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The Earl of Selborne: My Lords, they would have had vehicles.

Lord McIntosh of Haringey: My Lords, very few of them would have had motor vehicles. I believe that if they were removing their chattels, like the Mayor of Casterbridge, they would have done so in a hand cart.

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I do not believe it is at all certain that every house had a vehicular access which was used in a manner that would have acquired a prescriptive right before it became an offence to drive on common land. In 1926 it became necessary to prohibit driving on common land because motor vehicle ownership had spread sufficiently to make it a problem. Prescriptive rights may be claimed for a wide variety of uses and on various grounds. However, we are not aware of any other circumstances where evidence does not have to be produced to support claims for those rights. We accept that the problem of vehicular access over common land needs to be addressed. Our intention in the amendment is to create a fair balance between the aspirations of property owners and the rights of landowners.

Perhaps I may turn briefly to the point made by the noble Lord, Lord Phillips.

The Lord Bishop of Winchester: My Lords, I thank the noble Lord for giving way. I wonder whether, on reflection, he believes that the noble Earl, Lord Selborne, made some sense in his reference to wagons. Indeed, all sorts of people had vehicles with four wheels, not two, before the motor car came into existence. Such vehicles were pulled by horses. That type of argument has been put forward at other points during the passage of the Bill. I believe that the noble Lord was somewhat cavalier in his dismissal of the noble Earl's use of the words "wagon", "cart", "carriage" or whatever.

Lord McIntosh of Haringey: My Lords, I was not dismissing it at all. I was attempting to reinforce it. I believe that during the period of 20 years between 1906 and 1926 a great deal of wheeled traffic would have been non-motorised. I do not believe that, even now, anyone will worry if a wagon or a hand cart is driven across common land, even if not for access to premises. That is not the problem. The problem is caused by people driving motor vehicles--mechanically-propelled vehicles--across common land. That is the type of access right which I do not believe was always in existence between 1906 and 1926.

Lord Phillips of Sudbury: My Lords, I do not know whether I misunderstand the noble Lord. The law is very clear that there is a right of way for vehicular access. It does not matter what type of vehicle is in question, whether horse drawn or motor driven. I believe that there may be some misunderstanding about that.

Lord McIntosh of Haringey: My Lords, I will not challenge the noble Lord on the law. Behind all this is our desire to stop motor vehicles driving on common land except where they have to. The noble Lord, Lord Phillips, asked whether "to keep in existence" is the same as "abandoned". Statutory easements created under our scheme will follow the normal laws on prescription. They will not affect the law on abandonment.

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As regards whether the 1925 and 1930 Acts did not intend to cause this problem, I do not think I can add to what I said about the tiered figure, which was the result of consultation. Concerning the other points raised with two officials by the noble Lord, I can confirm almost everything that he said. I do not believe that I need weary the House with that unless he wants me to.

Lord Phillips of Sudbury: My Lords, I have not made the points yet. I thought it appropropriate to raise the points made with the officials at the end of the debate on the amendments and when we consider their resolution.

Lord McIntosh of Haringey: My Lords, I shall try to cut that out because the noble Lord has already spoken on the amendment. When it is disposed of, I hope that we can return to Amendment No. 196 formally. So that none of us has an extra bite of the cherry, I shall deal with the points which the noble Lord, Lord Phillips, raised with my officials.

I am happy to confirm his understanding on almost all points. The amendment will not confer a right of easement if the criteria set out in the amendment and regulations are not met. Therefore, it will not prevent owners of commons stopping unauthorised uses that do not meet with the requirements set out in the amendment and regulations. It will not interfere with the present law in relation to acquiesence, and/or estoppel. The intention of the amendment is to grant an easement in respect of the use enjoyed at the time of application.

Should the use change, whether in the number of properties served or the route or nature of the surface, then the person who has the benefit of the easement could be regarded as acting unlawfully as they have acted beyond the terms and the owner of the common would be able to take appropriate action. As regards parking, the statutory easement will grant only those rights which would have been obtained by prescription so that it will permit parking only if that is already taking place.

I return to the remark of the noble Earl, Lord Selborne, that these amendments are fine tuning of our original amendment. I am grateful for all of them. They have led to a constructive debate, but I hope that it will be possible to have them withdrawn and proceed to approval of the original amendment.

Baroness Sharp of Guildford: My Lords, I am grateful to the Minister for his very thoughtful reply to the series of amendments which we put to him. I believe he is right; we have had a very constructive debate. As the noble Lord pointed out, the main problem we have faced is those people who thought they had right of way to drive to their own property only to discover that they were committing a crime in the process. The problem has created a very acute issue for some people. It is important that it should be dealt with as quickly as possible.

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I am sorry that at this point we cannot be clear that regulations are going to be subject to the affirmative resolution procedure. But I hope that when this matter comes before the Delegated Powers and Deregulation Committee it will enable us to debate the regulations in this House.

Lord McIntosh of Haringey: My Lords, if the committee says that the measure should be considered by the affirmative resolution procedure, we shall provide for it. I believe that the noble Baroness will agree that it would be right for us to provide for it only on the first occasion and that subsequent amendments could be by the negative resolution procedure.

Baroness Sharp of Guildford: My Lords, I am grateful to the Minister. There is so much that hangs on these regulations that it would be good if there were the opportunity for debate in the House. With that reservation, I withdraw my amendment.

Amendment No. 196A, as an amendment to Amendment No. 196, by leave, withdrawn.

[Amendments Nos. 196AA to 196J, as amendments to Amendment No. 196, not moved.]

On Question, Amendment No. 196 agreed to.

Clause 65 [Erection or improvement of stiles etc.]:

Lord McIntosh of Haringey moved Amendment No. 196K

    Page 43, line 34, at end insert--

("( ) In subsection (5) of that section, at the end there is inserted "or for the breeding or keeping of horses."").

On Question, amendment agreed to.

Lord Whitty moved Amendment No. 197:

    Page 45, line 26, at end insert--

("(4) In section 344 of the 1980 Act (application to Isles of Scilly) in subsection (2)(a) after "147," there is inserted "147ZA,".").

The noble Lord said: My Lords, this is a technical amendment again dealing with the situation in the Isles of Scilly. I beg to move.

On Question, amendment agreed to.

Lord Whitty moved Amendment No. 198:

    After Clause 65, insert the following new clause--


(" .--(1) In section 66(3) of the 1980 Act (works for safeguarding persons using footpaths)--
(a) after "footpath" there is inserted "or bridleway", and
(b) after "barriers," there is inserted "posts,".
(2) In section 134 of that Act, subsection (5) (which limits the persons who may bring proceedings for failure to restore a public path disturbed by ploughing etc.) is omitted.").

On Question, amendment agreed to.

Clause 67 [Interpretation of Part II]:

Lord Whitty moved Amendment No. 199:

    Page 46, line 1, at end insert (", unless a contrary intention appears").

On Question, amendment agreed to.

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Baroness Farrington of Ribbleton: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, may I suggest that the Report stage begins again not before 8.55 p.m.

Moved accordingly, and, on Question, Motion agreed to.

Social Security (Incapacity Benefit) Miscellaneous Amendments Regulations 2000

7.57 p.m.

Baroness Hollis of Heigham rose to move, That the draft regulations laid before the House on 6th November be approved [31st Report from the Joint Committee].

The noble Baroness said: My Lords, following the Welfare Reform and Pensions Act, these regulations seek to amend the Social Security (Incapacity Benefit) Regulations 1994 and also make some minor amendments to the Social Security (Claims and Payments) Regulations, the Social Security (Credits) Regulations and the Social Security (Payments on Account, Overpayments and Recovery) Regulations. Amendments are being made to three principal areas: first, the amendment of the national insurance contribution conditions for new claims; secondly, the taking into account of occupational and personal pension income in excess of £85 a week for new claims from April 2001; and thirdly, the extension of incapacity benefit to long-term incapacitated young people aged 16 to 19 and in some circumstances those aged under 25. I must stress that all of our proposals apply only to new claims made after 6th April 2001 and that existing beneficiaries at the point of change will not be affected by the new measures.

I turn to contribution conditions. The Act amends the contribution conditions of IB so that only people who have paid contributions in one of the last three tax years prior to the claim will qualify. Nevertheless, we always recognised that there are situations where it is unreasonable to expect people to have worked and contributed in the last three tax years. The regulations therefore provide that carers who currently qualify for incapacity benefit after receiving invalid care allowance will be able to continue to do so on the same basis in the future as now; that is, through contributions paid in any tax year. I should emphasise that it will not be necessary for the person to have been working immediately before they started caring.

Special protection is being provided to people receiving disabled persons tax credit who earn below the lower earnings limit so that they can requalify for IB beyond the normal linking rules. People on DPTC already benefit from a special two year linking rule in IB which allows them to return to benefit at the same point as they left it. However, we recognise that such people could be disadvantaged if they stay in work for

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more than two years, and consequently the regulations provide that a person in this position will be able to qualify for IB, as now, on the basis of contributions paid in any tax year, rather than one of the last three.

We have also said that there will be safeguards for people who leave IB and have to return to it before they have had sufficient time to rebuild their contribution record. That last group already receives protection as a result of the 52-week linking rule that we introduced in October 1998. However, to ensure that people will not lose out under the new contributions test the regulations provide for the relaxation of the new contribution test where someone had been on IB in the previous tax year prior to the claim.

I move now to the occupational and pension payment proposals. These regulations exempt severely disabled people in receipt of the highest rate care component of Disability Living Allowance (DLA) from the abatement of incapacity benefit on account of pension payments.

We are also exempting from the abatement provisions three other forms of payment: individual permanent health insurance arranged by an employee; any permanent health insurance payment for which the employee has contributed more than 50 per cent to the premium; and any health insurance which is intended to cover treatment costs. We will take account of permanent health insurance only where an employer has arranged it and the contract of employment has ended with that employer--in other words, where it is, so to speak, in proxy for an occupational pension.

We also recognise that there will be circumstances in which it will not be appropriate for occupational and personal pensions to be taken into account. The regulations therefore provide for occupational and personal pensions not to be taken into account where the pension payments are in connection with the death of a member of a scheme or where an occupational pension scheme is in deficit or has insufficient resources to pay the full pension.

In earlier debates concerns were expressed that the notional income rules will force people to take their pension early. The notional income rule is intended to prevent a situation where someone deliberately chooses not to take up an income, or deprives himself of it, in order to gain access to or maximise an income-related benefit. I am pleased to announce that we shall not be taking notional income into account under the abatement provisions.

The regulations also provide details of how pension income cases are to be administered.

I turn next to the extension of IB to persons incapacitated in youth. The Act extends IB to young people aged from 16 to 19 who were incapacitated in youth and are not able to meet the normal national insurance conditions because of illness or disability.

Following representations during the passage of the Act that our intention to extend the age cut off to 25 for people in higher education would not help certain young people with severe learning disability who are in

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mainstream education beyond age 20, we decided to widen the concession to include people in any form of education or work-based training. I know that that further concession was very good news to and welcomed by Mencap. These regulations set out how a person aged above 20 but below 25 can be permitted to receive IB above the normal age cut-off of 20 years.

The prescribed conditions are that a person must have been registered for and attended a course of full-time advanced or secondary education or vocational or work-based training for at least three months before he reached the age of 20. The course must have ended no earlier than in one of the last two complete tax years before the year in which benefit is claimed. To give an example, if a person's course ended in May 2002, he could still claim IB under the youth provisions as late as December 2004 provided he is still aged under 25.

We were also asked to help those who take up employment and earn below the LEL for a lengthy period before becoming incapable again of work. These are people who want to do what work they can but who would not be able to do enough work to benefit from DPTC or the therapeutic work rules.

The regulations therefore enable people who leave incapacity benefit under the youth provisions for paid employment or training to requalify and do so for periods beyond the normal linking rules. People on disabled persons tax credit can return to IB at the same level as they left it if they become incapable of work within two years, provided they get DPTC for the week in which their contract ended.

However, we recognise that people who have worked for more than two years and had earnings below the LEL would not be able to qualify for IB under this rule. The regulations modify the rules to allow people entitled to IB under the youth provisions and who are aged 20 or over (or, where the education rules apply, aged 25 or over) to requalify for IB outside the normal linking rules where they left benefit for work if they left IB to work and have paid or been credited with contributions in both the preceding tax years and who have received DPTC in at least one week in the preceding tax year; or, if they have not received DPTC, they (i) left IB to work (ii) earned less than the LEL in the past three tax years and (iii) make a fresh claim for benefit within 56 days of leaving employment.

The regulations also protect people who return from abroad who were in receipt of benefit in the last tax year prior to the new claim.

Finally, the regulations automatically transfer, a year after the changes are introduced, those aged under 20 who were entitled to SDA at the point of change on to long-term IB. This will give this group of people access to long-term IB at the same time as persons incapacitated in youth who became entitled to short-term IB under the new entitlement conditions.

These regulations make a number of consequential amendments to other social security regulations which are all of a minor nature. Amendments are being made

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to the claims and payments regulations, the credits regulations and the payments on account, overpayments and recovery regulations.

These regulations are entirely beneficial and enable a wide range of deserving groups to continue to receive incapacity benefit on the same grounds as now. I am sorry that they are so technical but to some extent they are amending existing regulations, which is why there is the elaborate insert. They ensure that special provision is made for those groups which the Government promised to help during the passage of the Act. I beg to move.

Moved, That the draft regulations laid before the House on 6th November be approved [31st Report from the Joint Committee].--(Baroness Hollis of Heigham.)

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