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Lord Borrie: The fundamental purpose of procedural rules is to ensure that those who are not entitled to benefit are not likely to receive benefit. Similarly, the purpose must be that those who are entitled to benefit have a reasonably good chance of getting that benefit. That surely must be the objective of procedural rules. We have heard from the noble Earl, Lord Russell, and the noble Baroness, Lady Wilcox, the undoubted fact and the statistics which indicate that the chances of winning a benefit if you are a claimant are much enhanced if you have the benefit of an oral hearing. The statistics show that when the rule was changed so that a request had to be made specifically for an oral hearing, the chances of succeeding in a claim were less.
It seems to me morally wrong that the procedures should be so skewed that the claimant has less chance of winning because the regulations currently say that an oral hearing has to be requested in order to get one. The other evening in the course of a debate on this Bill on another amendment I had the temerity--I think that, although the noble Lord, Lord Goodhart, did not use that word, he felt that I was being rather unwise--to reject the solid advice on that amendment given by the National Association of Citizens Advice Bureaux, the Law Society, the Legal Action Group and, I think, the Child Poverty Action Group.
I must say on this matter that I have received a great deal of help from the briefing of the National Association of Citizens Advice Bureaux. It seems to be extremely sensible because it points out that it is not just the noble Earl and noble Baroness who have been arguing how much better and more wise it is from the claimant's point of view to have an oral hearing, but it quotes the official advice from the DSS at page 8 of a detailed leaflet where it says:
I noticed particularly one vivid example given by the National Association of Citizens Advice Bureaux of someone who was seeking a disability benefit and whose presence at an oral hearing enabled that claimant actually to describe the problems of daily living. Even if relatively inarticulate, if encouraged, as one should be of course by the tribunal itself, to explain one's normal life, that is surely a far more vivid way of giving evidence than the whole thing being on paper.
So there does not seem to be any dispute between people in this House and the DSS in its official leaflet that it is better to have an oral hearing. The only possible reason for having the regulation as it now stands is to save money and to avoid delay. The Government's reasoning for a whole number of proposals in this Bill is that there are considerable delays which arise not from the delay from claimants but through the fault, if it be a fault, of the authorities in not arranging hearings, tribunals and appearances and time and all the rest of it, rather than any fault on the part of the claimant. But surely it is wrong to damage the claimant's chances, which is what the existing regulation does, simply in order to try to remedy something which is the fault of the system. I support the amendment.
Lord Higgins: The brevity of my remarks on this amendment in no way reflects my enthusiasm for it. The noble Lord, Lord Goodhart, has made the case very strongly indeed. The statistics speak for themselves. My noble friend Lady Wilcox has made it clear from her own experience how strong the case for it is.
My own experience in seeking to get oral hearings in individual cases is that very often the bureaucracy does not work well. I can remember one case vividly--it was a child support case--when the hearing was cancelled three times, on two occasions because the chairman failed to turn up. It is very important indeed that these matters should be organised in an efficient way. If it is possible to have a oral hearing, it is more likely that the case will receive sympathetic and accurate consideration by the body concerned. I certainly think that that is a strong argument. I look forward to hearing the Minister's reply.
The Lord Advocate (Lord Hardie): First, I shall deal with the small point raised by the noble Lord, Lord Goodhart, as to whether the word "shall" should be substituted for the word "may". This is a drafting issue. As I understand it, using the word "may" in this clause would include the issues with which the regulations may deal. The regulations may deal with other issues, whereas if the word "shall" is used it may well restrict what the regulations might deal with.
Perhaps I may put that to one side and deal with the substantive issue raised by the noble Lord, Lord Goodhart, the noble Baroness, Lady Wilcox, my noble friend Lord Borrie and the noble Lord, Lord Higgins. These amendments would require regulations made under Clause 13(6) to provide for two particular matters of detail. The first is that an appellant would be entitled to an oral hearing unless he requested otherwise. The second would be to require the chairman of a tribunal to order that there should be an oral hearing when he considers that to be desirable in the interests of justice, and that he should do that regardless of the wishes of the appellant. I propose to deal with those two issues separately.
As noble Lords will be aware--there has already been allusion to this--changes were introduced to appeal tribunal procedure regulations in October 1996. The automatic provision for an oral hearing which existed prior to that date was replaced by measures which
The changes were made in 1996 because prior to that about 30 per cent. of appellants failed to attend the hearing, which led to a waste of time and money and was inefficient. I take the point made by the noble Lord, Lord Higgins, that, because of maladministration, cases have not been heard. I accept that there are unfortunate and unacceptable situations such as the case he mentioned. I would hope that in the case to which he referred, unless the chairman on each occasion had a very good reason for not turning up, some action was taken to make sure that the chairman did not turn up at any tribunal after that.
Two wrongs do not make a right. If we re-instate the position which prevailed prior to 1996 without analysing what the effect of the post-1996 position has been-- I shall come to that in a moment when I deal with the statistics which the noble Lord, Lord Goodhart, mentioned and which were referred to by my noble friend Lord Borrie--that would clearly be an inefficient system which was not to the benefit of the majority of appellants. Appellants are quite properly entitled to expect as early a hearing as possible. If we can take out of the system the 30 per cent. to whom I referred, others who wish a hearing will get a hearing and a decision more quickly.
Noble Lords will also be aware that every appellant in terms of this provision retains the right to an oral hearing. The only thing that he or she has to do is to confirm whether they wish one. Where they do not request an oral hearing the appeal will be heard on the papers alone. That reflects the change that was introduced in 1996 to organise hearings more quickly and effectively when the appellant does not plan to attend.
Amendment No. 47 proposes that an oral hearing should determine an appeal unless the appellant requests otherwise. Noble Lords will appreciate from what I have said that, as far as we are concerned, this would re-invent the previous inefficiency and is not the way forward. Appellants who have no intention of attending a hearing may not make the effort to ensure that an oral hearing does not take place. To take the point made by the noble Baroness, Lady Wilcox, unless an appellant writes in and says that he or she does not want one, a hearing will be fixed. If they do not wish one, and if they do not write in saying that, we will go back to wasting tribunal time. The current provisions provide a far more effective use of the time available to tribunal sessions.
I am grateful to the noble Lord, Lord Goodhart, for the opportunity which this amendment has given us to reassure the Committee that the existing provision for oral hearings will continue. All appellants will have access to such hearings on request.
There will be cases where, although an oral hearing has not been requested by the appellant, the tribunal may consider this to be necessary. For example, the tribunal may wish to examine the Secretary of State's representative or her expert witness. I can reassure the Committee that in those cases the tribunal will continue to be able to order an oral hearing, irrespective of the appellant's wishes but this will be done only after the claimant has been invited to attend and given the reasons why it is thought that this may allow a better opportunity to examine the case.
Perhaps I may say a few words on the statistics. Information on the effect of the change since 1996 is being collected. When enough data are available we will consider whether any further change is necessary. We do not consider that we have sufficient data at the moment to draw the conclusions referred to by the noble Lord.
As regards encouraging appellants to appear in person, as my noble friend Lord Borrie has pointed out in terms of his briefing, the department itself seeks to encourage people to attend. I draw to the attention of the Committee a leaflet NI246 entitled How to Appeal. That explains the procedure and emphasises that it is in the appellant's own interest to attend the hearing, including the fact that those who do attend do better than those who do not. That message will continue to be included in leaflets from the department, which will continue to be given out by representatives and employees of the department. In addition, welfare rights organisations, with which the noble Baroness has had a distinguished association in the past, will continue to do the invaluable job that they have always done. They will emphasise to claimants that they ought to have their day before the tribunal.
I differ from the noble Baroness, Lady Wilcox, in any suggestion that we should import into this country any American experience of coloured lights and 10-minute deadlines, because that is not the culture that we wish to impress on people appearing before our tribunals. We wish them to have a full and proper hearing, not constrained by coloured lights or 10-minute sessions. They should have a full session where they can explain their concerns and the tribunal can listen uninhibited by such restrictions.
I hope that I have explained why these amendments are not appropriate at this stage. We shall continue to provide information to claimants. Chairmen will continue to have the right to insist on an appeal in appropriate cases. By following the route that the Government propose, there will be a more efficient and effective use of the available time which tribunals have to consider appeals. In those circumstances, I ask the noble Lord to withdraw his amendment.
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