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Lord Higgins: My Lords, I am grateful to the Minister for that explanation of the principles which have determined a selection of variations which the Government feel is appropriate. We shall need to consider the various possibilities against the two criteria she has outlined. I have slight doubts about some of the points made. I refer to education, for example. One does not live on bread alone. If a marriage is intact, the parents would certainly regard the provision of expense on education as leading, in the broader sense, to the maintenance of the child. That is a specific point.

As regards debts, and so forth, the Minister has largely reassured me. However, we shall need to consider the various possibilities. Clearly, one cannot be at one end of the extreme or the other with regard to no exemptions at all or some exceptions. It is a question now of striking the right balance at the margin. In the light of what the Minister has helpfully said, we shall consider whether the marginal balance is in the right place. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 33 to 47 not moved.]

Clause 10 [Appeals to appeal tribunals]:

6.30 p.m.

Baroness Buscombe moved Amendment No. 48:


The noble Baroness said: My Lords, in moving Amendment No. 48 I shall speak also to Amendments Nos. 49 to 55. The amendments relate to Clauses 10 and 11 and refer to appeals to appeal tribunals and the re-determination of appeals.

In tabling Amendments Nos. 48 to 52, we are highlighting our concern that the levels of maintenance are vitally important to all parties and to the children. There needs to be a system of appeal where appropriate cases can be reviewed. We believe that such appeals should be to district judges at county courts who are already experienced in dealing with maintenance and have an existing and well-used procedure. District judges are not only well experienced in this sort of work but are given a wide discretion to take into account all the circumstances, including, for example, earning capacity of an absent parent, to ensure that justice can be done.

It would be possible for the regulations to make clear that the formula would normally apply and exceptional circumstances would be needed before a court would adjust the formula. Even in criminal matters, citizens are entitled to appear before the court to ask that their individual circumstances be taken into account before a fine is imposed. Here, we are talking about assessments which may involve a person paying up to a quarter of their income for 16 years. We believe that it must be right that they have an opportunity to

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be heard in appropriate cases. An application to court would also enable the applicant to apply for funding by the Legal Services Commission, so that they could be assisted if that was appropriate or necessary.

Although it is suggested by the Government that this would result in a significant increase in the work of the county court, we believe that that is unlikely. Ten years ago, before the CSA started, all maintenance matters were dealt with through the courts, and the courts were quite capable of coping. We are only talking here about the courts looking at a minority of matters where there are good grounds to appeal against an unfair assessment. The absence of such a right has led to much of the resentment that has undermined the current CSA, and the Bill before us now does not address that.

I turn now to Amendment No. 53. The effect of this amendment is to provide that civil legal aid is available in certain circumstances for proceedings before the child support appeal tribunal. Briefly, while supporting the provision in relation to appeal tribunals--in speaking to this, as is suggested and made clear in the proposed amendments, I am speaking to the situation as it pertains in Scotland--we question whether a right of appeal can be considered as a substantive right if it is not accompanied by a mechanism to ensure that adequate representation can be provided. This amendment extends the provision of legal aid to child support appeal tribunals to ensure access to justice.

I now turn to Amendments Nos. 54 and 55. These amendments refer to the report on the number of appeals completed and the publication of key decisions. The Social Security Select Committee published a report on the benefit appeals system on 24th May of this year. The committee said:


    "The Committee's fourth report ... reveals a disturbing culture of delay in the system of appeals to the Social Security and Child Support Commissioners. The Committee also found a chaotic and clearly unacceptable situation in the publication of decisions of the Commissioners, described by the chairman as, 'typically British, amateur, worst practice'".

The committee also said:


    "On the availability of Commissioners' decisions, it was apparent long before we completed our inquiry that the Departments had acknowledged the extraordinary lack of information and agreed to improve the situation. We welcome this, but conclude that more definite plans should be made in order to assist appellants to find out what legal precedents there might be".

The report criticised the fact that only around half of the key decisions of the commissioners are selected for reporting each year, and the committee called for a new system of publicising judgments. On that matter the report said:


    "We were astonished and alarmed at the chaotic and almost laughable situation which applies to the availability of Commissioners' decisions".

The committee wants its conclusions to be implemented without delay.

The Government, as we understood it, were supposed to be taking action in this area. The Social Security Act 1998 was supposed to simplify decision-making and appeals regarding social security, child

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support and vaccine damage payments. Many of the provisions were based on proposals made by the previous government.

Last year, the Under-Secretary of State, Angela Eagle, in another place said:


    "The changes we are making will enable the Benefits Agency, Child Support Agency and Employment Service to provide a more helpful and accessible service to the public".--[Official Report, Commons, 2/3/99; col. 708.]

More recently the Under-Secretary of State said that,


    "improvements have been made, but we are never complacent and will continue to do what we can to improve the accessibility of the system and its effectiveness".--[Official Report, Commons, 19/6/00; Col.9.]

The amendments tabled implement the Select Committee's key recommendations on reporting and publicising, and decisions of the Social Security and Child Support Commissioner. If the Government are really committed to making the appeal system more accessible, they should give their support to these commonsense amendments that provide freedom of information about the decisions of the commissioner. I beg to move.

Earl Russell: My Lords, I congratulate the noble Baroness, Lady Buscombe, on tabling those amendments. That Select Committee report is a powerful document. I hoped that we would do something with it. I had not worked out what; I think she probably has. We view these amendments with a great deal of sympathy, and I hope the Minister will do likewise.

Baroness Hollis of Heigham: My Lords, we discussed assessment earlier today. Then we discussed variations. A comment I meant but failed to make in response to Amendment No. 47 was that if unforeseen circumstances crop up in the future we can respond by making regulations under existing powers in the Bill, which I think was a point that the noble Earl, Lord Russell, thought I might clarify by placing it on the record. We now, of course, are on to the third step, which is appeals.

Amendments Nos. 48 to 52 relate to Clause 10. That clause sets out clearly the child support decisions which carry a right of appeal. Our intention is that in the reformed child support scheme liability will be established quickly. We want the agency, wherever possible, to settle disputes without the need for a formal appeal. That is why we hope to put in place an effective disputes service for parents who think a particular decision about their liability is wrong. However, we recognise the need for a right of appeal to an independent body with legal expertise to ensure that decisions are made fairly, and that parents' concerns can be given a full hearing if issues cannot be settled in discussions with the agency. The kind of issue I am referring to is where there is a dispute about whether his or her income as reported affects his or her lifestyle.

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As is the case now, in the reformed scheme appeals may be made against decisions relating to child support liability; where a benefit penalty is imposed, because a parent with care claiming income support opts out of child support without good cause, a right of appeal will still arise. There will also be rights of appeal against financial penalties for late payment of maintenance and--if and when these are introduced--fees. The proposals in the Bill build on changes to the appeals system for child support introduced from June 1999. These changes were part of the move to a simpler, more streamlined decision-making and appeals process across the DSS.

Let me turn to Amendments Nos. 48, 51 and 52. These amendments would give child support clients the right of appeal to a county court, rather than an appeal tribunal. I do not accept that this is the right way forward. The court system failed parents in the past. There were real difficulties in getting maintenance orders enforced and non-resident parents were often able to avoid paying maintenance, with the result that children were left in poverty. The courts were widely perceived as having failed to protect children's rights. The court system is adversarial. I think that parents, particularly parents with care, are more likely to feel at ease in an informal tribunal setting. It could result in further delays and may cause confusion because we are crossing between jurisdictions; for example from the CSA to the courts. The courts would also be substantially more costly--around £20 million a year compared with £5.5 million for the appeals service.

The tribunal system, on the other hand, provides parents with an impartial re-examination of the decision under appeal. A tribunal reaches its decision by establishing the facts of the case and applying the law to those facts. Tribunals comprise only those people with the qualifications and expertise required properly to determine the appeal. Every tribunal will include, or be chaired by, a legally qualified person. Where individual appeals involve points of special difficulty tribunals will have access to expert advice.

I turn now to Amendments Nos. 49 and 50. These seek to place on the face of the Bill a right of appeal to a tribunal against the level of the maintenance assessed. These amendments are unnecessary. Parents already have a right of appeal against a decision about whether any child support maintenance is payable and, if so, how much.

Amendment No. 53 seeks to extend legal aid in Scotland to people with child support cases being heard by appeal tribunals. The amendment is not appropriate for inclusion in the Bill as responsibility for legal aid in Scotland has been devolved to Scottish Ministers and to the Scottish Parliament. It would be a breach of the convention agreed during the passage of the Scotland Act for this House to be involved in that debate.

The design of the appeals system, which applies throughout Great Britain, recognises that the majority of appellants do not have a detailed knowledge of the legislation. Proceedings before appeal tribunals and

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commissioners are, therefore, inquisitorial in nature, unlike the court-based adversarial system. Appeal tribunals and commissioners do not rely solely on the evidence presented by the parties to the appeal, nor do they expect the appellant to point to the law in support of their appeal. Therefore, they would not normally be in receipt of legal aid. Legally qualified panel members and commissioners provide the necessary legal input.

The role of departmental officers, including lawyers, in proceedings before tribunals and commissioners is to act as an amicus curiae. They inform the tribunal or commissioners of any evidence which is relevant to a decision, irrespective of whether the evidence assists the appellant or the department. They do not assume a defensive role. The use of legal aid as a matter of routine would alter the fundamental informal nature of appeal tribunal hearings.

I turn finally to Amendments Nos. 54 and 55, which seek to place obligations on the Chief Commissioner of the Office of the Social Security and Child Support Commissioners to provide, yearly, detailed statistics on the disposal of appeals and to arrange for the publication of key decisions. While it seems to be reasonable to expect such information to be provided, this Bill is not the right place to do so; its scope is not wide enough.

The Government are already considering a number of recommendations made by the Select Committee on Social Security in another place and will consider carefully the provision of statistics on disposal of appeals before the commissioners. There is no reason at all why we should wish in any sense to make that information obscure, opaque or hard to get at.

Following the recent report of that committee, an undertaking has already been given to arrange for the publication of the key decisions of commissioners. The Government will be responding to the committee's recommendations in the usual way. Given that these are quite technical amendments, and having given that explanation, I hope that the noble Baroness will feel able to withdraw her amendment.


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