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Lord Henley: My Lords, I thank the Government Chief Whip for giving the House the dates of the Summer Recess and for assuring us that this was as a result of co-operation with the usual channels. However, the undercurrent of what the noble Lord said was so much nonsense. Of course the Government could have made an announcement much earlier than they have done. I appreciate that on occasions in the past it has not been possible to do this, but on this occasion the Government could have done so. It is only through the co-operation of the usual channels that they are able to bring it forward now. I should like to ask for a commitment from the Government that in future years the announcement will be made somewhat earlier than in the past.

Not knowing when business is to be brought forward causes great inconvenience, not only for the Official Opposition but for all Members of the House. The Government have a large number of Bills still outstanding--far more than one normally expects at this stage. The Official Opposition have co-operated far more than is necessary. We have allowed far more Bills to go to the Moses Room than is usual. As a result of that the Government could have come forward and been slightly more helpful. It would be useful for the Government to offer some advice to all Members of the House as to when all the Bills are likely to come before us. When are we likely to see those?

We have now had the announcement that we are to rise at the end of July. As I said, that announcement could have been made much earlier. The problem is that the Government have far too much legislation.

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The Government should think about reducing the amount of legislation they bring before this House. I hope that in the next Session we shall see a slightly less heavy burden of legislation before us.

Lord Harris of Greenwich: My Lords, I, too, welcome what the Government Chief Whip has just said. As he will recall, all Oppositions complain about the immense size of any government's legislative programme. That will no doubt be true in the next Parliament, as in this, as well as it was in the last Parliament.

Perhaps I may pick up the point made by the noble Lord, Lord Henley. The Liberal Democrats would prefer to have more Bills considered in the Moses Room than is now the case. We would get on with our business far more effectively were we to do that.

Lord Carter: My Lords, I am grateful to both noble Lords and in particular to the Opposition Chief Whip for his--if I may say so--typically gracious response. I have checked and this is the earliest ever date that the date of the Summer Recess has been announced, certainly in recent years. I have all the figures for when it was announced by the noble Lord, Lord Strathclyde, when he was the Government Chief Whip. This is, as I say, the earliest ever date. Business has been agreed until the summer. The noble Lord knows the dates on which we will be bringing forward all the Bills, and, depending on their progress in the Commons, all the Bills we have to reach before the Summer Recess. I was asked to set out the business for the spill-over period. Frankly, I do not think that any Chief Government Whip could do that. I agree with the Liberal Democrat Chief Whip regarding the use of the Moses Room. The usual channels have to work by agreement. But that does not mean that the Official Opposition can have a veto over the Government's business.

Child Support, Pensions and Social Security Bill

3.12 p.m.

The Parliamentary Under-Secretary of State, Department of Social Security (Baroness Hollis of Heigham): My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.--(Baroness Hollis of Heigham.)

On Question, Motion agreed to.

Clause 38 [Preservation of rights in respect of additional pensions]:

Lord Rix moved Amendment No. 74:


    Page 33, line 22, after ("provide,") insert ("subject to subsection (4C) below,").

The noble Lord said: My Lords, I understand that psychologists explain both ancient and modern Sisyphean insistence on pushing boulders up mountains, only to see them roll down again, by a deeply-rooted conviction that a little ground is gained each time and the labour has not been therefore wholly

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in vain. Like my noble friend Lady Greengross, who is to follow me, whose labours I support, I am pushing once more in the hope of again gaining a little ground with Amendments Nos. 74 and 76. I note that the noble Lord, Lord Higgins, is more ambitious and is offering the prospect of solving all our problems by a substantial reversal of the onus of proof.

There are essentially three views on the SERPS saga, assuming agreement that all has not been as it should have been. View one is that the halving of SERPS inheritance was simply wrong and should be cancelled in its entirety. That is a tenable view, but I think that the battle has been lost. View two is that in failing to advertise the change, and indeed in positively denying the change, the department lost the right to save on pension inheritance for the whole period of duff information and all the people who are potentially affected by that duff information. That view is also valid, although I fear it, too, represents a lost battle.

The third view is that at least we should give special treatment within a compensation scheme to those who have been particularly disadvantaged, preferably on the face of the Bill, but in regulations and through ministerial undertakings about the scope of those regulations, if this is the best we can do. It is this third view that I am continuing to pursue today. If the Minister is turning her face against the face of the Bill--I coin a phrase, as it were--and if we could see the regulations in draft during the summer as part of the consultation process, it would assure us that these regulations will allay fears about the way in which claims would be handled.

I have, very modestly, targeted just two groups to add to those who have given incorrect or incomplete information either by letter or by telephone. I confess that I would have liked to include a further group; namely, those who had retired before the department became a little more forthcoming with the facts. I sense that I am on a loosing wicket with this one, too; but, rather like the England Test team, at least I can blame the wicket rather than the batsman. Nevertheless, I hope those other batsmen who have already retired are given a second innings when the rules of the game are being rewritten.

My surviving two groups are those who relied on departmental leaflets which were clearly misleading, and those who, whatever they may or may not have relied on, are now, by virtue of disability, unable to defend their own interests in pursuing a compensation claim. My noble friend Lady Greengross is targeting a third group of people who asked questions and might reasonably have expected to receive the right answers, whereas what they actually received was misleading or incomplete.

I hope very much that the Minister will be able to offer today the assurances we are both seeking about justice being done. Were she minded to underpin justice by accepting the amendment of the noble Lord, Lord Higgins, so be it. I beg to move.

Lord Higgins: My Lords, I must begin by congratulating the noble Lord, Lord Rix, on the way in

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which over a considerable period of time he has pursued this issue. As a result of that there has been a greater clarification of the present position. This matter first came to light some considerable time ago. Indeed, we debated it at length in the course of the debates on the Welfare Reform and Pensions Bill in October 1999. Subsequently there have been statements by the Government, notably on 15th March of this year, saying what the Government intend to do about it.

However, I am concerned about the timing and the way in which this matter has developed. It has been a considerable time since the matter first came to light. In the course of the debates last year we were told that there was to be an ombudsman's report. That report was in due course produced. But it took one year to produce it when the ombudsman merely examined six illustrative cases. That was a very long time indeed to deal with six illustrative cases. It is also true, as I pointed out on previous occasions, that the ombudsman's report was far from clear on precisely what its recommendations were, although the Government have said that they accept them.

That is really the basis of my amendment. I comment only briefly on Amendment No. 76 standing in the name of the noble Lord, Lord Rix. Paragraph (b) of the amendment deals with people who,


    "have a serious mental disability and as a result they are incapable of establishing a claim and they are likely to remain incapable throughout the duration of the scheme".

Whatever else may happen, I certainly hope that when the Government come to produce their final scheme they will include provision for that category of person and others who may, in one way or another, be either physically or mentally incapable of dealing with the matter.

The earlier part of the noble Lord's amendment states that:


    "A person shall be deemed to have received incomplete or incorrect information and to have relied on it if--


    (a) they read one of the relevant Benefits Agency leaflets and took the incorrect or incomplete information contained in it into account",

when deciding what to do. Essentially, people who wish to receive compensation under the Government's proposals now face two hurdles, or at least that appears to be the case until eventually we discover what are the precise proposals. The first hurdle is that the person making the claim needs to demonstrate that he or she was misled or received incomplete information. The second hurdle is to prove that, as a result, he or she sustained a loss in one way or another.

Estimates of the amounts involved in terms of costs vary considerably, but there is little doubt that this sad saga is probably the most expensive administrative mistake of all time. I believe that the estimates vary between £2.5 billion up to £5.9 billion between 2000 and 2050. Of course, those costs will be spread over some 50 years. Nonetheless, this will be a major item of expenditure. We do not know how, in practice, the Government's proposals are going to work. We are still remarkably in the dark on this.

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In his opening remarks, the noble Lord, Lord Rix, said that my proposal covered the whole problem. However, it covers only half of the problem. My amendment states that,


    "regulations shall be based on the presumption that claimants have received incorrect or incomplete information unless the Secretary of State provides proof that the information the claimant received was correct and complete".

My amendment, unlike that in the name of the noble Lord, Lord Rix, does not deal with the second leg of the argument; namely, whether people did or did not incur losses as a result of having been misled.

That brings me to the report of the ombudsman. I shall need to quote from it at some length at the point at which he discusses what happens when a department makes an administrative error. The ombudsman wrote to me in response to my inquiry, following an exchange on the Floor of the House in which the Minister said that if I wanted to know the opinion of the ombudsman, then I should write to ask him. I did so. This is part of his reply:


    "It is reasonable in such circumstances to ask someone who claims to have been misled and to have suffered an injustice to prove his or her case. That is the normal requirement before the Department of Social Security will consider compensating someone who claims to have been misled or misdirected by the Department and as a consequence to have acted, or failed to act, in a way that has been to his or her disadvantage".

The ombudsman goes on to say:


    "In the case of SERPS, the Department's leaflets were not accurate; and incomplete and misleading advice was given by staff of the Department and the Benefits Agency. The department has acknowledged that".

In the course of his investigations, he concludes:


    "I suggested to the Department that the onus of proof was therefore reversed. It was for the Department to prove that someone would not have acted differently if they had not been misinformed. It seemed to me that the normal rules of the Department's non-statutory scheme of financial redress for maladministration would be inappropriate. The presumption had to be that anyone who could reasonably claim to have been misled and in consequence to have acted, or failed to act, to their detriment had a prima facie claim for redress".

My amendment therefore states that it is accepted by the Government and by Parliament that people were misled. The reason for that is twofold: either they received the leaflet, in which case there cannot be the slightest doubt that people were misled--especially when taking into account the report from the ombudsman; or alternatively, for one reason or another they did not receive the leaflet and, as a result, they will have assumed that the original situation remained the same--that their widows would have been entitled to the full amount of SERPS. For those reasons, all my amendment--which is modest--seeks to do is to ensure that the Government's position is set out very clearly on the face of the Bill. It is extremely important that that should be done at this stage.

In his report the ombudsman stated that the department,


    "will also need to take account of the fact that most of those misled by DSS or BA are likely as a result to have decided no action on their part was needed, because they had been led to believe that a surviving spouse was secure in an entitlement to full inheritable SERPS".

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Thus, if my amendment is accepted, the overall effect would be to ensure that the individuals concerned will be told in the leaflets to be issued in due course by the department that they do not have to prove, unless the department can prove to the contrary, that they were misled. However, they will still have to prove that they suffered loss as a result. In that regard perhaps my amendment is a little more rigorous than that tabled by the noble Lord, Lord Rix.

At the beginning of my remarks I stated that I was worried about the length of time it has taken to reach a resolution on this issue. We still do not know precisely what are the Government's proposals. In his report, the ombudsman pointed out that he, too, did not know the details and therefore he was unable to comment at this stage. One might think that he could perhaps have reported a little more broadly. In any event, given that this matter has been under consideration quite literally for years, we cannot simply leave it until the regulations are published. We need to reach a point where, at least as regards the first hurdle, we know exactly where we stand. I hope that that point can be clarified this afternoon.

Surely the department has by now some idea of what is to be contained in the regulations. Perhaps, as she has done so often and so courteously in the past, the Minister could provide us with them at this stage so that they could be debated during the course of the passage of this Bill. If we wait then we shall not be able to discuss them and to put down amendments to the Bill which could cover any points that we did not like, given that the regulations themselves will not be subject to amendment. It will be too late for this House to take a view on what should be done. We shall remain in ignorance of the exact details here.

At least as far as concerns the first hurdle, I hope that, when the House considers Amendment No. 75, it will take the view that this point should be clarified beyond any doubt whatever.


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