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Administration And Appeals

Volume 949: debated on Friday 12 May 1978

The text on this page has been created from Hansard archive content, it may contain typographical errors.

I beg to move Amendment No. 26, in page 4, line 7, at end insert

'provided that such period shall be not less than three calendar months'.

It will be convenient to consider at the same time Amendment No. 45, in Clause 6, page 7, line 31, at end insert

'provided that such period shall be not less than three calendar months'.

This amendment raises one aspect of the matter covered by the previous amendment. As the Bill stands, rating authorities may define a rebate period however they like. As far as I can see, a rebate period could be anything from a day to a year.

Again, purely for simplicity, I suggest that a rebate period should be three months at the minimum, so that there need be no attempt to calculate rebates for odd days or short periods. I put that as a sensible suggestion in much the same terms as I moved the previous amendment, and I hope that the hon. Member for Aberdeen, North (Mr. Hughes) will give it careful consideration.

I fully sympathise with the hon. Gentleman's views expressed on this amendment and in his conclusion on the last one. Few of us, given the opportunity to start from scratch, with nothing to build on, would necessarily tackle the financial problems of the disabled through the rating system. No doubt, if we were starting afresh to deal with the problems of the disabled and the wider issues of social security we should go about it another way.

Our perennial problem is that we do not start with a clean sheet. We start with existing legislation and existing methods and try to build on them. I think that it was the hon. Member for Eastleigh (Mr. Price) who once said to me that the advance of legislation dealing with the disabled and the welfare of people in special need has proceeded on the basis that each time we do something we move the ratchet forward another notch. It is in this sometimes seemingly painful and slow way that we make the progress which, over the past decade or more, has overall afforded tremendous benefit to disabled people.

I appreciate that mixing this matter with the complications of the rating system and other problems causes difficulty and apparently unnecessary bureaucratic procedures. Once the Bill becomes law there will require to be further consultation with local authori ties. There has already been pre-legislation consultation. There will also need to be circulars of advice and discussions about the implementation of the Bill.

Despite the hon. Gentleman's almost compelling plea, it might be better not to make the amendment at this stage but to deal with the matter through the good sense of the local authorities, combined with the advice and guidance which will be sent out by the Department and the Scottish Office once the Bill is on the statute book.

The hon. Member for Aberdeen, North (Mr. Hughes) was kind enough to refer to what I said in Standing Committee. I hope that he does not rely entirely on the authority of my opinion. May I support him by quoting what a distinguished former civil servant and industrialist, Lord Plowden, said about the twilight world of the disabled:

"Nothing in my experience, either as a civil servant or as an industrialist, prepared me for the Kafka-like world in which the the disabled and the handicapped have to exist."

I am not quite sure what the contribution of my hon. Friend the Member for Eastleigh (Mr. Price) had to do with my amendment. In the interests of general bonhomie and speed of progress, and in the light of the comments of the hon. Member for Aberdeen, North (Mr. Hughes), I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move Amendment No. 25, in page 4, line 19, leave out subsection (5).

With this amendment we are to take Amendment No. 28, in page 4, line 22, at end insert—

'(5A) The Secretary of State may refer any question of law arising under this Act to the High Court for determination.'

Subsection (5) provides:

"An applicant for a rebate whose application is refused by the rating authority may appeal to the county court".
If we are introducing the concept of appeals to county courts in respect of rebates, which in some cases—and I hope that the hon. Member for Aberdeen, North (Mr. Hughes) will have second thoughts about these cases—will be as small as £3 or £4 a year because of the £5 limitation in respect of land for parking, we are burdening our courts and administrators unnecessarily. The existence of the subsection reinforces the argument I advanced in respect of the inclusion of land under £5, which the hon. Gentleman undertook to consider. If we are to put a burden on the courts, we want to make sure that it is reasonable to do so.

We should also take account of the existence of the local government Ombudsman. After all, in a sense the local authority is put in double jeopardy. It can be accused of maladministration, perhaps properly so. That is a matter for the local government Ombudsman. It is a system of supervision that the House has set up and supported. There is the other possibility of the matter's being taken to the courts.

Local authorities are rightly sensitive to the Ombudsman's opinion. If they know that they can be accused of maladministration for refusing debates, I believe that in the light of the nature of the problem and the near certainty that any local authority will be sympathetic, we need not provide for appeals to courts, particularly bearing in mind the very small amount of money that could be involved in many cases.

It is with great regret that I have to express myself in respectful disagreement with my hon. Friend the Member for Hove (Mr. Sainsbury). I can recall no occasion since I have been in the House when I have found myself in respectful or even disrespectful disagreement with my hon. Friend.

I have to declare an interest. I am a solicitor, and it is true that it could be argued that if subsection (5) is included in the Bill there will be more business in the county courts and therefore possibly more business for the legal profession.

But the main argument on which I rely in resisting my hon. Friend's amendment is that I do not think it would be right for the House or the country to rely on the local Ombudsman to redress any grievance that might arise if the subsec tion were not included, because the procedure before the local commissioner is fairly lengthy. It would be much speedier to rely on the county court rather than the local Ombudsman.

Therefore, I hope that my hon. Friend will not press his amendment. I believe that the Bill as drafted gives more protection to the citizen. It would be wrong to rely on the local commissioner, and it would be as well if the Bill went through without the amendment.

I support my hon. Friend the Member for Hove (Mr. Sainsbury) and disagree fairly strongly with my hon. Friend the Member for Eastbourne (Mr. Gow). The House has set up a very good procedure through the local government Ombudsman. The experience of those of us who have used the Ombudsman in dealing with local authority matters is one of great satisfaction that there is an extremely thorough investigation.

I suspect that very few such cases would arise. My experience is that the disabled lobby is very good and has a very good relationship with local authorities. I think that in the few cases that did arise there would perhaps be a dimension that we cannot today foresee, which would warrant a proper investigation by someone who understands local authority law in depth, who looks at the particular circumstances and then in a sense by making his pronouncement is able to provide guidance.

That is more satisfactory than having to go through the rigmarole of county courts. If the other amendment were carried, it would mean going to the High Court as well at a later stage. Therefore, I urge the hon. Member for Aberdeen, North (Mr. Hughes) to consider the amendment seriously.

In the internecine warfare on the Opposition Benches, I align myself with my hon. Friend the Member for Eastbourne (Mr. Gow) rather than with my hon. Friends the Members for Hove (Mr. Sainsbury) and Northampton, South (Mr. Morris).

Perhaps we can have a. referee as it is two all.

Using the ombudsman would be a very unsatisfactory way of dealing with this kind of problem, not least because—indeed, it is the biggest single problem with the local government ombudsman—whatever his finding he has no power to make the council in question do anything about it. At least one very important part of the subsection is that the county court has power to order the local authority to do something. Therefore, I range myself unequivocally on the side of Eastbourne against Hove in this contest.

However, I rose mainly to say a word on behalf of my hon. Friend the Member for Exeter (Mr. Hannam), who unhappily has had to leave, about Amendment No. 28, which goes even further in the Eastbourne direction, by providing that:
"The Secretary of State may refer any question of law arising under this Act to the High Court for determination."
I am not quite sure whether this subject was raised in Committee. There is a significant point here. I rely on information provided by my hon. Friend the Member for Exeter.

3 p.m.

I understand that in some other cases affecting problems of disablement and the like—the attendance allowance for example—there have arisen difficult questions of law which have had to be referred to the High Court for decision. I am not a legal expert, but there appears to be a point here. Difficult questions could arise and it would be sensible to get a High Court ruling on them. This is something which ought to be considered with a view to inserting a suitable provision in the Bill, if not now, at least in another place.

The hon. Member for Eastbourne (Mr. Gow) began his speech by saying that never before in his parliamentary career had he had a disagreement with his hon. Friend the Member for Hove (Mr. Sainsbury). I suspect that this is the first time that the hon. Member for Eastbourne and I have agreed during our parliamentary careers. Like him, I believe that subsection (5) should be left in the Bill.

Turning to the point about the ombudsman, as far as I am aware he is dealing with maladministration. An authority could perfectly well deal with an application but still decide that the applicant was not eligible and the ombudsman would not be able to do anything about it because the authority had acted properly and fairly, even though it may have been wrong in law not to grant the application. This is quite apart from the length of time cases dealt with by the ombudsman can take. I believe that there ought to be the opportunity to have recourse to the courts to test a point of law or to deal with any grievance.

I must resist the amendment which concerns the reference of a case to the High Court by the Secretary of State. The difference between social security cases—where a power exists for the Secretary of State to refer a case directly to the High Court—is that in those cases the Secretary of State is a party to the transaction. I gather that in no other area of law is there the possibility of someone not directly involved in the transaction referring a case to the courts. In other words, the Secretary of State for the Environment is not the rebate-granting authority. This is a matter between the two parties—the applicant and the local authority.

Recourse to the High Court or the Court of Appeal is not ruled out. If the applicant is dissatisfied with the decision of the county court he has the opportunity to go to a higher court to appeal against a decision. I understand that in appropriate cases legal aid can be applied for. It will be seen, therefore, that both points are covered, in slightly different ways. There ought to be a right of appeal. I hope that the House will not press Amendment No. 25, which seeks to remove subsection (5). Since there is an avenue for appeals to a higher court, I hope that Amendment No. 28 will not be pressed either.

I agree with the hon. Member for Hove, who said that the number of cases involved would possibly be small. The amendment seems to present a cumbersome way of dealing with appeals. It is important, in our system of justice, that every individual should have the right to go to a court on any matter, however small.

In view of what the hon. Member for Aberdeen, North (Mr. Hughes) has said, and in the hope that he is right when he says that only a few cases are concerned—because we do not want to clutter up the courts, particularly bearing in mind what my hon. Friend the Member for Braintree (Mr. Newton) has said about the restrictive powers of the ombudsman—I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 29, in page 4, line 36, leave out "has been provided" and insert "is".

No. 30, in page 5, line 1, leave out "has been provided" and insert "is".

No. 31, in page 5, line 4, at end insert—

"(dd) lands and heritages in which there is sufficient floor space to permit the use of a wheel-chair used by and required for meeting the needs of a disabled person who resides in the lands and heritages;".

No. 36, in page 5, line 34, after "of". insert "( a)".

No. 37, in page 5, line 34, after "heritages", insert

"other than those within subsection (2) (dd) above".

No. 39, in page 5, line 37, after "facility", insert;

"(b) lands and heritages within subsection (2)(dd) above shall be equal to the rates which would be chargeable on the special facility for the rebate period if its rateable value were £30 or such other amount as may be prescribed by order made by the Secretary of State".

No. 40, in page 5, line 39, at end insert—

"An order under this subsection shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament and the power to make such an order includes power to vary or revoke a previous order".

No. 41, in page 5, line 40, after "rebate", insert "under subsection (5) ( a) above".

No. 42, in page 5, line 43, at end insert—

"(6A) The rating authority may, if they think fit, increase the rebate under subsection (5)(b) above by an additional amount equal to one-fifth of the amount of that rebate".—[Mr. Robert Hughes.]