in presenting their cases on paper. If they do not appear, there is no way of filling in or supplementing any gaps in the information they have provided. Many claimants will not have properly explained the grounds for appeal in their written submissions; they may have omitted essential facts. If they are present before the tribunal when the appeal is heard, the tribunal can question the claimant, find out what the real issues on the appeal are and fill in the gaps in the written presentation. In some cases, particularly with incapacity benefit, the claimant's own account of his or her disabilities is likely to be particularly helpful to the tribunal, and that may account for the staggeringly high difference between the success rates for those who attended and those who did not attend in cases of incapacity benefit.

Since the new rules came in in October 1996, the proportion of hearings attended by a claimant or the representative of a claimant has fallen from 62 per cent. to 44 per cent. Almost certainly largely as a direct result of that, the overall success rate on appeals has fallen from about 40 per cent. to just over 30 per cent. The rate of success on attended hearings has remained much the same and it is clear, therefore, that the reason for the decline in the success rate is the fact that so many more appeals are now being dealt with on paper rather than being heard orally by the tribunal.

These figures, which are quite extraordinary, show that the 1996 change in the rules has plainly worked a real injustice. It was estimated by Mr. Tony Lynes, a former adviser to the government led by the noble Lord, Lord Callaghan, that about 10,000 people a year lose benefits to which they are entitled as a result of these changes. It is, of course, wrong to compel claimants to turn up at their appeals if they do not wish to do so, but plainly they should be strongly encouraged to do so. The best way is surely to provide that there shall be an oral hearing unless the appellant asks for it to be done otherwise. In other words, the default procedure is that there shall be an oral hearing and it is only where for some particular reason you wish to present your case on paper and do not wish to be present at the hearing that the hearing will be dealt with on paper by the tribunal.

If it were not for these figures, Amendment No. 47 could be regarded as something that is relatively minor, but the figures show--and we are talking about thousands of people a year--that the failure to encourage claimants to be present at their appeals does work a real injustice. This amendment gives priority to oral hearings before the tribunal and will, I believe, help to remedy that injustice. I beg to move.

5 p.m.

Baroness Wilcox: I am grateful to the noble Lord, Lord Goodhart, for having put down this amendment and I should like to speak in strong support of it. This amendment arises out of the fact that a person whose appeal is determined at an oral hearing rather than merely on the basis of written papers has, as we have heard, a much greater chance of success. The noble Lord, Lord Goodhart, has provided figures in support of

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this and I believe that the right to an oral hearing is a basic and fundamental right which should not be taken away unless an applicant specifically confirms that he is happy for his case to be determined in his absence in writing.

The right to an oral hearing may appear to be less efficient to the Government and to have the disadvantage of being more time-consuming. However, applicants at an oral hearing not only have a much better chance of success but even those who fail, I think, are likely to feel that they at least have had a fair hearing and have been able to state their case in the way that they wish. In 1991, when I was chairman of the National Consumer Council, we did a study over two years of access to justice, and one point which came strongly out of that was that, if somebody had been represented and had to sit at the back of the court, they often did not feel that they had really had their say.

Following that piece of work, just last year I was able to take part in the review of the Court of Appeal in the Civil Division to look at why the Court of Appeal was being so over-burdened with work. One of the problems that we found over quite a short period of time was the number of lay litigants in person who were turning up wanting to go through the whole thing on their own, having been unhappy with the result from the court of first instance. This very often showed that they had been represented and had not had their say.

We spent time travelling through Canada and America to see how they dealt with this problem, trying to get through the amount of work that they had, yet at the same time retaining something that we treasure so much in this country: an oral tradition. I might tell your Lordships that in New York they have a system whereby it is 10 minutes for anybody. There are "traffic lights" in front of the person giving evidence orally. They start with a green light and the three judges can interrupt at any time during that 10 minutes. An amber light flashes half-way through and at the end of 10 minutes a red light comes on, a bell rings and you are out. But this does mean that you have had your moment in court; you have had your 10 minutes. Perhaps if the Government are looking for expediency they might wish to consider that method.

It is not right I think, to allow the decision over whether there should be an oral hearing to be left to the whim of the DSS or the appeal tribunal. Every person has a fundamental right to have their case heard at a full oral hearing unless they choose otherwise. As we have heard in earlier debates, many claimants are unrepresented and would find setting out their case in writing difficult. We have heard about this again from the noble Lord, Lord Goodhart. An oral hearing allows the appeal tribunal to elicit the facts from the claimant in a non-intimidating way and ensures that the claimant feels that he or she really has had a chance to state his or her case in their own way.

I am aware that many of these appeals may involve relatively small amounts of money. However, for the individual involved they can often be amounts of vital importance. If the assumption is not firmly in the camp that there should be an oral hearing, a system will soon

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develop under which many applicants will not really be aware that they have a choice in the matter and they will be deterred from seeking an oral hearing in the interests of efficiency. I would therefore strongly support the noble Lord, Lord Goodhart, in enshrining this legal right in the Bill.

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