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Lord Rix: My Lords, first, perhaps I may thank the noble Baroness, Lady Hollis, the noble Earl, Lord Russell, and the noble Lord, Lord Higgins, for their warm-hearted remarks about the part that I have been able to play in these proceedings. In truth, it is one of the most rewarding roles that I have ever undertaken and I am glad that it will be appreciated by a huge audience of elderly people, who, I know, will not be getting in on concessions in this particular instance.

In answer to a Question that I asked on 13th April 1999 in relation to inherited SERPS, the noble Baroness, Lady Hollis, said:


The Government may not have been expecting, but the noble Baroness, together with her fellow Ministers in the Department of Social Security, aided by their admirable officials and urged on by all sides of your Lordships' House, went on to give birth to, if not exactly a clone of the pre-1986 legislation, then a plump and well-endowed sibling. Perhaps I may offer my congratulations on and sincere thanks for the outcome of such a joyous confinement.

Baroness Hollis of Heigham: My Lords, I am not absolutely sure about the noble Lord's final metaphor! However, let me not be churlish in responding to the very kind words of the noble Lord, Lord Rix, the noble Earl, Lord Russell, and the noble Lord, Lord Higgins. None of us has tried to make party-political points, and that is the right way to approach the matter. I shall do my best to respond to the detailed points raised by the noble Lord, Lord Higgins.

First, the noble Lord asked why we were sending letters to people like him and expressed even greater surprise that one should be sent to his noble friend Lady Blatch. He was puzzled. I think he expected rather different criteria to apply to people who had not paid directly into SERPS. It is because we all have an underlying basic entitlement to SERPS: either people

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pay into SERPS or the national insurance rebates are put into a private scheme in lieu of SERPS and must reach the minimum standard. A widow, for example, may well receive some SERPS pension, dependent on the inheritance rules of her husband's private pension. Mine is such a case. That is why we went for blanket coverage.

The noble Lord is correct. There is a problem in some cases as regards the accuracy of addresses. Some people have moved on, not necessarily thinking that they were entitled to payment. That may sometimes account for some of the delays.

The second and third points related to the comments of the ombudsman, and in particular to the burden of proof. The ombudsman's original comments were contained in the original proposals that we put forward. I remember vividly the noble Lord pressing me on whether we really thought that this was the global response that the ombudsman demanded.

However, I am sure that the noble Lord will be aware of the ombudsman's press release of 26th February, from which I quote:


    "I am satisfied that the Government's proposals are capable of providing a global solution to the problem of making good the effects of past administration. They avoid the difficulty of identifying all those who might have been misled by the Department, and they fully protect the position of those who will already have reached pension age by the time the proposals come into force. They also give time to those approaching pension age to make any adjustments to their financial arrangements".

That is a very positive endorsement from the ombudsman about the scheme in general.

The ombudsman then goes on to talk about the burden of proof. In paragraph 16 of his report on 26th February 2001, the Parliamentary Commissioner said:


    "I recognise and accept as in the changed circumstances reasonable that those claiming compensation will need to produce some evidence that they altered their circumstances to their financial detriment as a direct result of incorrect departmental advice and to that extent the burden of proof will fall to the applicant".

Perhaps I may just gloss that in terms of how the department is responding. Then, if the noble Lord wishes, I can enlarge upon my response.

Obviously, the need for documentary evidence to substantiate claims was the focus of much discussion, because we were concerned about telephone calls, people calling in at an office, what would count as such evidence, and so on. Originally, my assurances to the House were made in the context of the old scheme, which provided that the burden of proof was on the department. However, with the new scheme, the burden of proof has rather more fallen on the claimant. Each case is being looked at on its merits, with the circumstances that are particular to it being taken into consideration. We are considering the complete picture. Clearly, documentary evidence helps the decision maker, and provides an assurance that taxpayers' money is being properly disbursed.

However, even though the burden of proof now moves back to the claimant under the new scheme, the guidance recognises that there will be occasions when documentary evidence is not available--for example,

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due to the passage of time, or the claimant not recognising the importance of keeping a document that he or she has read. It is for those reasons that we do not insist on documentary evidence as a prerequisite for a successful claim. We do not do so in the normal departmental scheme, and we shall not do so with these cases. As I said, each one is examined on its merits.

Related to that was the follow-on point raised by the noble Lord as regards what would be the position for those who could show that they had been misled--or who believed that they had been misled--and, as a result, had acted to their financial detriment, if I may put it that way. According to the information that I have, if someone wishes to claim compensation under that scheme, he or she would have to come within the framework of the Guide to Financial Redress and Maladministration. The major points that decision makers will have to consider are as follows. First, the applicant must have been misled directly or indirectly by a government source; secondly, the applicant must have taken a decision, or failed to take a decision, as a result of that advice; and, thirdly, the applicant or the spouse must be likely to suffer a loss as a result of the action, or inaction, taken.

In the light of that, we have so far received 138 claims for financial compensation for redress. We have worked with the Government Actuary's Department to advise on how, actuarially, compensation should be calculated when we accept that a claim is well founded. GAD has provided guidance and a table of factors for use in calculating compensation. The assumptions used to calculate compensation are broadly the same as those used for calculating contracted-out rebate rights, and for valuing SERPS rights on divorce. Such assumptions provide welcome consistency and comparability. We placed this guidance on compensation, the table of factors and an explanation of the matters that GAD are taking into consideration in the Library of the House on 31st January of this year. Therefore, I am happy to have this opportunity to make it clear that that is available for consultation.

So far, compensation to individuals has ranged between £3,000 and £10,000 following that guidance. Moreover, of the cases so far determined, about two-thirds have been successful. I hope that that meets the noble Lord's points in that respect. I give way.

Lord Higgins: My Lords, the publicity given to the ombudsman's press release was not as great as it might have been. However, perhaps I may turn to the point of substance. We shall need to read most carefully what the Minister has just said. We recognise that we are dealing very much with the final small group of people who may still feel that they have lost as a result of what happened.

Can the Minister say whether I am right in thinking that the Government accept the point made by the Select Committee, which said that it would also expect the department to continue to recognise that the onus of proof rests with it to demonstrate that an individual was not misled by its advice? That issue been there all the way through the process. The amendment that we

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voted on and won, and which was reversed in the other place, clearly distinguished between whether people were misled and whether they had suffered loss. The view I have always taken is that they ought not to be obliged to prove the first point. I thought that that was the position of the Minister, which has not really been changed as a result of the new scheme.

There remains a small group of people who are still not covered by the new scheme. I accept that they would need to show that they had suffered loss, but both the Select Committee and I feel that the burden of proof should not be reversed so far as concerns the misleading advice point. I hope that the Government will go along with that view. As the Minister said, we are talking about a very small group of people. Nevertheless, we want to get the position right.

Baroness Hollis of Heigham: My Lords, I believe this to be a grey area. It is question of judgment. Perhaps I may give the noble Lord an example that I believe was not apocryphal but actually took place. A 24 year-old man came in to the department to say that he was worried about his wife's inherited SERPS. When asked what he had done about it, he said that he had telephoned the local office; when asked which one, he said that he could not remember. However, he lived in Cheltenham and there is only one office in the area. Therefore, in that case, I should not have thought that the burden lay with the department to disprove the claim. It was not a credible case.

I was trying to establish the fact that we moved to the position of it being a balance of probabilities, which does not necessarily require documentary evidence, rather than it being a case of "beyond reasonable doubt". So the burden of proof rests with the claimant. He has to show that it was highly probable that what he is saying is the case; namely, that he was misled and that, as the noble Lord said, what followed as a consequence was financial loss.

The ombudsman's report made it very clear that he recognises--and, as I understand it, he is entirely happy with the position--that the burden of proof has changed as a result of the scheme changing. Look at the difference between the original scheme, and the press release on Volume 2 of his report on 26th February, in which he says:


    "I recognise and accept as in the changed circumstances reasonable that those claiming compensation will need to produce some evidence that they altered their circumstances to their financial detriment as a direct result of incorrect departmental advice and that to that extent the burden of proof will fall on the applicant".

That is the department's position, as it is with all other cases; for example, people arguing that they were given misleading information as regards back-dating, and so on. We have now brought this scheme into line with the others produced by the department. I give way.


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