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Earl Russell moved Amendment No. 50:

Page 8, line 19, leave out from ("appeal") to end of line 21 and insert--
("(8) In deciding an appeal under this section, an appeal tribunal shall also consider whether the person concerned was entitled to the benefit in question during any part of the period between the decision against which the appeal has been brought and the determination of the appeal.").

The noble Earl said: This is another fall-back in case the amendment of the noble and learned Lord, Lord Archer of Sandwell, should not prevail at a later stage. I agree entirely with what my noble friend said about that amendment.

I have come to think of this amendment as the Sierra Leone amendment, and I shall attempt to explain why. The purport of Amendment No. 50 is that it provides that a tribunal shall consider whether the person was entitled to the benefit in question during part of the period between the decision and the appeal. It therefore overrides the ban in Clause 13(7)(b) on taking into account

Let us assume that an asylum seeker from Sierra Leone says that he attempted to apply for benefit at the port of entry but was unable to make himself understood and was sent on his way out of the airport. They say

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that he made no attempt to apply. The tribunal spends a great deal of time trying to disentangle the story and suspects, although it is not certain, that the problem was essentially a failure in communication. However, since that asylum seeker arrived in this country, the Home Secretary has declared Sierra Leone to be a country in a state of upheaval. Therefore, he has been entitled to benefit from the time of his arrival whether or not he claimed that right at the port of entry. Nevertheless, by the time the case comes to be heard, Sierra Leone has ceased to be a country in a state of upheaval and the previous entitlement has disappeared.

Under my amendment, the tribunal would be able to find in such a case that the claimant was entitled to benefit during the period when Sierra Leone was in a state of upheaval, regardless of how the original issue was settled. If the Government's view of the matter prevails, it seems to me that three consequences would follow. First, a person with a genuine entitlement to benefit would not get it; that is one undesirable effect. Secondly, the tribunal would have to give a decision which it knows to be unjust; that I regard as a second undesirable effect. Thirdly, yet another appeal would be generated; that I regard as a third undesirable effect.

I listened with care to the noble and learned Lord the Lord Advocate. In effect, he said that the procedure that we are proposing and recommending offends against the canons of administrative tidiness. So it does; that is precisely why we are recommending it. I can understand why bureaucrats in any century may wish to take refuge behind the fortresses of bureaucratic procedure against the rising tide of untidiness in the world outside. Indeed, they have always done so.

However, social security is an essentially untidy subject. We are dealing all the time with a collection of the world's misfits. The world's misfits, often in very fascinating and sympathetic ways, are thoroughly individual and totally unpredictable. They simply do not fit into categories. So if one spends all one's time trying to force social security into a mould of total administrative tidiness, one will end up very unhappy and disappointed. It would be much better to recognise the reality of the situation and take a decision which, even if it were a little untidy procedurally, would nevertheless be just; would enable justice to be done; and, just for an uncovenanted bonus, would save public funds. I beg to move.

Lord Hardie: I dealt with this amendment when speaking to the two previous amendments on the Marshalled List. I trust that the noble Earl will not think me discourteous if I do not repeat what I said. Under the explanation that I gave previously, the answer to the Sierra Leone problem would be for the immigrant to go back to the agency in between the first application and the date of the appeal. At that time, the agency would reassess his circumstances and, if entitled, would grant him benefit.

The other point that I should make is that the agency and its staff will be instructed to reconsider cases when they are at appeal. If it is obvious from the papers that there has been a change in circumstances--as there would be in the Sierra Leone case--it would be for the

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agency to draw the fact to the attention of the claimant and encourage him to submit a fresh claim to enable him to receive benefit at the earliest opportunity. I appreciate that that will involve a continuing training programme for the agency staff. That should ensure that they take the initiative and encourage claimants to reapply when it appears that they ought to do so. With that explanation, together with the one I gave previously, I hope that the noble Earl will feel able to withdraw his amendment.

Earl Russell: I thank the noble and learned Lord for his reply. Of course, I entirely understand why he did not repeat all that he said before, and I did not expect him to do so. I was interested in the noble and learned Lord's remarks about the Sierra Leone case. However, I see two disadvantages in that response. First, he is creating a need to make a second claim where before it could perhaps have been disposed of all in one case. Indeed, that may multiply work. Secondly, it is not necessarily a valid assumption that every asylum seeker from Sierra Leone knows that it has been declared a country of upheaval. That fact was not widely publicised in press reports and not every asylum seeker without benefit is able to buy and read newspapers on a regular basis; indeed, not all of them have the ability to do so.

In social security law, the maxim that ignorance of the law is no excuse really does not have very much place because many of these people are not in a position to have a proper understanding. I quite understand that the noble and learned Lord is concerned for the tidiness of the claiming procedure. But if the material simply does not fit into the categories that he has designed for it, the result will end up looking rather like my desk. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hardie moved Amendment No. 51:

Page 8, line 21, at end insert--
("( ) The reference in subsection (1) above to a decision under section 11 above is a reference to a decision superseding any such decision as is mentioned in paragraph (a) or (b) of subsection (1) of that section.").

The noble and learned Lord said: In bringing forward this technical amendment we are seeking to clarify which applications made under Clause 11 will attract a right of appeal under Clause 13. As noble Lords will be aware, under our new proposals decisions of the Secretary of State will either be revised or superseded depending generally upon the timing of the application. Where an application is made to revise the Secretary of State's decision within one month after that decision is made, it will be revised under Clause 10. Once that period has ended, cases will be superseded under Clause 11 only where the application is made for specified reasons--such as ignorance of or a mistake as to a material fact, an error of law on the original decision or where there has been a relevant change of circumstances.

Where an application for supersession has no prospect of success--that is, where it is clear that there has been no relevant change in the claimant's circumstances--the

2 Apr 1998 : Column 430

Secretary of State will not act on the application. The decision not to act will not be a decision under Clause 11. Therefore, it will not fall within Clause 13(1) and will not attract appeal rights. Of course, if the Secretary of State gets it wrong in refusing to entertain the application, there would be a remedy by way of judicial review.

That approach should be seen in the context of creating a modernised social security system which will allow customers to exercise their rights more effectively. If the Secretary of State has to deal formally with nugatory applications this must affect her ability to operate processes effectively. Moreover, if we were to offer appeal rights on applications which could not succeed, then more nugatory work would be created for the new appeal service, causing delays to claimants who had a justifiable case.

I have explained when appeal rights will not be offered. I will now briefly explain when they will be offered under Clause 11. Appeal rights will be granted where the Secretary of State acts on an application. This will include those circumstances when the amount of the award is not changed; in other words, by acting, the Secretary of State decides that there should be no change. It may seem odd to describe a decision as superseded where there is no change. However, that will be the case. A decision will be superseded every time that the Secretary of State issues a benefit decision in response to an application. That will be a new outcome decision which will attract appeal rights and a period of one month in which to appeal.

While our intention with the new dispute process is to encourage claimants to take responsibility for exercising their rights promptly, we also want them to do so in a meaningful way. The amendment ensures that the legislation supports that intent. I beg to move.

On Question, amendment agreed to.

Clause 13, as amended, agreed to.

[Amendment No. 52 not moved.]

Schedule 2 [Decisions against which no appeal lies]:

[Amendment No. 53 not moved.]

6.30 p.m.

Lord Hardie had given notice of his intention to move Amendment No. 53A:

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